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.
[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
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.