R v NE

[2021] NSWCCA 54

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 of NSW

Jurisdiction:

Crime

Date of Decision:

22 March 2021

Before:

Grant DCJ

File Number(s):

2019/185294

Judgment

1. THE COURT: This judgment relates to an appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against the refusal by the District Court to vacate a trial date and to discharge a jury. The respondent faces 11 allegations of sexual offending against three separate complainants and his trial was listed to commence (and, over the objection of both parties, did commence) on Monday, 22 March 2021. The appeal was brought by the Prosecution but was effectively a joint application to vacate various orders made by Judge Grant on 22 March 2021. On Wednesday, 24 March 2021, the Court made the following orders:

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. In lieu thereof:

1. Order that the jury be discharged;

2. Order that the trial be vacated; and

3. Remit the matter to the District Court at 2.00pm today, 24 March 2021, for mention and/or to set a new trial date.

2. These are our reasons for making those orders.

Background and orders made at first instance

3. The circumstances in which the appeal was brought, and the rather odd course the proceedings took in the District Court, can be stated briefly.

4. Three complainants have made allegations of sexual offending against the respondent. The prosecution proposes to use the evidence of each of the complainants as tendency evidence in respect of the others. No objection has been taken by the respondent to the cross-admissibility of the evidence as tendency evidence or to the trial proceeding as a joint trial in which all three complainants are witnesses. Both parties take the view that the trial should proceed with the three complainants giving evidence. The respondent is represented at trial by an experienced and highly capable public defender.

5. The trial was listed to commence before Judge Grant in Griffith on Monday, 22 March 2021. We are not aware of the circumstances in which the case was listed, nor the imperatives faced by the District Court in the list at Griffith or at other locations in the region. Reading between the lines, those imperatives may have guided his Honour in his conduct of the proceedings.

6. The matter was called for trial on the Monday morning. The Prosecutor indicated that there was an application to vacate the trial date. The trial Judge declined to hear that application, insisting that a jury be empanelled and indicating that the application could be dealt with once the jury was selected. The circumstances, dictated by COVID-19 precautions and social distancing requirements, were that the jury panel was in another part of the court building (specifically, a courtroom generally used by the Local Court). Accordingly, there was some practical urgency in releasing the balance of the panel so that the other courtroom could be used by the local Magistrate. In making the decision to proceed to empanelment, his Honour did not appear to consider, even in overview, the basis upon which the Prosecutor sought to vacate the trial date and adjourn the proceedings. Nor did the trial Judge invite counsel for the respondent to indicate their position on the application to vacate the trial date. That was unfortunate. Based on the transcript of proceedings, and the date on which the notice of motion and affidavit were filed, it appears that his Honour was aware that one of the complainants was not available to give evidence.

7. The accused was arraigned on an indictment containing all 11 counts, pleaded not guilty to each charge, and a jury was selected and sworn or affirmed. In the course of that process the jury became aware that there were three separate complainants. According to the transcript of the arraignment and the indictment presented, Count 6 was an allegation concerning a complainant known as MD. The transcript of the proceedings creates some confusion about this with the Prosecutor and Judge referring to the count involving MD as Count 8. Nothing turns on this.

8. Once the jury was empanelled, the Judge heard the Prosecutor’s applications. By then, because a jury had been empanelled, the original application necessarily included an application to discharge the jury. The respondent supported the Prosecutor’s applications. His Honour declined to vacate the trial date and refused to discharge the jury. His Honour delivered two short ex tempore judgments.

9. The Prosecutor’s application to vacate the trial date arose because of unavailability of the witness MD, who, as stated above was the complainant in relation to Count 6. The application was brought by notice of motion supported by an affidavit of the solicitor with carriage of the matter for the Director of Public Prosecutions. The affidavit established that the solicitor received a ‘phone call from a Dr Crawford in the week before the trial. The doctor said that MD was experiencing serious complications with her pregnancy and had been taken by ambulance to Canberra and may be transferred to Sydney. The doctor expressed the view that MD would not be well enough to give evidence during the period in which the trial was listed. Before providing further details, the doctor wanted to obtain MD’s consent.

