[2004] HCA 61
Browne v Dunn (1893) 6 R 67
Castle v The Queen (2016) 259 CLR 449
[2016] HCA 46
Cusack v Regina [2009] NSWCCA 155
Doe v R [2008] NSWCCA 203
(2008) 187 A Crim R 328
Filippou v The Queen (2015) 256 CLR 47
[2015] HCA 29
Gilham v R [2012] NSWCCA 131
Haoui v R [2008] NSWCCA 209
Source
Original judgment source is linked above.
Catchwords
[2004] HCA 61
Browne v Dunn (1893) 6 R 67
Castle v The Queen (2016) 259 CLR 449[2016] HCA 46
Cusack v Regina [2009] NSWCCA 155
Doe v R [2008] NSWCCA 203(2008) 187 A Crim R 328
Filippou v The Queen (2015) 256 CLR 47[2015] HCA 29
Gilham v R [2012] NSWCCA 131
Haoui v R [2008] NSWCCA 209(2008) 188 A Crim R 331
Hogan v Australian Crime Commission (2010) 240 CLR 651[2010] HCA 21
Jiminez v The Queen (1992) 173 CLR 572[1992] HCA 14
Kalabasi v The Queen (2018) 264 CLR 62[2018] HCA 7
MRW v R [2011] NSWCCA 260
Nudd v The Queen [2006] HCA 980 ALJR 614
Palmer v The Queen (1998) 193 CLR 1[1998] HCA 2
Ratten v R (1974) 131 CLR 510[1974] HCA 35
Reed v R [2006] NSWCCA 314
R v Davies (1995) 83 A Crim R 502(1996) 39 NSWLR 450
R v Smith [2000] NSWCCA 468
R v Taufahema (2007) 228 CLR 232[2007] HCA 11
R v Tyrone Chishimba [2010] NSWCCA 228
Spies v The Queen (2000) 201 CLR 603[2000] HCA 43
TKJW v The Queen (2002) 212 CLR 124
[2002] HCA 46
Weiss v The Queen (2005) 224 CLR 300
Judgment (16 paragraphs)
[1]
Solicitors:
Australian Criminal and Family Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2016/138484
Publication restriction: Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987, publication of the names of the complainant and the applicant, or any identifying or potentially identifying information, is prohibited.
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 25 July 2019
Before: Colefax DCJ / Bourke DCJ
File Number(s): 2016/138484
[2]
Judgment
PAYNE JA: I have read the decision of Beech-Jones J in draft and I agree with his Honour's reasons in relation to grounds 1 and 2. I agree with orders 1-3 that his Honour proposes, but in lieu of proposed order 4, I would order pursuant to s 6(2) of the Criminal Appeal Act 1912 (NSW) that the appellant be acquitted of the charges he faced. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen (2001) 201 CLR 603; [2000] HCA 43 at [104]. I have concluded that this is a case where the interests of justice require an acquittal for the following reasons:
1. the appellant was 15 at the time of the events the subject of the charges against him;
2. the appellant has already served the non-parole period of his sentence and was on parole at the time of the appeal. This is a very significant factor in favour of entering an acquittal;
3. if the Crown determined to proceed with a further trial it would be the appellant's fourth trial. Such a trial will impose a heavy burden on a person charged with an offence they allegedly committed as a juvenile; and
4. any further trial of the appellant would be most unlikely to be heard before 2021, approximately four years after he was first arraigned in the District Court.
In all the circumstances, whilst there is no prospect of the appellant being returned to custody following a further trial, it would be oppressive to put the appellant to the expense and worry of a fourth trial.
BEECH-JONES J: In the circumstances that I will describe, on 16 April 2019, a District Court jury found the Appellant, WX, guilty of three offences of indecent assault on a child under sixteen years of age contrary to s 61M(2) of the Crimes Act 1900 and two counts of sexual intercourse with a child under the age of ten years contrary to s 66A(1).
At the time of the events the subject of these offences, WX was aged between 14 and 15 years and the victim, CD, was aged seven. Section 15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of any information that would identify WX or CD. The pseudonyms WX and CD are not their initials.
On 25 July 2019, the Appellant was sentenced to a term of imprisonment of 2 years 9 months with a non-parole period of 9 months, commencing on 25 July 2019 and expiring on 24 April 2020. This appeal was heard on 25 May 2020, by which time WX had been released on parole.
The Appellant appeals his conviction on all counts pursuant to s 5(1) of the Criminal Appeal Act 1912. He raises two grounds of appeal, namely:
(1) The trial miscarried by reason of Colefax DCJ misconstruing s 306J of the Criminal Procedure Act 1986 and not allowing further cross‑examination of CD to occur following the first trial ("ground one"); and
(2) The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor's closing address which reversed the onus of proof ("ground two").
The first of these grounds "involves" a question of law alone and thus leave to appeal his conviction based on the ground is not required (Criminal Appeal Act, s 5(1)(a)). Leave to appeal is required to raise ground two (s 5(1)(b)). For the reasons that follow, I propose that leave be granted to raise ground 2 but the ground be rejected. However, I propose that ground 1 be upheld, the convictions on all counts be set aside and a new trial ordered.
To address the grounds of appeal, it is first necessary to briefly outline the course of the trial and the respective cases.
