WHS v R

1. [1]

   THE COURT: This appeal raises an interesting question as to the nature of the task required to be undertaken by this Court in determining the appropriate orders to be made following a concession by the Crown that the verdict of the jury must be set aside on the ground of a miscarriage of justice.

2. [2]

   The applicant was tried by jury for eight child sexual offences allegedly committed against his wife’s foster child, MW. He was found guilty of five offences of engaging in sexual intercourse with a child under the age of 10 and two offences of aggravated indecent assault on a child under 10. He was acquitted on a further count of aggravated indecent assault.

3. [3]

   The applicant was sentenced to an aggregate term of imprisonment for 14 years and 6 months with a non-parole period of 10 years and 10 months commencing on 9 October 2014.

4. [4]

   The applicant appealed against his conviction on a number of grounds, one of which rests on the emergence of “fresh and/or new evidence”. That evidence goes exclusively to the credibility of the complainant and the plausibility of her evidence given at the trial, which was critical to the Crown case.

5. [5]

   There were lengthy delays in the preparation of the appeal, none of which were the fault of the applicant or his legal representatives. The delays were due to a series of hurdles and misfortunes faced by the applicant in his attempts to obtain access to documents he contends ought, in various ways, to have been made available to him at the time of his trial. By the time the appeal was heard after the documents had finally been obtained, the applicant had served almost 5 years and 5 months of his sentence.

6. [6]

   The Crown conceded that the appeal should be allowed on the basis that the documents the applicant has obtained include documents that were in the possession of investigating police at the time of the applicant’s trial which were potentially exculpatory in nature and which should for that reason have been disclosed to the applicant. The Crown further conceded that the failure to disclose that material gave rise to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) and that the proviso is not engaged. The Crown also did not oppose an application by the applicant for conditional bail pending the determination of the appeal. The Court granted bail on agreed conditions during the hearing of the appeal.

7. [7]

   It is common ground between the parties, and the Court accepts, that the applicant’s convictions must be quashed. The only remaining question is whether to direct the entry of a verdict of acquittal, as contemplated by s 6(2) of the Criminal Appeal Act, or to order a new trial, as allowed in the circumstances specified in s 8(1) of the Act. The argument proceeded on the assumption that the Court would make one or other of those orders. As explained in a number of the judgments in the recent decision of the High Court in R v A2 (2019) 373 ALR 214; [2019] HCA 35 (“A2”), it is doubtful whether the Court has authority to quash the conviction without making any further order: at [83] per Kiefel CJ and Keane J; Nettle and Gordon JJ agreeing at [148]; at [190]-[192] per Edelman J.

8. [8]

   The applicant sought to establish that the material he has obtained includes fresh evidence which would lead the Court to conclude that a verdict of acquittal should be entered on the basis that there was a miscarriage of justice in the sense explained by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518; [1974] HCA 35 (“Ratten”), where, on the strength of the fresh evidence, “the [appellate] court itself is satisfied of innocence or entertains a reasonable doubt as to guilt”.

9. [9]

   The Crown submitted that the applicant cannot satisfy that test on the strength of the material tendered by him on the appeal, which consists entirely of documents. The Crown’s position was that, while the conviction must be quashed because there was a miscarriage of justice of a different kind (namely, one resulting from a breach of the prosecutorial duty of disclosure stated in s 15A of the Director of Public Prosecutions Act 1986 (NSW)), the documents do not go so far as to establish the applicant’s innocence or a doubt as to his guilt.

10. [10]

    The Crown made plain that it was not seeking, by its limited concession, to deprive the applicant of the opportunity to persuade this Court of his entitlement to the remedy of a verdict of acquittal. The Crown did not oppose the admission into evidence of the documents tendered by the applicant and was content for the Court to proceed on the assumption, in the applicant’s favour, that all of that evidence was “fresh” in the sense that it was not available, and could not reasonably have been available, to the applicant at his trial.

11. [11]

    The Crown’s position was simply that, on the strength of the whole of that material, the Court would be unable to reach the state of satisfaction required for an application of the principle in Ratten and would instead reach the conclusion, applying the principles stated in Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 (“Gilham”), that the miscarriage of justice conceded by the Crown can be more adequately remedied by an order for a new trial under s 8(1) of the Criminal Appeal Act.

12. [12]

    Before considering those competing contentions, it is necessary to explain the nature of the fresh evidence relied upon by the applicant in the context of the issues at the trial.

