R v MA; R v AD

[2024] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v MA; R v AD [2024] NSWCCA 69

Hearing dates:

15 March 2024

Date of orders:

14 May 2024

Decision date:

14 May 2024

Before:

Stern JA at [1];
Rothman J at [66];
Button J at [72].

Decision:

(1)   Allow the appeal.

(2)   Set aside the order of the primary judge.

(3)   Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.

(4)   Direct that the Crown should, within 14 days of the publication of these orders, make such application as it considers appropriate for an order restricting publication or disclosure of these reasons for judgment, beyond the completion of trial, if it considers that any part of these reasons for judgment would tend to reveal the identity of EAJ or TB.

(5)   Direct the Director of Public Prosecutions to notify the Associate to the presiding judge when the trial has been completed in order that restrictions of the publication of the reasons for judgment may be lifted.

Catchwords:

CRIME – Appeals – interlocutory appeal – appeal from decision ordering temporary stay of proceedings – where order was conditional stay of potentially permanent effect – where only proper basis for ordering conditional stay of potentially permanent effect would be that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial – correctness standard of appellate review applies

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 10

Crimes Act 1900 (NSW), ss 61J(1), 61I

Criminal Appeal Act 1912 (NSW), s 5F(2)

Criminal Procedure Act 1986 (NSW), s 293A, Div 4 of Pt 2 of Ch 3

Evidence Act 1995 (NSW), ss 38, 165(2)

Cases Cited:

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109

HO v R [2023] NSWCCA 245

House v The King (1936) 55 CLR 499; [1936] HCA 40

Koschier v R [2024] NSWCCA 24

Leiper v R [2018] NSWCCA 117

MA v R; AD v R [2023] NSWCCA 233

Marwan v Director of Public Prosecutions [2019] NSWCCA 161

R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76

Re K [2002] NSWCCA 374

The Queen v Apostilides (1984) 154 CLR 563; [1984] HCA 38

Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Appellant)

MA (First Respondent)
AD (Second Respondent)

Representation:

Counsel:

B Hatfield SC (Appellant)
L Jardim with D Grippi (First Respondent)
T McDonald SC with D Berents
(Second Respondent)

Solicitors:

Office of the Director of Public Prosecutions (Appellant)
Legal Aid NSW (First Respondent)
Rebecca Dunlop Legal (Second Respondent)

File Number(s):

2020/298136; 2020/298183

Publication restriction:

Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.

Pursuant to s 15A of the Children (Criminal Proceedings Act 1987 (NSW), there is to be no publication of information that identifies or is likely to lead to the identification of the complainants, MA and AD.

Pursuant to orders of Pickering DCJ made on 26 July 2023, there is to be no disclosure by publication or otherwise of information tending to reveal the identity of Emily Anderson-James as a witness in the District Court proceedings (the subject of this appeal) until 5 years from 26 July 2023.

Pursuant to an order of Gallagher DCJ made on 7 February 2025, there is to be no disclosure by publication or otherwise of any information tending to reveal the identity of Thomas Buckingham in connection with the District Court proceedings (the subject of this appeal) until 5 years from 7 February 2025.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

1 December 2023

Before:

Ingram DCJ

File Number(s):

2020/298136; 2020/298183

HEADNOTE

[This headnote is not to be read as part of the judgment]

MA and AD (the respondents) were charged with two counts of aggravated sexual intercourse without consent in company, contrary to s 61J(1) the Crimes Act 1900 (NSW), against CW (the complainant). AD was additionally charged with four counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act, against the complainant.

The respondents brought an application for a permanent stay of the prosecutions on the basis that, during a conference on 15 April 2021 (the April Conference), Thomas Buckingham, a solicitor advocate, improperly informed CW of evidentiary gaps in her witness statement made to police on 18 March 2019 and weaknesses in the prosecution case, and then “coached” CW in relation to her evidence. Emily Anderson-James, a solicitor and potential Crown witness, took a file note of that conference (the File Note). The application for a permanent stay was denied. The respondents unsuccessfully sought to appeal from this decision: MA v R; AD v R [2023] NSWCCA 233. The matter was relisted for joint trial commencing 27 November 2023.

In emails of 6 and 7 November 2023 the Crown advised that Mr Buckingham would be called to give evidence at trial but that Ms Anderson-James would not be called. The reasons given were that the relevant evidence that Ms Anderson-James could give could be adequately established by evidence from other witnesses and other evidence, such as the File Note, and that there was medical evidence which showed it would be “fundamentally detrimental” to Ms Anderson-James’ wellbeing to be called to give evidence.

The respondents applied for orders either vacating the trial or granting a temporary stay until Mr Buckingham and Ms Anderson-James were available to give evidence. The primary judge allowed the application and made an order (the Order), styled as a temporary stay, staying a criminal trial “until such time as the Crown indicates that Ms Anderson-James will be called at the trial or made available to give evidence at the trial.” The Crown appealed against the Order.

The Court held (Stern JA, Rothman and Button JJ agreeing), allowing the appeal:

1. As is immediately apparent from the terms of the Order, such order may be temporary or permanent in effect, depending upon whether or not the Crown indicates that Ms Anderson-James will be called or made available to give evidence at the trial. The Order is best described as a conditional stay of potentially permanent effect: [1], [17] (Stern JA), [67] (Rothman J), [72] (Button J).

   Leiper v R [2018] NSWCCA 117; Marwan v Director of Public Prosecutions [2019] NSWCCA 161, considered.

2. Given the potentially permanent effect of the stay and the well-established principle that it is for the Crown to decide which witnesses are to be called, the only proper basis for making such an order would be that the trial would otherwise be an abuse of process as being either necessarily unfair, or involving such unfairness as to constitute an abuse of process. On appeal, a correctness standard of review applies, notwithstanding that the primary judge plainly was not purporting to order a permanent stay: [15]-[18] (Stern JA), [68] (Rothman J), [72] (Button J).

   Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42, GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857; Koschier v R [2024] NSWCCA 24, applied.

3. In the particular circumstances of this case, such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial. As is apparent from the primary judge’s reasons, the primary judge did not address that threshold. Rather, the primary judge addressed the significantly lower threshold applicable to the making of a temporary stay. In that way, his Honour erred. His Honour addressed the wrong question: [34], [57] (Stern JA), [71] (Rothman J), [72] (Button J).

4. The circumstances did not justify the making of an order with the potentially permanent effect of the Order: [58]-[62] (Stern JA), [71] (Rothman J), [72] (Button J).

JUDGMENT

1. STERN JA: The central issue in this appeal, brought by the Crown under s 5F(2) of the Criminal Appeal Act 1912 (NSW), is whether the primary judge erred in making an order on 1 December 2023 (the “Order”), styled as a temporary stay, staying a criminal trial:

“until such time as the Crown indicates that [Emily Anderson-James] will be called [by the Crown] at the trial or made available to give evidence at the trial.”

2. As is immediately apparent from the terms of the Order, such order may be temporary or permanent in effect, depending upon whether or not the Crown indicates that Ms Anderson-James will be called or made available to give evidence at the trial. It is best described as a conditional stay of potentially permanent effect: see eg Leiper v R [2018] NSWCCA 117 at [14]; Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [42] (Leeming JA, R A Hulme J agreeing).

