PJ v R

Case [2023] NSWCCA 105 17 May 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: PJ v R [2023] NSWCCA 105
Hearing dates: 8 May 2023
Date of orders: 17 May 2023
Decision date: 17 May 2023
Before: Basten AJA at [1];
Walton J at [65];
Hamill J at [75]
Decision:
(1) Extend to 8 March 2023 the time within which to seek leave to appeal from the ruling of Traill DCJ on 8 February 2023, refusing an application for the complainant and her brother to give further evidence pursuant to Sch 2, cl 87 of the Criminal Procedure Act 1986 (NSW).
(2) Dismiss the application for leave to appeal.

Catchwords:
CRIMINAL LAW – child sexual assault – pre-recorded evidence – failure to put matters raised by accused in interview with police – leave sought to re-call witness – lengthy delay – change of defence counsel – “interests of justice” – purpose of reducing trauma to child witnesses
CRIMINAL APPEALS – interlocutory judgment or order – competence of application – whether ruling of trial judge amenable to appeal under Criminal Appeal Act1912 (NSW), s 5F

Legislation Cited:
Civil Procedure Act 2005 (NSW) Pt 6 Div 3, Sch 2 Pt 29, ss 306Y, 306ZB
Crimes Act 1900 (NSW), ss 66A, 66DA
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), ss 249C, 294CB, 306S, 306U, Pt 2 Sch 2 cls 84-85, 87, 88, 89
Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4)

Cases Cited:
AF v R [2015] NSWCCA 35
Brown v R [2022] NSWCCA 121
Browne v Dunn (1893) 6 R. 67
DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
King v Snow (1915) 20 CLR 315
KN v R (2017) NSWCCA 249; [2017] NSWCCA 249
Oldfield v The Queen (2006) 163 A Crim R 242; [2006] NSWCCA 219
Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125
R v Jovanovic (1997) 42 NSWLR 520
R v Powch (1988) 14 NSWLR 136
R v RAG [2006] NSWCCA 343
R v Steffan (1993) 30 NSWLR 633
SC v R (2020) 104 NSWLR 257; [2020] NSWCCA 314
WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015

Category: Principal judgment
Parties: PJ (Applicant)
The King (Respondent)
Representation:
Counsel:
M Avenell SC and S Orman-Hales (Applicant)
M Kumar and S Beaumont (Respondent)
Solicitors:
NFK Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/196012
Publication restriction: There is a non-publication order in relation to the name of the applicant. There is a statutory prohibition on publication of…

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 PJ v R

Details

AGLC: PJ v R [2023] NSWCCA 105
Case: [2023] NSWCCA 105
Decision Date: 17 May 2023

CaseChat Overview and Summary

The case of PJ v R involved the defendant, PJ, who was accused of sexually assaulting a child. The case was heard in the District Court of New South Wales. The primary dispute centred on whether the trial judge erred in not allowing the accused to put certain matters to a child witness through pre-recorded evidence, and whether the court should have recalled the witness after a significant delay, especially given the change in defence counsel and the potential trauma to the child witness.

The legal issues before the court were twofold: first, whether the trial judge's failure to allow the accused to put certain matters to the child witness via pre-recorded evidence constituted a significant procedural error; and second, whether the delay in recalling the witness, coupled with a change in defence counsel, warranted an appeal under section 5F of the Criminal Appeal Act 1912 (NSW). The court had to consider the balance between the interests of justice and the potential trauma to the child witness.

The court determined that the trial judge's decision not to allow pre-recorded evidence was not a significant procedural error, as the accused had not demonstrated how this omission prejudiced their case. Furthermore, the delay in recalling the witness and the change in defence counsel did not necessitate an appeal under section 5F of the Act, as the court found that the interests of justice did not require such action. The court emphasised the importance of reducing trauma to child witnesses but held that the trial judge's decisions were within their discretion and did not warrant an interlocutory appeal.

The final orders of the court were that the application for leave to appeal the trial judge's decisions was dismissed. The court found that the appeal did not meet the criteria for an interlocutory appeal and that the trial judge's decisions were sound and did not significantly prejudice the accused's case.

Orders