Documents obtained by the applicant

1. [13]

   The complainant was a young child. She was born in February 2003. She had a younger brother, JW, who was born in April 2005. She and JW had been removed from the care of their natural parents by the Department of Family and Community Services (“FACS”) shortly after JW’s birth and had been in foster care since that time.

2. [14]

   The complainant was aged nine when she made her complaint about the applicant. Her statement to police provided a detailed and graphic description of sexual acts she alleged were committed against her by him. The language of her description of those acts and things she observed about his body and hers at the time of those acts was such as to give rise to an inference that, absent some other explanation for her ability and motive to describe such events in such terms, they must have happened.

3. [15]

   In order to test that inference, before the commencement of the applicant’s trial in the District Court, a subpoena was issued at his request seeking the production of documents held by FACS. As already noted, the applicant was the husband of the complainant’s foster mother and may be taken to have had at least some awareness of the complainant’s unhappy background (we mention that fact only to indicate that there was, in the circumstances of this case, a legitimate forensic purpose in seeking the issue of such a subpoena).

4. [16]

   The subpoena sought the production of documents with respect to the following matters:

   1. (1)

      the reason why the children were removed from their birth mother;

   2. (2)

      allegations raised by either of the children against their foster carer, DB;

   3. (3)

      allegations raised by the children against their carers in two other foster homes; and

   4. (4)

      allegations that the children had been exposed to adult movies or literature or magazines which contained sexually explicit material.

5. [17]

   Most of the documents produced to the Court by FACS in response to the subpoena were the subject of a claim for sexual assault communications privilege (often referred to by the acronym “SACP”). That claim invoked the application of s 298 of the Criminal Procedure Act 1986 (NSW), which provides:

6. [18]

   The process for obtaining access to evidence that would disclose a protected confidence is governed by s 299C of the Act. Shortly before the applicant’s trial, he made an application for leave in accordance with that section. Section 299A of the Act provides that the protected confider (the complainant) has standing on such an application. She was separately represented on the application and had been granted first access to the documents produced by FACS in response to the subpoena.

7. [19]

   At the hearing of the application, counsel for the protected confider tendered a copy of the documents produced by FACS which she had annotated with coloured tabs to identify the documents in respect of which the sexual assault communications privilege was claimed. She also flagged a number of documents she considered may raise an issue under s 293 of the Criminal Procedure Act, which provides that evidence relating to the sexual reputation of a complainant or evidence that discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, is inadmissible. As to those, counsel for the protected confider noted that such documents would be likely to fall within the exception under s 293(4)(a), the effect of which is that the exclusion rule does not apply in respect of evidence concerning part of a connected set of circumstances in which the alleged offences the subject of the proceedings were committed. The annotated bundle was marked “SACP exhibit 2” on the application before the trial judge.

8. [20]

   The trial judge noted that no objection had been taken to the production of a discrete number of documents and said those documents could be provided by way of photocopy to the parties. His Honour otherwise refused the application. That ruling is the subject of ground 1 in the appeal, as follows:

9. [21]

   The trial proceeded without those documents and in due course the applicant was convicted of the offences outlined above.

10. [22]

    The applicant contends that the trial judge’s summing-up to the jury was lacking in balance and favoured the prosecution such as to occasion a miscarriage of justice in the trial. That is ground 3 in the appeal.

11. [23]

    Documents subsequently provided to the applicant’s legal representatives by DB prompted them to become concerned that there may have been incomplete compliance with the subpoena. Following a lengthy process which suffered many delays, the applicant ultimately obtained access to several volumes of FACS material as well as a copy of SACP exhibit 2. From that material, the applicant has identified 53 “material documents” to which he did not have access at his trial.

12. [24]

    The applicant relies on those circumstances and the documents he has now obtained as the basis for ground 2, as follows:

13. [25]

    As explained below, the Crown’s concessions relate to part only of ground 2. It was nonetheless common ground that, in light of the concessions, there is no need for the Court to determine ground 1 or ground 3.

Explanation of the Crown’s concessions

1. [26]

   The fresh evidence was produced to this Court in response to production orders made by Bellew J. In the course of the applicant’s efforts to obtain access to those documents, his solicitor was at one point advised that a reason for the delay by FACS in the production of the documents was that the originals had been taken by police in the execution of a search warrant granted before the commencement of the trial in the District Court and that copies of those documents had not been retained by FACS.

