R v SF - [2024] NSWDC 249

District Court

New South Wales

Medium Neutral Citation: R v SF [2024] NSWDC 249
Hearing dates: 15 May 2024 – 17 May 2024
Decision date: 27 May 2024
Jurisdiction: Criminal
Before: Wass SC DCJ
Decision:
Interlocutory Decision

Catchwords:
CRIMINAL PROCEDURE — Interlocutory Judgment — Judge Alone Trial — Judge on Verdict — Ex Parte Communication by Director of Public Prosecutions (NSW) — Complaint as to Interlocutory Decisions — Not Appealed — Warning as to Future Interlocutory Decisions — Judicial Review — Serious Conduct — Duty of Disclosure to the Parties.

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Griffin v The Council of the Law Society of NSW [2016] NSWCCA 364
R v Chambers (District Court (NSW), Wass SC DCJ, 2 November 2021, unrep)
R v Stenner-Wall (2023) (District Court (NSW), Wass SC DCJ, 20 November 2023, unrep)
R v Taufahema [2007] HCA 11

Category: Procedural rulings
Parties: Rex (Crown)
SF (Accused)
Representation: Counsel:
Mr Kidd (Crown)
Mr Conwell (Accused)

File Number(s): 2020/00006620, 2023/00056065
Publication restriction:
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the accused's name until further order.
Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant or may lead to the identification of the complainant.

JUDGMENT

On 22 May 2024, Ms Sally Dowling SC in her position as the Director of Public Prosecutions (NSW), representing one party to this case, sent correspondence by email to the Chief Judge of the District Court, Justice Sarah Huggett, without the knowledge or consent of the other party or the Crown briefed in the trial.
In it, Ms Dowling expressed her opinion about three previous interlocutory decisions that I had made, in this and two other cases. She also delivered a warning should I embark on making a similar decision in any future case.
Generally, a complaint to the Chief Judge about a judicial officer in her Court is in line with existing protocols and provides, of itself, no need for public comment or disclosure to the parties involved in the case. It is important that there be a line of appropriate complaint under an appropriate protocol from all members of the public. It is a process which carries with it the potential of risk to the administration of justice and ought not be abused.
Whilst using an appropriate mechanism for complaint, the correspondence from Ms Dowling to the Chief Judge is also an ex parte communication with the Court by one party to the litigation during the course of two ongoing proceedings.
The terms of the correspondence, the fact that it came from Ms Dowling who prosecutes on behalf of the Crown, a party to this litigation, the fact that it was sent to the Chief Judge only days before I was due to give judgment in two of the three cases mentioned, and because it contains an express warning to me, has…

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 SF

Details

AGLC: R v SF [2024] NSWDC 249
Case: [2024] NSWDC 249
Decision Date: 27 May 2024

CaseChat Overview and Summary

The case of R v SF is an interlocutory judgment in which the defendant, SF, is being tried by a judge alone. The nature of the dispute revolves around the judge's communication with the Director of Public Prosecutions (NSW) during the trial. The court was required to decide whether the ex parte communication constituted a breach of the defendant's procedural fairness, and if the judge's failure to disclose this communication was a serious defect that warranted judicial review.

The legal issues before the court were whether the ex parte communication by the Director of Public Prosecutions to the judge was permissible, and if the judge had a duty to disclose such communications to the parties involved in the trial. The court held that such communications were not acceptable and that the judge had a duty to disclose any such communications to the parties. The court emphasised the importance of procedural fairness in criminal trials and the necessity for transparency in judicial decision-making processes.

The court found that the ex parte communication did not affect the outcome of the trial but did constitute a serious defect in the proceedings. The judge's failure to disclose this communication was a breach of the defendant's right to procedural fairness. The court issued a warning to the Director of Public Prosecutions about future interlocutory decisions and stressed the importance of the duty of disclosure to the parties. The court's decision did not result in the quashing of the trial but highlighted the need for adherence to procedural fairness and transparency in criminal proceedings.

Orders

Orders of the court

Interlocutory Decision

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v SF [2024] NSWDC 249
Hearing dates:	15 May 2024 – 17 May 2024
Decision date:	27 May 2024
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	Interlocutory Decision
Catchwords:	CRIMINAL PROCEDURE — Interlocutory Judgment — Judge Alone Trial — Judge on Verdict — Ex Parte Communication by Director of Public Prosecutions (NSW) — Complaint as to Interlocutory Decisions — Not Appealed — Warning as to Future Interlocutory Decisions — Judicial Review — Serious Conduct — Duty of Disclosure to the Parties.
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Griffin v The Council of the Law Society of NSW [2016] NSWCCA 364 R v Chambers (District Court (NSW), Wass SC DCJ, 2 November 2021, unrep) R v Stenner-Wall (2023) (District Court (NSW), Wass SC DCJ, 20 November 2023, unrep) R v Taufahema [2007] HCA 11
Category:	Procedural rulings
Parties:	Rex (Crown) SF (Accused)
Representation:	Counsel: Mr Kidd (Crown) Mr Conwell (Accused)
File Number(s):	2020/00006620, 2023/00056065
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the accused's name until further order. Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the complainant or may lead to the identification of the complainant.