10. Dr Crawford supplied a report on 17 March 2021 setting out in a little detail the reasons that MD was unfit to attend the trial. That report was in the following terms:

“[MD] is currently admitted as an inpatient to Griffith Base Hospital (GBH) Maternity Ward. She is currently 37 weeks pregnant. She has provided me with her consent to provide the following medical details.

She currently has the following pregnancy complications:

1. Pre-eclampsia - diagnosed on the basis of hypertension and proteinuria. She is currently being managed on an anti-hypertensive medication, she is having regular blood pressure monitoring, blood tests and fetal monitoring. This appears to be evolving and is the main reason for her current inpatient care.

2. Fetal left hypoplastic heart - this concern was first raised on Obstetric ultrasound performed at GBH on 15/03/2021. This needs further assessment with a Tertiary level obstetric ultrasound in a Fetal-maternal unit, the nearest being in Canberra. We are currently awaiting inter-hospital transfer to Canberra Hospital, via Ambulance, expected imminently. [T]he possible outcomes of this further assessment are a) no fetal cardiac concern with transfer back to GBH, b) planned delivery in Canberra in next 1-2 weeks, or c) transfer to Westmead hospital in Sydney for Fetal cardiac echocardiogram and Paediatric Cardiology support. If the diagnosis of fetal left hypoplastic heart is confirmed this can carry a poor prognosis for [MD]'s baby.

At this early stage it is anticipated that [MD] will have a planned birth in the next 1-2 weeks. Her inpatient care thereafter will be expected to be a further 4- 5 days. I expect that [MD] will not be available to attend Court proceedings in person for the next 2-3 weeks.

As [MD] is now being transferred to Canberra Hospital, the team there will be best placed to provide further updates on her medical course in the coming days, if required.”

11. The Prosecutor’s written submissions (on the application to vacate the trial) contended that without MD the prosecution would not be able to present its case, in particular its tendency case, fully and adequately. A refusal to grant the adjournment would “deprive the Crown of being able properly to proceed with respect to the allegation of MD”.

12. Despite the logistical difficulties, it is obvious that the application to vacate the trial date ought to have been heard and determined before the jury was empanelled. The self-evident problem of arraigning the accused on an indictment containing an allegation made by a witness who was unavailable to give evidence was raised by the Prosecutor but disregarded by the Judge. The transcript records the following exchange:

“CROWN PROSECUTOR: I understand that, but the problem from the Crown's perspective is this, your Honour. This jury panel's going to hear about the allegations in respect of MD. If a trial does run, the jury that is then selected or selected today will have heard about an allegation from a third complainant who is not called to give evidence. That's a problem in respect of the operation of a fair trial in respect of the accused, your Honour, which, in the Crown's submission, is problematic, particularly in a case of this nature where there are said to be three complainants initially, and then we're left with a situation where the Crown only calls two complainants.

HIS HONOUR: But Mr Porter, if you do a Crown summary to the jury which includes the three complainants, and if your application to vacate the trial is refused, then I assume you will file a new indictment alleging two complainants only, and it will be plain as day to the jury why they're not hearing from the third complainant.

CROWN PROSECUTOR: I'm not sure I follow, your Honour, about why it would be as plain as day.

HIS HONOUR: You're saying that there would be prejudice to the accused? That seems to be the thrust of what your argument was.

CROWN PROSECUTOR: It does, your Honour, yes.

HIS HONOUR: But if you file over and there are only two complainants, even though you've opened in a summary form to the panel about a third complainant, how is the accused prejudiced in light of the new indictment alleging only two complainants, and it was only a summary that you gave to the panel, not a full opening?

CROWN PROSECUTOR: Your Honour, the Crown can only speculate and anticipate the questions that might arise from members of the jury who are often very attuned to those types of things, particularly in matters involving multiple complainant child sexual assault matters. The Crown's made its position clear, your Honour.

HIS HONOUR: You have, Mr Crown. We'll proceed to empanel the jury.”

13. Once his Honour decided that the jury should be empanelled, the application to vacate the trial date was complicated by the fact that there was an associated and co-dependant application that the jury be discharged. While the application to vacate the trial date ought to have been determined first, and that is the order in which Judge Grant proceeded, the reality was that the date could not be vacated unless the jury was discharged. Further, it seems that an error which permeated his Honour’s approach to the discharge application may have impacted on his consideration of the (theoretically) antecedent decision of whether to vacate the trial date. We will address the decision not to discharge the jury first.