[3]
The Three Trials
The Appellant was arrested and charged on 5 May 2016. His first trial commenced before Baly SC DCJ and a jury of twelve on 25 October 2017 (the "first trial"). After the opening, CD was called and gave evidence including cross‑examination via closed circuit television. His evidence was recorded. However, the jury was discharged on 2 November 2017, towards the end of the defence case and after the Appellant had given evidence.
A new trial commenced before Colefax SC DCJ on 26 February 2018 (the "second trial"). Prior to the second trial, the Crown gave notice that, pursuant to s 306I of the Criminal Procedure Act 1986, it intended to tender the transcript of CD's evidence from the first trial and play the video recording of that evidence. By notice of motion filed on 5 March 2018, the Appellant sought an order "[t]hat on the further trial of the [Appellant] the complainant … be required to attend the Parramatta District Court and give further oral evidence pursuant to s 306J Criminal Procedure Act". On 6 March 2018, Colefax DCJ dismissed the motion. The reasons for that decision are the subject of ground one of the appeal and are addressed below. The second trial was aborted. It is unnecessary to describe why other than to note that it was not for any reason that could be attributed to the Appellant or his legal representatives.
Another trial was relisted for 3 December 2018 but the matter was "not reached". The third trial, before Bourke SC DCJ and a jury of twelve, commenced in April 2019. Consistent with s 130A of the Criminal Procedure Act, his Honour applied Colefax DCJ's ruling noted above. Thus, (an edited version of) the transcript of CD's evidence from the first trial was tendered in the Crown case and the video recording of his evidence was played. CD was not cross‑examined. Also tendered were CD's interviews with a Joint Investigative Response Team ("JIRT") on 23 February 2016 and 22 June 2017. In his case WX gave evidence denying the allegations against him. As noted, on 16 April 2019, the jury found the Appellant guilty of all counts.
[4]
The Crown Case
The following precis of the Crown case is taken from the transcript of CD's evidence from the first trial, his JIRT interviews and the evidence given by his mother at the third trial.
It was common ground that WX and CD met through their mutual attendance at boxing and martial arts classes in 2014 and 2015. Their mothers became close friends from around December 2014.
In 2015, CD and his mother moved into a "granny flat", next door to a house owned by the Appellant's uncle. The Appellant and his family also lived in that house. From this time, the contact between the Appellant and CD increased and they would frequently spend time at each other's homes. During 2015, the Appellant's uncle was renovating his house. While the house was being renovated, the Appellant's family moved out. The family moved back to the home on 14 December 2015.
On 12 December 2015, there was a gathering at the Appellant's uncle's house to finish the renovations. During the day, the Appellant and CD had been playing basketball in the driveway of CD's house. When CD's mother returned home from the Appellant's house to get more water for cleaning, she observed, through a window, the Appellant and CD walking out of CD's bedroom. When she opened the door, she was face-to-face with the Appellant and noticed that he was "adjusting himself" and that he appeared to have an erection. She also noticed that CD was wearing different pants. She asked the boys what they had been doing and the Appellant said, "[CD] just changed his shorts because we were playing basketball".
When she was alone with CD on the same day, CD's mother asked him a number of times what he and the Appellant had been doing. Initially, CD indicated that he did not wish to respond. CD responded, "[w]hy do you want to know?" When CD's mother asked CD directly if the Appellant had touched him on his penis, CD said "yes". CD's mother asked CD where this had happened and he pointed towards his room. CD's mother questioned CD further and he told her that this was not the first time and that it had happened before. The mother said, "why didn't you tell me this, we don't keep secrets from each other" and CD said that the Appellant told him "it was their secret".
After this disclosure, a meeting took place between the families. CD's mother said that during this meeting, and in the presence of the Appellant and his family, she asked CD whether the Appellant touched his penis and CD "nodded his head". The Appellant denied he had done so. Following this meeting, there was further communication between the two families. However, on 23 December 2015, CD's mother approached the police. On 23 February 2016, CD and his mother attended a JIRT office where CD was interviewed.
[5]
The Appellant's Case
At the third trial, the Appellant was the only witness in his own case. With the first two offences, which were alleged to have occurred at the Appellant's home, he said that CD had come to his house and they had watched a movie in his room. However, he stated that after the movie finished, CD left and that at no time had he been alone with him as his brother had also been present. With the other offences, the Appellant stated that he remembered CD's mother coming into the house when he and CD were watching television on the lounge. He denied having an erection in CD's presence or having any physical contact with CD.
The transcript of CD's evidence from the first trial that was tendered at the third trial, included a question asking whether his "mummy told you to tell lies about … being touched by" the Appellant "in the rude parts", which CD denied. The cross‑examination of CD's mother at the third trial involved a sustained attack on her credit. One part of the attack concerned text messages that she exchanged with the Appellant's mother after the meeting between the families noted above. After the family meeting, the Appellant's mother sent CD's mother a text message stating:
"You asked [CD] in front of us and you asked him and I asked him many times and he just shook his shoulders. He [ie CD] did not say anything. I want to physically hear it from [CD]. Like, [you're] worried about your son. So am I. It does not matter how old they are. I need to [know] what really happened."
CD's mother responded:
"My son shrugged his shoulders ..."
As noted in her oral evidence, CD's mother said her son "nodded" in agreement to a question about being touched on his penis. This was not referred to in her text response. The discrepancy between the evidence of CD's mother and her text message was one of the bases for the attack on her credit.
