R v Walker

1. [1]

   HARRISON CJ at CL: The direction given to the jury by the trial judge, which is the subject of the present application, was erroneous for the reasons explained by Dhanji J in his judgment, with which reasons I agree. Notwithstanding that error, in accordance with the orders of this Court made at the hearing of the application, it was preferable in the circumstances of this case to remit the matter to his Honour with a view to withdrawing the impugned direction and redirecting the jury in suitable terms in a way, if possible, that corrected or neutralised the error while maintaining the trial or taking such other course as his Honour may have considered appropriate. The error did not automatically mandate that the jury should be discharged and did not mean that a suitably framed redirection could not ensure that Mr Walker’s trial was fair.

2. [2]

   DHANJI J: By notice of appeal filed on 13 March 2025, the Crown, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), appealed against the decision of Everson SC DCJ at the District Court of New South Wales at Penrith to refuse the Crown’s application to discharge the jury. The sole ground of appeal was as follows:

3. [3]

   The Crown’s application that the trial judge discharge the jury was made on the basis of a direction given by him in relation to the jury’s evaluation of evidence given by “video link”, referred to in this judgment as audio visual link (“AVL”). For the purpose of these reasons, I will use the term “AVL” to mean facilities that enable audio and visual communication between persons at different places including closed-circuit television (“CCTV”), consistent with the definition in s 3(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“the AVL Act”).

4. [4]

   On 14 March 2025, this Court heard the appeal and made the following orders at the conclusion of the hearing:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the order of his Honour Judge Everson SC made on 13 March 2025.

   3. (3)

      Remit the matter to the District Court in order that the application be determined according to law.

   4. (4)

      The Court will provide written reasons in due course.

5. [5]

   The appellant had sought orders that the appeal be allowed and that the jury be discharged. Prior to making the above orders, the Court indicated to the parties that, despite having formed the view that the trial judge had erred, we were not prepared to order that the jury be discharged. The parties were advised that, while the Court was of the view the direction given by the trial judge was in error, it remained open to his Honour, on remitter, to reconsider the discharge application in the light of the potential for further directions to be given to remedy the error in the impugned direction.

6. [6]

   My reasons for joining in the orders follow below.

Background

1. [7]

   At the time the appeal was heard, the respondent, Scott James Walker, was before the District Court, facing trial by jury on indictment for the following offences:

2. [8]

   The trial began on 3 March 2025. On 11 March 2025, the trial judge commenced his summing up. On 12 March 2025, due to the absence of a juror, the Court did not sit. In the absence of the jury, the trial judge raised an issue as to whether a direction should be given to the jury in relation to evidence given by AVL, referring the parties to the decision of R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 (“Wilkie”) at [72]. The following day, the Crown prosecutor submitted that the proposed direction was, insofar as it applied to the complainant, contrary to s 294B(7) of the Criminal Procedure Act 1986 (NSW), would result in a trial that was unfair to the Crown, and should not be given. The trial judge rejected the prosecutor’s submissions and completed his summing up, which included the impugned direction.

3. [9]

   At the conclusion of the summing up, the Crown made an application to the trial judge that the jury be discharged. The application was refused.

4. [10]

   On the afternoon of 13 March 2025, the Crown filed a notice of appeal to this Court. A court was convened as a matter of urgency to sit at 10:15am the following morning.

5. [11]

   On the evening of 13 March 2025, the Crown provided a court book comprising a notice of appeal, a ground of appeal, an indictment, an amended Crown Case Statement and transcripts of all five days of the trial, including the addresses of counsel (but not including the summing up). Later that evening, the Crown provided an additional bundle of material comprising relevant extracts of the Criminal Procedure Act and the AVL Act, an extract of the Criminal Trial Courts Bench Book issued by the Judicial Commission of NSW on “Evidence given by alternative means”, and the second reading speeches in the Legislative Assembly and Legislative Council with respect to the Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004 (NSW).

