Harrison CJ at CL at [1] Dhanji J at [2] McNaughton J at [70]
Decision:
Reasons for orders made on 14 March 2025:
(1) Allow the appeal.
(2) Set aside the order of his Honour Judge Everson SC made on 13 March 2025.
(3) Remit the matter to the District Court in order that the application be determined according to law.
(4) The Court will provide written reasons in due course.
Catchwords:
CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law
EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable
EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided
[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.
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AGLC
R v Walker [2025] NSWCCA 62
Case
[2025] NSWCCA 62
Decision Date
CaseChat Overview and Summary
In the case of R v Walker, the appellant, a convicted individual, sought to appeal the Crown's interlocutory appeal concerning the refusal of the trial judge to discharge the jury. The appeal arose from a series of sexual offence proceedings. The Crown argued that the trial judge had erred in rejecting their application to discharge the jury, based on the directions given by the trial judge. These directions were grounded in the cases of R v Wilkie, R v Burroughs, and R v Mainprize [2005] NSWSC 794. The Crown contended that the directions posed a real risk of elevating the importance of the demeanour of the witnesses, and therefore, constituted an incorrect application of the relevant principles.
The legal issues before the court revolved around the trial judge's directions, which the Crown argued were inconsistent with section 294B(7) of the Criminal Procedure Act 1986 (NSW). The Crown claimed that the trial judge's error in determining the application to discharge the jury was an error of law. The court had to decide whether the trial judge had indeed erred in the manner in which he gave his directions, and if so, whether this constituted a legal error warranting an appeal. The court also had to determine the appropriate remedy, if any, in light of the alleged error.
The court found that the trial judge had indeed erred in his determination of the Crown's application to discharge the jury. The court held that the directions given by the trial judge were inconsistent with section 294B(7) of the Criminal Procedure Act 1986 (NSW). The directions carried a real risk of elevating the importance of the demeanour of the witnesses, which was considered an incorrect application of the relevant principles. The court held that the error was a significant one, leading to the conclusion that the appeal should be allowed. The matter was subsequently remitted to the lower court for determination according to law. The court also noted that the impact of evidence given by audio-visual link may affect opposing or calling party and may be beneficial or detrimental to the witness, and that section 294B(7) cannot convert poor evidence into clear evidence.