Nevertheless, at the third trial and even though the transcript of CD's evidence contained a suggestion to that effect, it was not suggested to CD's mother that she had told her son to make allegations against WX, much less that she did so for any particular reason. No submission to that effect was made to the jury in defence counsel's closing address. In contrast, at the first trial, it was put to CD's mother that she had indecently assaulted the Appellant and taught his younger brother "how to passionately kiss", allegations she denied. It was suggested to her that she had manipulated her son, CD, to make up allegations against the Appellant as a "smoke screen to cover up [her] offending". At that trial, it was suggested to CD that he had seen "your mummy kiss [CD's brother] on the lips" and his mother had told him not to say anything about it, which he denied. That part of CD's evidence from the first trial was edited out of the transcript of his evidence tendered at the third trial.
[6]
Ground 1: Incorrect Interpretation of Section 306I
Ground 1 of the appeal contends that Colefax DCJ applied the "wrong test" in determining that, under s 306J(1) of the Criminal Procedure Act, CD was not compelled to give evidence at the Appellant's second (and subsequent) trials.
[7]
Section 306J
Part 5 of Chapter 6 of the Criminal Procedure Act is headed "Evidence in sexual offence proceedings". Division 4 of Part 5 is headed "Special provisions relating to subsequent trials of sexual offence proceedings". Division 4 was inserted by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 and commenced operation on 1 January 2007. Division 4 applies when a trial for a prescribed sexual offence has been discontinued and a new trial is listed. Hence, it was applicable to the Appellant's second and third trials.
Within Division 4, s 306I permits previously recorded evidence given by a complainant in sexual assault trials involving a prescribed sexual offence or a "special witness" to be admitted in a new trial, including evidence-in-chief, cross-examination and any re-examination. (A "special witness" is a witness other than a complainant in a trial for certain sexual offences who is a cognitively impaired person or is under the age of 18 years: s 306A). Section 306I relevantly provides:
(1) If the trial of an accused person is 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, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness.
……
(5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant or a special witness if, in the court's opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following--
(a) the completeness of the original evidence, including whether the complainant or special witness has been cross-examined on the evidence,
(b) the effect of editing any inadmissible evidence from the original evidence,
(c) the availability or willingness of the complainant or special witness to attend to give further evidence and to clarify any matters relating to the original evidence,
(d) the interests of justice,
(e) any other matter the court thinks relevant.
Section 306J deals with the compellability of a complainant whose evidence is tendered. It provides:
(1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness is not compellable to give further evidence in the proceedings unless the court is satisfied that it is necessary for the complainant or special witness to give further evidence--
(a) to clarify any matters relating to the original evidence of the complainant or special witness, or
(b) to canvas information or material that has become available since the original proceedings, or
(c) in the interests of justice.
(2) Subsection (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.
(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1).
(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence.
[8]
Application to Invoke Section 306J
As noted, after the first trial was aborted and the Crown gave notice of its intention to replay CD's evidence from the first trial and tender the transcript, the Appellant applied to compel CD's attendance to give evidence. The application was heard on 5 and 6 March 2018. Much of the evidence from the first trial was tendered on the application including CD's evidence, the JIRT interviews and the evidence of Dr Wong, who examined CD. In addition, certain subpoenaed school records of CD were tendered for the purpose of showing that, in physical education classes, CD received some instruction about how to respond in "unsafe situations".
By this time, new counsel had been briefed to appear on behalf of the Appellant. At the outset of the application, this counsel explained that the defence no longer wished to pursue the contention that "the complainant's mother told her son to make up the allegations". Later, counsel confirmed that he did not want to suggest that CD had any other basis for lying but instead would contend "simply that he has lied". At the hearing of the appeal, counsel for the Appellant submitted that the change in the defence case was understandable given that the text messages referred to above did not support the motive attributed to CD's mother and the approach at the first trial otherwise involved the defence assuming at least a tactical burden of proving a reason for the making of concocted allegations that it did not need to.
Counsel for the Appellant then addressed Colefax DCJ by reference to his written submissions. The submissions contended that the challenges to CD's evidence at the first trial was "inadequate" and the Appellant's trial would be unfair if he was "limited to the sole challenge raised by the previous [c]ounsel", that is, that CD's mother induced her son to lie to distract from her own sexual offending.
The written submissions placed reliance on ss 306J(1)(a), (b) and (c) and referred to particular aspects of CD's evidence and his cross‑examination at the first trial. Some of the matters raised concerned factual inquiries that were entirely speculative and which can be put aside, namely, the absence of any cross‑examination of CD at the first trial on whether lubricant was used during the sexual assaults or whether he had ever viewed pornography.
In relation to s 306J(1)(b), the written submissions referred to the material subpoenaed from CD's school after the first trial which was said to show that he received "instructions" at school "to report inappropriate touching as soon as it happened" and contrasted that with his evidence that the first time he ever mentioned the Appellant's conduct in December 2015 which was well after the events surrounding the first three counts.
[9]
Colefax DCJ's Reasons
After summarising the background to the application and the legislative provisions, Colefax DCJ noted (correctly) that the provision enacted a presumption against the recall of a witness so as "to alleviate the trauma to a complainant of having to give sensitive evidence again", which was "strengthened" in the case of a child complainant. His Honour also noted that "[w]here an accused is represented in the original proceedings by experienced and competent counsel … considerable care must be taken to give proper weight to the forensic decisions made by such counsel and not to allow an application under s 306J to amount to a second bite of the cherry". His Honour then addressed the various points in the written submissions noted above. His Honour made no mention of the change in the defence case, namely, the dropping of the suggestion that CD's mother had induced him to lie about the Appellant to cover up for her own misconduct.