6. [12]

   At the hearing, the Crown read two affidavits of Daniel Oraha, the solicitor with carriage of the matter on behalf of the Director, sworn on 13 and 14 March 2025. The first affidavit of Mr Oraha contained a summary of the trial, including the series of events leading to the trial judge giving the direction in issue to the jury. Annexed to the affidavit was an indictment, a Crown Case Statement, and notes of the summing up authored by Mr Oraha and Alistair Tonks, Solicitor Advocate. The second affidavit of Mr Oraha annexed two transcripts of audio files which had been provided by the Court’s Reporting Services Unit. The transcripts related to, respectively, the portion of the proceedings in which the direction in issue was given to the jury by the trial judge, and the portion of the proceedings in which the Crown made an application to discharge the jury. These transcripts were generated by the use of an audio to text computer program, the product of which was then reviewed and amended by Mr Oraha and Mr Tonks. The parties proceeded on the basis that these transcripts were accurate. The Court, accordingly, proceeded on the same basis.

Jurisdiction

1. [13]

   Section 5F of the Criminal Appeal Act relevantly provides:

2. [14]

   An order refusing an application for discharge is an interlocutory judgment or order for the purposes of s 5F(3): see Kahil v R [2020] NSWCCA 56, referring to R v Alexandroaia (1995) 81 A Crim R 286. There is no reason the expression, “interlocutory judgment or order” should be any narrower for the purposes of s 5F(2). See also R v NE [2021] NSWCCA 54 where jurisdiction was assumed in an appeal under s 5F(2) in similar circumstances. I was, accordingly, satisfied the Court had jurisdiction.

The issue

1. [15]

   The direction given by the trial judge the subject of the application for discharge was as follows:

2. [16]

   The direction on its face applied to all of the witnesses who had given evidence in the trial by way of AVL. There were five such witnesses in total, the complainant and four others. Of those four witnesses, two were witnesses who gave evidence of a complaint made by the complainant to the witness and with respect to whom there was no cross-examination. The other two witnesses were, respectively, a nurse who saw the complainant in a professional capacity and an employee of the Forensic and Analytical Science Service. While there was some limited cross-examination of these witnesses, their credibility was not challenged. Thus, while the impugned direction was framed in general terms, the practical reality was that the direction applied only to the complainant.

3. [17]

   It is convenient to first deal with the central issue of whether the impugned direction given by his Honour was contrary to s 294B(7) of the Criminal Procedure Act insofar as it applied to the complainant, and then for completeness, to deal with the appropriateness of the direction with respect to the other witnesses.

The complainant

1. [18]

   There was no issue that the proceedings were proceedings “in respect of a prescribed sexual offence” for the purposes of s 294B(1) of the Criminal Procedure Act: see the definition of “prescribed sexual offence” in s 3. As a result, s 294B(3), which is in the following terms, applied:

2. [19]

   The complainant availed herself of her entitlement to give evidence by means of CCTV. Having done so, the trial judge was bound to apply s 294B(7):

3. [20]

   Plainly, the provision requires a direction to be given in terms of s 294B(7)(a). It was not in issue that this was done, both at the time the evidence was given and in the summing up.

4. [21]

   Further, the jury must be told that no inference can be drawn against the accused as a result of the use of the facility. Such a warning is to dispel any risk the jury may reason that the fact the complainant was not in the same room as the accused (or not within sight of the accused) is in any way probative of the accused’s guilt, thereby giving the complainant’s evidence greater weight on the basis that it was adduced by the means provided for in s 294B(3). Again, there was no issue that directions were given which complied with this aspect of s 294B(7).

5. [22]

   Section 294B(7) also requires that the jury be told that they may not give the evidence “lesser weight because it is given by those means or by use of those arrangements”. This most obviously applies to dispel any suggestion the evidence should be given less weight because the complainant did not directly face the accused in court. The impugned direction was adequate to deal with this form of reasoning made impermissible by s 294B(7).