2. [27]

   It transpired that a search warrant had been executed on the same day that the SACP argument was being heard in the District Court. The warrant was obtained by the officer in charge of the investigation (the “OIC”) in response to a request by the Office of the Director of Public Prosecutions for further information in relation to the forthcoming trial. The request posed a series of specific questions. The correspondence at the time indicates that the OIC was unable to obtain that information from FACS by consent. Accordingly, he obtained the warrant, the execution of which resulted in his seizing nine boxes of documents from FACS.

3. [28]

   While that material was being taken back to the OIC’s office, the solicitor for the DPP called him and told him not to inspect the documents due to “privilege issues”. Despite that communication, the OIC “sporadically viewed” the contents of the boxes. In a statement tendered on the appeal, he said “from memory I ascertained that they did not contain any inculpatory or exculpatory evidence”.

4. [29]

   Neither the DPP solicitor nor the Crown Prosecutor inspected the search warrant material. However, the OIC had possession of the material and, unbeknownst to the lawyers, viewed at least some of it. Counsel for the Crown in the present appeal formed the view that the documents ultimately produced in response to the production orders made by Bellew J included documents which would have been within the search warrant material and which (contrary to the view formed by the OIC) contained information which was relevant to the credibility of the complainant and therefore potentially exculpatory. She also formed the view that there was a subset of that material which did not raise any issue of privilege. As the OIC had possession of that material and may have viewed it in his sporadic review of the nine boxes, the Crown accepted that the material should have been disclosed to the applicant in advance of his trial.

5. [30]

   The applicant’s written submissions provided a detailed analysis of the “material documents” in the context of significant dates as they emerged in the evidence at the trial.

6. [31]

   The Crown’s concession concerning that material did not concede the whole of ground 2. The Crown submitted that the ground as framed referred to “fresh and/or new material” of three kinds:

   1. (1)

      material not produced by FACS in response to the subpoena issued at the request of the applicant before the commencement of his trial;

   2. (2)

      exculpatory material not disclosed by the prosecution at the trial; and

   3. (3)

      “other fresh or new material that was not available to the applicant at trial.”

7. [32]

   The Crown’s concession was confined to exculpatory material the prosecution failed to disclose. At the time written submissions were prepared, the Crown had not been able to obtain access to SACP exhibit 2.

Propositions contended for by the applicant

1. [33]

   The applicant submitted that the “material documents” provided evidence of the following matters:

2. [34]

   It is clear from those contentions that, as already noted, the focus of the argument is that the fresh evidence impugns the credibility and plausibility of the complainant. However, it may be noted that none of the applicant’s contentions specifically impugns the veracity of the evidence the applicant gave at the trial. It is not a case where, for example, a witness has come forward to say the complainant had admitted that her allegations against the applicant were false. Rather, the applicant’s argument invites this Court to make an assessment as to the complainant’s credibility generally and then to assess the impact of that assessment on her evidence as contained in the record of the trial.

3. [35]

   That is not an easy task. Even if it were to be established unequivocally that the complainant was a consummate liar, it would not necessarily follow that she was lying about the applicant. It is not uncommon for children with troubled backgrounds to become victims of sexual assault or for such children to display difficult or inconsistent behaviour, including telling lies. The extent to which such matters derogate from the credibility or plausibility of the evidence at trial requires a close assessment of the whole of the evidence in context.

4. [36]

   It is well established that, for the purpose of discharging its appellate function, this Court can, and in some circumstances must, make its own assessment of evidence with a view to forming an opinion as to an appellant’s guilt. The requirement to undertake a task of that nature arises most commonly in this Court in the context of a ground of appeal under the first limb of s 6(1) of the Criminal Appeal Act that the verdict is unreasonable, or cannot be supported, having regard to the evidence. In an appeal of that kind, the Court is authorised and indeed obliged to make an independent assessment of the evidence based on the record of the trial, without having heard or seen the witnesses or having been immersed in the atmosphere of the trial. If, on the strength of such an assessment, the Court reaches the required state of mind as to what the evidence will support, the Court is obliged to substitute its conclusion for that reached by the jury.

5. [37]

   In such a case, however, the Court has a record of the sworn evidence of the witnesses as it was given and then tested in cross-examination.