The approach that Colefax DCJ took to s 306J(1) can be ascertained from considering how his Honour approached so much of the application as concerned the inconsistences in CD's evidence noted in [49] and [55] above as well as the attempt to rely on s 306(1)(b) and the subpoenaed school records. In relation to the first of those inconsistencies his Honour stated:
"First, the evidence given by the complainant as to whether the accused went into the complainant's bedroom on the occasion of the neighbour's birthday.
It may be accepted that the evidence was inconsistent. Whether it was inconsistent with the evidence of complainant's mother cannot be assessed in this application because that evidence was not adduced on the voir dire; and in any event it is not relevant for present purposes.
Previous counsel for the accused might reasonably have thought that the inconsistent evidence was of considerable forensic advantage to the accused and deliberately did not pursue that topic.
I'm not satisfied that it is necessary for the complainant to clarify the matter; nor would it be in the interests of justice to require him to give evidence on the topic." (emphasis added)
In light of the view I take to the balance of this passage, it is not necessary to determine whether the evidence of CD's mother was before Colefax DCJ on the application under s 306J. It is certainly before this Court and the inconsistency between that evidence and CD's mother is definitely "relevant" for the reasons noted above (at [50]).
[10]
Proviso
At the hearing of the appeal, counsel for the Appellant contended that ground one raised a complaint that fell within the so called second limb of s 6(1) of the Criminal Appeal Act, namely, of a "wrong decision of any question of law" by the court of trial.
Section 6(1) of the Criminal Appeal Act provides:
The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (emphasis added)
It follows from the above analysis that I accept that there was a wrong decision of a question of law, namely, the proper construction of s 306J(1) of the Criminal Procedure Act. Once that is accepted then the second limb of s 6(1) of the Criminal Appeal Act is engaged and the conviction cannot be sustained unless the "proviso" to this section is satisfied, namely, this Court is satisfied that "no substantial miscarriage of justice has actually occurred" (Weiss v The Queen (2005) 224 CLR 300 at 308; [2005] HCA 81 [17]-[18] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; "Weiss"; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [13]). In considering the application of the proviso, this Court must consider the nature and effect of the error of law (Weiss at [44]; Kalabasi v The Queen (2018) 264 CLR 62; [2018] HCA 7 at [15] and [57]) and, in particular, its effect upon the capacity of this Court to conclude that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt on the offences on which the jury returned its verdict of guilty (Kalabasi at [15]; Weiss at [44]).
In this case, the wrong decision on a question of law concerns the construction of the statutory provision applicable to whether the complainant, CD, should have been required to attend to give evidence at the third trial and be cross‑examined on behalf of the appellant. As stated, to a significant extent the Crown case depended on an acceptance of CD's credibility especially in the face of WX's denials of wrongdoing. It is not possible to apply the proviso if the effect of the wrong decision on the question of law related to the contested credibility of CD at the third trial (Kalabasi at [15]; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46).
[11]
Ground 2: Crown Prosecutor's Address
Ground 2 contends that the trial miscarried by reason of part of the Crown Prosecutor's closing address which was said to reverse the onus of proof.
[12]
The Submissions and the Summing Up
This ground concerns that part of the Crown Prosecutor's address that related to the credibility of CD. At one point the Crown Prosecutor addressed the jury as follows:
"CROWN PROSECUTOR: Thank your Honour. Last week, you saw a boy tell the police his story about what happened to him at the hands of the accused. You saw him return to the police more than a year later and you saw him being asked these questions; in court on a previous occasion, on CCTV some months again after that. Some of you might have kids, you might be uncles, you might be aunts, you might be parents, no doubt all of you have spent time among children and, as jurors, you bring the lives you've lived, your experience in these roles into this courtroom, that experience as parents, friends, family members, community members, and when you're considering [CD's] s evidence, do it through the lens of your life experience. And you apply that experience when you consider whether a witness is telling the truth. And I say you'd come to the conclusion that [CD] is a boy who, along with his mother, was so patently believable that you would accept what he was saying to you. You have the life experience to decide when someone is telling the truth and when someone isn't.
So think about this idea, this idea that this boy who you saw speak about this happening three different times, describing something really intimate, obviously very embarrassing, would be doing so when this had just never happened. And that's what the accused says, as you know, "It never happened", and he doesn't have to prove anything, you know that too. But this idea that [CD] would be telling the police and the Court something that was not the truth, you have to grapple with that; do you accept him? Interview 1, interview 2, and then back to court to be cross examined by a defence barrister. And let's think about how all this came to light in the first place. The accused's conduct was revealed in a situation where [CD's] mum actually had to coax the information out of him …. No bad blood between them at all …"
The Crown Prosecutor returned to CD's evidence a number of times in her address repeatedly urging that he was "a witness you would accept was telling the truth". The Crown Prosecutor concluded her address stating:
"The Crown says there is a boy telling the truth here; a boy you saw not once, not twice, but three times; and that boy is [CD]. The Crown says the accused, [the Appellant], is guilty."
[13]
Was the Jury Invited to Speculate about Why CD Might Have Lied?