6. [23]

   The direction, however, also raised the relationship between the assessment of the witness’s demeanour and the means by which the evidence was given. The jury was told, in the passage above, that, “[a]ny difficulty” encountered in assessing the credibility of the complainant “by reason of the fact that the evidence was adduced … by the use of a video link, should be resolved in favour of the accused”. To similar effect, the jury was told that if they had any difficulty assessing the demeanour of a witness “by the restrictions or limitations placed upon that task because of the use of the video link”, that might give rise to a doubt as to whether the witness (here synonymous with the evidence) could be relied on.

7. [24]

   The credibility of the complainant was in contest. The jury was directed that, in the event that there was difficulty assessing the complainant’s credibility because the evidence had been given by way of AVL, the difficulty should be “resolved in favour of the accused” so they were entitled to, in the words of the prohibition in s 294B(7)(b), “give the evidence … lesser weight because it [was] given by those means”. The subsequent direction that the means by which the evidence was given might lead to a doubt as to whether the evidence could be relied on was to similar effect. The directions breached the prohibition in s 294B(7).

8. [25]

   His Honour’s reasons for refusing to order the discharge of the jury were premised on his view that the directions were not inconsistent with s 294B(7). Given my view that his Honour was wrong in that regard, it followed that in exercising his discretion to refuse the application his Honour acted on wrong principle and thereby erred: House v The King (1936) 55 CLR 499; [1936] HCA 40. The appellant’s sole ground of appeal was, on this basis, made out.

9. [26]

   Before leaving this ground and providing reasons for ordering that the matter be remitted, it is convenient to say something more about the direction given by his Honour and its appropriateness in the context of the case.

10. [27]

    The direction given was based on the judgment of Howie J in Wilkie. That judgment was made in the context of opposition by the accused to an application by the Crown under the AVL Act. The accused asserted that they would be prejudiced by the absence of the witnesses from the courtroom. His Honour said (at [72]):

11. [28]

    Importantly, in coming to this view, Howie J was not bound by the strictures of s 294B(7) of the Criminal Procedure Act.

12. [29]

    The direction proposed by Howie J does, however, highlight a problem which the trial judge in the present matter was anxious to address. How does a jury evaluate the evidence of a witness who gives evidence from outside the courtroom and, more particularly, what, if anything, should the jury be told?

13. [30]

    The judgment in Wilkie was given close to 20 years ago. It is true, as the Crown submitted, that technology has improved since that time. It has, additionally, become more common for evidence to be given from outside the courtroom. Corresponding with improvements in the quality of evidence given by AVL, courts have clearly become more comfortable with such evidence. Thus in 2017, in KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249, an appeal against a trial judge's decision to grant Crown applications for witnesses to give evidence via AVL pursuant to s 5B of the AVL Act, the Court stated (at [66]-[67]):

14. [31]

    Reinforcing this view, some judges have expressed the view that the quality of modern platforms and the size of video screens actually enhances the ability to observe witnesses. In Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 (at [19]), Perram J stated that his “perception of the witness' facial expressions is much greater than it is in Court”. Similar observations were made by Lee J in Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (at [33]).

15. [32]

    There is, however, something of a trend towards re-evaluating a confidence in the functional equivalence between in person and AVL evidence. In R v Early (No 4) [2023] NSWSC 505, Yehia J made reference to a number of authorities and observed (at [34]) that the increased use of AVL evidence that came about as a result of the COVID-19 pandemic was “a dramatic response to an unprecedented situation” but that it remained the case that it was not the equal of in person testimony. Her Honour cautioned that considerations such as cost efficiency and the desire to reduce inconvenience would not necessarily outweigh the potential for the giving of evidence by AVL to operate unfairly to the opposing party.

