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McIver v R

McIver v R

Case [2020] NSWCCA 343 17 December 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: McIver v R [2020] NSWCCA 343
Hearing dates: 24 August 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Before: Johnson J at [1]
Davies J at [5]
Adamson J at [149]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal in respect of ground 2.
(3) Quash the convictions entered in the District Court on 13 September 2019.
(4) Quash the sentence imposed by Judge Williams in the District Court on 20 December 2019.
(5) Order a new trial in respect of counts 2, 5, 8, 9 and 10 of the Indictment.
(6) Stand the proceedings into the arraignment list in the District Court at the Downing Centre on 5 February 2021.

Catchwords:
COURTS AND JUDGES - bias - apprehended bias –appeal – judge-alone trial - where trial judge recognised a crucial Crown witness as a shop assistant with whom she had dealt over a lengthy period – where the credibility of the witness and the applicant were in issue - where judge should have disqualified herself - where new trial ordered
CRIME - appeals - appeal against conviction - unreasonable verdict - where applicant found guilty of historical sex offences - whether findings of guilt were reasonably open - whether there had been substitution of the applicant for another perpetrator - where a number of other persons who worked at the home were convicted of sexual offences - where evidence does not disclose any basis for the submission that displacement had occurred - where trial judge did not find applicant to be reliable witness - where trial judge formed a favourable impression of complainants notwithstanding some shortcomings in their memories - where no reasonable doubt that the applicant was guilty

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Ford v R [2020] NSWCCA 99
Gaudie v Local Court (NSW) [2013] NSWSC 1425; (2013) 235 A Crim R 98
Helow v Secretary of State for the Home Department [2008] 1 WLR 2416
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
M v The Queen (1994) 181 CLR 487
McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA…

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 McIver v R

Details

AGLC: McIver v The Queen [2020] NSWCCA 343
Case: [2020] NSWCCA 343
Decision Date: 17 December 2020

CaseChat Overview and Summary

The case of McIver v R involved an appeal against the conviction of the applicant, McIver, for historical sexual offences. The trial was conducted before a judge alone, and the key issue before the court was whether the trial judge should have recused herself due to an apprehended bias. The trial judge had known a crucial Crown witness, who was a shop assistant with whom she had interacted over a significant period, which could have affected the judge's impartiality. The court found that the trial judge should have disqualified herself, as the circumstances created a real danger that justice would not be done to the applicant if she did not recuse herself.

The court also examined whether the verdict of guilt was unreasonable. The applicant argued that the findings of guilt were not reasonably open on the evidence, suggesting that there might have been a substitution of the applicant for another perpetrator. However, the court found that the evidence did not support this submission, and the trial judge had appropriately assessed the credibility of the witnesses. The judge did not consider the applicant to be a reliable witness and formed a favourable impression of the complainants despite some inconsistencies in their memories. The court concluded that there was no reasonable doubt that the applicant was guilty of the offences.

The court ordered a new trial for the applicant, given the error in the trial judge not recusing herself due to apprehended bias. This decision underscores the importance of impartiality in judicial proceedings and the necessity for judges to avoid even the appearance of bias. The court's ruling highlights the critical role of a fair trial in ensuring the integrity of the criminal justice system.

Orders