R v WR [No 2] - [2015] ACTSC 199

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v WR [No 2]
Citation:	[2015] ACTSC 199
Hearing Date:	16 March 2015
DecisionDate:	16 March 2015
Before:	Penfold J
Decision:	This jury is discharged, and a new trial is to be held.
Category:	Procedural and other rulings
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – discharge of jury – proceeding involving sexual offences against two children – evidence of police witness that other complaints had been made about accused – directions to jury would only draw attention to the evidence – evidence of other complaints might tip the balance against accused – fair trial not possible – jury discharged – evidence of complainants recorded and available for use in new trial.
Legislation Cited:	Evidence (Miscellaneous Proceedings) Act 1991 (ACT), s 43A
Parties:	The Crown (Crown) WR (Accused)
Representation:	Counsel Mr T Hickey (Crown) Mr K Archer (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 179 of 2013

Introduction

WR is on trial for sexual offences allegedly committed against two young girls on the same night and in the same circumstances in early 2001.

The evidence concerned

On the fourth day of the trial, last Friday, the police officer responsible for this prosecution gave brief evidence. She gave evidence of her first discussion with one of the complainants, E, and was asked if E had explained her motivation for making her formal complaint. The question was asked in the context that the formal complaint was made some 11 years after the alleged incident.

The police officer said, in summary, and these are not intended to be a report of E’s actual words, although they reflect my notes made at the time, that E had felt guilty about not coming forward earlier and was worried about the chance that it might have happened to others. The police officer then went on to say, “and others did come forward”.

Those last words reflect my clear recollection of what was said, although my note of those last words was added some minutes later, after a discussion with counsel to which I shall shortly refer.

Unfortunately, because of a technical problem that occurred at the end of the previous witness’s evidence, the police officer’s evidence was not recorded, but the issue was ventilated between me and counsel as soon as the police officer’s evidence finished and, accordingly, I have more confidence in my memory of those last words than might have been the case if the matter had only been raised this morning, after the intervening weekend.

After the comment made by the police officer, the prosecutor asked another question, and then he put to the police officer that the reference to the others who had come forward was a reference to the other complainant in this matter, A, to which proposition the police officer assented.

The application

Defence counsel, on instructions, has now sought a discharge of the jury as a result…

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 WR [No 2]

Details

AGLC: R v WR [No 2] [2015] ACTSC 199
Case: [2015] ACTSC 199
Decision Date: 16 March 2015

CaseChat Overview and Summary

The case of R v WR [No 2] involved a defendant, WR, who faced charges of sexual offences against two children. The matter was heard in a court of law, where the primary dispute revolved around the admissibility of certain evidence that might have prejudiced the jury's decision. The key issue was whether the evidence of other complaints made against the accused should be disclosed to the jury, and if not disclosing it would affect the fairness of the trial.

The court was tasked with determining whether the evidence of other complaints could be withheld from the jury without compromising the accused's right to a fair trial. The court examined whether the directions to the jury would draw attention to this evidence or if it might inadvertently tip the balance against the accused. The court concluded that the potential for prejudice was significant, and thus, the jury should not be made aware of this evidence.

In light of the above, the court decided that a fair trial was not possible with the current jury. Consequently, the jury was discharged, and a new trial was ordered to ensure the accused received a fair hearing. The evidence of the complainants was recorded and would be available for use in the new trial, ensuring that the accused would not be unfairly disadvantaged by the omission of this evidence during the initial proceedings.

Orders

Orders of the court

This jury is discharged, and a new trial is to be held.

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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