6. [38]

   The difficulty in evaluating the propositions contended for by the applicant in the present case (set out above) is that the evidence was placed before the Court in the form in which it was obtained by the applicant in response to the production notices issued by Bellew J. No sworn evidence was called to prove the contents of those documents or to expand upon the information they contain. The fresh evidence relied upon to establish a miscarriage of justice within the principles in Ratten consisted solely of representations of fact or opinion in hearsay form.

7. [39]

   That is not said by way of any criticism of the applicant’s legal representatives, to whom no grant of legal aid has been made for the extensive work they have undertaken in preparation for the present appeal. The applicant has been significantly hamstrung by a lack of resources in the presentation of the fresh evidence and has not been able to present it in the form in which it would ordinarily be adduced for the purpose of a fresh evidence ground.

8. [40]

   However, those difficulties cannot inform the nature of the task to be undertaken by this Court. The evidence can only be assessed in the form in which it has been presented. As we understood the applicant’s submissions, this Court was not asked to speculate as to the sworn evidence that might have been given at the applicant’s trial or might be given in any future trial by the authors of the representations contained in the material documents. Rather, the contention was that this Court would, on the strength of those representations, reach the state of considering the applicant to be innocent or would at least entertain a reasonable doubt as to his guilt.

9. [41]

   It may be accepted that an appeal on the ground of a miscarriage of justice based on fresh evidence imposes an obligation on this Court to examine the probative value of the fresh evidence: Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 at 400 per Mason and Deane JJ, citing Ratten at 519, 526 and Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49 at 670, 676-7, 684. While the nature of that task has been formulated in various ways, the authorities assume that the “fresh evidence” in question is clearly delineated, the requirement being in one way or another to assess the likely impact on the verdict had that evidence been before the jury.

10. [42]

    That will ordinarily require the Court to receive the fresh evidence in the form in which it would be presented at trial. So much was recognised by Barwick CJ in a discussion of his remarks in Ratten in the later decision of the High Court in Lawless at 665 as follows:

11. [43]

    It may be accepted that Barwick CJ did there contemplate the possibility of a case in which the required conclusion could be reached by the Court on the strength of an examination of written material proffered as fresh evidence but his Honour described such cases as “exceptional”.

12. [44]

    Whether the required task is to examine the probative value of the fresh evidence in the form in which it was presented to this Court, which rises no higher than the status of untested hearsay (the proposition that any of the documents might prove previous representations contained in a business record was not developed) or to make an assessment as to the way in which those hearsay statements would be likely to unfold as admissible evidence at any past or future trial (which would require the Court to speculate as to an unspecified body of credibility evidence), it is not possible for this Court to reach the state of mind required in order to establish a miscarriage of justice of the kind explained by Barwick CJ in Ratten.

13. [45]

    The applicant addressed the significance of the material documents at length. It is not necessary to set out the detail of the evidence in this judgment. It will suffice for present purposes to summarise the kind of material contained in the documents, taken at their highest, and to explain why that material considered individually and as a whole has not persuaded the Court to reach the state of satisfaction required to meet the test stated in Ratten for a verdict of acquittal based on a fresh evidence ground.

14. [46]

    The fresh evidence as addressed in the applicant’s submissions falls into a number of categories. Counsel for the applicant emphasised, and we accept, that those matters must be considered as a whole. In order to explain our reasons, however, it is necessary to discuss each type of evidence relied upon separately.

15. [47]

    First and perhaps most significantly, there are documents indicating the possibility of prior sexual experience, which could potentially explain MW’s ability to describe sexual acts of the kind alleged against the applicant. Her evidence at trial had a cogency which was inexplicable other than on the basis that the events she described happened.

16. [48]

    The documents show that, after being removed from the care of their natural parents, MW and her younger brother had two separate placements with DB as their foster carer. The first began in November 2005 and ended in May 2008. The evidence in the trial was that DB had known the applicant for a long time but that their relationship did not begin until 2008.

17. [49]

    A significant number of documents record complaints or concerns which, if established, would indicate that, before DB commenced her relationship with the applicant and (so far as the evidence reveals) before he had any contact with MW, MW may have been sexually interfered with by or engaged in sexual play with other young family members (an older sister and two young male cousins). Further, the documents record reports of observations that from a very young age MW was displaying sexualised behaviour of an alarming nature, suggestive of her having been interfered with in a sexual way. Importantly, noting that the charges against the applicant include allegations of anal intercourse, the documents include reports that the sexualised behaviour sometimes involved her anus, including one reported observation of her “fingering her anus”.

