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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 meant that, at the very least, I am required to disclose it to the parties in those two cases, and I do so now in respect of this case.

6. The correspondence sent to the Chief Judge was in respect of directions I made in this matter, in the matter of R v Chambers in 2021, and in the matter of R v Stenner-Wall in 2023.

7. In R v Stenner-Wall, I am currently preparing to sentence, and in this matter, I am currently deliberating on verdict in a judge alone trial.

8. The content and the timing of the complaint is a relevant matter. The comments made by Ms Dowling were conveyed to me by the Chief Judge shortly after they were received, as was in my view appropriate. Indeed, the final remarks by Ms Dowling, as they contained a warning to me, made clear that they needed to be conveyed to me forthwith.

9. As to the contents of the correspondence, I am not in a position to produce it verbatim, but I disclose the following matters in the terms that have been conveyed to me by the Chief Judge.

10. The stated purpose of Ms Dowling’s email was to bring to the Chief Judge’s attention what Ms Dowling described as an “emerging practice” of mine, of directing witnesses to produce their mobile phone and on occasion their PIN code.

11. I observe that it is an asserted practice divined from the consideration of three cases, and I interpolate, as against the hundreds if not thousands of cases I have presided over in the more than eight years that I have been a judge of this Court, and numerous others when I was a tribunal member of NCAT. Arguably, only two of those cases involved the direction to a witness to produce her phone to the Court.

12. Ms Dowling attached transcripts of the three matters for the Chief Judge’s consideration. Those transcripts, with the necessary redactions to abide by non-publication orders, have been provided to the parties.

13. Further, Ms Dowling expressed her opinion that my directions “lacked express legislative power and cannot be characterised as a power arising by necessary implication” and referred the Chief Judge to the observations of Justices Gleeson CJ and Callinan J in R v Taufehema (sic) [2007] HCA 11 at [37] regarding the adversarial nature of a criminal trial.

14. Ms Dowling did not refer to any sections of the Evidence Act 1995 (NSW) or case law in respect of the call for documents or directions regarding witnesses.

15. Other than to disclose that matter, I have not taken that advice on evidence into account in the determination of any matter, as I regard it as irrelevant. I have given it the consideration that I think it merits.

16. The circumstances of the interlocutory decisions made by me are apparent from the transcripts. It is noted however, that in no case, was my interlocutory decision appealed, and in two of the three cases, the parties agreed to the course adopted, or at least did not demur. The decisions in Chambers and Stenner-Wall did not lead to any complaint or comment by Ms Dowling at the time they were made.

17. Further, Ms Dowling conveyed her opinion to the Chief Judge that my decisions “ignored the existing mechanisms (with all their procedural safeguards) that are available to parties to seek the production of evidence that is not part of the Crown case and infringed upon the rights of the accused person and the Crown to a fair trial.”

18. Ms Dowling did not, to my knowledge, particularise any rights to a fair trial of either party that had been infringed in any of the cases.

19. In R v Stenner-Wall, the direction resulted in proper disclosure being made to both parties (that had not been made to or by the Crown) and the subsequent entry of a plea of guilty to the relevant counts on the indictment, for which I am now to sentence. In R v Chambers, it meant that a witness did not take her phone with her to the bathroom when she sought, and was granted, an unscheduled bathroom break during cross-examination. I decline to comment at this time on the effect of my direction in R v SF as I am on verdict and it would not be appropriate to do so.

20. I have taken the opinions, and the circumstances in which they were conveyed to the Chief Judge by Ms Dowling, very seriously, particularly in the context of the following matters.

21. Most importantly, so far as disclosure to the parties is concerned, I advise that Ms Dowling’s opinion needed to be conveyed to me for my immediate consideration because Ms Dowling foreshadowed that she “will consider steps she considers to be properly available to her to seek judicial review should further directions of this nature be made by me in the future”, in short, in my view, issuing a warning as to my conduct in these matters and in future matters, and a predisposition by Ms Dowling to take action against any future decision of this nature made by me, no matter the circumstance of any particular direction.

22. I regard such a warning of the contemplated judicial review, although delphic as to what form it might take, as extremely serious, particularly as it was delivered during the course of my consideration of two of the three cases at hand and where it sought to have me take that matter into account in my determination of future cases.

23. Had this opinion been conveyed directly to me at any time, but particularly at this time, I would have regarded it as being highly inappropriate, particularly from an experienced Senior Counsel, in line with cases such as Griffin v The Council of the Law Society of NSW [2016] NSWCCA 364, particularly when I am so obviously part heard. I wish to say no more about that at present.

24. I do wish to assure the parties and any future litigants, as best I can, that the correspondence from Ms Dowling has had absolutely no effect on my consideration of the relevant issues, other than to cause further delay whilst I disclose, in my view appropriately, the ex parte communication, and give the parties an opportunity to consider their respective positions.

25. Had the opinion and warning been conveyed only one week later, no disclosure would have been required and no delay occasioned. Obviously, the timing of any correspondence is entirely a matter for Ms Dowling. I can only apologise to parties and to the community for this delay, one which, in my view, was avoidable.

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Decision last updated: 28 June 2024