The Appellant submitted that in the extract in [79], the Crown Prosecutor "improperly invited the jury to speculate as to why the complainant would lie about being assaulted", in that the address effectively posed the question, "why would he say it if hadn't happened?". It also submitted that this was not corrected by Bourke DCJ's direction as it did not identify the particular submission made by the Crown and direct the jury to disregard it. It was submitted that Bourke DCJ's direction left "the impression that the Crown closing address was a reasonable one and one that the jury could accept if it wished". The Crown submitted that the Crown Prosecutor's address did not have the effect contended for and that otherwise, in light of Bourke DCJ's warning, there was no miscarriage of justice.
It is well established that, in a case where no motive to lie is raised with a complainant, it is improper for a Crown Prosecutor in a closing address to invite the jury to consider why a complaint might have lied as such a submission either reverses or diminishes the onus of proof (Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [9]; R v Smith [2000] NSWCCA 468 at [93]; R v Davies (1995) 83 A Crim R 502; (1996) 39 NSWLR 450). In Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328, Latham J at [59] stated, inter alia, that a miscarriage of justice may be occasioned by "a Crown submission to the jury which directly invites them to ask the question 'Why would he/she lie?' in order to promote the acceptance of the witness as a witness of truth" and "a summing up that endorses or approves or fails to qualify a Crown submission" to that effect. Her Honour added that whether it will amount to a miscarriage of justice "falls to be determined on the strength of the directions in the summing up" and "the particular circumstances of the case" (at [60]).
As is to be expected, this line of authority is not restricted to cases where the Crown Prosecutor expressly invites the jury to consider why a complainant might lie. Instead, the question is whether the "effect of the comment to the jury is such as to reverse the onus and to put the accused in the position where, unless he could disprove the complainant's evidence, her evidence should be accepted" (Cusack v Regina [2009] NSWCCA 155 at [107] per Beazley JA, with whom Blanch and Howie JJ agreed; "Cusack"). Her Honour noted that if that was the "effect of the comment, the trial judge was required to give a clear direction on the onus of proof" [id].
[14]
Appropriate Relief
At the hearing of the appeal, counsel for the Appellant contended that, if either of the grounds of appeal were upheld, this Court should not order a new trial but instead enter acquittals. The Crown resisted that course.
Section 6(2) of the Criminal Appeal Act provides that "[s]ubject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered". One of the "special provisions" to which s 6(1) refers is s 8(1). It provides:
On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.
The principles governing the exercise of the power to order a new trial under s 8(1) were distilled by McClellan CJ in Gilham v R [2012] NSWCCA 131 at [648] to [660] ("Gilham"). It can only be exercised if the evidence presented at trial was sufficiently cogent to justify a conviction (Gilham at [648]) which in this case it was. Otherwise, unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]; "Spies").
In this case there are powerful considerations in favour of entering acquittals. The Appellant was aged 15 at the time of the events the subject of the charges against him. He is now 21 years old. The fact that he has already served the non-parole period of his sentence is a very significant factor in favour of entering an acquittal (Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14 per McHugh J). Having regard to the principles applicable on sentencing after a further trial there is no prospect of the Appellant being returned to custody. Of particular concern is the potentially oppressive effect of putting the Appellant to the expense and worry of a further trial (Spies at [103]). In his case it would be his fourth trial not including the trial that was marked "not reached". In Gilham, McClellan CJ at CL referred to various cases that declined to order a third trial of an accused (at [658]). If the Appellant is to stand trial again, it is unlikely to take place before 2021 which will around four years after he was first arraigned in the District Court. Such a trial will impose a heavy burden on a person charged with an offence they allegedly committed as a juvenile.
[15]
Proposed Orders
Accordingly, the orders that I propose are:
(1) The Appellant be granted leave to raise ground 2 of his notice of appeal.
(2) The appeal be allowed.
(3) The Appellant's convictions be quashed.
(4) A new trial be ordered.
(5) List the matter in the District Court Arraignments List at Parramatta on 17 July 2020.
N ADAMS J: I too have had the considerable advantage of reading the reasons for judgment of Beech-Jones J in draft. I agree with his Honour that ground 1 should succeed and ground 2 should fail for the reasons provided by his Honour.
As for the appropriate orders, both Payne JA and Beech-Jones J have identified the factors relevant to the consideration of whether there should be orders of acquittal or of a new trial. The applicant was a child at the time of the charged conduct, has served his non-parole period and has already stood trial three times. Given the suspension of jury trials caused by the COVID-19 pandemic it would be anticipated that a new trial, if directed by the DPP, would not take place until next year. On the other hand, child sexual assault allegations are serious matters and there is a public interest in them being prosecuted.
The question of the disposition of this appeal is not a straightforward one. For me, the determinative factor is the public interest in the courts not being seen to usurp the role of the DPP. As Beech-Jones J has stated at [96], the established error in this appeal did not relate to the nature or quality of the evidence at trial. There was no ground alleging that the verdicts were unreasonable. The DPP is the State's senior prosecutor in whom the prosecutorial discretion is conferred. It will be a matter for him to properly exercise that discretion given the factors relevant to that decision identified by the Court. For these reasons, I agree with Beech-Jones J that a new trial ought to be ordered.