The application to discharge the jury

14. His Honour took the view that the parties were required to establish a “substantial miscarriage of justice” in order to justify the discharge of the jury. While the applications appeared to be dealt with sequentially, in the circumstances that had unfolded, the issue was whether the application to vacate the trial date ought to have been granted in the first place. This was far from a run of the mill application for the discharge of the jury because of some prejudicial event that occurred during the trial: cf Crofts v The Queen (1996) 186 CLR 427 at 440-441; [1996] HCA 22.

15. Counsel for the respondent indicated that she did not oppose the orders sought by the Prosecutor. This was so despite the potential delay in obtaining a new trial date, a matter the trial Judge raised with the parties. Further, as to the application to discharge the jury, Counsel emphasised that the accused was prejudiced by the fact that the jury had heard the allegation of MD on the arraignment. In spite of a number of interruptions to her submissions, Counsel articulated with clarity, albeit without any success, the problem that arose due to the presentation of an indictment that alleged an offence against a separate complainant in relation to which the Prosecutor was unable to adduce any evidence.

16. The trial Judge delivered an ex tempore judgment on the application to discharge the jury in the following terms:

“HIS HONOUR: A jury panel was called to the Griffith District Court to commence a trial of NE this morning. Due to the COVID-19 restrictions it has become necessary to have the panel-in-waiting occupy the jury assembly room, the Local Court and the foyer. The procedure is that what occurs in the District Court courthouse is they are live fed to the Local Court, the foyer and the jury assembly room for potential jurors to be selected.

On Friday the Crown filed a notice of motion and an affidavit in support of that notice of motion to vacate the trial date. Monday is a Local Court day in Griffith. The learned magistrate in Griffith on that date usually has over 100 cases to deal with. The panel arrived at 8.30 to 8.45am in the endeavour to have empanelment concluded by 9.30am to not dislocate any proceedings in the Local Court. These are the vagaries of living in a COVID landscape.

Mr Crown wished to argue his application for vacation of the trial date before the arraignment took place. I informed Mr Crown that I proposed to have the accused arraigned and empanel the jury and then I would deal with the application to vacate. I did so because of the need to ensure that the Local Court was able to commence their proceedings by 9.30 in the morning.

[NE] was arraigned and pleaded not guilty to an 11 count indictment. Count 8 relates to the complainant MD. It is anticipated that MD will not be in a position to give evidence if the trial proceeds. After the arraignment and empanelment of the jury and the jury were sent away, I then dealt with the application for the vacation of the trial date for the Crown. I refused the application.

Mr Porter, who appears on behalf of the Crown, at this stage has not indicated whether the Crown, although he has sought time to seek instructions from Sydney as to whether the Crown would avail itself of s 5F of the [Criminal Appeal] Act to bring an appeal before the Court of Criminal Appeal in the ruling or the refusal to vacate the trial date meant that there was a substantial weakening of the Crown case.

It now brings an application for a discharge of the jury without informing the Court as to what the Crown's position is in regard to s 5F. His application is supported by Ms Mendes. They have both complained that there has been an irregularity in that the accused has been arraigned where there are three complainants on the indictment. It is said that if the trial proceeds and the Crown does not call MD, then there will be an indictment and a re-arraignment of the accused where he will be facing two complainants. It is unsure how it can be that Ms Mendes can maintain that there will be some prejudice caused to the accused when the fresh indictment would in fact only have two complainants on it and the Crown says that it would cause prejudice to the accused because there would be a missing complainant.

In my view if the indictment has two complainants on it that there would be no prejudice to the accused and that if there was any perceived prejudice it could be covered by directions and the presumption of innocence.

I am not satisfied that the Crown nor Ms Mendes has established that there would be a substantial miscarriage of justice for this jury to be discharged and, accordingly, the joint application is refused.”

17. The trial Judge proceeded on the basis that the test for whether the jury should be discharged was whether such an order was necessary to prevent a “substantial miscarriage of justice”. Presumably, this derived from part of what was said by the High Court in Crofts v The Queen. However, “substantial miscarriage of justice” is the language of the proviso to s 6(1) of the Criminal Appeal Act. It is not the test to be applied by a trial judge in dealing with an application for a discharge of the jury. There is no concrete test for such an application. So much is clear from what the High Court said in Crofts v The Queen at 440-441:

“It may be accepted that the Court of Criminal Appeal approached the matter with the correct principles in mind. No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? In our view, in the particular circumstances of this case, that could not be said.”

