R. v. LAW LOI ON

Criminal Appeal No. 663/94

H E A D N O T E

Prosecuting counsel has a wide discretion as to which of those witnesses from whom witness statements have been taken should be called as witnesses. However, once the prosecution has "laid claim" to a witness by notifying the defence that it proposes to call that witness (e.g. by naming the witness on the back of the indictment in High Court trials or of the Summary of Facts in District Court trials, or by informing the judge of that fact at a pre-trial review), prosecuting counsel is obliged to call that witness, and either to examine the witness in chief or tender him for cross-examination, unless it appears to him that the witness is not worthy of belief. That also applies where the prosecution has led the defence to believe that it has "laid claim" to the witness.

IN THE COURT OF APPEAL

No. 663 of 1994
(Criminal)

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J U D G M E N T

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Keith, J. (giving the judgment of the Court):

INTRODUCTION

1. On 8th December 1994, the Applicant was convicted by Deputy Judge Candy in the District Court on four charges. He had pleaded not guilty to all of them. Three of the charges alleged wounding with intent. The fourth charge alleged membership of a triad society. He was sentenced to three years' imprisonment concurrent on each of the wounding charges, and one year's imprisonment consecutive on the charge of membership of a triad society, amounting to four years' imprisonment in all. He now applies for leave to appeal against his convictions.

THE FACTS

2. The facts which the judge found proved on the three wounding charges were that on the evening of 20th October 1993 three brothers (PW1-PW3) went to a flat on the 1st floor of a building on Peng Chau. There had been an argument between one of the brothers (PW2) and a Peter Ho over Peter Ho's girl friend, Tsang Po Kei. The Applicant was at the flat when the brothers got there. While at the entrance to the flat, the Applicant leaned into the flat, pulled out a knife, and called on other people who were in the flat to arm themselves and attack the brothers. All three brothers were chopped with knives, PW1 having been chopped by the Applicant and PW2 and PW3 having been chopped by other people in the flat.

3. The Applicant's case, which the judge rejected, was that when the brothers arrived at the building, they called the Applicant downstairs. When he got downstairs, he was chased upstairs by the brothers, who were armed with knives. It was they who attacked him, he did not have a knife, he did not call on the other people in the flat to help, and they took no part in the attack.

THE POTENTIAL WITNESSES

4. The principal ground of appeal relates to three people who were not called to give evidence. They were Peter Ho, Tsang Po Kei, and a friend of hers, Chiu Nga Kwan. They had all made witness statements to the police officers who investigated the incident. In those statements, they had said that they had all been at the flat at the time. It is true that their witness statements did not deal with the fight itself. However, in their statements they dealt in some detail with the events leading up to the fight and its aftermath. Broadly speaking, they supported the Applicant's version of the circumstances surrounding the fight, and if the contents of their statements were true the statements went some way towards discrediting the evidence of the brothers. It follows that all three witnesses could have given highly relevant evidence about the events of that night.

EVENTS PRECEDING THE TRIAL

5. The Applicant was legally aided. On 20th December 1993, a bundle of witness statements relating to the three wounding charges was sent by the police to the Director of Legal Aid. That bundle included the statements of the three people who had been in the flat. The inclusion of the statements of those three witnesses in the bundle led counsel who had been instructed by the Director of Legal Aid to represent the Applicant at his trial to believe that the three of them would be called as witnesses by the prosecution.

6. The Applicant's trial was due to begin on Monday, 5th December 1994. On Friday, 2nd December, the officer in charge of the case discussed the case with counsel for the prosecution. As a result of that conversation, the officer prepared two lists. One list (Annex A) contained the names of those persons from whom witness statements had been taken and who the officer considered should be called to give evidence. The other list (Annex B) contained the names of the persons from whom witness statements had been taken and who the officer considered should not be called to give evidence. The three people who had been in the flat were included in the latter list (Annex B).