3. The Order was made in proceedings involving two counts of aggravated sexual intercourse without consent in company, contrary to s 61J(1) the Crimes Act 1900 (NSW) (against the two respondents, “MA” and “AD”), and four counts of sexual intercourse without consent contrary to s 61I of the Crimes Act (against AD only). The offences are alleged to have occurred in the early hours of 3 March 2019 at the Skye Hotel in Parramatta. As the complainant, “CW”, and the two respondents were all under the age of 18 at the time of the alleged offences, their names have been anonymised pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). The respondents’ trial is now set down for November 2024 and the Court was informed that irrespective of the outcome of this appeal, there is no realistic prospect of an earlier listing.

4. By way of background, it is common ground that on 15 April 2021 a conference took place between Ms Anderson-James, a solicitor in the Office of the Director of Public Prosecutions (“ODPP”), Thomas Buckingham, a solicitor advocate with the ODPP, and CW (the “April Conference”). The Crown now concedes that during the April Conference, Mr Buckingham improperly informed CW of evidentiary gaps in her witness statement made to police on 18 March 2019 and weaknesses in the prosecution case. Mr Buckingham then “coached” CW in relation to her evidence. Ms Anderson-James took a file note of that conference (the “File Note”) and the Court was informed that the Crown conceded that the File Note, whilst not verbatim, was “taken as accurately as [it] could be at the time”, and that it could be tendered by the respondents at trial if they wished with no point being taken as to its accuracy.

5. Shortly following the April Conference, on 16 April 2019, Ms Anderson-James sent an email to Detective Senior Constable Elizabeth Hayes requesting that a further statement be taken from CW. Ms Anderson-James asked DSC Hayes to have CW “review her first statement and add to/clarify any portion as she sees fit.” DSC Hayes will be called as a witness at the trial.

6. In this email, Ms Anderson-James also said that CW should be asked to comment upon why any new information was not contained in her first statement. Prompted by an email from Mr Buckingham dated 20 April 2019, Ms Anderson-James sent a further email to DSC Hayes requesting that she ask CW to explain what she meant when she said that AD “made” her perform oral sex. Those emails have been disclosed to the respondents, as have emails between Ms Anderson-James and Mr Buckingham following the April Conference. On 21 April 2021, CW made a further statement, which contained detail over and above what she had included in her first statement and which included details raised with her, and emphasised, during the April Conference. On 15 February 2022, Mr Buckingham completed a Charge Certification Report, relying upon CW’s second statement, certifying the charges against the respondents. The Charge Certification Report has also been disclosed to the respondents.

7. Whilst CW’s statement of 21 April 2019 was disclosed to the respondents on 23 April 2021, the File Note was not disclosed until 9 August 2022, when it was disclosed in a redacted form (an unredacted version was served on 15 August 2022). That disclosure prompted an application on 11 August 2022 for a permanent stay of the criminal proceedings and which was refused on 23 February 2023. Both Mr Buckingham and Ms Anderson-James gave evidence on that application.

8. The respondents unsuccessfully sought to appeal from this decision: MA v R; AD v R [2023] NSWCCA 233 (Bell CJ, Ward P and Sweeney J agreeing) (“MA v R; AD v R”). During that appeal proceeding, the Crown accepted, and indicated that it would continue to accept for the purposes of any trial, that:

1. The manner in which Mr Buckingham conducted the April Conference was improper although it was not conceded that it was deliberately improper: at [8] and [113];

2. The Crown would not endorse the conduct of Mr Buckingham at trial nor would it seek a direction pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) to the effect that it is common for there to be differences in accounts of a sexual offence: at [103] and [113]; and

3. Depending on whether CW’s evidence strayed beyond the matters in her first statement, the Crown would not resist a warning by the trial judge under s 165(2) of the Evidence Act 1995 (NSW) as to the possible unreliability of CW’s evidence in light of the admitted improper conduct: at [113].

9. The Court in MA v R; AD v R annexed a copy of the File Note to its judgment, with key features italicised: at [71]. That copy of the File Note is also annexed to these reasons.

10. The matter was then relisted for joint trial commencing 27 November 2023. In emails of 6 and 7 November 2023 the Crown advised that Mr Buckingham would be called to give evidence at trial but that Ms Anderson-James would not be called. The reasons given were that:

1. The relevant evidence that Ms Anderson-James could give relates only to her email correspondence with DSC Hayes and this could be adequately established by evidence from DSC Hayes and other evidence such as the File Note; and

2. In addition, there was medical evidence which showed that it would be “fundamentally detrimental” to Ms Anderson-James’ wellbeing to be called to give evidence and “in circumstances where the relevant evidence that Ms Anderson-James could offer can be adequately established by other means, the interests of justice would in turn be harmed.”

11. On the first day of trial MA and AD applied for orders either vacating the trial and listing the matter for mention on a suitable date or granting a temporary stay until Mr Buckingham and Ms Anderson-James were available to give evidence. In response to those applications, the primary judge made the Order from which the Crown now appeals.

12. For the reasons that follow, this appeal should be allowed.

Non-publication

13. The Court in MA v R; AD v R made orders restricting the publication of the reasons for judgment to the parties and their legal advisers until completion of trial. An order to similar effect should be made as regards these reasons, including because they include extracts from the reasons in MA v R; AD v R.

14. Moreover, given that the identities of both Ms Anderson-James and Mr Buckingham are the subject of orders made under the Court Suppression and Non-publication Orders Act, within 14 days of the publication of this Court’s orders, the Crown should make such application as it considers appropriate for an order restricting publication or disclosure of these reasons for judgment, if it considers that any part of these reasons for judgment would tend to reveal the identity of Ms Anderson-James or Mr Buckingham.

Standard of appellate review

15. During the hearing of this appeal the Court sought submissions from counsel as to whether the appropriate standard of appellate review was the correctness standard, held to apply where the issue was as to whether a permanent stay should be ordered on the grounds of abuse of process: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (“GLJ”), including in criminal proceedings: Koschier v R [2024] NSWCCA 24 at [33]-[34] (Bell CJ, Harrison CJ at CL and Chen J agreeing), or the House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 standard applicable to discretionary decisions. Both parties responded to this request by providing helpful supplementary written submissions.

16. The Crown contends that, given the potentially permanent effect of the stay and the well-established principle that it is for the Crown to decide which witnesses are to be called: Whitehorn v The Queen (1983) 152 CLR 657 at 663; [1983] HCA 42 (Deane J), the only proper basis for making such an order would be that the trial would otherwise be an abuse of process as being either necessarily unfair, or involving such unfairness as to constitute an abuse of process, relying upon GLJ at [24] (Kiefel CJ, Gageler and Jagot JJ, Steward and Gleeson JJ agreeing at [96] and [161] as regards the standard of appellate review). Thus, the Crown contends, consistent with GLJ and Koschier, that this Court should approach its task on appeal by reference to the correctness standard of review.