18. The second of those paragraphs, and the reference to the substantial miscarriage of justice test, is a reference to the function of the appellate court. It is the first paragraph that explains the nuances, and flexibility, surrounding the approach to be taken by a trial judge in dealing with an application to discharge a jury at first instance.

19. In Miller v R [2015] NSWCCA 206 at [126], the Court (Beazley P, Fullerton and Hamill JJ) summarised the principles that guide the exercise of trial judge’s discretion whether to discharge a jury:

“[126] The principles relating to an application for the discharge of the jury and appellate review thereof were reviewed by this Court in Khazaal v R [2010] NSWCCA 129 per Hall J at [265]ff. The following principles emerge from his Honour’s review and from the two leading cases he cites Crofts v R [1996] HCA 22; 186 CLR 427 and Maric v R (1978) 52 ALJR 631:

(1) In determining whether the jury must be discharged following the wrongful admission of evidence, there is no rigid rule to be applied: Crofts at 440.

(2) In deciding an application to discharge the jury, key considerations include:

(a) the fairness of the trial: Crofts at 440;

(b) the nature of the statements said to have given rise to the prejudice, including whether they were such as to ‘have been left vividly etched on the mind of the jury’: Crofts at 441;

(c) the seriousness of the occurrence in the context of the contested issues: Crofts at 440;

(d) the stage at which the mishap occurs: Crofts at 440; Maric at 635;

(e) the deliberateness of the wrongful conduct: Crofts at 440; Maric at 635;

(f) the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the evidence, and particularly the difficulty of formulating a direction that does not refer specifically to the evidence and by doing so reinforce the prejudice: Crofts at 440-441; Maric at 635.

(3) Such damage as was caused by the wrongly admitted evidence may not be capable of remedy by trial directions: Maric at 635.

(4) The test to be applied by appellate courts reviewing the discretion to discharge has been stated in a variety of ways. However, in Maric, at 635, it was noted that ‘[a]t basis, the question is whether [the court] can be satisfied that the irregularity has not affected the verdict’, and in Crofts, at 441, the question was put similarly as whether, in the circumstances, the appellate court can “say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable”.

(5) Significant leeway must be allowed to the trial judge to evaluate these and other considerations, bearing in mind:

‘… that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript’: Crofts at 440-441.

(6) Nevertheless, the duty of an appellate court considering a challenge to the exercise of discretion to refuse a discharge “is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind”: Crofts at 441, but rather must apply the broader test stated at (4) above.”

(Footnotes omitted.)

20. In Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219, the judgment of Bell P highlights the difference between the task to be undertaken by an appellate court in reviewing a conviction and the exercise of power residing in a trial Judge to discharge a jury.

21. The trial Judge in the present case approached the discharge application on an erroneous basis and applied an inflexible and inappropriate test, namely whether a substantial miscarriage of justice would be occasioned by continuing with the trial over the objection of both parties. The application of the wrong test is particularly acute in circumstances where his Honour had declined to entertain the application to vacate the trial before a jury was empanelled.

22. An intermediate appellate Court is circumspect in interfering with the discretion of a trial judge in deciding whether a jury should be discharged: R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 at [35] (“R v Lamb”). In the recent judgment of Libdy v R [2021] NSWCCA 34, Hamill J, with the concurrence of Macfarlan JA and Walton J, said at [19]:

“Because the decision involves the exercise of judicial discretion, ‘only House v The King error will suffice to overturn a decision of this kind’: R v Lamb at [36]. Further, the decision is made in circumstances where ‘the trial judge would have been in an immeasurably better position than we [are] to judge the atmosphere in the courtroom at the time when the decision needed to be made’: R v Lamb at [40] citing Crofts v The Queen (1996) 186 CLR 427 at 458 (Dawson J) and 464 (Toohey, Gaudron, Gummow and Kirby JJ); [1996] HCA 22 and Trieu v R [2012] NSWCCA 169 at [28].”

