Johnson J at [1] Price J at [356] Davies J at [357]
Decision:
FX: 1. Refuse leave under Rule 4 Criminal Appeal Rules to rely upon Grounds 3, 4 and 5. 2. Grant leave to appeal against conviction. 3. Dismiss the appeal against conviction. GX: 1. Grant leave under Rule 4 Criminal Appeal Rules to rely upon Ground 5. 2. Grant leave to appeal against conviction. 3. Allow the appeal on Grounds 2, 5 and 6. 4. Quash the convictions of GX on each of Counts 11, 12, 13, 14, 15, 16, 17 and 18. 5. Order that there be a new trial. 6. Direct that GX’s matter be listed in the District Court Arraignment List on Friday, 14 August 2020 at 9.30 am.
Catchwords:
CRIME - appeals against conviction - joint trial of applicants for sexual offences committed against complainant - applicants were uncles of complainant - prosecution did not allege applicants committed offences as part of a joint criminal enterprise - claim on appeal that requirements for joint trial of applicants under s.29(2) Criminal Procedure Act 1986 were not met - whether applicants consented to joint trial under s.29(2)(a) Criminal Procedure Act 1986 - consideration of ss.21 and 29 Criminal Procedure Act 1986 - held that applicants consented to joint trial - whether miscarriage of justice arising from joint trial of applicants - whether trial Judge gave necessary directions to jury - whether miscarriage of justice arising from prosecutor’s closing address - application of Rule 4 Criminal Appeal Rules - leave granted to one applicant (GX) under Rule 4 - claim of unfairness by GX arising from submissions made by prosecutor to jury concerning from cross-examination of FX where propositions not put to GX in cross-examination - prosecutor’s submission repeated in summing up - no application made by applicants’ trial counsel for further directions - leave granted to GX under Rule 4 and grounds of appeal upheld - convictions quashed and new trial ordered for GX - no other grounds of appeal established - FX refused leave under Rule 4 - FX’s appeal dismissed
[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.
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AGLC
FX v The Queen; GX v The Queen [2020] NSWCCA 189
Case
[2020] NSWCCA 189
Decision Date
CaseChat Overview and Summary
In the case of FX v R and GX v R, the applicants, who were uncles of the complainant, were jointly tried for sexual offences. The applicants argued that the requirements for a joint trial under section 29(2) of the Criminal Procedure Act 1986 were not met, specifically contesting whether they had consented to the joint trial under section 29(2)(a). They also contended that the joint trial had led to a miscarriage of justice and that the trial judge had not provided the necessary directions to the jury. Additionally, GX argued that the prosecutor's closing address had contributed to a miscarriage of justice. The court considered the arguments under sections 21 and 29 of the Criminal Procedure Act 1986 and determined that the applicants had indeed consented to the joint trial. However, it found that GX's submissions concerning the prosecutor's cross-examination and closing address warranted further consideration.
The court ruled that the prosecutor's closing address had repeated propositions not put to GX in cross-examination, potentially misleading the jury. Despite the applicants' trial counsel not requesting further directions, the court granted GX leave under Rule 4 of the Criminal Appeal Rules and upheld the grounds of appeal. Consequently, GX's convictions were quashed, and a new trial was ordered. The court did not find other grounds of appeal established, and FX's appeal was dismissed. FX was therefore refused leave under Rule 4.
The decision underscores the importance of ensuring that the requirements for a joint trial are met and that any perceived unfairness during the trial does not lead to a miscarriage of justice. The court highlighted the need for the prosecutor to avoid making submissions that were not put to the defendant during cross-examination. This case serves as a reminder of the delicate balance required in criminal trials to maintain fairness and uphold the rule of law.