16. [33]

    Interestingly, reflecting what may be a growing scepticism, Lee J, subsequent to his remarks in Australian Securities and Investments Commission v GetSwift, with the benefit of further experience and “subsequent reflection”, reviewed his position in Palmer v McGowan (No 2) [2022] FCA 32; (2022) 398 ALR 524, stating (at [46]-[47]):

17. [34]

    Concerns as to the use of AVL go beyond the capacity of the tribunal of fact to assess demeanour, extending to the loss of the immediacy and austerity of the process of adducing evidence in the courtroom. Thus, in Antov v Bokan (No 2) (2019) 101 NSWLR 142; [2019] NSWCA 250, Bell P (with whom Bathurst CJ and Payne JA agreed) said (at [50]):

18. [35]

    In a similar vein are the observations of Snaden J in Rooney v AGL Energy Limited (No 2) [2020] FCA 942 (at [18]):

19. [36]

    In R v Abdaly; R v Hosseinishoja (No 4) [2022] NSWSC 1529, Hamill J noted the tension between what was said in KN at [66]-[68] and in Antov v Bokan (No 2), and expressed his preference for the latter. See also the helpful discussion in Early (No 4), by Yehia J where her Honour, after referring to various authorities including KN, Antov v Bokan (No 2) and Rooney v AGL Energy Limited (No 2), stressed that the balance of cost and convenience against the advantages of in person testimony will operate differently in the criminal context.

20. [37]

    The trend appears to be towards an acknowledgement that the comfort that courts have developed with the use of AVL as a result of improvements in quality, and the corresponding increase in the frequency with which it is used, should not be confused with such evidence being the equivalent of in-person testimony.

21. [38]

    While the following discussion does not purport to represent a complete survey of the available research in this area, it is sufficient to highlight the relevant issues. While the research is not all one way, the dominant view is that evidence given by AVL, even with advances in technology, does not overcome the advantages of in person testimony. It has, in this regard, been observed that AVL only provides an “approximation of face-to-face interaction”. [1]

22. [39]

    Studies have, perhaps unsurprisingly, found that the quality of the AVL facility will impact a factfinder’s ability to effectively assess the evidence of a witness given by those means. In the court context, and particularly where CCTV is used for complainants in trials such as the present, the quality of AVL has improved dramatically. Despite these improvements, technical issues still occur at times, including problems with connection stability, audio quality and devices. [2] A relatively recent example can be found in R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 11) [2020] NSWSC 382. While perhaps at the extreme end, an empirical study testing the impact of low audio quality on a factfinder’s evaluation of witness evidence revealed that audio quality influences perceptions of witnesses and their evidence. Across three experiments, participants listened to audio clips of witnesses describing an event, one presented in high-quality audio, and one presented in low-quality audio. When participants heard witnesses present evidence in low-quality audio, they rated the witness as less credible, reliable and trustworthy, had poorer memory for key facts presented by the witness and gave less weight to witness evidence in final judgments. [3] Whether these results translate, with a corresponding attenuation of effect, to better quality but imperfect AVL evidence, is not clear.

23. [40]

    Even where there is no issue with the quality of the AVL facility, however, research suggests that evidence given by AVL is nonetheless not the equal of in-person testimony. There is, for example, evidence that witnesses may behave differently when giving evidence via AVL than they would in the courtroom. [4]

24. [41]

    The matters referred to above do not of themselves suggest that, even where the quality of the AVL facility is good, the disadvantage is to the opposing, rather than the calling party. Indeed, some scholars have argued that the use of AVL may cause evidence to be less believable for reasons other than an apparent deficiency in quality, by obscuring or distorting non-verbal cues, leading to a weaker standard of communication (I infer with the tribunal of fact). [5]

25. [42]

    In this vein it has been said: [6]

26. [43]

    Other scholars have similarly suggested that users appearing via AVL may have greater difficulty engaging in the proceedings and may feel alienated, stressed or fatigued. [7]

27. [44]

    On the other side of the ledger, it has been suggested that the factfinder may not have much, if any, sense of a witness’ posture or bodily movements, other than them shifting in their seats, depriving them of an important visual cue used to assess credibility, [8] presumably reducing the scrutiny able to be given to the evidence.

