R v Silcock

In this significant recent appeal the appellant, who had been acquitted by a jury at a re-trial of one count of rape (penile) and convicted of one count of rape (oral) and two counts of unlawful and indecent assault, appealed against his convictions. His four grounds of appeal included that a pre-trial ruling refusing a defence application for the complainant to be cross-examined afresh and at large following the earlier successful appeal against conviction was a wrong decision on a question of law; and/or resulted in a trial that was unfair, and so amounted to a miscarriage of justice; and that a miscarriage of justice occurred because the Crown prosecutor was privy to his instructions about the charges. In the court’s view the pre-trial ruling had undermined the appellant’s fundamental right to a fair trial and as a result the convictions were set aside and a further re-trial was ordered.

Bowskill CJ and Bond and Flanagan JJA 

25 November 2022

The reasons are valuable in that they delve into matters including what factors inform the exercise of the discretion under s 21A(6)(b) Evidence Act 1977 and the breadth of s 21A(6)(b). The procedural history of the trial was important, to the extent that:

1. In 2019 an order was made under s 21A(2) Evidence Act 1977 for the complainant’s evidence to be pre-recorded as she was a “special witness”; [3];
2. In late 2019 a jury found the appellant guilty on all four counts and the appellant then successfully appealed. A re-trial was ordered; [17]–[19];
3. In order to assist his appeal the appellant had disclosed to the Court of Appeal his detailed instructions to his former legal representatives, over which he waived privilege. The instructions were also provided to the Director of Public Prosecutions; [19];
4. Before commencement of the re-trial the appellant sought two rulings namely that:

a) pursuant to s 21A(6)(b) Evidence Act 1977 the existing video recording of the complainant’s evidence not be admissible in the appellant’s re-trial and the complainant give evidence in accordance with s 21A on a date to be fixed.

b) the criminal proceedings against him be temporarily stayed until such time as the Director of Public Prosecutions appointed a new legal officer and Crown prosecutor to conduct his re-trial, whom had not previously accessed material and information in respect of which legal professional privilege was waived for his appeal against conviction. [27].

5. Ultimately (b) was dismissed and (a) was allowed to the extent of excising from the complainant’s pre-recorded evidence select propositions which had already been put in cross-examination. Otherwise, the entire pre-recording of the complainant’s evidence was held to be admissible. In addition a further recording of the complainant’s cross-examination for the purposes of the re-trial was permitted. [28].

Was the pre-trial ruling refusing the defence application for the complainant to be cross-examined afresh and at large following the earlier successful appeal against conviction a wrong decision on a question of law; and/or did it result in a trial that was unfair and amounted to a miscarriage of justice?

Section 21A(6)(b) Evidence Act 1977 provides that pre-recordings are admissible in a re-trial unless the court otherwise orders. In considering the rulings sought by the appellant prior to the re-trial, the primary judge approached the matter “as an issue of fairness” [36], having regard to these considerations [37]–[38]:

(a) one of the primary purposes of s 21A(6)(b) Evidence Act 1977 is to minimise the impact on a special witness whose evidence was pre-recorded if and when a re-trial is ordered;

(b) the desirability of a witness’s evidence being recorded as contemporaneously as possible “in an effort to obtain an account which is likely to be less prone to memory affected by the passage of time than if it were taken at a later point in time”;

(c) the likelihood (in this particular matter) that the complainant would struggle to recall specific detail in the event she was cross-examined afresh, which might result in the jury having a false impression as to the reliability of her account;

(d) it was in order that at least some of the matters put to the complainant needed to be excised “as they did not follow the instructions then provided in respect of count 2”;

(e) the basis for allowing the appeal had “nothing to do with the vast majority of the pre-recorded cross-examination”; and

(f) fairness dictated that the appellant be “at liberty to put his case” without undue limitations on the boundaries of any further cross-examination.

The primary judge who heard the pre-trial application held that s 21A(6)(b) Evidence Act 1977 favoured “excising only those parts of the pre-recorded evidence as is strictly necessary”. [40].

In considering the breadth of the discretion under s 21A(6)(b) the court commented that:

“… the starting point is the statutory presumption that pre-recorded evidence is admissible at a re-trial. By reference to the extrinsic material, this statutory presumption flows from a witness’s status as a “special witness”. The regime established by s 21A seeks both to minimise the impact of the criminal justice process on vulnerable persons as well as ensuring that the most reliable and valid evidence of an event is able to be led before a jury. While these are relevant considerations they cannot, in the exercise of the discretion, ever undermine the defendant’s fundamental right to a fair trial”. [46].

Here, the Court recognised the correctness of the approach of the primary judge in exercising the discretion. [50]. However, given the particular history of the matter (that the cross-examination contained detailed matters which were contrary to instructions and had resulted in a successful appeal leading to the retrial), the appellant argued that the pre-trial ruling hampered his freedom in presenting his defence and “seriously detracted from its persuasiveness”. [53]. The allowances for the appellant to further cross-examine the complainant under the order did not suffice to rectify matters in a setting where most of the earlier cross-examination had been admitted. In the court’s view, the pre-trial ruling resulted in a real possibility of a redundant case theory being advanced by original defence counsel in the pre-recorded cross-examination which was at odds with the case theory to be put forward at the re-trial. In its view, the nature of the cross-examination was also likely to give rise to resentment from the jury. The Court concluded that the pre-trial ruling had resulted in the appellant’s defence being unnecessarily hampered to the detriment of his fundamental right to a fair trial. [55]. In those circumstances a re-trial was ordered. [56].

Did a miscarriage of justice occur because the learned Crown prosecutor was privy to the appellant’s instructions about the charges?

Citing X7 v Australian Crime Commission (2013) 248 CLR 92 and Lee v The Queen (2014) 253 CLR 455, the appellant submitted that the fact that the prosecutor had been informed about his instructions compromised the accusatorial character of his trial. The court did not accept that proposition, noting that those authorities concerned compulsory examinations whereas in the current matter the appellant was not subject to any compulsion by statute, court process or any conduct on the part of the Crown to waive privilege. [66]. Rather, his decision to waive privilege had been a voluntary forensic one about which he had been duly informed. [64]. In addition, it was not the case that the prosecutor was precluded from making use in cross-examination of the material over which privilege had been waived other than for the purposes of the first appeal: see Hearne v Street (2008) 235 CLR 125 at [96].

In those circumstances, the court was not prepared to accept the argument that by the Crown prosecutor being privy to the evidence led before the Court of Appeal, this “created an improper fetter on the appellant’s forensic choices open to him at his re-trial, in particular the choice whether to give evidence”. [68]. This ground of the appeal failed. [71].

Disposition

The appeal was successful, a re-trial was ordered, and the convictions were quashed.

A Jarro