CF v The The King - [2022] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CF v R [2022] NSWCCA 260
Hearing dates: 5 December 2022
Date of orders: 5 December 2022
Decision date: 09 December 2022
Before: Meagher JA at [1];
Beech-Jones CJ at CL at [2]
Garling J at [31]
Decision:
Application for leave to appeal dismissed

Catchwords:
CRIME – appeal from interlocutory order – trial judge refused to discharge jury – jury note – whether gave rise to reasonable apprehension of bias – no arguable basis for finding trial judge erred – leave refused

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Jury Act 1977 (NSW)

Cases Cited:
House v The King (1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
R v Czajkowski [2002] NSWCCA 530
Webb v R (1994) 181 CLR 41

Category: Principal judgment
Parties: CF (Applicant)
Rex (Crown)
Representation:
Counsel:
S Ryan (Applicant)
B Hatfield (Crown)
Solicitors:
Michel + White Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2020/111550
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 November 2022

Before:

Coleman SC DCJ

File Number(s):

2020/111550

JUDGMENT

MEAGHER JA: My reasons for joining in the orders made on 5 December 2022 dismissing this application for leave to appeal are the same as those given by Beech-Jones CJ at CL.
BEECH-JONES CJ at CL: This is an urgent application under s 5F(3) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the refusal of a trial judge, His Honour Judge Coleman SC, to discharge a jury. The urgency arises because the trial is ongoing and closing addresses are due to commence shortly.
At the conclusion of argument on 5 December 2022, the Court ordered that the application for leave to appeal be dismissed. These are my reasons for joining in the Court’s orders.

Background

On 23 November 2022, the applicant was arraigned on an indictment that charged him with seven sexual offences said to have been committed against the same complainant, JF.
JF was born on 17 December 1992. Count 1 of the indictment charged that between 31 August 2007 and 17 December 2008, the applicant committed an act of indecency on JF when she was under the age of 16 years, contrary to former s 61M(1) of the Crimes Act 1900 (NSW). Count 2 was in the same terms as count 1 except that the charge period is between 30 November 2007 and 17 December 2008. Count 3 charged that between 30 November 2007 and 17 December 2008 the applicant had sexual intercourse with JF when she was a child above the age of 14 and below the age of 16 in circumstances of aggravation, namely she was under the authority of the applicant, contrary to s 66C(4) of the Crimes Act.
Count 4 charged the applicant with committing another offence under former s 61M(1) of the Crimes Act in circumstances of aggravation, namely, she was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CF v The The King

Details

AGLC: CF v The The King [2022] NSWCCA 260
Case: [2022] NSWCCA 260
Decision Date: 09 December 2022

CaseChat Overview and Summary

In the case of CF v The King, the appellant, CF, sought leave to appeal against an interlocutory order made by the trial judge during a criminal trial. The dispute centred on the trial judge's refusal to discharge the jury after they submitted a note to the court during deliberations. CF argued that the content of the note raised a reasonable apprehension of bias on the part of the jury, thereby necessitating a discharge of the jury and the commencement of a new trial. The High Court of Australia was asked to determine whether the trial judge's decision was correct and whether there was an arguable basis for finding that the judge had erred.

The legal issues that the court had to decide included whether the note submitted by the jury to the trial judge gave rise to a reasonable apprehension of bias, and if the trial judge's refusal to discharge the jury was in error. The court also needed to consider whether there was an arguable basis for finding that the trial judge had erred in his decision. The central question was whether the trial judge's decision to refuse to discharge the jury was within the scope of his discretion and whether it was reasonable in the circumstances.

The court held that the trial judge's decision was within his discretion and was not in error. The content of the jury's note did not give rise to a reasonable apprehension of bias, and the trial judge was entitled to determine that the note did not require the discharge of the jury. The court found that there was no arguable basis for finding that the trial judge had erred in his decision, as the judge had acted within his powers and had exercised his discretion reasonably. The court accordingly refused the appellant's application for leave to appeal.

Orders