R v NE

1. [1]

   THE COURT: This judgment relates to an appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against the refusal by the District Court to vacate a trial date and to discharge a jury. The respondent faces 11 allegations of sexual offending against three separate complainants and his trial was listed to commence (and, over the objection of both parties, did commence) on Monday, 22 March 2021. The appeal was brought by the Prosecution but was effectively a joint application to vacate various orders made by Judge Grant on 22 March 2021. On Wednesday, 24 March 2021, the Court made the following orders:

   1. (1)

      Allow the appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW).

   2. (2)

      Vacate the orders made by Judge Grant on 22 March 2021.

   3. (3)

      In lieu thereof:

2. [2]

   These are our reasons for making those orders.

Background and orders made at first instance

1. [3]

   The circumstances in which the appeal was brought, and the rather odd course the proceedings took in the District Court, can be stated briefly.

2. [4]

   Three complainants have made allegations of sexual offending against the respondent. The prosecution proposes to use the evidence of each of the complainants as tendency evidence in respect of the others. No objection has been taken by the respondent to the cross-admissibility of the evidence as tendency evidence or to the trial proceeding as a joint trial in which all three complainants are witnesses. Both parties take the view that the trial should proceed with the three complainants giving evidence. The respondent is represented at trial by an experienced and highly capable public defender.

3. [5]

   The trial was listed to commence before Judge Grant in Griffith on Monday, 22 March 2021. We are not aware of the circumstances in which the case was listed, nor the imperatives faced by the District Court in the list at Griffith or at other locations in the region. Reading between the lines, those imperatives may have guided his Honour in his conduct of the proceedings.

4. [6]

   The matter was called for trial on the Monday morning. The Prosecutor indicated that there was an application to vacate the trial date. The trial Judge declined to hear that application, insisting that a jury be empanelled and indicating that the application could be dealt with once the jury was selected. The circumstances, dictated by COVID-19 precautions and social distancing requirements, were that the jury panel was in another part of the court building (specifically, a courtroom generally used by the Local Court). Accordingly, there was some practical urgency in releasing the balance of the panel so that the other courtroom could be used by the local Magistrate. In making the decision to proceed to empanelment, his Honour did not appear to consider, even in overview, the basis upon which the Prosecutor sought to vacate the trial date and adjourn the proceedings. Nor did the trial Judge invite counsel for the respondent to indicate their position on the application to vacate the trial date. That was unfortunate. Based on the transcript of proceedings, and the date on which the notice of motion and affidavit were filed, it appears that his Honour was aware that one of the complainants was not available to give evidence.

5. [7]

   The accused was arraigned on an indictment containing all 11 counts, pleaded not guilty to each charge, and a jury was selected and sworn or affirmed. In the course of that process the jury became aware that there were three separate complainants. According to the transcript of the arraignment and the indictment presented, Count 6 was an allegation concerning a complainant known as MD. The transcript of the proceedings creates some confusion about this with the Prosecutor and Judge referring to the count involving MD as Count 8. Nothing turns on this.

6. [8]

   Once the jury was empanelled, the Judge heard the Prosecutor’s applications. By then, because a jury had been empanelled, the original application necessarily included an application to discharge the jury. The respondent supported the Prosecutor’s applications. His Honour declined to vacate the trial date and refused to discharge the jury. His Honour delivered two short ex tempore judgments.

7. [9]

   The Prosecutor’s application to vacate the trial date arose because of unavailability of the witness MD, who, as stated above was the complainant in relation to Count 6. The application was brought by notice of motion supported by an affidavit of the solicitor with carriage of the matter for the Director of Public Prosecutions. The affidavit established that the solicitor received a ‘phone call from a Dr Crawford in the week before the trial. The doctor said that MD was experiencing serious complications with her pregnancy and had been taken by ambulance to Canberra and may be transferred to Sydney. The doctor expressed the view that MD would not be well enough to give evidence during the period in which the trial was listed. Before providing further details, the doctor wanted to obtain MD’s consent.

8. [10]

   Dr Crawford supplied a report on 17 March 2021 setting out in a little detail the reasons that MD was unfit to attend the trial. That report was in the following terms:

9. [11]

   The Prosecutor’s written submissions (on the application to vacate the trial) contended that without MD the prosecution would not be able to present its case, in particular its tendency case, fully and adequately. A refusal to grant the adjournment would “deprive the Crown of being able properly to proceed with respect to the allegation of MD”.

10. [12]

    Despite the logistical difficulties, it is obvious that the application to vacate the trial date ought to have been heard and determined before the jury was empanelled. The self-evident problem of arraigning the accused on an indictment containing an allegation made by a witness who was unavailable to give evidence was raised by the Prosecutor but disregarded by the Judge. The transcript records the following exchange:

11. [13]

    Once his Honour decided that the jury should be empanelled, the application to vacate the trial date was complicated by the fact that there was an associated and co-dependant application that the jury be discharged. While the application to vacate the trial date ought to have been determined first, and that is the order in which Judge Grant proceeded, the reality was that the date could not be vacated unless the jury was discharged. Further, it seems that an error which permeated his Honour’s approach to the discharge application may have impacted on his consideration of the (theoretically) antecedent decision of whether to vacate the trial date. We will address the decision not to discharge the jury first.