17. By contrast, the respondents contend that the Order was made in the exercise of the primary judge’s discretion. Thus, they contend, the House v The King standard is appropriate. In support of this contention, the respondents say that the Order is not akin to a decision with the consequence that the Court has refused to exercise jurisdiction, as was the case with the permanent stay ordered in GLJ: at [26] (Kiefel CJ, Gageler and Jagot JJ, Steward and Gleeson JJ agreeing at [96] and [161] as regards the standard of appellate review). Rather, the respondents contend that in making the Order, the primary judge was considering the risk of unfairness and what could be done to address that unfairness: see eg R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [128] (Bathurst CJ, Fullerton and Bellew JJ agreeing) (“Seller”).

18. For the reasons set out below, I have concluded that in the circumstances of this case, the Order is, in substance, more akin to a permanent stay than a temporary stay. Moreover, given that the resumption of trial was made conditional upon the Crown calling or making Ms Anderson-James available, consistent with Whitehorn, the stay should not have been ordered unless the Court was satisfied that the failure to call Ms Anderson-James was such that the respondents would have been denied their fundamental right to a fair trial. Such a finding would be analytically similar to the juridical basis identified for a permanent stay in GLJ, being that there was “such unfairness or oppression to a defendant as to amount to an abuse of process”: at [24] (Kiefel CJ, Gageler and Jagot JJ, see also Gleeson J at [161] and Steward J at [95]). Thus, consistent with GLJ and Koschier, I would accept the Crown’s submission that, on appeal, a correctness standard applies.

19. That is so notwithstanding that the primary judge plainly was not purporting to order a permanent stay and was purporting to put in place measures more akin to case management than a refusal to exercise jurisdiction.

20. In any event, as is apparent from my analysis below, the same result would flow had I applied the House v The King standard of review.

Threshold for the grant of a temporary stay

21. During the hearing of this appeal the Court also sought submissions from counsel as to the threshold for the grant of a temporary stay, having regard to the judgment of Leeming JA (R A Hulme J agreeing) in Marwan, identifying that there is “arguably some divergence in the authorities which formulate the test to be applied” for the grant of a temporary stay: at [22].

21. In Dietrich v The Queen (1992) 177 CLR 292 at 311; [1992] HCA 57, in the context of the issue of unfairness arising from the unavailability of counsel, Mason CJ and McHugh J explained:

“The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge’s discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented.”

23. Subsequently, in Re K [2002] NSWCCA 374 at [9]-[10], this Court (Beazley JA as her Excellency then was, Sully and Simpson JJ) agreed that the correct test to apply where an application is made for a temporary stay is whether there is a “risk” that the accused would not have a fair trial.

24. In Seller (at [128]), Bathurst CJ (Fullerton and Bellew JJ agreeing) held:

“The question of whether a temporary stay should be imposed arises if the court is of the view that it is inappropriate to grant a permanent stay but, notwithstanding, some relief is necessary to ensure a fair trial.”

25. Bathurst CJ (Fullerton and Bellew JJ agreeing) found (at [218]) that the “possibility” relied upon in that case in support of a temporary stay was not such as to warrant such an order.

26. In Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 at [64], Basten JA (Johnson and Adamson JJ agreeing), having referred to the extract from the judgment of Mason CJ and McHugh J in Dietrich set out above, refused a temporary stay, observing:

“In the present case, the applicant did not establish, or even assay the task of establishing, that a trial, absent production of the documents sought, would be likely to be unfair, or even (if a lower standard could be sufficient) that there was a tangible risk that it would be unfair.”

27. In HO v R [2023] NSWCCA 245 at [91], Wilson J (Beech-Jones CJ at CL and R A Hulme AJ) agreeing, held:

“A temporary stay of prosecutions may be granted by a court, but only where there is reason to believe that the trial of the accused is likely to be unfair: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. To borrow from Gould v Director of Public Prosecutions (Cth) (1992) 359 ALR 142; [2018] NSWCCA 109 at [64] … [there followed the extract from the judgment of Basten JA set out at [25] above].”

28. It is apparent that the Court in HO did not identify any divergence between the test derived from Dietrich and that applied by the Court in Gould.

29. Having regard to this authority, the Crown submitted that the preferred formulation is that derived from Gould, and consistent with Dietrich and Seller, namely, whether there is reason to believe that the trial of the accused is otherwise likely to be unfair. The respondents submit that there is “no substantive difference” between the various formulations of the test, observing that no divergence was identified by this Court in HO.

30. In my judgment, the Crown’s submission should be accepted. Consistent with the judgment of Mason CJ and McHugh J in Dietrich (at 311), some likely unfairness is required to warrant the grant of a temporary stay. Those cases in which the threshold has been phrased in terms of “risk” rather than “likelihood” are not inconsistent with that position.

Threshold for the conditional stay imposed in this case

31. As is probably unsurprising, there is no body of case law as to the requisite unfairness which would justify the grant of a conditional stay of a criminal trial.

32. Such an order is not uncommon where the relevant “condition” is the payment of costs: see eg R v Petroulias (No 19) [2007] NSWSC 536. Such a condition is far removed from that reflected in the Order in this case. In Leiper, the application made was for a stay until the Crown provided transcripts of surveillance device material: at [13]. The Court (Leeming JA, Bellew and Wilson JJ) observed (at [14]) of that application that:

“… the period of the stay which was sought turned entirely upon the attitude and resources of the Crown. Indeed, if the Crown formed the view that it would not provide a transcript, it might be permanent.”

33. Given that in Leiper the Crown conceded (at [15]) that the primary judge had made a House v The King error, the Court considered for itself whether such a stay should be ordered. The Court recorded (at [42]) that the parties accepted the applicability of the threshold as stated by Bathurst CJ (Fullerton and Bellew JJ agreeing) in Seller (at [128]), and said that whether a stay in the terms sought should be made required “an assessment of the fairness of the applicant’s trial if no orders are made”: at [43]. Noting that the case for a stay was, “at best, weak”, the Court refused leave to appeal. It is apparent that, consistent with the agreed position of the parties in Leiper, the Court did not approach the application on the basis that, to succeed, it was necessary to show that the trial would be so unfair as to amount to an abuse of process.

34. The respondents on this appeal contend that the appropriate threshold to apply in this case is that applicable to a temporary stay, observing that they are not aware of any authority for the imposition of a more demanding threshold for a conditional, as opposed to a temporary, stay.

35. In my judgment, for the reasons set out below, the conditional stay ordered by the primary judge in the present case is in a somewhat different category to that sought in Leiper. In the particular circumstances of this case, such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial.

36. First, the Order was made in circumstances in which it was clear that the Crown had made a decision not to call Ms Anderson-James to give evidence at the trial of the respondents. The primary judge’s understanding, as set out in his Honour’s ex tempore judgment, was that the Crown had “declined to call or make available the witness Ms Anderson-James at the present trial, or indeed at any trial”. The primary judge understood the Crown’s position to be both that Ms Anderson-James was not able “at present” to be called because of certain health issues, and that in any event, the Crown declined to call Ms Anderson-James or make Ms Anderson-James available in any trial because her evidence was irrelevant to the facts in issue or was otherwise available to the respondents. That is consistent with the Crown’s position as set out in the emails of 6 and 7 November 2023 (above at [9]). Thus, the factual premise for the Order was that the Crown would not satisfy the condition to which the stay was subject.