18. [50]

    In May 2008, the children were removed from the care of DB due to concerns that she had not been able to meet their psychological and emotional needs. During the period that followed, they were placed with different foster carers and had frequent changes in respite carers and support workers, resulting in increases in the severity and frequency of their troubled behaviour. One foster carer reported during that time that both children “found it normal to touch each other’s private parts”. Notes of an interview with the same carer “attributed contact visits with [DB] during that period as contributing to the problems”.

19. [51]

    The children were returned to the care of DB shortly after she and the applicant were married, in late 2009. The first offence by the applicant against MW is alleged to have been committed in early 2010 (count 6 on the indictment). It may be noted that the documents include reports of an escalation in MW’s disruptive behaviour and sexualised behaviour after that date.

20. [52]

    Leaving aside for the purpose of the present discussion the provisions of s 293 of the Criminal Procedure Act, it may be accepted that records of that kind may afford an explanation, which was absent at the trial, for some of the detail MW was able to provide in support of the counts on the indictment. So much is acknowledged in the Crown’s appropriate concession that the appeal should be allowed. However, evidence of that nature, presented as it was in the form of untested second-hand hearsay (at least), without context and where there has been no opportunity for the complainant to address it, cannot rise to the point of prompting this Court to entertain a doubt as to the applicant’s guilt. While the evidence affords the forensic basis for a line of defence the applicant may see fit to raise, it is not inconsistent with his guilt.

21. [53]

    A second category of documents addressed by the applicant was documents containing statements to the effect that MW was in the habit of telling lies. Submissions were also made as to documents recording complaints by MW of physical or sexual abuse by carers which were found to be “not sustained”.

22. [54]

    It is very difficult to judge the impact of those matters on the plausibility of the evidence given by MW at trial. It may be accepted that, in some instances, the Court could readily draw an inference that something recorded as having been said by MW was obviously not true. A stark example identified in the submissions of both parties was the record of an interview with MW on 24 September 2009. In that document, MW was recorded as having told the interviewer that, when she would visit DB (MW was with other carers at that time), DB and the applicant would take their clothes off in the bathroom and the bedroom and have sex, by which she meant “they kiss”. Further into the interview she was recorded as having said, in reference to DB, “She takes me to MacDonald’s [sic]. [DB] had sex at MacDonald’s [sic]. She took her clothes off and everyone ran outside.” MW was just over 6½ years old at the time of that interview. It seems very unlikely that the incident she described occurred. However, given her age at that time, it is difficult to judge whether that displays a propensity to make false allegations.

23. [55]

    The records of allegations made by MW that were “not sustained” included allegations of sexual interference by DB. However, our reading of the interview in question has not persuaded us that MW was purporting to make a complaint of sexualised touching. At that time, MW was bedwetting and for that reason was still wearing a pull-up nappy at night. She was then aged 7½. The interview records her telling a DOCS worker that DB touched her between her legs and on her private parts when she put her nappy on. It is by no means clear that MW was reporting sexualised behaviour.

24. [56]

    Counsel for the applicant also relied in this context on a report by MW and JW that they had seen their male respite carer (not the applicant) urinate in front of them. The report was again treated as “not sustained”. However, it is impossible for this Court to reach the conclusion that the report was false, let alone that the making of such a report by MW, even if false, impugns the applicant’s convictions.

25. [57]

    A third category of documents concerned notes as to the importance of not leaving MW in the sole care of the applicant as to do so “could lead to allegations of abuse”. It was not made clear what the Court should make of the existence of such concerns. They could not inform this Court’s assessment as to the applicant’s guilt in any meaningful way.

26. [58]

    Next, the applicant placed considerable reliance on the diagnosis in 2011 of a psychologist, Tarnya Davis, who recited much of the foregoing kind of material and reached the conclusion, based on her own observations as well as past assessments, that both children qualified for a diagnosis of Reactive Attachment Disorder. The applicant relied on the fact that the symptoms of that disorder include lying and deliberately sabotaging close attachments. Again, leaving aside questions of admissibility, it may be accepted that the existence of such a diagnosis may be relevant to an assessment of the credibility of the complainant and the plausibility of her allegations against the applicant. However, it is simply not possible for this Court to act on that material in the form in which it was presented. Ms Davis was not called as a witness. The assumptions underlying her opinion have not been proved let alone tested. There is no up to date report as to the complainant’s condition now. She would now be 17 years old.