[16]
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Decision last updated: 30 June 2020
CD told the interviewing officer that he was first abused when he was at the Appellant's house watching a movie in his room. CD could not recall the date when this occurred but stated that it was on a school night when he was aged 6 or 7. CD said that when he came back from the toilet after forgetting to wash his hands, the Appellant said, "[n]ext time when you go to the toilet you wash your hands, cause when you touch people other people are going to have germs". He continued, "[y]ou're going to have, and then everyone going to have germs from your rude part". CD then went to wash his hands when the Appellant started "doing it". When asked to clarify what he meant by "doing it", CD stated that he meant that the Appellant had kept saying, "[p]ull your pants down" and then touched his "doodle". This act constituted count 1 on the indictment being the first of three offences of indecent assault on a child under sixteen years of age contrary to s 61M(2) of the Crimes Act.
The Appellant then touched CD "at the back … at the butt" with his hands. CD tried to get away and the Appellant said, "[j]ust stop moving". CD said, "I want to go" and the Appellant replied, "just stay". He confirmed that the Appellant had kept doing it after he said he wanted to go. When asked to explain what he meant by the Appellant doing it "at the back", CD responded that "he gets his finger and he keeps putting his finger up … up my butt". CD said that he reacted by saying, "Ow, ow, stop it", but that the Appellant kept doing it. This act constituted count 2 on the indictment being an offence of sexual intercourse with a child under the age of ten years contrary to s 66A(1).
When asked to describe the last time anything happened, CD said it was an occasion when he and the Appellant were in CD's bedroom and "my mum found out". CD said that on this occasion the Appellant pulled down CD's pants and touched his "doodle" with his hand and then touched his "doodle" with his own "doodle". These acts constituted counts 3 and 4 on the indictment being the second and third offences under s 61M(2) of the Crimes Act. CD said the Appellant then touched his "doodle" to CD's "butt" "in the middle" at "the bottom hole". When asked for more detail about the incident, CD said, "[the Appellant] just took my pants and underwear[s] off and then he just squashed it in". CD said he knew this because he was "looking under" and saw, and that he could also feel the Appellant's nail. This act constituted count 5 on the indictment being the other offence of sexual intercourse with a child under the age of ten years contrary to s 66A(1).
CD was asked how many times this had happened. CD responded: "lots of times and he's done it since, every time I see him that's when he does it". When asked how many times he went and saw the Appellant, CD said that he did not go to visit the Appellant, but rather the Appellant's younger brother. The Appellant would say, "[c]ome on … come in my room". When CD would ask, "[c]ome where?", the Appellant would reply, "come in my room".
CD was also asked how many other times this conduct had happened between the first and last incidents he had described. CD replied, "I'm not sure like mostly everyday". He confirmed that he used to see the Appellant everyday but that he did not see him anymore. CD was not sure how often he would see the Appellant in a week, but stated that he mostly saw the Appellant or his younger brother on school days. CD said he could not remember any other incident in as much detail as the first and second time.
It was an agreed fact at the trial that CD had undergone a medical assessment by a paediatrician on 2 March 2016 and that the examination could not confirm or negate the possibility of sexual assault.
It is evident from this overview of the respective cases that the only direct evidence of the Appellant's sexual abuse of CD was the evidence of CD himself. Hence, on any view of the Crown case, CD's credibility and reliability as a witness was critical. The evidence of CD's mother was important but only because, if accepted, it accorded with aspects of CD's evidence concerning the occurrence of the third to fifth counts, otherwise bolstered CD's credit and contradicted aspects of the Appellant's account.
Section 306K addresses the circumstance where a complainant decides to give evidence even though the record of their "original evidence" is to be admitted under s 306I. It enables the court to grant leave to the complainant to give such evidence but only "on application by one of the parties" and if the court is satisfied of one of the criteria in ss 306K(2)(a), (b) or (c), which are expressed in identical terms to ss 306J(1)(a) to (c). As with s 306J(3), the court is obliged to ensure that the scope of the oral evidence is confined to the matters that warranted the grant of leave.
These provisions need to be considered with Division 3 of Part 5 which was introduced into the Criminal Procedure Act by the Criminal Procedure Amendment (Evidence) Act 2005. This Division contains equivalent provisions to s 306I and s 306K, namely ss 306B and 306D, but they are only applicable to the circumstance where a conviction is set aside on appeal and a retrial ordered (s 306B(1)). Division 3 of Part 5 does not contain an equivalent to s 306I. Instead, s 306C provides that on a retrial after a conviction is set aside the relevant complainant or "special witness" is not compellable.