23. The reference to “House v The King error” is a reference to a famous passage in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 relating to appellate interference with discretionary judgments:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if [they] allow extraneous or irrelevant matters to guide or affect [them], if [they] mistake the facts, if [they] do not take into account some material consideration, then [their] determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in [their] order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

24. In the present case, the trial Judge acted on a wrong principle concerning the test to be applied in determining whether to discharge the jury. Further, as the appellant submitted, the decision itself was unreasonable and plainly unjust.

The application to vacate the trial date

25. As to the application to vacate the trial date and adjourn the proceedings, the following passage from the Victorian Court of Appeal in Brimbank Automotive Pty Ltd & Ors v Murphy [2009] VSC 26 at [13] resonates:

“In determining whether to grant an adjournment, a court is entitled to take into account, as a relevant circumstance, the exigencies of case management. However, that consideration should not be permitted to prevail over the rights of the parties before the court, and in particular it should not predominate over the right of a particular party to be able to present its case properly to the court. The exercise by the court of its discretion in such a case is not the occasion to punish a party, or its practitioners, for oversight, mistake or tardiness. Rather, the overriding requirement is that the court must do justice between the parties. The point was stated in authoritative terms in the joint judgment of Dawson J, Gaudron J and McHugh J in The State of Queensland & Anor v JL Holdings Pty Ltd, as follows:

‘In our view the matters referred to by the primary judge were insufficient to justify her Honour’s refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save insofar as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.’”

26. This passage was brought to his Honour’s attention in written submissions filed by the Prosecutor at first instance. However, it is impossible to escape the conclusion that his Honour allowed the “exigencies of case management” to guide his decision refusing to vacate the trial date. To adopt the metaphor employed by the Presiding Judge at the hearing of the appeal, the tail appeared to wag the dog.

27. Judge Grant’s ex tempore judgment on the application to vacate the trial date demonstrates that “exigencies of case management” appeared to prevail over the rights of the parties to present their cases as they thought to be appropriate. Immediately under the heading “CONSIDERATION”, his Honour said:

“The trial date was set on 24 August 2020. Two weeks were allocated for the hearing of the trial. The next available trial date is not until March 2022. Ms Mendes, who appears on behalf of the accused, says that there is no real prejudice to the accused. Delayed justice serves no purpose for an accused, complainants, witnesses or the community. Litigation between the State and the individual must be conducted in a timely manner to ensure the integrity of the administration of justice.”

28. Despite the reference to the submissions of Counsel for the accused, his Honour seemed to pay little or no attention to the fact that the application to vacate the trial date was effectively a joint one. Counsel for the accused went further than saying there was no prejudice to the accused. Ms Mendes made it clear that there may be positive prejudice in allowing the trial to proceed given the events that had unfolded that morning:

“…I do have a concern that the panel and now the jury have been advised that there are three complainants, that one complainant [MD] is simply not going to appear, that the accused would have to then be indicted on a fresh indictment. They will at least have if not at the forefront of their minds throughout the trial in the back of their minds [‘]well there was another one, what happened to her[’]...”

29. Counsel indicated that she:

“…didn’t realise that we were going to be addressing this issue at this stage. But I do see the potential for an injustice to the accused.”

30. On the hearing of the s 5F appeal, Counsel for the respondent submitted that there may also be prejudice to the accused in the possibility that he may be required to give evidence in two separate trials and in the proposal suggested by Judge Grant, namely that the evidence of the other two complainants be recorded and played to the jury as tendency evidence in the proposed separate trial of the allegations of MD.

31. As to that last matter, the trial Judge said in his judgment:

“If the single count involving MD was put off to another date it would not substantially weaken the Crown case in relation to MD. The evidence of BD and BRIT-D will be recorded and can be played in the trial of MD in support of the tendency notice. It does not prejudice the Crown. The witnesses BD and BRIT-D will not have to be called for a second time.”

32. The provisions relating to the playing of previous evidence given by an alleged victim of a prescribed sexual offence, are contained in Div 3 and 4 of Pt 5 of the Criminal Procedure Act 1986 (NSW). It is questionable that the circumstances playing out in the present case would amount to the trial being “discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed” as required by s 306I of the Criminal Procedure Act. That is the provision that allows the Prosecutor to tender a recording of the “original evidence” of a “special witness” (as defined in ss 3, 294D, 306A, 306H of the Criminal Procedure Act) in “new trial proceedings”.

