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Watson v R

Watson v R

Case [2022] NSWCCA 208 23 September 2022

Appeal

Jurisdiction

Criminal Liability

Miscarriage of Justice

Judicial Review

Admissibility of Evidence

Expert Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Watson v R [2022] NSWCCA 208
Hearing dates: 21 September 2022
Date of orders: 21 September 2022
Decision date: 23 September 2022
Before: Bell CJ; Price J; Yehia J
Decision:
1. Grant leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW).
2.    Allow the appeal.
3.    Set aside orders 2 and 3 made by Walton J on 15 September 2022.
4. In lieu thereof, dismiss the application by the Crown to discharge the whole of the jury pursuant to s 53C(1)(a) of the Jury Act1977 (NSW).
5.    List the matter for directions at 4.00pm on 21 September 2022 in King Street Court Room No 5 before Walton J.

Catchwords:
APPEAL – criminal appeal – application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from decision pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) to discharge whole of a jury following discharge of a single juror – where discharge of jury occurred following the close of evidence – where discharge of jury opposed by the accused in a murder trial – whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches
CRIME – murder trial – where Crown applied to discharge the whole of the jury after close of the evidence – where accused opposed application for discharge – where jury nevertheless discharged - whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5G
Evidence Act 1995 (NSW), s 55
Jury Act 1977 (NSW), ss 53A, 53C(1)(a), 68C, Pt 9
Supreme Court Act 1970 (NSW), s 75A(10)

Cases Cited:
Barber v R; Zraika v R [2016] NSWCCA 125
Browne v Dunn (1893) 6 R 67
Clark v R [2010] NSWCCA 94
Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
Curran v R [2017] NSWCCA 123
GAR v R (No 2) [2010] NSWCCA 164
Haile v R [2022] NSWCCA 71
Hamide v R [2019] 101 NSWLR 455; [2019] NSWCCA 219
Hoang v The Queen [2022] HCA 14; (2022) 96 ALJR 453
House v The King (1936) 55 CLR 499; [1936] HCA 40
Libdy v R [2021] NSWCCA 34
Medich v R [2021] NSWCCA 36; (2021) 390 ALR 398
Mikael v R [2015] NSWCCA 294
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Pratten…

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 Watson v R

Details

AGLC: Watson v R [2022] NSWCCA 208
Case: [2022] NSWCCA 208
Decision Date: 23 September 2022

CaseChat Overview and Summary

In Watson v R, the appellant sought leave to appeal against the decision of the trial judge to discharge the entire jury following the close of evidence in a murder trial. The Crown had applied to discharge the jury due to a risk of a substantial miscarriage of justice, a motion that the accused opposed. The trial judge, however, discharged the entire jury, leading to the appellant's application for leave to appeal this decision. The legal issues before the court were whether the trial judge was correct in forming the opinion that there was a risk of a substantial miscarriage of justice, the standard of appellate review applicable in such cases, and the factual correctness of the trial judge's findings regarding alleged breaches by jurors of the trial judge’s directions.

The court examined the trial judge's decision to discharge the jury, noting that the trial judge must have had a reasonable apprehension that there was a risk of a substantial miscarriage of justice. The court reviewed the trial judge's findings in light of the standard of appellate review, which required an examination of whether the trial judge's findings were open to him or her. The court identified factual errors in the trial judge’s reasoning concerning the alleged breaches by jurors of the trial judge’s directions. The court also considered whether these alleged breaches were significant enough to warrant the discharge of the entire jury and whether they occurred on numerous occasions. The materiality of any alleged breaches was a crucial aspect of the court's review.

Ultimately, the court found that the trial judge's decision to discharge the jury was not supported by the evidence. The factual errors in the trial judge's findings, coupled with the lack of materiality in the alleged breaches, led to the conclusion that the trial judge's decision was not open to him or her. Consequently, the application for leave to appeal was granted, and the case was remitted to the trial court for a new trial.

Orders