Some guidance as to the intended scope of Division 4 can be gained from the Second Reading Speech in the House of Assembly to the Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2006 at 8806). The relevant Minister explained that the "amendments ensure that complainants are afforded greater measures of privacy and respect in court proceedings in order to minimise the trauma and [the] potential [for] re‑victimisation these courageous people experience in their interaction with the criminal justice system". The Minister contrasted the operation of Division 4 with Division 3 which, as explained, relates to retrials following a successful appeal, stating that "[w]here a retrial [h]as been ordered following the result of a successful appeal, the complainant's evidence is complete, including cross‑examination, and the jury has convicted the accused on the basis of that evidence", whereas with aborted trials "the complainant may not have given all of their evidence or the jury may have been unable to reach a verdict". Hence, the Minister stated that "several allowances must be made in these new provisions to ensure that the accused is not being unfairly disadvantaged". The Minister explained the effect of these provisions in the following terms:
"…[a]lthough there is a presumption in favour of admitting the previous evidence, the court is given a discretion whether or not to admit the evidence, having regard to the completeness of the previous evidence including cross-examination; the effect of editing the evidence if necessary; the availability or willingness of the complainant to attend to give further evidence and to clarify any matters arising from the previous evidence; the interests of justice; and any other matter the court thinks relevant. Additionally, the complainant must be available to give further evidence if the court believes it is necessary to clarify matters arising from the previous evidence; to canvass information or material that has become available since the original proceedings; or if it is in the interests of justice. However, there is a presumption against calling the complainant, and the mere fact that the previous evidence is incomplete or that further material has come to light will not automatically make the complainant compellable to give evidence." (emphasis added)
The reference to a discretion in the first part of this extract is to s 306I(5) which enables the court to reject a prosecutor's attempt to tender the record of the complainant's evidence at the previous trial. No application under this provision was made by the Appellant. The second part of this extract refers to s 306J. The Crown contended that s 306J conferred on the court a "discretion" to compel a complainant to give oral evidence where the court is satisfied that it is necessary for the complainant to give evidence about one or more of the matters in s 306J(1). I disagree. Section 306J(1) requires the court to form a judgment as to what is "necessary" and, if it is concluded that one or more of the criteria in s 306J(1) are satisfied, then there is no discretion to be exercised; the complainant is thereby deemed compellable.
In R v Tyrone Chishimba [2010] NSWCCA 228 at [198], McCallum J noted that s 306J had been liberally applied by the trial judge in that case. Beyond that statement, s 306J(1) has not been considered by this Court. Even so, four general matters can be stated about its operation.
First, as stated in the Second Reading Speech, the starting point is the presumption that the complainant is not compellable.
Second, as noted, s 306J(1) does not confer a discretion but instead requires an evaluative judgment be formed, such that if the court is satisfied in terms of the provision then the complainant is deemed compellable.
Third, a restrictive aspect of the provision is that, before it is determined that a complainant is compellable, the Court must be satisfied that it is "necessary" for the complainant to give further evidence as per any of ss 306J(1)(a) to (c). The word "necessary" is a "strong word" and requires more than the formation of an opinion that something is "convenient, reasonable or sensible" (Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30] to [31]).
Fourth, against that, each of the criteria in ss 306J(1)(a) to (c) is expressed in relatively broad terms. In particular, the phrase "interests of justice" is a protean one taking its meaning from its context. It operates as the determinant of the most convenient and effective forum for the resolution of a civil dispute (BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61; "BHP v Schultz"), whether to call a further coronial inquest if further evidence becomes available (Attorney General v Coroner of South Yorkshire (West) [2012] EWHC 3783) and embraces the potentially competing considerations of fairness to an accused and the proper prosecution of persons guilty of crimes (Re Mickelberg (1992) 59 A Crim R 208 at 302 to 303). Generally, the "interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered" (BHP v Schultz at [15]).
In the context of s 306J(1)(c), the concept of "interests of justice" clearly embraces (and requires) a consideration of the impact on the fairness of the accused's forthcoming trial if the complainant does not give further evidence and the desirability of not occasioning further trauma to the complainant if they do. In relation to the former, if the court concludes that a trial will definitely be unfair if the complainant is not called then this would almost certainly compel a conclusion that s 306J(1) is satisfied (and, if not, the trial would have to be stayed). However, the converse does not apply, that it is not necessary to conclude that a trial will be unfair for s 306J(1) to be satisfied. Otherwise, the breadth of the criteria in ss 306J(1)(a) to (c) and the requirement that the court be satisfied that it is "necessary" for the complainant to give further evidence defy any attempt to proscribe any rules concerning when, or the circumstances in which, a complainant will or will not be required to give evidence at a subsequent trial.
As I will explain, in this case Colefax DCJ proceeded on the basis that, if the cross‑examination of CD at the first trial was objectively capable of being justified by "considered forensic decisions", then that was determinative of whether s 306J(1) is satisfied by reason of ss 306J(1)(a) or (c). That approach imposes a gloss on a statutory test that has no basis in the statute. Moreover, it distracts from the proper inquiry posited by s 306J(1). Section 306J(1) requires a consideration of the effect of the complainant's absence on the trial that is to come and the effect on the complainant if they are to give evidence at such a trial. The outcome of an application under s 306J(1) is not necessarily determined by an inquiry into the integrity of the trial that was aborted. The fact, if it be the fact, that the cross‑examination of the complainant at the aborted trial was competent and comprehensive is a matter than may or may not be (highly) relevant to an assessment of the fairness of a subsequent trial at which the complainant will not give further evidence and overall whether it is necessary in the "interests of justice" for the complainant to give further evidence. However, the fact that the cross‑examination at the aborted trial was competent and thorough is not determinative.
The written submissions also referred to various inconsistencies, or at least ambiguities, in CD's evidence at the first trial that were barely explored. Thus, the submissions referred to following evidence of CD concerning the events of the gathering in December 2015:
"Q. [The Appellant] stayed on the lounge the whole time he was in your flat, in your house - yes?
A. Yes
……
Q. Is it true or not true that [the Appellant] never went in your room on the day of your neighbour's birthday party?
A. Not true."
The first of these answers contradicts the evidence of CD's mother and, if accepted, was fatal to the Crown case on counts 4 and 5. The second answer appears to contradict the first, although the use of a negative in the question may have confused the witness.
The written submissions also refer to a part of CD's evidence when he was asked about the number of times he was in the Appellant's room:
"Q Is it true or not true that you were only ever in [the Appellant's] room at his house once the whole time you knew him, true or not true?