37. Second, as is clear from the judgment of Deane J in Whitehorn (at 663), in a criminal trial it is for the Crown and not the judge to determine what witnesses will be called. However, in presenting its case, the Crown is required to comply with standards of fairness. As Deane J held (at 664):

“The consequence of a failure to observe the standards of fairness to be expected of the Crown may be insignificant in the context of an overall trial. Where that is so, departure from those standards, however regrettable, will not warrant the interference of an appellate court with a conviction. On occasion however, the consequences of such a failure may so affect or permeate a trial as to warrant the conclusion that the accused has actually been denied his fundamental right to a fair trial. As a general proposition, that will, of itself, mean that there has been a serious miscarriage of justice with the consequence that any conviction of the accused should be quashed and, where appropriate, a new trial ordered (Criminal Law Consolidation Act, s. 353; Reg. v. Clewer (II)). If there be exceptions to that general proposition, they do not presently occur to me.”

38. Consistent with this, in The Queen v Apostilides (1984) 154 CLR 563 at 575; [1984] HCA 38, the Court (Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ) identified the following general propositions applicable to the conduct of criminal trials in Australia:

“1.   The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.

2.   The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.

3.   Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.

4.   When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge.

5.   Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

6.   A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”

39. More recently, in HO, this Court summarised (at [89]) the applicable principles as follows:

“(a)   It is for the Crown and not the court to decide which witnesses the Crown will call in its case: Richardson at 119; Whitehorn at 663.

(b)   That decision is to be made in conformity with the dictates of the obligation of fairness to the accused, and having regard to other material considerations, such as whether the evidence is necessary to the unfolding of the Crown case; whether the evidence is truthful and credible; and whether it is in the interests of justice to subject the evidence to cross-examination by the Crown: Richardson at 119.

(c)   The Crown is not bound to call a witness, even an eye-witness, whose evidence is judged to be unreliable, untrustworthy or otherwise incapable of belief: Whitehorn at 674.

(d)   Criminally involved witnesses can be regarded prima facie as unreliable, and there is no principle of law that requires the Crown to call such a person in its case: Allchin v R; Skepevski v R [2019] NSWCCA 278 at [127].

(e)   A judgment not to call a witness must be based on identifiable features, including the assessment made of the witness after a conference with that person where appropriate: Whitehorn at 664; R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [49] and [102].

(f)   Tactical considerations can play no part in the decision to call a witness: Whitehorn at 664.

(g)   Where the Crown decides not to call a witness who has been nominated by the service of the brief of evidence as a Crown witness, the decision must be communicated to the accused at a reasonable time and the witness made available at trial to the accused: Whitehorn at 664.

(h)   The reasons for the decision not to call the witness should be disclosed if sought: Whitehorn at 665.

(i)   There is no authority for the proposition that the Crown has a duty to actively seek out material not in its possession so that the material might be made available to the accused: Marwan v Director of Public Prosecutions [2019] NSWCCA 161 at [45] to [50].

(j)   Where a witness who might have been expected to be called by the Crown and to give evidence on a matter is not called, the jury may take the fact that there was no evidence from that witness into account when deciding whether the Crown has proved its case: Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].

(k)   A decision of the prosecutor not to call a particular witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice: Apostilides at 575.”

40. Having regard to the principles derived from these cases, it would only be where there would be such unfairness as to deny to an accused the right to a fair trial that a court would be justified staying proceedings unless the Crown were to call, or make available for cross-examination, a particular witness.

41. Third, and related to the first reason set out above, the position of the Crown before the primary judge was that EAJ [Ms Anderson-James] would not be called irrespective of whether her medical issues had improved before the respondents’ trial was listed to be heard. During the hearing of the respondents’ application for an adjournment or a temporary stay, the following exchange took place between the primary judge and the Crown after discussion as to the medical evidence:

“HIS HONOUR:   So, assuming for a moment that there was some aspect of the evidence that EAJ could give which was relevant, and I'm inviting you to assume that even though that's not your submission, what would the basis be for the person not being amenable to being called now, at this stage, or in six months or in 12 months' time be?

HALL:    The Crown would maintain the same position, that the evidence that EAJ is able to give does not go to, or is not relevant to, a fact in issue. That is, the extent to which the impugned conference impacted on the evidence that she subsequently gave in [sic] second statement. In circumstances where the Crown maintains a concession that the conference notes accurately reflect the impropriety.

HIS HONOUR:   Perhaps one of the difficulties with such conferences might be this, Madam Crown. That certain individuals in a conference of that type, being a complainant, might hear what the trial advocate, in this case, said, and they might simply sit there in a very objective way and do their best to recall the events as well as they could. They may be relatively unaffected by what is said to them. In the sense that so far as they're aware they're not being affected. They're not unemotional, but they're not allowing things to overwhelm them or to allow them to produce material which is not a clear recollection. If I can put it that way.

There may be witnesses like that. There may be other witnesses who are somewhat more emotional and distressed and so forth. And who may be more susceptible to - I'll put it neutrally as unintended suggestion. The person making the unintended suggestion and the person to whom the unintended suggestion is made may be in a position to shed light on what the reaction of the complainant was. But an objective third party who was present, actively taking notes, would also be able to shed light on the reaction, if any, by the complainant to the suggestions implicit in what was being said to them by the trial advocate, wouldn't they?

HALL:    Your Honour, the Crowns [sic] position would be that it would not be for this witness or EAJ to give opinion evidence about the reaction of the complainant to what she was hearing.”

42. As is apparent from this passage, this was not a case where the Crown’s decision not to call Ms Anderson-James or make her available ultimately turned upon Ms Anderson-James’ medical condition. The clearly stated submission of the Crown was that Ms Anderson-James would not be called or made available in any event. It was thus clear that the Order made resumption of the criminal proceedings conditional upon the Crown reversing what it told the Court was its considered decision in the exercise of its prosecutorial discretion.

43. Fourth, and of far less significance than the matters set out above, the medical evidence did not support a conclusion that Ms Anderson-James would not suffer from psychological distress were she required to give evidence at the respondents’ trial at a date in the future. That evidence comprised:

1. A certificate of capacity/fitness dated 23 May 2023 completed by Dr Phipps, a general practitioner, certifying that Ms Anderson-James had no current capacity for work on the basis of anxiety (against a background of pre-existing anxiety) until 23 June 2023;

2. A report dated 26 June 2023 from Ms Daly, a forensic psychologist, which appears to have been prepared for the purpose of an application for suppression orders over Ms Anderson-James’ identity; and

3. A letter dated 29 October 2023 from Dr Phipps.

44. The certificate of capacity/fitness dated 23 May 2023 was of no real significance to the issues on the application.

45. The report of Ms Daly contained the following:

“RELEVANT BACKGROUND INFORMATION

… Emily reported being involved in court proceedings in October 2022, as a witness in a case concerning a colleague’s alleged professional misconduct. She disclosed taking periods of stress leave in response to these proceedings. In May 2023, after being made aware that a Judge of the District Court had published a decision in which he made adverse findings about Emily’s own professional conduct, Emily enlisted the assistance of barrister Mr Howell. Mr Howell applied for an interim suppression order which remains in place until an application for a final order is heard and determined

CURRENT ASSESSMENT

Psychological Functioning in relation to court proceedings

Since October 2022, Emily has repeatedly described a number of adverse impacts in relation to the court proceedings outlined above [being the criminal proceedings against AD and MA]. She has reported symptoms including, but not limited to:

•   Psychological distress … and feelings of stress and overwhelm.

