- VP v R  NSWCCA 11
- Trevascus v R  NSWCCA 104
Prosecutor’s duties – requirement to call witnesses
In this decision the Court of Criminal Appeal (‘CCA’) has observed that if a defendant remains silent until the end of a trial about the prosecutor’s failure to call witnesses, they risk the appearance that it was a forensic decision – and that may impact on whether the failure will amount to a miscarriage of justice.
The applicant was convicted following a judge-alone trial of 16 sex offences. The offences happened in a three-bedroom Housing Commission home, housing a total of nine people – specifically, in the lounge room, in which four people would regularly sleep, amongst them the complainant and the applicant (who was the complainant’s uncle).
Relevantly to this summary (which only deals with some of the grounds of appeal), at trial the Crown did not call some of the other house members. Those house members, so the argument was pressed on appeal, may have been able to give relevant evidence as to the unfolding of the narrative. Statements had not been taken from those witnesses, but by the time of the appeal two of them had provided affidavits to the effect that they had not seen any relevant misconduct by the applicant towards the complainant. Amongst other arguments, the applicant pressed that it was unfair of the Crown to have failed to call those witnesses, such that the trial miscarried.
It was also argued that the trial judge had failed to give herself proper direction as to the relevance of the evidence not called by the Crown – the so-called Mahmood direction. That is a reference to the decision of Mahmood v State of Western Australia (2008) 232 CLR 397;  HCA 1. A ‘Mahmood direction’ (at least as used in this context) commonly refers to a direction that the failure of the prosecution to call particular evidence (or particular witnesses) may be taken into account by the decision-maker (here, the trial judge, but commonly the jury) in determining whether the prosecution has proved its case beyond reasonable doubt. Here, the applicant (belatedly) added a ground criticising the direction the trial judge had given herself on this topic, and submitted that the trial judge had failed to explain how she took it into account, such that it amounted to no more than an empty incantation.
By majority (McCallum JA, N Adams J agreeing; Campbell J dissenting), the CCA dismissed the appeal.