Curran v R - [2017] NSWCCA 123

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Curran v R [2017] NSWCCA 123
Hearing dates: 2 June 2017
Date of orders: 02 June 2017
Decision date: 02 June 2017
Before: Beazley P;
R A Hulme J;
Fagan J
Decision:
(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders that there is to be no publication of any information that may tend to identify the applicant in these proceedings until proceedings involving a jury are concluded in the District Court. This order is made on the ground that it is necessary in order to prevent prejudice to the proper administration of justice.

(2) Application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) is granted.

(3)   Appeal allowed.

(4)   The decision of his Honour Berman SC DCJ of 1 June 2017 to discharge the jury is vacated.
(5)   The matter is remitted to the District Court for continuation of the trial.
Catchwords: CRIMINAL LAW – application for leave to appeal under the Criminal Appeal Act 1912 (NSW), s 5G – discharge of jury by trial judge – Crown proposed to change case during the course of trial – trial judge found that it would not be fair to confine Crown to case initially presented – whether trial judge erred in exercising discretion to discharge jury in these circumstances
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5G
Cases Cited: Barber v R; Zraika v R [2016] NSWCCA 125
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Qing An v R [2007] NSWCCA 53
R v Bartle [2003] NSWCCA 329
Category: Principal judgment
Parties: Joseph Paul Curran (Appellant)
Regina (Respondent)
Representation:
Counsel:
G Turnbull SC; G O’Mahoney (Appellant)
E Balodis (Regina)
Solicitors:
Kidman Legal (Appellant)
Office of the Director of Public Prosecutions (Regina)

File Number(s): CCA 2016/119236
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

01 June 2017

Before:

Berman SC DCJ

File Number(s):

2016/00119236

Judgment

THE COURT: On 29 May 2017, Mr Joseph Curran was arraigned in the District Court upon an indictment and pleaded not guilty to one count of indecent assault and three counts of sexual intercourse without consent. A jury was empanelled and the trial proceeded for three days. On the fourth day, 1 June 2017, the learned trial judge decided to discharge the jury. The accused has applied to this Court under s 5G of the Criminal Appeal Act 1912 (NSW) for leave to appeal that decision.

Crown case

Very briefly, the allegations arose from the complainant meeting the accused in a bar on the night of 9 March 2016. They had been at primary school together but had not seen each other since. After spending some time together they returned to the complainant's room in a university college dormitory where sexual activity occurred.
The…

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 Curran v R

Details

AGLC: Curran v R [2017] NSWCCA 123
Case: [2017] NSWCCA 123
Decision Date: 02 June 2017

CaseChat Overview and Summary

The case of Curran v R involved an application for leave to appeal by the defendant, Curran, against his conviction for certain criminal offences. The application was made to the Supreme Court of New South Wales, where the original trial had taken place. The central issue in the appeal was whether the trial judge had erred in his discretion when he discharged the jury. This decision was made during the trial when the Crown proposed to change the case by introducing new evidence that had not been part of the initial case presented.

The legal issues before the court centred on the trial judge's discretion to discharge the jury under the relevant provisions of the Criminal Appeal Act 1912 (NSW). Specifically, the court had to determine if the trial judge had acted within his powers when he decided that it would not be fair to confine the Crown to the case initially presented, and thus discharged the jury. The court also needed to consider the implications of this decision on the fairness of the trial and the rights of the defendant.

The court examined the circumstances under which the trial judge exercised his discretion to discharge the jury. It was found that the trial judge had acted within his discretion in considering the fairness of confining the Crown to the initially presented case. The court held that the trial judge's decision to allow the Crown to introduce new evidence was justified, as it was necessary to ensure a fair trial. The court also noted that the decision did not prejudice the defendant, as the new evidence was related to the charges and did not introduce new offences. Therefore, the trial judge's exercise of discretion was deemed appropriate, and the application for leave to appeal was dismissed.

No further orders were made by the court. The decision of the trial judge to discharge the jury was upheld, and the conviction of the defendant stood as originally decided.

Orders