R v Green; R v Smith

The defendants sought a temporary stay of the indictment until the prosecutor called a material witness. A noteworthy aspect of this case was the Court’s consideration of whether this was a remedy available to a trial judge in circumstances where a prosecutor declines to call a material witness as part of the prosecution case. Justice Crow held that a temporary stay of the kind sought by the defendants was not a remedy available to a trial judge. It was made plain in R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 that a trial judge cannot make a direction requiring the prosecutor to call a witness. A temporary stay of the indictment would, in effect, amount to such a direction. The application was dismissed.

Crow J

17 October 2023

Background

The defendants are both charged with attempted murder, or alternatively, malicious act with intent. [1]. The prosecution case is that the defendants, both armed with knives, attended the complainant’s house. [3]. Upon entry, one of the defendants was confronted by members of the complainant’s family and an altercation ensued. [3]. During the course of the altercation, a knife was removed from the possession of one of the defendants. [3]. The other defendant moved towards the complainant with a knife and stabbed her multiple times while telling her that he was going to kill her. [3]. The defendants made a joint application for a temporary stay of the indictment until the prosecutor agreed to call the sister of the defendants to give evidence as part of the prosecution case (the “relevant witness”). [4].

Whether a temporary stay should be granted until the prosecutor called the relevant witness

Justice Crow considered whether one of the remedies available to the defendants was a stay of the indictment until the prosecutor agreed to call the relevant witness. [52]. Justice Crow had been referred to R v Medich (No 38) [2018] NSWSC 322, where Bellow J had expressed the view that there was “no doubt” that a court had such a power. [52]–[53]. Whilst his Honour agreed with Bellow J that there is a power to grant a temporary stay, it was not a form of relief available in relation to a prosecutor’s decision to decline to call a witness as part of the prosecution case. [54]. Justice Crow observed that he was constrained by the unanimous decision of the High Court in R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 which identified three remedies available to a trial judge. [55]. The trial judge may:

• invite the prosecutor to reconsider his or her decision;
• make a comment to the jury in relation to the prosecutor’s failure to call the witness; or
• call the witness but only in exceptional circumstances. [55]–[59].

Justice Crow observed that there was a fourth remedy, but this was only available on appeal with the benefit of a judge of appeal having reviewed the entire trial record to determine whether the conduct of the prosecutor caused a miscarriage of justice. [57]. A temporary stay of the indictment of the kind sought by the defendants would, in effect, amount to a direction to the prosecutor to call the relevant witness. [58]. It was made plain in Apostilides that the court cannot direct the prosecutor to call a witness. [58]. In any event, even if his Honour was wrong on this point of law, it was inappropriate to grant the temporary stay of the indictment having been satisfied that the reliability, credibility and trustworthiness of the relevant witness was “demonstrably lacking”: see generally [60]–[113].

Disposition

The application was dismissed. [114].

D Kerr