The application to discharge the jury

1. [14]

   His Honour took the view that the parties were required to establish a “substantial miscarriage of justice” in order to justify the discharge of the jury. While the applications appeared to be dealt with sequentially, in the circumstances that had unfolded, the issue was whether the application to vacate the trial date ought to have been granted in the first place. This was far from a run of the mill application for the discharge of the jury because of some prejudicial event that occurred during the trial: cf Crofts v The Queen (1996) 186 CLR 427 at 440-441; [1996] HCA 22.

2. [15]

   Counsel for the respondent indicated that she did not oppose the orders sought by the Prosecutor. This was so despite the potential delay in obtaining a new trial date, a matter the trial Judge raised with the parties. Further, as to the application to discharge the jury, Counsel emphasised that the accused was prejudiced by the fact that the jury had heard the allegation of MD on the arraignment. In spite of a number of interruptions to her submissions, Counsel articulated with clarity, albeit without any success, the problem that arose due to the presentation of an indictment that alleged an offence against a separate complainant in relation to which the Prosecutor was unable to adduce any evidence.

3. [16]

   The trial Judge delivered an ex tempore judgment on the application to discharge the jury in the following terms:

4. [17]

   The trial Judge proceeded on the basis that the test for whether the jury should be discharged was whether such an order was necessary to prevent a “substantial miscarriage of justice”. Presumably, this derived from part of what was said by the High Court in Crofts v The Queen. However, “substantial miscarriage of justice” is the language of the proviso to s 6(1) of the Criminal Appeal Act. It is not the test to be applied by a trial judge in dealing with an application for a discharge of the jury. There is no concrete test for such an application. So much is clear from what the High Court said in Crofts v The Queen at 440-441:

5. [18]

   The second of those paragraphs, and the reference to the substantial miscarriage of justice test, is a reference to the function of the appellate court. It is the first paragraph that explains the nuances, and flexibility, surrounding the approach to be taken by a trial judge in dealing with an application to discharge a jury at first instance.

6. [19]

   In Miller v R [2015] NSWCCA 206 at [126], the Court (Beazley P, Fullerton and Hamill JJ) summarised the principles that guide the exercise of trial judge’s discretion whether to discharge a jury:

7. [20]

   In Hamide v R (2019) 101 NSWLR 455; [2019] NSWCCA 219, the judgment of Bell P highlights the difference between the task to be undertaken by an appellate court in reviewing a conviction and the exercise of power residing in a trial Judge to discharge a jury.

8. [21]

   The trial Judge in the present case approached the discharge application on an erroneous basis and applied an inflexible and inappropriate test, namely whether a substantial miscarriage of justice would be occasioned by continuing with the trial over the objection of both parties. The application of the wrong test is particularly acute in circumstances where his Honour had declined to entertain the application to vacate the trial before a jury was empanelled.

9. [22]

   An intermediate appellate Court is circumspect in interfering with the discretion of a trial judge in deciding whether a jury should be discharged: R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135 at [35] (“R v Lamb”). In the recent judgment of Libdy v R [2021] NSWCCA 34, Hamill J, with the concurrence of Macfarlan JA and Walton J, said at [19]:

10. [23]

    The reference to “House v The King error” is a reference to a famous passage in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 relating to appellate interference with discretionary judgments:

11. [24]

    In the present case, the trial Judge acted on a wrong principle concerning the test to be applied in determining whether to discharge the jury. Further, as the appellant submitted, the decision itself was unreasonable and plainly unjust.

The application to vacate the trial date

1. [25]

   As to the application to vacate the trial date and adjourn the proceedings, the following passage from the Victorian Court of Appeal in Brimbank Automotive Pty Ltd & Ors v Murphy [2009] VSC 26 at [13] resonates:

2. [26]

   This passage was brought to his Honour’s attention in written submissions filed by the Prosecutor at first instance. However, it is impossible to escape the conclusion that his Honour allowed the “exigencies of case management” to guide his decision refusing to vacate the trial date. To adopt the metaphor employed by the Presiding Judge at the hearing of the appeal, the tail appeared to wag the dog.

