Jurd v The Queen

Case [2020] NSWCCA 91


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Jurd v R [2020] NSWCCA 91
Hearing dates: 18 November 2019
Date of orders: 06 May 2020
Decision date: 06 May 2020
Before: Hoeben CJ at CL at [1];
Price J at [2];
Campbell J at [224]
Decision:

(1) Leave to appeal against conviction granted.
(2) Appeal against conviction dismissed.
(3) Leave to appeal against sentence granted.
(4) Appeal against sentence dismissed.

Catchwords:

CRIMINAL LAW – Appeal against conviction – where evidence of de facto relationship between prosecution witness and applicant – where prosecution witness completes evidence before the jury without being made aware of a right to object under s 18 of the Evidence Act – where judge raises s 18 the next day and recalls the witness – voir dire conducted – where witness says she would have objected if informed of the right to object – where judge determines the evidence was admissible – procedural unfairness to the witness – whether error could be corrected retrospectively – whether judge made the witness aware of the effect of s 18 on the voir dire – application of proviso – whether substantial miscarriage of justice by wrongful admission of evidence – forensic choice of counsel – whether different result would have been reached if s 18 raised when witness gave evidence before the jury – no procedural unfairness to applicant – whether Court of Criminal Appeal satisfied that the guilt of the applicant had been proved to the criminal standard.

  SENTENCING – whether sentence manifestly excessive – no challenge to assessment of objective seriousness of offences or to the applicant’s subjective case.
Legislation Cited: Crimes Act 1900 (NSW) s 61M
Criminal Appeal Act 1912 (NSW) s 6(1)
Evidence Act 1995 (NSW) ss 18, 38, 65
Cases Cited: De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; 74 ALJR 1538; 175 ALR 315; 115 A Crim R 558
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; 89 ALJR 776; 323 ALR 33; 253 A Crim R 126
Fletcher v R (2015) 45 VR 634; [2015] VSCA 146
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; 85 ALJR 195; 272 ALR 465; 204 A Crim R 434; 78 ATR 11
Hofer v R [2019] NSWCCA 244
James v The Queen (2014) 253 CLR 475; [2014] HCA 6; 88 ALJR 427; 306 ALR 1; 236 A Crim R 402
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; 92 ALJR 305; 352 ALR 1; 271 A Crim R 245
Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; 79 ALJR 1048; 215 ALR 213

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Jurd v The Queen [2020] NSWCCA 91
Case
[2020] NSWCCA 91
Decision Date

CaseChat Overview and Summary

Jurd v The Queen involved an appeal against the conviction of the applicant, who was found guilty of various criminal offences. The primary issue in the appeal was whether the trial judge's handling of a potential objection to the evidence of a prosecution witness under section 18 of the Evidence Act constituted a procedural unfairness that led to a substantial miscarriage of justice. The prosecution witness completed her evidence before the jury without being informed of her right to object to questions under section 18 of the Evidence Act. The following day, the judge raised section 18, recalled the witness, and conducted a voir dire. The witness indicated that she would have objected if she had been informed of her right to do so under section 18. The judge determined that the evidence was admissible, and the jury was not informed of the section 18 issue. The appeal court needed to determine if the procedural error was significant enough to warrant a new trial.

The Court of Criminal Appeal considered whether the procedural error constituted a substantial miscarriage of justice. The court found that there was no procedural unfairness to the applicant and concluded that the trial judge's error in not raising section 18 when the witness gave evidence did not result in substantial unfairness to the applicant. Additionally, the court held that the witness was not prejudiced by the late objection as she would have objected if informed of her right to do so. The court also noted that the decision to raise section 18 was a forensic choice of counsel and that a different outcome was not necessarily probable if the objection had been raised during the witness's testimony. The court was satisfied that the guilt of the applicant had been proved to the criminal standard.

The court also considered whether the sentence was manifestly excessive. The applicant did not challenge the assessment of the objective seriousness of the offences or the applicant's subjective case. Therefore, the court did not find the sentence to be manifestly excessive. The appeal was dismissed, and the conviction and sentence were upheld. The court did not find any substantial miscarriage of justice and was satisfied that the applicant's guilt was proven beyond reasonable doubt.

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Background

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