Rosamond v The The King - [2022] NSWCCA 251

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rosamond v R [2022] NSWCCA 251
Hearing dates: 24 October 2022
Date of orders: 24 October 2022
Decision date: 24 October 2022
Before: Garling J at [1]
Button J at [74]
Wilson J at [75]
Decision:
Application for leave to appeal pursuant to s 5F of the Criminal Appeal Act against a judgment of Sutherland SC DCJ on 18 October 2022 declining to discharge a jury is refused.

Catchwords:
CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — Interlocutory order dismissing an application to discharge the jury — Application dealing with admissibility of evidence — Application brought 45 days into four-month trial — No evidence of detriment to applicant — No immediate objection taken by counsel below to disputed evidence — No cross-examination directed to area of controversy — Whether Crown ought be bound by its submissions made much earlier in the proceedings — Decision within discretion which the trial Judge had and properly exercised — Application dismissed

Legislation Cited:
Crimes Act 1900 ss 192E, 249B
Criminal Appeal Act 1912 s 5F(3)(a)
Evidence Act 1995 s 50

Cases Cited:
Brown v R [2022] NSWCCA 121
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
DSJ v R; NS v R [2014] NSWCCA 77
House v The King (1936) 55 CLR 499; [1936] HCA 40
Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
R v Bloomfield [1996] EWCA Crim 1801
R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215
R v Hamza [2007] QB 659; [2006] EWCA Crim 2918
R v Powch (1984) 14 NSWLR 136
Steffan v R (1993) 30 NSWLR 633

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Helen Mary Rosamond (Applicant)
The King (Respondent)
Representation:
Counsel:
A Hughes (Applicant)
S Traynor (Respondent)
Solicitors:
AA Criminal Lawyers
Director of Public Prosecutions

File Number(s): 2019/67521
Publication restriction: The facts of these proceedings and the content of these proceedings are not to be published, nor is this judgment to be published, until the conclusion of the trial before Sutherland SC DCJ.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 October 2022

Before:

Sutherland SC DCJ

File Number(s):

2019/67521

Judgment

GARLING J: This is an application by Helen Mary Rosamond (“the applicant” or “the accused”, in the proceedings below), pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 for leave to appeal against an interlocutory order of Sutherland SC DCJ made in the District Court on 18 October 2022.
If leave is granted, the applicant sought to rely on three grounds of appeal, namely:

“1. That in dismissing the application to discharge the jury heard on 17 October 2022, the trial Judge erred in considering whether the Crown considered itself bound by its submissions to the Court on a prior application for a temporary stay in October 2021.
2. That the trial judge, in considering the application…

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 Rosamond v The The King

Details

AGLC: Rosamond v The The King [2022] NSWCCA 251
Case: [2022] NSWCCA 251
Decision Date: 24 October 2022

CaseChat Overview and Summary

The case of Rosamond v The King involved the defendant appealing against an interlocutory order made by a trial judge during a lengthy four-month trial. The defendant had applied to discharge the jury, challenging the admissibility of certain evidence, which was brought up 45 days into the trial. The court was required to determine whether the trial judge exercised their discretion appropriately in dismissing the defendant's application without prejudice to their right to raise the issue again if the evidence was ultimately admitted.

The court examined the timing and context of the application, noting that it was made relatively late in the proceedings and that there was no evidence of detriment to the defendant. Additionally, the court observed that no immediate objection was raised by the defendant's counsel at the trial in relation to the disputed evidence, and no cross-examination was directed to the area of controversy. Furthermore, the court considered whether the Crown should be bound by its earlier submissions made at the beginning of the trial. The court held that the decision to dismiss the application to discharge the jury was within the trial judge's discretion, and the judge properly exercised that discretion.

The court concluded that the trial judge's decision to dismiss the application was not an error. The appeal was dismissed, and the trial continued. The court's ruling affirmed that the trial judge had the discretion to manage the proceedings in this manner and did not err in doing so. The orders of the trial judge were upheld, and the trial proceeded with the jury remaining empanelled.

Orders