3. [27]

   Judge Grant’s ex tempore judgment on the application to vacate the trial date demonstrates that “exigencies of case management” appeared to prevail over the rights of the parties to present their cases as they thought to be appropriate. Immediately under the heading “CONSIDERATION”, his Honour said:

4. [28]

   Despite the reference to the submissions of Counsel for the accused, his Honour seemed to pay little or no attention to the fact that the application to vacate the trial date was effectively a joint one. Counsel for the accused went further than saying there was no prejudice to the accused. Ms Mendes made it clear that there may be positive prejudice in allowing the trial to proceed given the events that had unfolded that morning:

5. [29]

   Counsel indicated that she:

6. [30]

   On the hearing of the s 5F appeal, Counsel for the respondent submitted that there may also be prejudice to the accused in the possibility that he may be required to give evidence in two separate trials and in the proposal suggested by Judge Grant, namely that the evidence of the other two complainants be recorded and played to the jury as tendency evidence in the proposed separate trial of the allegations of MD.

7. [31]

   As to that last matter, the trial Judge said in his judgment:

8. [32]

   The provisions relating to the playing of previous evidence given by an alleged victim of a prescribed sexual offence, are contained in Div 3 and 4 of Pt 5 of the Criminal Procedure Act 1986 (NSW). It is questionable that the circumstances playing out in the present case would amount to the trial being “discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed” as required by s 306I of the Criminal Procedure Act. That is the provision that allows the Prosecutor to tender a recording of the “original evidence” of a “special witness” (as defined in ss 3, 294D, 306A, 306H of the Criminal Procedure Act) in “new trial proceedings”.

9. [33]

   The cases which have discussed s 306I to this point have involved matters where the entirety of the trial proceedings were discontinued: see, for example, Tootle v R [2017] NSWCCA 103 at [12]; Pasoski v R [2014] NSWCCA 309 at [18]; JV v R [2017] NSWCCA 49 at [79]; Ambury v R [2018] NSWCCA 275 at [7]; R v Shortland [2018] NSWCCA 34 at [47]; Stevens v R [2015] NSWCCA 235 at [6], [18]. None of these cases involved the amendment of the indictment to sever a count relating to one complainant, the trial continuing with the remaining complainants, and then the evidence being tendered as tendency evidence in a subsequent trial relating to the severed count.

10. [34]

    It is unnecessary to say more about this issue or to decide whether his Honour’s proposed solution was viable or in accordance with the statute. It certainly accorded with the purpose and objectives of the provisions. However, it is unnecessary to come to any final conclusion on the issue because this is a case that falls within the final category of error identified in House v The King. That is, for reasons that may be opaque, that the decision not to vacate the trial date was unreasonable and plainly unjust in all of the circumstances.

11. [35]

    While his Honour was required to consider the merits of the application, it was for the Prosecutor, not the trial Judge, to determine how it sought to present its case. It was not for the trial Judge to determine that the absence of MD would not prejudice the prosecution on the basis that the absence of MD would not “substantially weaken” the prosecution case because it would still have the evidence of two (of three) complainants. His Honour said this:

12. [36]

    This analysis ignored the Prosecutor’s submission that it was being denied, in respect of the charges relating to BD and BRIT-D, the tendency evidence that was expected to be elicited from MD. The extent to which this would weaken the Crown case was speculative and would turn on the quality of the witnesses and the impression each made on the jury. For example, the jury may have rejected the evidence of BRIT-D whereupon the evidence of BD would have been unsupported by the proposed tendency evidence.

13. [37]

    The decision to refuse an application for an adjournment (or to vacate a trial date) is a discretionary one. Appellate courts are reluctant to interfere with the exercise of the discretion residing in the judge at first instance.

14. [38]

    However, there are many cases where the refusal to adjourn proceedings due to the unavailability of an important witness has resulted in successful appeals. In Thornberry v The Queen (1995) 69 ALJR 777, the High Court allowed an appeal against a decision of this Court upholding the decision of a trial Judge to refuse an adjournment application based on the unavailability of an alibi witness. In R v Reid [1999] NSWCCA 258, this Court quashed a conviction that arose when a prosecution witness went missing and the accused was refused an adjournment to have the opportunity to attempt to locate the witness. In Bell v Imrie & Anor (Unreported, Supreme Court of NSW, Yeldham J, 24 February 1989); 8 Petty Sessions Review 3905, Yeldham J described the refusal of a Magistrate to allow a consent adjournment as “scandalous” where the principal prosecution witness was unavailable as a result of an established medical condition. For further examples, and general discussion of the considerations involved, see Nitiva v Director of Public Prosecutions & 2 Ors [1999] NSWCA 332, Noble v Director of Public Prosecutions & Others [2000] NSWSC 920 and Director of Public Prosecutions (NSW) v Chaouk and Anor [2010] NSWSC 1418.

15. [39]

    Taking into account all of the circumstances of the present case, we accepted the appellant’s submission that the refusal of Judge Grant to vacate the trial date on what was, in effect, the joint application of the parties, was a decision properly characterised as unreasonable and plainly unjust.

Conclusion and orders

1. [40]

   It is for the foregoing reasons that the Court made the orders set out in paragraph [1] of this judgment.