27. [59]

    Further, the diagnosis was made within the period of the complainant’s allegations against the applicant. One of the “risk factors” for Reactive Attachment Disorder listed in a document provided to the Court by counsel for the applicant is sexual abuse. We do not mean to suggest that the diagnosis confirms the applicant’s guilt in any way but only to highlight the difficulty of being satisfied as to what inferences can be drawn from the evidence in the form in which it was presented. The bare existence of the diagnosis does not necessarily raise a doubt as to the applicant’s guilt.

28. [60]

    Finally, the applicant relied upon a number of instances where the documents record no complaint against the applicant on an occasion when, according to MW’s evidence given at the trial, she might have complained of the conduct of which she subsequently complained. Similarly, there was evidence of occasions on which the complainant retracted or appeared to abandon earlier allegations of physical abuse.

29. [61]

    It is very common in cases of sexual assault, particularly child sexual assault, to see an absence of complaint or retraction of complaints. In the present case, MW’s troubled background is enough to explain why she might give inconsistent accounts on different occasions to different people. Those matters do not cause us to have any doubt as to the applicant’s guilt, although we accept they are matters that might well be explored to good effect at trial.

30. [62]

    For those reasons, the fresh evidence has not persuaded the Court that the applicant is innocent, nor has our assessment of that evidence led us to entertain a reasonable doubt as to his guilt.

31. [63]

    As noted in the Crown’s written submissions, the High Court affirmed in A2 at 234 [84] that, unless the interests of justice require the entry of a verdict of acquittal, “an appellate court would ordinarily order a new trial where there is sufficient evidence to support a conviction”. The applicant did not submit that the evidence at trial was not sufficient to support a conviction.

32. [64]

    The Crown further submitted that, applying the principles stated in Gilham at [649], it would not be in the interests of justice for a verdict of acquittal to be entered. We agree. The highest the evidence takes the matter in its present form is that the fresh evidence plainly warrants investigation and obviously that will include obtaining a further statement from the complainant. The decision whether to proceed further on the indictment in this case is properly a matter for the DPP.

33. [65]

    In particular, we do not accept that the case against the applicant was a weak case. Even making allowance for the possibility of prior sexual experience, MW’s evidence was cogent and compelling. As noted by the Crown, her evidence was supported by the evidence of JW, who confirmed that there were occasions when the applicant was alone in the bedroom with MW. It also received some support from the evidence concerning the appearance of the applicant’s penis. The complainant told police the applicant had two moles on his penis. When initially asked to submit to forensic procedures which would include photographing his penis, the applicant refused. Police then made an application to the Court for an order requiring the applicant to submit to those procedures, following which photographs were obtained. The photographs show a large, well-defined lesion which an expert dermatologist said would normally be caused by some “external trauma” such as being cut or burnt. Contrary to a submission put on behalf of the applicant, the support derived from that evidence is not nullified by evidence that impugns MW’s credibility.

34. [66]

    Secondly, the offences are undoubtedly very serious. The Crown noted that there is a public interest in the due prosecution of offenders charged with such offences: Gilham at [649] per McClellan CJ at CL (with whom Fullerton and Garling JJ agreed at [662] and [679]) citing R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]; R v Anderson (1991) 53 A Crim R 421 at 453; Reid v R [1980] 1 AC 343 at 349.

35. [67]

    The Crown further submitted, and we agree, that it is desirable in the case of such offences to have “the guilt or innocence of the applicant finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision”: Gilham at [649], citing Taufahema at [51]; Anderson at 453; Reid at 350.

36. [68]

    Finally, the Crown submitted that, in the present case, the entry of an acquittal by this Court “would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions”: Gilham at [649], citing R v Thomas (No 3) (2006) 14 VR 512; [2006] VSCA 300 at [27].

37. [69]

    The Crown’s submissions have persuaded the Court that the appropriate order in the present case is for a new trial and that the decision whether the applicant should be put to trial again is properly a question for the Director of Public Prosecutions.

38. [70]

    For those reasons, we make the following orders:

    1. (1)

       Allow the appeal;

    2. (2)

       Quash the conviction and sentence;

    3. (3)

       Order a new trial;

    4. (4)

       List the matter for mention in the arraignments list at 9.30am, 19 March 2020 in the District Court, Newcastle, to obtain a date for hearing;

    5. (5)

       Pursuant to s 67(1) of the Bail Act 2013 (NSW), continue the applicant’s bail.