Case: R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563
Outcome: applied
The circumstances in which a judge may call a witness of his or her own motion, absent a statutory power, have been the subject of considerable judicial discussion (see JD Heydon, Cross on Evidence (7 th Australian ed) at [17080]-[17100]). In Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 at 379, Dixon, McTiernan, Webb and Kitto JJ said that in Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 the High Court had denied that a presiding judge in a criminal trial had power to call a witness if he (or she) thought that the imperative demands of justice so required. Dawson J affirmed that view in Whitehorn v The Queen [1983] HCA 42 ; (1983) 152 CLR 657 at 684 where he said that Shaw v The Queen [1952] HCA 18 ; (1952) 85 CLR 365 had held that Titheradge v The Queen [1917] HCA 76 ; (1917) 24 CLR 107 was authority for the proposition that no distinction was to be drawn in Australia between criminal trials and civil actions with regard to the power of a judge to call a witness. However, Gibbs CJ and Brennan J, reserved their positions on this issue (152 CLR at 660). Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ returned to the issue in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 saying of the conduct of criminal trials: 'Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.' That position appears to have been reaffirmed by Gleeson CJ, Gummow, Kirby and Hayne JJ in R v Soma [2003] HCA 13 ; (2003) 212 CLR 299 at 309 [29] . 23 In Titheradge v The King [1917] HCA 76 ; (1917) 24 CLR 107 at 116, Barton J said that where the right of a judge to call a witness exists and R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 at 575 [5] accepts that it does in the conduct of a criminal trial it must be exercised with extreme caution. He continued (24 CLR at 116): 'In a civil case there must either be the consent of the parties or an acquiescence on their part from which the strong inference is consent.' Isaacs and Rich JJ said (24 CLR at 118) that the observations of Fletcher Moulton LJ in In re Enoch and Zaretzky Bock &amp; Co's Arbitration [1910] 1 KB 327 were of general application to the administration of justice both civil and criminal. His Lordship denied the power of a judge to call a witness against the will of a party ([1910] 1 KB at 332, 333; see too per Powell J in Clark Equipment Credit Australia Ltd v Como Factory Pty Ltd (1988) 14 NSWLR 552 at 567F-568A and IF Sheppard, 'Court Witnesses A Desirable or Undesirable Encroachment on the Adversary System?' (1982) 56 ALJ 234 at 235) but accepted that where the parties acquiesced in a witness being called by the judge, a judge may do so provided that the parties have a right to cross-examine. 25 In Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 at 540 Wilcox J expressed the view in obiter dicta , that in a civil action, a trial judge has power to call a witness, even over the opposition of a party, but that the discretion to take such a course should be exercised sparingly and with great care. (See too Wigmore on Evidence (Chadborn Revision) Vol 9 SS2483 where the learned author emphatically asserts the right of a judge in a civil case to call a witness.) Wilcox J said this view was consistent with the principle adopted in R v Apostilides [1984] HCA 38 ; (1984) 154 CLR 563 in respect of criminal trials. Unless his Honour meant by the word 'sparingly' to encapsulate the concept of the power being exercisable only '... in the most exceptional circumstances' (154 CLR at 575 [5]), I am unable to agree that the power in a civil case may be exercised more freely, absent statutory authority. 27 So, it is vital to guard against an absolute prohibition of a judge's power of calling witnesses because some circumstances in which courts exercise jurisdiction are not wholly adversarial. But the power, according to the authorities to which I have referred, exists to prevent, not occasion, a miscarriage of justice which the judge perceives would otherwise occur. Before forming such a view, over the opposition of the parties and, where appropriate, their legal representatives, a trial judge would obviously need to consider whether the conscious choice of the parties not to call the witness properly can be overborne by the court while preserving the appearance and actuality of judicial impartiality. For a judge to use his or her power to override the choice of the parties as to what evidence they will adduce in order that the judge may decide their dispute is a drastic step which must only be available even in civil proceedings '... in the most exceptional circumstances' ( R v Apostilides (1984) 154 CLR at 575 [5]). The exercise of such a power removes the court from its usual and necessary position outside, and places it within, the forensic arena (cp: Yuill v Yuill [1945] P 15 at 20).