7. Copies of those lists were not sent to the Director of Legal Aid or to counsel for the Applicant. Instead, on the morning of the trial, but before the trial began, prosecuting counsel informed the Applicant's counsel of the persons whom he proposed to call as witnesses and those whom he was not intending to call. That was when the Applicant's counsel knew for the first time that the three people who had been in the flat were not going to be called as witnesses by the prosecution.

8. We were told by Mr. John Haynes (who represented the Applicant on this application for leave to appeal, but who did not represent him at his trial) that he had been informed by the Applicant's counsel at trial that prosecuting counsel did not give him any reasons for the decision not to call the three people who had been in the flat. Mr. Frank Veltro (who represented the Respondent on this application for leave to appeal, but who did not appear for the prosecution at the trial) was unable to tell us, one way or the other, what prosecuting counsel's reason was for deciding not to call them as witnesses, or whether he gave that, or any, reason to the Applicant's counsel. There is nothing before us which suggests that they might not have been credible witnesses worthy of belief, and we proceed on the assumption that prosecuting counsel decided not to call them because he did not regard them as able to give either

(i) relevant evidence (as they could give no evidence about the fight itself), or

(ii) evidence which was helpful to the prosecution (as their evidence tended to support the Applicant's account of the circumstances surrounding the fight).

9. Although the prosecution did not intend to call the three people who had been in the flat, they had been served with witness summonses, granted on the application of the prosecution, to attend the trial. We were told that witness summonses were issued in respect of all civilian witnesses from whom statements had been taken by the police. It was the fact that the three people who had been in the flat were at court on the first day of the trial which led the Applicant's counsel to assume that, although he had been told that they would not be called by the prosecution, the prosecution would be tendering them for cross-examination.

EVENTS AT AND DURING THE TRIAL

10. On the afternoon of the second day of the trial, 6th December, just before the court adjourned for the day, the question of whether the prosecution should be required to tender the three people who had been in the flat for cross-examination was raised. The transcript reveals the following exchange :

"Defence counsel: I ask that prosecution tender civilian prosecution witnesses not called.

Prosecuting counsel: I don't intend to call them. I have made them available to defence on day 1.

Defence counsel: We have their phone numbers but if they don't attend I will have to apply for witness summons.

Court: The question of unused prosecution witnesses is a matter for the defence."

The result was that the prosecution did not call the witnesses, whether to examine them in chief or to tender them for cross-examination. If they were to be called, they had to be called by the defence. That placed the defence at a not inconsiderable disadvantage. The defence would lose the inestimable advantage of being able to cross-examine the witnesses instead of having to elicit their evidence by examination-in-chief. That advantage would have been particularly important in this case, because it would have enabled counsel for the Applicant to limit the evidence which he wanted the witnesses to give to those parts of their witness statements which helped the defence.

11. An affirmation made by the Applicant's counsel takes up the story thereafter. He caused inquiries to be made as to whether the three witnesses were willing to attend court to give evidence on behalf of the Applicant. He was informed that as they had come to court once before and had been released, they were not willing to come again. He was therefore unable to call them as witnesses for the defence.

12. It was open, of course, to the Applicant's counsel to apply to the judge for fresh witness summonses for the witnesses. He did not do so. We have not been told why not. However, the defence could well have been disadvantaged if it was only as a result of witness summonses having been sought by the defence that the witnesses were giving evidence. It is not uncommon for witnesses who give evidence as a result of being compelled to come to court to give evidence which is less favourable to the party who calls them than it might otherwise have been. Such witnesses have been known to give expression in that way to their resentment at being compelled to attend court to give evidence.

THE PRACTICE IN THE DISTRICT COURT

13. There are two ways in the District Court in which the defence is informed which of those persons from whom witness statements have been taken the prosecution proposes to call as witnesses :

(i) The names are listed on the back of the Summary of Facts which will normally be served on the defence some time before the date on which the trial is due to begin.

(ii) If there is a pre-trial review, the prosecution informs the court then which witnesses it wishes to call.

