R v Singh [1999] ACTSC 26 (29 March 1999)

Last Updated: 3 September 2004

THE QUEEN v ANU SINGH [1999] ACTSC 26 (29 March 1999)

CATCHWORDS

CRIMINAL LAW - diminished responsibility - application by Crown for leave to call evidence in reply - whether exceptional circumstances required.

Crimes Act 1900

New South Wales Crimes Act 1900

Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365

The Queen v Chin [1985] HCA 35; (1985) 157 CLR 671

R v Adam Rush (20 September 1996, unreported)

R v Brett John Dean (No 3) (17 March 1997, unreported)

R v Blinder Kumar Mankotia Judgment No 5 (31 July 1998, unreported)

Welsh (6 August 1997 unreported).

No. SCC 49 of 1998

Coram: Crispin J

Supreme Court of the ACT

Date: 29 March 1999

IN THE SUPREME COURT OF THE )

) No. SCC 49 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

v

ANU SINGH

REASONS FOR RULING

Judge Making Order: Crispin J

Where Made: Canberra

Date of Order: 29 March 1999

1. In this matter the defence has raised the issue of diminished responsibility and the Crown has sought a direction under subs 14(5) of the Crimes Act 1900, that it be permitted to offer evidence in reply on that issue.

2. The general principle governing evidence in reply in criminal trials was stated by a majority of the High Court of Australia in Shaw v The Queen [1952] HCA 18; (1952) 85 CLR 365 at 379:

"Clearly the principle is that the prosecution must present its case completely before the prisoner's answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue."

3. More recently, in The Queen v Chin [1985] HCA 35; (1985) 157 CLR 671 at 676-7, Gibbs CJ and Wilson J stated the principle in the following terms:

"The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional, and generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg. v Levy and Tait (9)) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused's good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue."

4. In the same case Dawson J, with whose reasons for judgment Mason J agreed, expressed the view that the discretion to admit evidence in reply should be exercised in favour of the Crown only in exceptional circumstances. His Honour explained at 684-685:

"That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula. In Shaw's Case (22), Dixon, McTiernan, Webb and Kitto JJ, expressed the view that:

`It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.'

The prosecution will not, of course, be seeking to split its case when the evidence which it wishes to call by way of reply is to rebut evidence which forms no part of its proofs, as eg where the defence of insanity is raised or evidence of good character is called by the accused."

However his Honour continued:

"Even then, if the nature of the evidence which the accused intends to call should have been known to the prosecution so that it would have been possible to deal with it by calling evidence in the prosecution case, the proper course may be to refuse the prosecution permission to reopen its casein order to call rebutting evidence."

5. The judgment of the fifth member of the court, Brennan J, did not address this issue.

6. It is clear from these authorities that the Crown must present all of the evidence upon which it relies to prove its case against the accused before the accused is called upon to mount any defence. However this principle will not normally prevent the Crown from calling evidence in reply in relation to an issue on which the burden of proof lies on the defence. In those circumstances the Court will still have a discretion as to whether evidence in rebuttal should be permitted but it will not be incumbent upon the Crown to show exceptional circumstances to justify the exercise of that discretion in its favour.

7. There have been a number of decisions of the Supreme Court of New South Wales concerning similar applications under the comparable provisions of s 23(2) (as it then was) of the New South Wales Crimes Act. Adams AJ, Dunford J and Sperling J have all taken the view that the Crown should be permitted to call evidence in reply. See R v Adam Rush (20 September 1996, unreported); R v Brett John Dean (No 3) (17 March 1997, unreported) and R v Blinder Kumar Mankotia Judgment No 5 (31 July 1998, unreported). On the other hand, Hidden J took a contrary view in Welsh (6 August 1997 unreported).

8. In Dean (No 3) Dunford J observed that anecdotal evidence and his own experience suggested that in cases of this nature the Crown evidence to rebut a defence of diminished responsibility is normally, though not invariably, called in reply.

9. In the present case Mr Pappas who appeared for the accused relied upon the general principle in Shaw. He submitted that the power to give directions under subs 14(5) should not be taken to displace the Crown's obligation to lead evidence during its own case of any issue it ought reasonably to anticipate arising at the trial, though he conceded that if genuinely taken by surprise by some aspect of the defence case it might be granted leave to lead evidence in reply concerning that aspect. The Crown had been placed on notice that diminished responsibility was to be raised.

10. He also submitted that the Crown had been given the opportunity to form at least some impression of the factual issues likely to arise in relation to that defence. The defence had offered to make the accused available for consultation with a psychiatrist or other medical adviser nominated by the Crown, albeit subject to a condition that if the expert in question did not support their defence of diminished responsibility then evidence of his or her opinions or diagnoses would not be led and the Crown would not further consult with that expert concerning the trial. Secondly, the father of the accused who was a medical practitioner had offered to make himself available for consultation with any expert nominated by the Crown. Thirdly, medical records concerning consultations with and treatment of the accused over a long period of time had been produced on subpoena.

11. Mr Pappas also argued that the accused might suffer real prejudice if evidence was adduced in reply from a number of psychiatrists who had not previously provided reports. He might be unable to effectively cross-examine them without reference to defence experts who might be unavailable to come to court on the off chance that they might be required. Even if some adjournment were to be granted to enable such consultation further delay and expense would be incurred.

12. On the other hand, the Crown prosecutor, Mr Golding, submitted that the Crown did not know what it had to answer. Whilst a report had been provided from a clinical psychologist concerning the reliability of admissions said to have been made to the police, the Crown have not been provided with any reports outlining the factual basis for the defence of diminished responsibility. The condition upon which the accused had offered herself available for consultation with experts nominated by the Crown was obviously unacceptable and while some information could no doubt be obtained from the accused's father such a consultation would not be adequate to enable the Crown to mount an effective answer to the defence.

13. I accepted Mr Golding's submissions on this aspect of the case. In my view it is preferable for the defence to call the evidence upon which it relies to discharge the onus which rests upon it and for the Crown to call any relevant evidence in reply. I was not satisfied that any unfairness will be occasioned to the accused by proceeding in this manner. However, if some difficulty does arise in relation to some aspect of the evidence I will consider any application for adjournment at that time.

14. For these reasons, in the exercise of my discretion, I directed that the Crown have leave to call the evidence on this issue in reply.

I certify that this and the fourteen (14) preceding numbered paragraphs are a true copy of the Reasons for Ruling herein of his Honour, Justice Crispin.

Associate:

Date: 29 March 1999

Counsel for the DPP: Mr T Golding

Solicitors for Accused: Director of Public Prosecutions

Counsel for the Defendant: Mr J Pappas

Solicitors for the Defendant: Sutherland & Tiirikainen

Dates of hearing: 25 March 1999

Date of judgment: 29 March 1999