33. The cases which have discussed s 306I to this point have involved matters where the entirety of the trial proceedings were discontinued: see, for example, Tootle v R [2017] NSWCCA 103 at [12]; Pasoski v R [2014] NSWCCA 309 at [18]; JV v R [2017] NSWCCA 49 at [79]; Ambury v R [2018] NSWCCA 275 at [7]; R v Shortland [2018] NSWCCA 34 at [47]; Stevens v R [2015] NSWCCA 235 at [6], [18]. None of these cases involved the amendment of the indictment to sever a count relating to one complainant, the trial continuing with the remaining complainants, and then the evidence being tendered as tendency evidence in a subsequent trial relating to the severed count.

34. It is unnecessary to say more about this issue or to decide whether his Honour’s proposed solution was viable or in accordance with the statute. It certainly accorded with the purpose and objectives of the provisions. However, it is unnecessary to come to any final conclusion on the issue because this is a case that falls within the final category of error identified in House v The King. That is, for reasons that may be opaque, that the decision not to vacate the trial date was unreasonable and plainly unjust in all of the circumstances.

35. While his Honour was required to consider the merits of the application, it was for the Prosecutor, not the trial Judge, to determine how it sought to present its case. It was not for the trial Judge to determine that the absence of MD would not prejudice the prosecution on the basis that the absence of MD would not “substantially weaken” the prosecution case because it would still have the evidence of two (of three) complainants. His Honour said this:

“For the trial to proceed with two complainants does not substantially weaken the Crown case. Nine of 11 counts relate to BD. Those counts are cross-admissible in proof of tendency within themselves. [1] There is one count of BRIT-D. That count is cross-admissible in proof of tendency with BD and the nine counts of BD are cross-admissible as proof of tendency in relation to BRIT-D. The Crown is properly able to present its case in relation to BD and BRIT-D.”

1. This is doubtful in view of the decision of the High Court in at IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at 318 [63]. However, it is unclear from the material tendered on the appeal whether the respondent conceded this evidence was available as tendency evidence.

36. This analysis ignored the Prosecutor’s submission that it was being denied, in respect of the charges relating to BD and BRIT-D, the tendency evidence that was expected to be elicited from MD. The extent to which this would weaken the Crown case was speculative and would turn on the quality of the witnesses and the impression each made on the jury. For example, the jury may have rejected the evidence of BRIT-D whereupon the evidence of BD would have been unsupported by the proposed tendency evidence.

37. The decision to refuse an application for an adjournment (or to vacate a trial date) is a discretionary one. Appellate courts are reluctant to interfere with the exercise of the discretion residing in the judge at first instance.

38. However, there are many cases where the refusal to adjourn proceedings due to the unavailability of an important witness has resulted in successful appeals. In Thornberry v The Queen (1995) 69 ALJR 777, the High Court allowed an appeal against a decision of this Court upholding the decision of a trial Judge to refuse an adjournment application based on the unavailability of an alibi witness. In R v Reid [1999] NSWCCA 258, this Court quashed a conviction that arose when a prosecution witness went missing and the accused was refused an adjournment to have the opportunity to attempt to locate the witness. In Bell v Imrie & Anor (Unreported, Supreme Court of NSW, Yeldham J, 24 February 1989); 8 Petty Sessions Review 3905, Yeldham J described the refusal of a Magistrate to allow a consent adjournment as “scandalous” where the principal prosecution witness was unavailable as a result of an established medical condition. For further examples, and general discussion of the considerations involved, see Nitiva v Director of Public Prosecutions & 2 Ors [1999] NSWCA 332, Noble v Director of Public Prosecutions & Others [2000] NSWSC 920 and Director of Public Prosecutions (NSW) v Chaouk and Anor [2010] NSWSC 1418.

39. Taking into account all of the circumstances of the present case, we accepted the appellant’s submission that the refusal of Judge Grant to vacate the trial date on what was, in effect, the joint application of the parties, was a decision properly characterised as unreasonable and plainly unjust.

Conclusion and orders

40. It is for the foregoing reasons that the Court made the orders set out in paragraph [1] of this judgment.

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Endnote

Amendments

26 October 2023 - Amendment of the publication restriction

Decision last updated: 26 October 2023