We were not told whether a pre-trial review was held in this case, and we assume that it was not. The Summary of Facts, we were told, was not served on the defence until 3rd December 1994, and since it is accepted that copies of the two lists of witnesses were not sent to the Director of Legal Aid or counsel for the Applicant, we assume that they were not attached to the Summary of Facts served on the defence.

MATERIAL IRREGULARITY

14. The question which the principal ground of appeal raises is whether in the circumstances the decision of prosecuting counsel not to call the three people who had been in the flat as prosecution witnesses amounted to a material irregularity in the course of the trial. The general principle is not in doubt. It was expressed by Barwick, C.J. with his usual clarity in Richardson v. R. (1974) 131 CLR 116 at p. 119 :

"Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called, he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few."

15. However, once the decision has been made by the prosecution to call a particular witness, and that decision has been relayed to the defence, different considerations apply. Since the prosecution has "laid claim" to that witness, the defence is unlikely to contemplate taking a statement from the witness, and will not make any arrangements to bring the witness to court. Thus, where the prosecution has notified the defence of its intention to call a particular witness (for example, by naming the witness on the back of the indictment in trials in the High Court), it becomes the duty of the prosecution to call that witness, even though the evidence which he is going to give is inconsistent with the case which the prosecution has to prove. The prosecution has a discretion as to whether it examines the witness or merely tenders him for cross-examination, though that discretion must be exercised in a manner which is fair to the defence and is calculated to further the interests of justice. The only exception to the rule requiring the prosecution to call such a witness is where it appears to counsel for the prosecution that the witness is no longer a credible witness worthy of belief. The mere fact that calling the witness would be likely to confuse the jury about the nature of the prosecution case is not a ground for not calling the witness. These principles appear from the cases of R. v. Oliva (1965) 49 Cr. App. R. 298 and R. v. Balmforth [1992] Crim. Law Rev. 825.

16. We turn to the application of these principles to the facts of the present case. This was not a case of the prosecution having "laid claim" to the three material witnesses. The mere fact that they took witness statements from them did not begin to mean that the prosecution proposed to call them, any more than the fact that the statements were served on the defence did. The Applicant's counsel should not have assumed from the inclusion of the statements of the three witnesses in the bundle served on the Director of Legal Aid that that meant the prosecution intended to call them.

17. However, since the prosecution did not let the defence know, in good time before the trial, that some of the witnesses whose statements had been served were not going to be called as witnesses, the Applicant's counsel can be forgiven for assuming, in the few weeks before the trial, that the witnesses were going to be called. We can readily understand him assuming that the prosecution had "laid claim" to them. All the more so when he saw them at court on the first day of the trial having been brought there by the prosecution. In our judgment, if the prosecution, by failing to inform the defence in good time before the trial of the identity of the witnesses it proposes to call, thereby leads the defence to assume that all those persons who gave witness statements to the police and whose statements were served on the defence would be called as witnesses, the prosecution should be treated as having "laid claim" to the witnesses, and should call the witnesses if the defence wants it to, unless the witnesses are considered to be not worthy of belief.

18. It follows that prosecuting counsel in this case should have acceded to the request of the Applicant's counsel to call these three witnesses. His decision not to do so therefore amounted to an irregularity in the course of the trial, and a material one at that.

19. Once counsel for the prosecution had told the judge that he was not intending to call the witnesses himself, what should the judge have done? In an ideal world, he would have been told that counsel for the prosecution could decline to call them only if he did not think that they were worthy of belief. If the judge had been told that, he would no doubt have enquired whether that was counsel's view. Since it is not suggested that that was counsel's view, counsel would have told the judge that it was not. In those circumstances, the judge would have suggested to prosecuting counsel that he should proceed to call them, and that no doubt is what prosecuting counsel would have done. However, we live in an imperfect world, and the judge was not told what the obligations of prosecuting counsel were. In our view, the judge cannot be blamed for simply going along with prosecuting counsel's argument that if the defence wished the witnesses to be called, it was for the defence to call them.

