R v NE

Case [2021] NSWCCA 54 31 March 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v NE [2021] NSWCCA 54
Hearing dates: 24 March 2021
Date of orders: 24 March 2021
Decision date: 31 March 2021
Before: Hoeben CJ at CL
Campbell J
Hamill J
Decision:
1. Allow the appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW).
2. Vacate the orders made by Judge Grant on 22 March 2021.
3. And in lieu thereof:
a. Order that the jury be discharged;
b. Order that the trial be vacated; and
c. Remit the matter to the District Court at 2.00pm, 24 March 2021 for mention and/or to set a new trial date.

Catchwords:
CRIMINAL LAW – procedure – application to vacate trial date – where complainant not available for medical reasons – refusal of adjournment application – where accused consented to Prosecutor’s application – where evidence to be used as tendency evidence in respect of other complainants – role of Prosecutor – role of trial Judge – case management – tail wagging dog – whether decision unreasonable or plainly unjust
CRIMINAL LAW – application to discharge jury – antecedent adjournment application not dealt with – where trial Judge insists on empanelling jury – where jury made aware of complainant who was unavailable – application of wrong test – question is not whether there may be a “substantial miscarriage of justice”

Legislation Cited:
Criminal Appeal Act 1912 (NSW), ss 5, 6(1)
Criminal Procedure Act 1986 (NSW), Pt 5, ss 3, 294D, 306A, 306H, 306I

Cases Cited:
Ambury v R [2018] NSWCCA 275
Bell v Imrie & Anor (Unreported, Supreme Court of NSW, Yeldham J, 24 February 1989); 8 Petty Sessions Review 3905
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Director of Public Prosecutions (NSW) v Chaouk and Anor [2010] NSWSC 1418
Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219
House v The King (1936) 55 CLR 499; [1936] HCA 40
JV v R [2017] NSWCCA 49
Libdy v R [2021] NSWCCA 34
Miller v R [2015] NSWCCA 206
Nitiva v Director of Public Prosecutions & 2 Ors [1999] NSWCA 332
Noble v Director of Public Prosecutions & Others [2000] NSWSC 920
Pasoski v R [2014] NSWCCA 309
R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
R v Reid [1999] NSWCCA 258
R v Shortland [2018] NSWCCA 34
Stevens v R [2015] NSWCCA 235
Thornberry v The Queen (1995) 69 ALJR 777
Tootle v R [2017] NSWCCA 103

Category: Principal judgment
Parties: Regina (Applicant)
NE (Respondent)
Representation:
Counsel:
P McGrath SC (Applicant)
N Steel (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Applicant)
David Davidge Solicitor (Respondent)

File Number(s): 2019/185294
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of any information that might identify the complainants. The Court notes that, in the circumstances of the case, this would include naming the respondent.
Decision under appeal

Court or tribunal:

District Court…

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 R v NE

Details

AGLC: R v NE [2021] NSWCCA 54
Case: [2021] NSWCCA 54
Decision Date: 31 March 2021

CaseChat Overview and Summary

The matter before the court was an application to vacate a trial date in a criminal proceeding. The accused was facing multiple charges of sexual assault, with the trial scheduled to proceed with the evidence of one complainant. However, the complainant was unavailable due to medical reasons. The prosecution sought to use her evidence as tendency evidence in respect of other complainants. The accused consented to the Prosecutor’s application for the trial to proceed. The court had to determine whether the refusal to vacate the trial date was unreasonable or plainly unjust, considering the unavailability of the complainant and the accused’s consent.

The central issue before the court was whether the trial Judge’s refusal to vacate the trial date was unreasonable or plainly unjust. The accused argued that the unavailability of the complainant for medical reasons was a significant factor warranting a postponement. The court had to consider the role of the Prosecutor and the trial Judge in managing the case and whether the decision to proceed with the trial was appropriate. The accused contended that the application of the wrong test by the trial Judge, focusing on whether there may be a substantial miscarriage of justice instead of considering the availability of the complainant, was a critical error.

The court found that the trial Judge’s decision to refuse the adjournment application was unreasonable. The Judge’s insistence on empanelling the jury, despite the antecedent adjournment application not being dealt with, and the jury being made aware of the unavailable complainant, was flawed. The court held that the Judge had applied the wrong test, focusing on the potential for a substantial miscarriage of justice rather than the immediate issue of the complainant’s unavailability. The court concluded that the decision was plainly unjust as it did not adequately consider the specific circumstances of the case.

The court ordered a new trial date to be set, allowing for the availability of the complainant to be properly considered. The court also noted that the role of the Prosecutor and the trial Judge in case management was critical, and a balanced approach must be taken to ensure justice is served. The court emphasised the importance of correctly applying legal tests in criminal proceedings, particularly in cases where the availability of a key witness impacts the fairness of the trial.

Orders