28. [45]

    It may be that witnesses are differently impacted by their evidence being given via AVL. In the first televised US Presidential debate, held on 26 September 1960 between Richard Nixon and John F Kennedy, the new medium of television famously influenced viewers’ perceptions of the two candidates, both detrimentally, in the case of Nixon, and beneficially (or at least less detrimentally), for Kennedy. The quality of AVL facilities has improved dramatically since the grainy black and white footage of that debate, however it is worth noting that while the quality was the same for both candidates, they were impacted, or were perceived to be impacted, differently. As the two candidates shared the same room, the debate itself was unaffected by the medium. Rather, it was the viewers’ perceptions of the debate, mediated through their television screens, which were affected.

29. [46]

    Support for the view that different witnesses might be differently impacted can be found in the work of Michael Roth. Roth refers to the distorting effect of the use of AVL, stating: [9]

30. [47]

    Roth also provides different examples of the ways in which AVL might alter the evaluation of a witness’s credibility: [10]

31. [48]

    The Australian Institute of Criminology, in a research report on AVL technologies in Australian criminal courts, canvassed the potential impact of the use of AVL on both the cross-examiner and the witness in a criminal trial, and made the following observations: [11]

32. [49]

    The challenge in the particular context of a jury trial to which s 294B(7) applies is how to deal with both the legislative prohibition and the reality that the impact of the use of AVL may be beneficial or detrimental to either party, and that impact will, in the ordinary case, not be ascertainable.

33. [50]

    It is convenient to return to the direction given by the trial judge in this case, which presents a difficulty beyond inconsistency with s 294B(7). A problem with the direction given by the trial judge in this case, quite apart from it being contrary to s 294B(7), was that it was unlikely to operate in the way in which it was intended. The direction assumed that the jurors would be conscious of, and able to assess, the impact of the use of AVL on their ability to assess the demeanour of the complainant. The reality is that the use of AVL may (and perhaps was likely to) have impacted the jury’s assessment of the demeanour of the complainant, but in a manner of which they were unaware, unable to articulate, and with the result that they were unlikely to have been able to apply the direction to the evidence.

34. [51]

    The direction also assumed that the jurors were capable of isolating the demeanour of the complainant from the content of the evidence actually given as a matter relevant to credit. I would not assume a jury could readily separate these aspects of the testimony. A witness may, for example, be subject to an attack on credit based on a prior inconsistent statement. The witness will ordinarily provide a verbal response. The evaluation of that response will be a combination of what was said and how it was said. The direction ran the risk that the jury, unable to disentangle the two aspects, would unfairly reject the evidence of the complainant.

35. [52]

    The difficulties I refer to above illustrate a risk that the jury, attempting to follow the direction they were given, would too readily ascribe difficulties encountered in determining whether the evidence of the complainant should be accepted to the mysteries of demeanour. In doing so, there was a risk that the significance of demeanour would be overvalued. It is helpful to recall, in this context, the admonition in Fox v Percy that “an ounce of intrinsic merit or demerit … is worth pounds of demeanour”. [12] The force of that statement was underscored by the observation in Fennell v The Queen that “well-known scientific research … has revealed the difficulties and inaccuracies involved in assessing credibility and reliability”. [13]

36. [53]

    What then, can sensibly be said? From the review undertaken above, even where high quality AVL facilities are available, the process of giving evidence is not the equal of in-person testimony. Having regard to the observations of judges and academics, it appears that the ability of a cross-examiner to test the evidence of a witness may be impeded by the use of AVL. The cross-examiner may lack the comfort that they would experience in an in-person encounter. Relatedly, they may have difficulty picking up non-verbal cues, in turn impacting the flow of the questioning to the detriment of the questioner. The jury’s ability to evaluate the demeanour of a witness who gives evidence by AVL is likely to be compromised to some degree. Additionally, the gravity of the occasion may not bear upon the witness in the same way as it would were the witness in the same room under the direct physical supervision of the judge. This last consideration is, it should be said, likely to be ameliorated in the context of a complainant giving evidence by CCTV pursuant to s 294B(3) by virtue of the fact that, unlike other AVL witnesses, the witness will be in the same building, in effect giving evidence from an extension of the courtroom.