•   Heightened emotional reactivity, increased teariness and low frustration tolerance …

•   Significant sleep disturbances … including periods of insomnia

•   Low mood, negative self-concept … and feelings of hopelessness

•   Work-related anxiety … hypervigilance … and rumination …

•   Passive suicidal ideation

•   Physical symptoms such as “dry retching”, migraine, digestive issues and fatigue

…

DIAGNOSIS

Emily meets criteria for Adjustment Disorder with mixed anxiety and depressed mood, as outlined in the DSM-5 [309.28 (F43.23)]. The following symptoms appear to be present:

•   The development of emotional symptoms in response to an identifiable stressor occurring within 3 months of the onset of the stressor (Criteria A). Emily reported symptom onset and exacerbation in the month following the commencement of the conduct court proceedings.

•   The symptoms are clinically significant, as evidenced by significant impairment in occupational and other important areas of functioning (Criteria B). There is also marked distress associated with the stressor.

•   The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder (Criteria C).

•   The symptoms do not represent normal bereavement (Criteria D).

•   Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months (Criteria E). Emily reported symptom improvement two weeks after taking stress leave and following significant court dates related to the conduct of proceedings.

•   Depressed mood subtype as evidenced in self-reported low mood, tearfulness, passive suicidal ideation and feelings of hopelessness.

•   Anxiety subtype as evidenced in self-reported worry, nervousness and hypervigilance related to the stressor.

PROGNOSIS AND RELEVANT FUTURE CONSIDERATIONS

Emily presents as an insightful and hard-working individual who is motivated to manage her symptoms of Adjustment Disorder. It is predicted that if the work-related stressor and its consequences are removed or resolved, Emily’s symptoms will subside within a period of six months. Given the reported and observed symptom reduction following the interim suppression order, a permanent suppression order may allow for these improvements to continue.” (Emphasis in original).

46. It is apparent that Ms Daly envisaged that Ms Anderson-James’ symptoms would reduce after a permanent suppression order was made (and it is common ground that a permanent suppression order was made before the hearing before the primary judge). As the respondents submit, the evidence of Ms Daly does not establish that Ms Anderson-James was suffering from an adjustment disorder in November 2023. Nor does it establish that Ms Anderson-James will suffer from psychological symptoms associated with the stress of giving evidence in the respondents’ trial. Conversely, as the Crown submits, Ms Daly’s report does suggest that the stress associated with these proceedings are likely to have caused Ms Anderson-James’ psychological symptoms, and that it was the removal or resolution of that “stressor” that was predicted to lead to her symptoms subsiding.

46. This evidence did not support Ms Anderson-James being “unavailable” to give evidence in the respondents’ trial, as was conceded by the Crown during the hearing of the appeal. However, nor did it support a conclusion that Ms Anderson-James would not suffer from psychological symptoms were she required to give evidence in these proceedings at some date in the future.

47. Dr Phipps’ letter was in the following terms:

“… Emily has been requested to give evidence in court in a trial commencing on 27th November 2023.

This letter is to certify that this request for evidence is causing significant psychological distress to Emily, and prior involvement in these proceedings has also caused very significant psychological distress to Emily. Please see Emily’s psychologist court report which has been provided separately for further details regarding psychological symptoms. Emily is currently postpartum, with her baby [redacted] being born on [redacted]/08/2023 and is therefore additionally in a psychologically and physically more vulnerable state.

Additionally and separately to the psychological distress, Emily is also physically limited in her ability to attend court being postpartum whilst caring for her [redacted]. Emily is breast feeding on demand, she is frequently waking to breast feed throughout the night and Emily’s [redacted] is also refusing bottle feeds. Emily has not been away from her [redacted] for any prolonged periods in this acute postpartum phase.

Since being recently requested to give evidence in court, Emily has experienced a relapse in previous psychological distress symptoms, including a significant exacerbation in insomnia, on top of already pre-existing sleep deprivation being a postpartum mother caring for a newborn baby.

Due to the very significant distress being involved in this court case proceedings so far has caused Emily, in addition to the further recent distress and Emily’s postpartum status, I would medically recommend Emily be excluded from the court proceedings and requirements for submitting evidence in court.”

49. As with Ms Daly’s report, the Crown conceded that that evidence did not support Ms Anderson-James being “unavailable” to give evidence in the respondents’ trial. To the extent that Dr Phipps’ opinion was based upon Ms Anderson-James having recently given birth, that circumstance would be expected not to impact her were the respondents’ trial to take place at a date later than 27 November 2023. However, as the Crown submitted, Dr Phipps’ letter again draws a link between Ms Anderson-James suffering symptoms of psychological distress and her being requested to give evidence in court. Again, this evidence does not support a conclusion that Ms Anderson-James would not suffer from symptoms of psychological distress were she required to give evidence at the respondents’ trial at some date in the future (albeit without the complication of what Dr Phipps termed as Ms Anderson-James’ “vulnerable” postpartum state).

The reasons of the primary judge

50. The primary judge, having summarised the medical evidence relied upon by the Crown, said:

“The Court has taken the opportunity to set some aspects of those reports out, because, to the extent that in strictu sensu [Ms Anderson-James] may not come within the ambit of someone who is unavailable to give evidence for the purpose of the Evidence Act, it is clear to this Court that appropriate consideration nevertheless needs to be given to the circumstances of the witness.

…

Thus, to the extent that that material is not in and of itself sufficient to demonstrate the unavailability of the witness, and I am inclined to that view, frankly, it would be nevertheless appropriate for the Court to give careful consideration to whether or not there might be some step or steps taken to remediate the state of affairs, to which reference will be made later in the course of these reasons.”

51. His Honour then directed himself by reference to the principles governing temporary stays, including by reference to the judgment of Bathurst CJ (Fullerton and Bellew JJ agreeing) in Seller (at [128]), set out above at [23].

52. The primary judge then noted that:

1. The Crown will concede impropriety in the trial of the respondents;

2. The Crown had agreed to call Mr Buckingham and DSC Hayes at the trial; and

3. It seemed that CW would also be made available for cross-examination at the trial.

53. His Honour found, however, that:

“The events and circumstances that occurred in the 15 April 2021 conference, including what was said by the participants together with any non-verbal communication, responses or reactions by the participants, including the complainant, are in my view at least capable of being relevant to a full understanding of the dynamics of the conference, and the circumstances in which the complainant made the additional disclosures that ultimately led to the necessity for the preparation of her second statement”.