20. The upshot of all this was that the judge did not have the benefit of hearing from three witnesses who were capable of giving relevant and credible evidence of the events of the evening in question, which tended to support the Applicant's version of some of those events and tended to discredit the evidence of PW1-PW3 relating to those events. If the judge had had the benefit of that evidence, we find it quite impossible to say that it is inevitable that he would still have convicted the Applicant on the three wounding charges. For that reason alone, the convictions on the three wounding charges must be regarded as unsafe and unsatisfactory, and they must accordingly be quashed. In these circumstances, we do not propose to address the other grounds of appeal relating to those three charges.

THE CHARGE OF MEMBERSHIP OF A TRIAD SOCIETY

21. It is unnecessary to rehearse the evidence which convinced the judge of the Applicant's membership of the Fook Yee Hing Triad Society, because the only ground of appeal against the Applicant's conviction on this charge was that he should not have been tried on this charge in the same trial as the three charges of wounding with intent. We can see some force in the argument that the fact that he was facing a charge of membership of a triad society (when triad membership had nothing to do with the three charges of wounding with intent) might have had an unfairly prejudicial impact on the wounding charges. That is not an issue which we need to address in view of the quashing of those three charges on other grounds.

22. However, we are quite unable to see how the fact that he was facing three charges of wounding with intent could in any way have had an unfairly prejudicial impact on the charge of membership of a triad society. After all, the incident in which the Applicant was alleged to have wounded the three brothers was not alleged to have been triad-related. It is true that in his Reasons for Verdict the judge expressed the view, which had not been advanced by the prosecution, that it was in his capacity as a member of a triad society that the three brothers had gone to see him on the evening in question, but that view was not part of his reasoning for convicting the Applicant on any of the charges. It was something which the judge concluded as a consequence of convicting him on the four charges.

CONCLUSION

23. For the reasons which we have endeavoured to give, we grant the Applicant leave to appeal against his convictions on the three charges of wounding with intent, we treat the hearing of the application as the hearing of the appeal, we allow the appeal, we quash the convictions, and we set aside the sentences of imprisonment which were passed in respect of them. We shall hear counsel as to whether, in all the circumstances of the case, we should order a retrial of the Applicant on those charges. However, the Applicant's application for leave to appeal against the charge of membership of a triad society is refused.

24. Before departing from this case, we wish to make two final observations. First, this application highlights the desirability of counsel who appeared in the trial being instructed on the application for leave to appeal. Neither Mr. Haynes nor Mr. Veltro had first-hand knowledge of the events before and during the trial. They couldHayn only go on what they were told. Had counsel who appeared for the Applicant at his trial not been in court to provide Mr. Haynes with the answers to the questions which we asked, and had Mr. Veltro not been able to speak during the adjournment to prosecuting counsel, the hearing of the application would have had to be adjourned. As it was, the hearing lasted much longer than it would have done if there had been continuity of representation. Thought should be given to the wider use in this Court of counsel who were instructed at first instance.

25. Secondly, the lessons to be learnt from this case are these :

(i) Counsel who is instructed to prosecute should be sent the papers sufficiently early to enable him to give informed and considered advice as to which of the witnesses who gave witness statements should be called by the prosecution. He should give that advice exercising the wide discretion which Richardson indicates he has.

(ii) Once a decision has been made, the defence should be informed who will be called and who will not in sufficient time before the trial to enable it to consider whether to call the witnesses who the prosecution do not propose to call, to make arrangements for the witnesses to come to court and to take statements from them if so advised. The existing practices in the District Court are sufficient for that purpose, provided that the steps which they contemplate actually take place.

(iii) Once the defence has been informed that particular witnesses will be called, prosecuting counsel must remember that he is under a duty to call them unless he takes the view that they cannot be believed.

If all this is borne in mind, what happened in this case should not be repeated.