R v Manning  QCA 023 (16/183) Morrison and Philip McMurdo JJA and Boddice J 3 March 2017
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant was convicted of 20 counts of child sexual offences – where the appellant appeals the conviction on the ground that the prosecution’s failure to call two witnesses resulted in a miscarriage of justice – where the appellant was tried on the same charges at two previous trials – where both witnesses gave evidence at previous trials, but not the trial which is subject to the appeal – where the respondent’s case depended largely on the credibility of the complainant – where the respondent contended that the evidence of the witnesses was not material or would be unreliable – where the appellant submitted that the evidence was capable of affecting the jury’s view of the complainant’s evidence – whether the evidence of the two witnesses was material – whether the decision not to call the two witnesses, when viewed against the conduct of the trial as a whole, gave rise to a miscarriage of justice
Appeal against Conviction – where the appellant was convicted of 20 counts of child sexual offences – where the appellant appeals the conviction on the ground that the prosecution’s failure to call two witnesses resulted in a miscarriage of justice – where the appellant was tried on the same charges at two previous trials – where at each of the first and second trials the applicant’s wife, Mrs Manning, and his brother, Mr Phillips, gave evidence although in the defence case, but not the trial which is subject to the appeal – where the respondent’s case depended largely on the credibility and reliability of the complainant – where the respondent contended that the evidence of the witnesses was not material or would be unreliable – where the appellant submitted that the evidence was capable of affecting the jury’s view of the complainant’s evidence – whether the evidence of the two witnesses was material – where the Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness in the Crown case and a trial judge may not direct the prosecutor to call a particular witness – where the decision of the prosecutor not to call a person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice – where the prosecutor when asked by his Honour to explain why Mrs Manning was not to be called the prosecutor referred to these factors: (i) she had refused to give police a statement in the initial investigation; (ii) she had been a defence witness at the two previous trials; (iii) the jury evidently rejected her evidence by convicting at the first trial; (iv) she was quick to say that there were limited opportunities for the complainant to stay over; and (v) her evidence had developed in favour of the appellant on the issue of how many times the complainant had stayed over, from three to four at the first trial, to two in cross-examination – where several of the factors identified by the prosecutor about Mrs Manning were in the nature of an apprehension that she would not be an impartial witness – where that apprehension was not unreasonable: Mrs Manning was married to the appellant and had an obvious interest in the outcome of the trial – where, however, that was not to say her evidence was bound to be unreliable – where many witnesses, including those who are themselves parties to criminal or civil litigation, are interested in the outcome, but that interest does not, by definition, make them unreliable – where the suggestion that the evidence would be unreliable, because the jury in the first trial must have rejected it, cannot be accepted – where her evidence was clearly material and was not made immaterial by an apprehension that it could be unreliable because there were not identifiable circumstances which clearly established such an unreliability – where as to the evidence of Mr Phillips, it may again be noted that the prosecutor’s justification for refusing to call him was that his evidence would be unreliable rather than irrelevant – where his evidence was relevant and admissible – where, again, an apprehended interest of this witness, as the appellant’s brother, in the outcome of the trial did not clearly establish that his evidence would be unreliable – where he was able to give material and not demonstrably unreliable evidence – where once it is seen that the evidence was material and not unreliable, the prosecution was obliged to lead that evidence because “a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act ‘with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one’.” (Dyers v The Queen (2002) 210 CLR 285) – where fairness requires the prosecution to produce all of the material evidence which is available to it before putting the defendant to his election as to whether to give or call evidence – where, therefore, the fact that the defence was able to call the witness as a defence witness does not overcome the miscarriage of justice which occurs as a result of the Crown’s refusal to call a material witness – where Mrs Manning’s evidence, if accepted, made the complainant’s version less likely to be true – where, further, the impact of her evidence upon the credibility or reliability of the complainant’s evidence on these counts may have had an effect upon the complainant’s evidence more generally – where the prosecution case on each count was dependent upon the complainant’s testimony – where it follows that there was a miscarriage of justice caused by the refusal by the prosecution to call Mrs Manning – where the evidence of Mr Phillips was relevant because it had some potential to affect the jury’s assessment of the likelihood of offences being committed at the appellant’s business premises as the complainant had testified – where it may be said that evidence of Mr Phillips was less likely than the evidence of Mrs Manning to affect the jury’s assessment of the complainant’s testimony – where, nevertheless, at least considered with Mrs Manning’s testimony, it had a potential to influence the jury’s reasoning. Appeal against conviction allowed. Conviction set aside. Retrial is ordered.