54. Moreover, his Honour observed that when giving evidence on the voir dire during the hearing of the permanent stay application, Mr Buckingham did not accept that there was any impropriety on his part during the April Conference, including matters which are subject to the Crown’s concessions on impropriety. His Honour continued that whilst the Court cannot definitively know what a witness will say, “[Mr Buckingham] might well maintain a similar response to matters put to him at trial, whether on the voir dire or in his evidence before the jury.” The primary judge noted that Ms Anderson-James’ evidence on the voir dire during the hearing of the permanent stay application as to this was:

“Q.   Do you still see any problem with what Thomas Buckingham did, or do you agree completely with everything he did in the conference?

A.   No, I don’t agree with what he did in the conference.”

55. His Honour found:

“The issues touching upon the complainant making this further statement in which she sets out material regarding the third element of each of the counts on the indictment concerning the respective accused knowing that she was not consenting to the sexual intercourse will, in my view, be important matters for the jury to consider in the trial with respect to the reliability of the evidence of the complainant, in respect, in particular, to this third element of each of the counts.

…

In my view, it is therefore necessary to grant a temporary stay to prevent injustice and avoid unfairness to the accused, where the Crown has declined to call [Ms Anderson-James] or to make [Ms Anderson-James] available, but also urges the Court to proceed with the hearing of the trial in those circumstances.

The granting of a temporary stay will mean that a fresh trial date may need to be set, depending on what course the Crown now takes in the current proceedings, or what course might be available to the Crown to take in the current proceedings.”

56. As to the timing of the trial, the primary judge said:

“Any such fresh trial date is not likely to be before September 2024 in this court precinct. That is something in the order of a full 12 months from the period during which it appears to the Court that [Ms Anderson-James] has had the postpartum circumstances to which Dr Phipps referred, and the Adjustment Disorder symptoms to which Ms Daly, forensic psychologist, has referred.

Such a period of time would seem, on the available evidence, likely to be sufficient for those symptoms to have sufficiently settled to permit [Ms Anderson-James] to be called on the voir dire and in any trial.

Accordingly, having regard to all of the above matters, including the circumstances that the consequences of the granting of the application and the making of the relevant orders would be to have the effect of essentially providing a period of something in the order of 12 months between the time of the delivery of [Ms Anderson-James’] child, the onset of symptoms and any new trial date, it appears to the Court that there are multiple sufficient reasons for the present orders to be made.”

Notice of appeal

57. On 8 December 2023, the Crown filed a notice of appeal contending that the primary judge erred in granting a temporary stay of the proceedings until such time as Ms Anderson-James is available to give evidence. On 23 February 2024, the Crown sought to rely upon an amended notice of appeal, described by Senior Counsel for the Crown as “particulars” and to which there was no objection. The amended notice of appeal is in the following terms:

“Ground 1:   The primary judge erred in granting a temporary stay of the proceedings until such time as EAJ is available to give evidence, namely:

(a)   The primary judge mistook the facts in relation to the cause and likely resolution of EAJ’s psychological state; and/or

(b)    The primary judge failed to take a material consideration into account, namely, the relative importance (or unimportance) of EAJ’s evidence; and/or

(c)   The decision was unreasonable or plainly unjust.” (Emphasis in original)

Consideration

58. Ultimately, having regard to my conclusion, having considered the parties’ supplementary submissions as to the applicable threshold for the making of a conditional stay such as that effected by the Order, it is unnecessary to deal with the matters raised in the amended notice of appeal. This is because, as set out above, I have found that such an order should not have been made unless the Court was satisfied that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial. As is apparent from the primary judge’s reasons, as summarised above, the primary judge did not address that threshold. Rather, the primary judge addressed the significantly lower threshold applicable to the making of a temporary stay. In that way, his Honour erred. His Honour addressed the wrong question. Had it been necessary to do so, I would have found that that error was an error which merited appellate intervention having regard to the principles in House v The King.

59. Nor did the circumstances justify the making of an order with the potentially permanent effect of the Order. I would reject the submission of Senior Counsel for AD that the inability of the respondents to cross-examine Ms Anderson-James during their trial would lead to the trial being unfair. For the purposes of this appeal, each of the submissions advanced by Senior Counsel for AD were adopted by MA.

60. It may be, as Senior Counsel for AD submitted, there could be some forensic advantage to the respondents being able to cross-examine Ms Anderson-James before the jury, rather than relying upon the File Note and other documents. However, as against that, given the Crown’s concessions (set out above at [51]) and that Mr Buckingham, DSC Hayes and CW would be available for cross-examination, any such advantage is unlikely to be significant.

61. There is also a possibility that, as submitted by Senior Counsel for AD, Ms Anderson-James, who was cross-examined on 21 February 2023 on the voir dire during the application for a permanent stay, may have some recollection of circumstantial matters which in some way shed additional light on the issues arising from what occurred during the April Conference. However, given that the Crown will not take any issue with the accuracy of the File Note and that Ms Anderson-James explained in her oral evidence on 21 February 2023 that her role during the April Conference was “to take the notes”, that is no more than speculation. Moreover, the extent or characterisation of the impropriety that occurred during the April Conference is not to the point. The point is as to the reliability of CW’s evidence bearing in mind what occurred during the April Conference. The material that goes to that issue is amply disclosed by the File Note.

62. Whilst Senior Counsel for AD submitted that Ms Anderson-James had particular significance as being “the conduit” through whom contact was made with CW, the evidence does not go beyond the fact that Ms Anderson-James had one prior telephone conference with CW on 22 March 2021. In considering this submission, it is of some significance that in advance of giving evidence on 21 February 2023, Ms Anderson-James had been provided with the File Note and she also had had access to the emails she sent to DSC Hayes following on from the April Conference (described above at [4]-[5]). Whilst Ms Anderson-James did not have access to the notes of her telephone conference with CW on 22 March 2021, those notes do not suggest that there was any discussion of CW’s substantive evidence during that telephone conference. In those circumstances, it is nothing more than speculation to suggest that access to that document (or other surrounding emails, or the Charge Certification Report) might prompt some relevant additional evidence from Ms Anderson-James.

63. Senior Counsel for AD submitted further that Ms Anderson-James may have recollection of other matters that occurred during the April Conference, such as demeanour or body language, which could be of relevance to the reliability of CW’s evidence. In my judgment, given how fully the exchanges are set out in the File Note (the accuracy of which will apparently not be disputed by the Crown), that the respondents can rely upon this document, and that Mr Buckingham will be made available to give evidence, again it is speculative to suggest that such matters would be of relevance to the issues at trial.

64. I would add, as raised during the hearing of the appeal, that if there is any material change in circumstances, nothing I have said would prevent the respondents making such application as they think fit. In that regard, Senior Counsel for the Crown candidly submitted that if an issue arose as to the accuracy of the File Note at the respondents’ trial which impacted the Crown’s judgment as to the relevance of Ms Anderson-James’ evidence, it might reconsider its position and adopt a different position as to whether Ms Anderson-James would be called or made available to give evidence at the trial.