37. [54]

    The effect, ultimately, of the above impacts on the tribunal of fact is likely to be difficult to evaluate. To the extent that these effects are present but not able to be identified, a direction alerting the jury to them in the context of a witness to which s 294B(3) applies is likely to be contrary to s 294B(7).

38. [55]

    An inability to identify the impact of the use of AVL is particularly acute in the context of directions with respect to the assessment of demeanour. It can be accepted that the jury’s capacity to assess demeanour is likely to be detrimentally affected. Having regard to the discussion above however, there is no basis to conclude that any deficit in the ability to assess a witness, when compared to the scrutiny that would be available with an in-person examination, will necessarily be to the advantage of the witness. The witness might be detrimentally affected. To the extent this is so in the context of a complainant in a sexual assault trial, it will impact the prosecution’s ability to prove the charge beyond reasonable doubt. To the extent that a witness may be advantaged, however, this does create a problem having regard to the onus and burden of proof. This should not be overstated, having regard to what I have said above as to giving demeanour too much weight.

39. [56]

    Section 294B(7) requires that a jury be warned not to give the evidence of a witness to whom it applies any greater or lesser weight because it was given by the particular means prescribed by s 294B(3). In the absence of an ability to identify a detriment in a particular case, the reality is little can be usefully said that might meaningfully assist the jury. In these circumstances, any direction requiring the jury to take into account the means by which the evidence was given is likely to contravene s 294B(7). There seems to me to be, in these circumstances, no real alternative to an anodyne direction, given the terms of the section, warning the jury against drawing any inference adverse to the accused based on the use of the mode by which the evidence was given, or, for that reason, to give the evidence greater or lesser weight.

40. [57]

    There is a further reason why, in the ordinary case, no more should be said than what is explicitly required by s 294B(7). That is to do with the entitlement granted to particular witnesses to give evidence by the means described. To direct a jury that the medium used may have impacted the evidence in a way that impedes the jury’s ability to assess the evidence would be to convert that entitlement to give evidence by such means to a qualified entitlement.

41. [58]

    The situation may be different where the impact of the mode by which the complainant gives evidence pursuant to s 294B(3) is capable of being identified. It may be likely that such cases will be rare. In those cases, a distinction can be drawn between a direction to the jury as to the weight that evidence might be given because it was given by particular means, and a direction as to the weight that evidence might be given because of a particular quality of that evidence (albeit that quality was a result of the means by which it was given).

42. [59]

    To take an extreme (and no doubt unrealistic) example unconnected with the present case, evidence may, within s 294B(3), be given by audio only. That evidence might be subject to delay or distortion. In such a situation, the ability for a jury to assess the evidence based on how it was given is likely to be severely impacted. The prohibition in s 294B(7) is against drawing inferences adverse to the accused, or giving the evidence any “greater or lesser weight because it is given by” means within s 294B(3). That does not change the nature of the evidence ultimately given. It cannot convert poor evidence into clear evidence. If it is suggested that there is some weakness in the Crown case as a result of the manner in which evidence was given, it may be open, in an appropriate case, to point out the potential difficulties in the evidence. An available direction would be:

43. [60]

    It is to be expected that if a direction along these lines is sought, the accused’s counsel will clearly articulate the basis for it. Insofar as such a direction is sought on the basis that the jury will have had difficulty assessing the evidence simply because it was given by AVL, this will not suffice.

Other witnesses

1. [61]

   Of the other witnesses who also gave evidence by AVL, two were civilian witnesses and two were “government agency witnesses” as defined in s 3 of the AVL Act. Section 5B of the AVL Act applied to the former and s 5BAA applied to the latter.

