Citation: R v Perrine [2021] NSWDC 241
Court: District Court of New South Wales
Date: 1 June 2021
Judge(s): P Taylor SC DCJ
Background
The accused stood trial on a charge of cultivating, by enhanced indoor means, a commercial quantity of cannabis. The central issue at trial was whether the accused had acted under duress, specifically whether he had been threatened with violence by others involved in the cannabis operation. Disproving duress had not formed part of the Crown's original case because no evidence of it had been raised before trial.
The accused gave evidence-in-chief about threats, guns, and fear of death. During cross-examination, the Crown asked a broad question whether the accused had ever disclosed those threats to any police officer. The accused answered that, during a joint trip with police to a house in Busby, he had told a police officer (Officer Kim) that he had been threatened and that the people involved were dangerous.
That answer had not been anticipated. The Crown then applied for leave to reopen its case to recall Officer Kim to deny that any such disclosure was made to him during the Busby trip.
Legal Issues
- Whether the Crown should be granted leave to reopen its case to recall a police witness after the close of the defence case
- Whether the circumstances were sufficiently "special" or "exceptional" to justify reopening under the principles in Killick, Chin, and Shaw
- Whether the evidence the Crown sought to lead from Officer Kim could be admitted to rebut evidence elicited during cross-examination of the accused
Decision
The applicable test: The court confirmed that the authorities of Killick v The Queen, The Queen v Chin, and Shaw v The Queen establish that the Crown may only reopen its case in "very special" or "exceptional" circumstances (at [7]). The court accepted that the Crown could not reasonably have foreseen the need for Officer Kim's additional evidence before cross-examination, but noted that the relevant issue was not one where the burden of proof lay elsewhere (at [8]).
Effect of the Crown's own cross-examination: The court found it significant that the unexpected evidence arose directly from an unusually broad question the Crown itself put to the accused, without first obtaining instructions from Officer Kim about whether any such conversation had occurred (at [9], [13]). The Crown frankly conceded in submissions that the question perhaps should not have been asked in the form it was. The court reasoned that granting leave in those circumstances would allow the Crown to benefit from its own wrong (at [9]).
Four factors against granting leave: The court identified four matters weighing against the application (at [12]-[16]). First, the Crown had elicited the conversation evidence without first checking with the officer. Second, the defence's careful examination about non-disclosure in recorded interviews indicated it had not intended to raise evidence of threats communicated to police at other times. Third, the existence of the threats and reasons for non-disclosure in the interviews were far more significant to the trial than vague recollections of informal conversations. Fourth, recalling Officer Kim at the conclusion of the defence case would give his evidence unfair weight.
The Busby house issue: The Crown separately sought to recall Officer Kim regarding the accused's evidence about identifying the Busby house location. The court refused that aspect of the application as well, noting the house identification had already been addressed in evidence from both the officer and the accused and was largely uncontroversial (at [18]).
Orders Made
- The Crown's application for leave to reopen its case and recall Officer Kim is refused.
Key Takeaways
- The District Court reaffirmed that leave for the Crown to reopen its case will only be granted in circumstances that are "very special" or "exceptional," consistent with Killick, Chin, and Shaw (at [7]).
- Where the Crown's need to lead further evidence arises from its own broad cross-examination question, asked without first obtaining instructions from the relevant witness, that circumstance weighs against granting leave to reopen (at [9], [13]).
- Granting leave in those circumstances would permit the Crown to benefit from its own procedural error, a consideration the court treated as a meaningful factor in the exercise of discretion (at [9]).
- Recalling a witness at the conclusion of the defence case carries a risk of giving that evidence disproportionate weight, and that risk is itself a factor relevant to the leave application (at [16]).
- The availability of the Hofer procedure, which contemplates a Crown application to reopen before embarking on cross-examination, does not assist where the relevant evidence has already been elicited during cross-examination (at [9]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Hofer v R [2019] NSWCCA 244
- Killick v The Queen (1981) 147 CLR 565
- Shaw v The Queen (1952) 85 CLR 365
- The Queen v Chin (1985) 157 CLR 671