Conclusion

65. It follows that the appeal should be allowed.

66. The following orders should be made:

1. Allow the appeal.

2. Set aside the order of the primary judge.

3. Restrict publication of reasons for judgment to the parties and their legal advisers until completion of trial.

4. Direct that the Crown should, within 14 days of the publication of these orders, make such application as it considers appropriate for an order restricting publication or disclosure of these reasons for judgment, beyond the completion of trial, if it considers that any part of these reasons for judgment would tend to reveal the identity of EAJ or TB.

5. Direct the Director of Public Prosecutions to notify the Associate to the presiding judge when the trial has been completed in order that restrictions of the publication of the reasons for judgment may be lifted.

67. ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Stern JA. I agree with the orders proposed by her Honour and her Honour’s reasons for those orders. I would add the following comments, which I clarify, would not, in any way, detract from the reasons for judgment of her Honour.

68. It seems clear to me that the trial judge considered that the terms of the order provided for a temporary stay. Unfortunately, the effect of the orders made is not temporary. It is an order that is a permanent conditional stay. It requires the Crown to call a witness, in default of which the trial would be stayed indefinitely (subject, of course, to any subsequent order).

69. As has been pointed out by Stern JA, it is for the Crown to determine the witnesses that it will call. A failure to call an essential witness may result in an unfair trial and a miscarriage of justice.

70. The learned trial judge was seeking to avoid any unfairness. Such a purpose is commendable. Nevertheless, the result could have been achieved by vacating the trial dates and listing it for some time after 12 months, which seemed to be the period after which the trial judge considered the witness would be more readily available.

71. The other aspect, which the courts need now to consider, is the operation of s 38 of the Evidence Act 1995 (NSW). The effect of s 38 is that, if the witness were essential, the accused could call the witness and, assuming the witness is unfavourable, could obtain leave from the trial court to cross-examine the witness. The utilisation of s 38 has disadvantages, but they may, in this case, be more theoretical than practical.

72. I reiterate that I agree with the orders proposed by Stern JA and with her Honour’s reasons.

73. BUTTON J: I agree with Stern JA.

**********

ANNEXURE TO JUDGMENT

[CW] conf

Present: TB, EAJ, [CW], [D], Jess - support person

Assessment of evidence and sign off on the charges

Will involve going into the evidence a bit

I know D is here to support you - I want to know whether or not you want him to be present when discussing the evidence

o   Details of what happened

He's heard - he is the only person who knows pretty much everything.

If that changes - give us an indication

No	TB	CW
1	When I make a determination about the charges, need to have the evidence to prove the charges - definite evidence to support some charges - there are other aspects that I'm not as clear about- it does involve me being frank with you about th evidence contained in your statement .
2	Draw some things to your attention and why that might make it difficult for us to prove the charge - I want you to come into this process with eyes wide open and be frank with you about
3	Experience in trials with judges and juries - unfortunately there are quite low conviction rates - want to make sure your expectations are managed - want to make sure you can be involved in without hoping for a particular result
4	Role is to the prosecute roles - present the experience - at this stage - involved in signing off on the charges - understand you'll be here to support - focus will be on CW
5	As I said it's really important that you're informed so you can give us your informed views - we have to take your views into account .sometimes complainants in matters do not wish to proceed - might be personal, mgith be other reasons - we take that on board - in a case like this - the views of the complainant are quite important
6	The more you understand about the process and the charges and what it takes to prove them - better informed you are - it's an informed view - understand	Yes
7	EAJ has prepared a report, I've had a look at, a number of charges are looked at - have to assess the evidence and use my experience to determine what the outcome is -we are still very early in the process - haven't ye tsettled
8	those charges - once that occurs there is a still long way to go - much will depend upon what the accuseds attitude is WRT the charges we proceed with - whether they proceed G or NG - whether we have a trial or hearing – or sentence hearing
9	In these kinds of matters, usually they are PNG - we prepare as if we are having a trial
10	I won't go into too much detail about what's involved - WRT the process of giving evidence - Jess is here and you've spokena bout her role as a support person within our office
11	Straight to the point with the charges
12	Going to discuss the evidence and the detail about what's contained in the	CW to D: you can go if you want to