2. [62]

   With respect to the civilian witnesses, a direction that the witness give evidence in the proposed manner was available pursuant to s 5B(1) unless one of the circumstances in s 5B(2) of the AVL Act existed, including that the “direction would be unfair to any party to the proceeding”. With respect to the government agency witnesses, s 5BAA(1) required the witnesses to give their evidence by AVL or audio link subject to a contrary direction given by the judge and the necessary facilities being available (s 5BAA(2)). There was no suggestion in the present case that a direction be given for the in person attendance of either witness, such a direction being available only if both “the evidence to be given is likely to be contentious” and “it is in the interests of the administration of justice for the government agency witness to give evidence by appearing physically before the court”: s 5BAA(4).

3. [63]

   That the witnesses were called pursuant to s 5B(1) and s 5BAA(1) respectively did not foreclose the trial judge from providing the jury with a direction as to how to evaluate their evidence as a result of it being given by AVL. A consideration of whether a direction that a witness give evidence by such means would be unfair within s 5B(2) will include the availability of directions designed to counter any such unfairness: R v Youseff (No 3) [2024] NSWSC 1261 (at [41]); Wilkie (at [72]). The ability to frame such a direction may, however, be impacted by the issues I have discussed above.

4. [64]

   In the present matter, however, there was no suggestion that any prejudice to the respondent was occasioned as a result of the means by which these witnesses gave their evidence. That was not surprising given that the evidence, as observed above, was uncontentious. The impugned direction was inapposite insofar as it applied to the civilian and government agency witnesses. It does not follow that it was in error. It was rather, with respect to these witnesses, simply a direction based on a contingency that could not be expected to eventuate. This does not, of course, impact my view that his Honour’s refusal to discharge the jury was based on error as a result of the application of the impugned direction to the complainant.

Remedy

1. [65]

   Having formed the view that his Honour erred, the question of the proper remedy was raised. The appellant sought an order for the discharge of the jury. Section 5F(5) of the Criminal Appeal Act sets out the available powers of this Court on an appeal pursuant to s 5F:

2. [66]

   The Court also has the supplemental powers set out in s 12 of the Criminal Appeal Act, including relevantly subs 12(2):

3. [67]

   At the time of the discharge application, the trial, including the summing up to the jury, had been completed and the jury was deliberating. For the reasons given above, his Honour’s reasons for refusing the discharge application were infected by error. It did not follow that the decision was necessarily wrong. The criterion for the exercise of the discretion to discharge the jury is the maintenance of the fairness of the trial and the test is one of necessity: Crofts v The Queen (1996) 186 CLR 427 at 440; [1996] HCA 22. Whether it is necessary to discharge a jury is to be determined having regard to whether the trial, if continued, will be unfair. Thus, the question of necessity will be determined in the light of the powers that a court can exercise to minimise or eliminate the unfairness: Jago v the District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46. See also Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486 at [126], citing Khazaal v R [2011] NSWCCA 129, Crofts v The Queen and Maric v The Queen (1978) 52 ALJR 631, where a list of relevant considerations, including “the likely effectiveness of a judicial direction” was set out.

4. [68]

   In the present case, I was of the view that this Court should not order the discharge of the jury. It remained open for his Honour to reconsider the application in the light of the availability of a further direction withdrawing the impugned direction. The appellant, ultimately, did not oppose this course. It was opposed by the respondent on the basis that a withdrawal of the direction would create irredeemable prejudice to him. I was of the view that the merits of that submission would be best assessed by the trial judge, having regard to the stage of the trial, his Honour’s proposed redirection and his assessment of the likely effect of that redirection. The trial judge was in the best position to balance those considerations having presided over the trial.

5. [69]

   For these reasons, I was of the view that the appropriate order was that the matter be remitted to the District Court for the appellant’s discharge application to be determined according to law.

6. [70]

   McNAUGHTON J: I agree with paragraphs [2] – [25] and [65] – [69] of Dhanji J’s judgment which set out the background and reasons for me joining in the orders of the Court. Given the limited nature of the argument before the Court in this case, however, I prefer not to express any view in relation to the balance of his Honour’s judgment.