D left 1.26pm

13	I'll be drawing your attention to your statement - not an evidentiary conference - not questions about why you say something - as I think EAJ has told you -we have an obligation to disclose relevant information to defence - their representatives - if at any stage - please let me know - it's easy for me to use legal language
14	One of the reasons - if you say anything to us - not a problem - if we need to do that, prefer to do it in a structured way- further statement from police - some of the things I'm going to raise - we might be able to clarify those things in a further statement.
15	Just b/c you prepared one statement, doesn't mean that's the end of it. Y9u might think- there's more to it than what Tom is pointing out now - I know I could say more about it now. I'm happy for you to let me know it's the case - we don't need to go into the details - let us know and we will arrange for the police to take a further statement.
16	The purpose is so you understand - so that we have the right charges moving forward.
17	The police have charged these two guys with one offence each Agg sex assault
18	Sex assault is where someone has sex/int without their consent, knowing that they are not consenting
19	Some people understand it as rape - we don't use that language professionally - it's a sex/assault
20	Aggravated b/c these two young guys are alleged to have done it together - in each other's company- circumstance of aggravation - police have laid a single charge of agg sex/assault for both of the accused
21	That in and of itself is slightly problematic - I know there were multiple incidents of sex/int - defined under the law to include oral sex, penile vaginal sex- digital - using the fingers to penetrate anus or vaginal - anal with penis or any other object
22	Quite expansive - means lots of different things - I know that in the beginning of this incident - one of the accused penetrated vagina with penis and the other made you perform oral sex on you - ok
23	Do you recall that - I know it's not something you want to think about it - no doubt distressing for you - important just for you to be clear about what the charges relate to	I'm just thinking about what I can and can't say
24	Refer to statement.
25	Talk about being led into bathroom; door was closed; two guys in there with you; one of them MA - names ok	Y
26	MA bent down, lifted up skirt, pulled underwear down - sat and pulled you down on him and inserted penis into V - first incident of sex/int	Y
27	Then he stands you up, bends you forward towards AD and he made you give him head - placing penis in mouth	Y
28	First two incidents	Y
29	Does that accord with your recollection of events	Y
30	When AD had placed his penis into your mouth, MA had his penis into vagina from behind - that continued for some time until MA ejaculated and said - I've finished	Y
31	At that stage, MA leaves the bathroom
32	AD remained in the bathroom and the door was closed again -you say that he made you sit on toilet and suck his penis - another incident of sex/int	Mmhmm
33	You said to him - he said to you - anal, you said no, he forced penis into anus - another incident	Y
34	You were -you were able to wiggle away and sit on the toilet and he said give me more head and you were frightened and he placed penis in mouth again - stopped, while sitting on toilet, forced fingers into vagina - those are all different incidents of sex/int	Y
35	Does that accord with your recollection of events	Y
36	It's ok if it doesn t	There are certain things that I remember being said that I don't know if I mentioned in there.
37	Do you mean things they said to you or that you said to them.	That they said to me.
38	There were 6 incidents of sex/int
39	When we are deciding what charges to proceed with - we will usually certify - sign off on - we would usually certify charges for each instance of sex/int - where police have charged a single offence for each accused, that has fallen short of how many times these things occurred	Y
40	There are more charges available to us - Qs about that	No
41	As I said before - a sex/assault involves three things - called elements - it's what we need to prove BRD for somebody to be found G whether by a jury (12 people) or a magistrate or a judge - senior lawyer who is presiding over the court
42	Three elements for a sex/assault are: 1.    Fact of sex/int 2.    That the person was not consenting - the victim – you 3.   That the accused, the offenders, knew than the victim was not consenting
43	We rely on all sorts of evidence to prove those things - we see lots of sex/assault matters in this office. You might have a case where the accused person is being very forceful; clear protest by the victim; saying no; or attack the perpetrator; and the P continues. We would say - there is sex/int; clear not consent and the P must have known that b/c they were being told no
44	We'd say to jury: You would accept their evidence
45	Whether we have the evidence to prove BRD - I have to be objective in the assessment of the evidence - please ask Qs and be informed - one of my concerns relates to the stuff that happens at the beginning - I'm not too worried, at all, after the stuff that happens with AD after MA leaves the room	Y
46	From that time you were saying no very clearly and told him to stop -you said don't do that, you were so frightened you kept going to make it end - satisfied from that point on that there is good evidence to support those elements of	Yeah I understand
47	the offence - not to say that I don't think that you were not consenting
48	I have a job to do and I have to be objective - in the beginning, the lead up is -you're laying on the ground in the hotel room, these guys laying on the ground next to you - you say can I have a hug - I'm not	Yeah
49	It is what it is. There's no judgment	Yeah I know
50	They lead you to the bathroom, these things start to happen -you sat on top of MA - I accept that you were panicked at the time
51	What causes me concern is the verbal indication of lack of consent or physical - we understand the freeze response well and that that is a phenomenon - we udnertsand that in the moment they don't repsnd in the way that another person doesn't respond in the way that someone else might
52	Trying to work out whether we can prove that these two guys knew that you weren't consentin g- I start to think that we might struggle here	I get it
53	And you can imagine if we go to trial	They'll pick it apart and that you said it later, you coulnd't say it first
54	I get it
55	There are some things that you do say that there are some things that you might be able to say- potentially getting another statement - if what you say is accurate and correct to the best of your recollection - if there is more, I can't put words in your mouth; I can explain why it is that we might have trouble with some of the charges	I get it
56	You say things like - M bent me forwards in front of him - A was standing in front of me - don't recall the words but AD made me give him head. Later - A was pushing head, to make mouth move - that might be what you were saying "made" - could be more physicality involved
57	That is an example of where there might be more to it - equally this is just an accurate representation of what happened	I remember a lot more, I wrote a lot of that, that stuff and even when being led to the bathroom, I don't know what I said there.
58	Would I be right in saying that - I really want you to be honest- you're statement is accurate to the extent you didn't verbalise anything	When I was making that statement, it was, I was at school, and I was just me and Elizabeth Hayes and it was two hours and I couldn't really say much so she was just asking questions and I would slightly put things out as best I could b/c I couldn't say anything b/c it was too hard to say it. That is probably the briefest point to
59	point but there is so much more to each, especially at the end, I don't know what
60	Like who you've spoken to but I know for certain what they said to me afterwards, and it incriminates them
61	When they said after - after the whole thing had occurred -	Y
62	When they both left the bathroom	G
63	She's coming to see you	b/c she - IDK if I can say this - I probably won't say it.
64	I do want to focus on this particular issue about the charges and what happened at the beginning - are you ok	Yeah I'm fine
65	I just don't know what I can and can't say
66	You can tell us - if you do say something - we know, and we can make sure that the right things happen - let me try and focus - things they said afterwards and that you think that would tend to support	Well - I know I wrote, I don't know if I wrote it in there - G came in, the first thing I said was I think I just got raped; b/c there was blood;
67	She helped me clean it up -
68	You're allowed - I'll go through the bits with you - you tell about MA - example of one thing he said
69	There is nothing else here about what he did apart from don't report us because there is 6 years in jail	Well that was the main thing that I keep thinking about -they said it in a room in front of at least 3 people - there was no - it didn't happen, I'm sorry, you're making it up - it was just: do not report us it's 6 years in jail
70	Nothing like no we didn't do it, it was just don't report us.
71	I know it's hard to prove but they did say that in front of other people
72	I might have asked you already - apart from what I've discussed with you - is it right for me to say that there was no verbal lack of consent?
73	If you don't remember for example saying no or I don't want this	That didn't happen - is that what you're saying
74	You don't say that in your statement - I don't want you to	No, I know that would be wrong
75	I'm not here to fill gaps	I know, objective
76	At the very start I didn't know what was going to happen, I guess I had an idea but I didn't know
77	During the initial incidents of sexual penetration before he leaves -	I remember- I had a couple of things and then they are just gone.
78	You said you hated every minute, scared,	I wet myself
79	That's a really common response that we see - I can see that you weren't - the real difficulty is that proving that they knew - I think that AD, after the fact -	I think at the start, AD was taking, he had a flashlight on - I thought that he was filming and so like I kept saying, stop, let me see your phone - then he was hiding that from me and he wouldn't stop - I know that's completely
80	different - I was trying to stay stop - that didn't happen at that point- I was scared
81	I wet myself and they were making fun of that.
82	That was the main thing I want to highlight to you in terms of what we need to prove - as is quite clear- there may be some issues with proving based on that -
83	The lack of their knowledge of your consent at the beginning - BRO is quite a high	Yeah there can't be a single thing
84	If there is any reasonable doubt then the accused get that benefit -	There's no proof
85	There's no proof - if we have any doubt that you think for a moment that in their heads that they thought she was consenting - this is after proving that you were not consenting - for the most part you clearly didn't want it - no free and voluntarily consent -
86	Jury has to think about their minds - and whether it was possible that they didn't know you were consenting - then they get the benefit of the doubt	Could I make another statement
87	You absolutely can - I can't coach you on what to say- you do need to understand - if you make another statement	They'll clash
88	It's not that - if you're adding things - XXN - they'll say you added this to fix holes - all you can say is I'm trying to be honest
89	In relation to the charges that police have charged - they relate to the beginning - what I want to ask you -you don't have to answer today- prefer you have time to think about it - helpful to provide a supplementary statement if you can feel like you can expand - do that as well - id' like to hear your views on not proceedings on the initial charge	The agg sex assault
91	You can let me know how you're feeling about it and get your views	I think, well I want them both to be charged so I don't want him to get off the hook, they both hurt me a lot
92	Even if it comes as NG verdict, I still want them to be charged with agg sex/assault
93	Do you think it would dbe useful to provide a supplementary statement	Yes b/c I know at the time I dind't even say certain words - I just kind of pointed
94	Would you be comfortable reading your first statement again so you can read the first one then work out what you might be able to add to that.
95	Questions:	If you think of any, contact us - better that you're informed and you understand what's happened and why- better that you understand and if you have any questions
96	Get OIC to touch base with you - and see that you can add to that - things you've said - arrange for that to happen
97	Feeling	Numb. I'm fine. D is dropping me home.
98	Ok for work?	Yeah I can't get out of it.

Decision last updated: 15 May 2025