A. True.
…….
Q: You were only ever in his room once, once?
A: Yes." (emphasis added)
At the first trial, counsel then appearing for the Appellant returned to this topic as follows:
"Q. You said before that you only ever went into [the Appellant's] room once in the whole time you ever knew him?
CROWN PROSECUTOR: I object to that that. He didn't say that.
HER HONOUR: I don't know he agreed with that proposition.
Q. Is it true or not true that you only went into [the Appellant's] room once?
A. Not true." (emphasis added)
Both the Crown Prosecutor and the trial judge in the first trial were mistaken in their recollection recorded in the above extract. Counsel for the Appellant correctly summarised CD's evidence and ultimately there was a contradiction between the two emphasised answers. The Appellant's counsel submitted to Colefax DCJ that, at the first trial, the trial judge and the Crown Prosecutor's intervention may have (inadvertently) fortified the Crown case by distracting from the contradictory evidence given by CD and submitted that he should be allowed to "reventilate the questions on this matter to clarify the correct position".
The written submissions also referred to CD's evidence describing the gathering at his neighbour's house in December 2015 as a birthday party, when other evidence described it as a gathering to help finish renovations on the home. The submissions contended that it was never "put to [CD] that he was wrong about this and this should have been done".
The written submissions also identified an inconsistency in CD's JIRT interview that was not the subject of any cross‑examination at the first trial. In his JIRT interview on 23 February 2016, CD described being in the Appellant's bedroom and that just prior to his mother entering the room the Appellant "pulled my pants up", but later in the same interview CD said that he "put [his own] pants on".
During argument on the appeal, counsel for the Appellant submitted that each of the above matters and especially the complaints about inconsistencies in CD's evidence that were not explored had to be considered in the context of the change in the defence case that Colefax DCJ was apprised of at the commencement of the application; that is, the abandonment of the assertion that CD's mother put him up to making false allegations to distract attention from herself. There is a difference, or at least a potential difference, between a cross‑examination that identifies inconsistencies in a witness' evidence as an aspect of demonstrating a reason for the witness lying and a cross‑examination that opens up and explores inconsistences to demonstrate that the witness is lying or at least unreliable without exploring why that is so.
Before Colefax DCJ, the Crown Prosecutor resisted the application for CD to be recalled. The only aspect of the application that she was invited to make submissions in respect of, was the effect of the subpoenaed school records noted above. The Crown Prosecutor contended that the material indicated that the instructions in class about "appropriate touching and inappropriate touching" were given after the abuse of CD by the Appellant stopped. It was not suggested that CD had suffered any particular trauma or distress from giving evidence at the first trial or from the prospect that he may give further evidence, although that potentiality could not be discounted.
In relation to the inconsistency concerning who pulled up CD's pants, Colefax DCJ found:
"... attention is directed to the slightly inconsistent evidence in connection with the last incident as to whether the accused pulled up the complainant's pants or whether the complainant pulled his own pants up. The two versions are undoubtedly inconsistent. Arguably previous defence counsel, might have thought that the inconsistencies were not a matter of much moment. Alternatively, he may have thought that the inconsistency was one of a series of inconsistencies and he did not wish to lose the forensic advantage by further pursuing it in cross‑examination. Either conclusion seems to me to be open.
I'm not satisfied that it is necessary for the complainant to clarify the matter; nor would it be in the interests of justice to require him to give evidence on the topic." (emphasis added)
Counsel for the Appellant contended that these passages reveal that his Honour erred in law in applying s 306J(1)(a) and (c). In particular, it was contended that his Honour applied a test applicable to whether a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 has occurred as a consequence of the conduct of counsel for an accused at trial. Thus, in TKJW v The Queen (2002) 212 CLR 124; [2002] HCA 46 ("TKJW"), a miscarriage of justice was held not to be occasioned through the failure of trial counsel to adduce evidence of the accused's good character. Gleeson CJ concluded that "[v]iewed objectively, [the decision of counsel] was a rational tactical decision, made in order to avoid a forensic risk" (TKJW at [17]). In the circumstance of that case that finding "was conclusive" as to whether there was a miscarriage of justice (Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9] per Gleeson CJ).
In this Court, the Crown contended that Colefax DCJ "carefully applied the correct test" and the reference to "forensic decisions" by his Honour should be viewed in the context of the Appellant's submissions which referred to the cross‑examination at the first trial in detail.
I accept that the Appellant's submission accurately characterises Colefax DCJ's reasoning and that it is erroneous in law. Throughout the judgment on the application, the only matter that his Honour pointed to as justifying his lack of satisfaction that the statutory test was made out was his Honour's findings that the cross‑examination by counsel for the Appellant at the first trial "might reasonably" have been justified by a "considered forensic decision". His Honour did not expressly address the impact on any second or subsequent trial of the Appellant if CD was not recalled, especially in light of what his Honour was advised was the change in the defence case. Instead, his Honour treated his findings about the conduct of counsel at the first trial as determinative of whether the statutory test was made out.
Consistent with TKJW, his Honour's findings were at best only determinative of whether the first trial was affected by a miscarriage of justice. The approach in TKJW was derived from a consideration of the role of the advocate in an adversarial system and in the context of an appeal where it is said that the conduct of the advocate at the trial occasioned a miscarriage of justice (TKJW at [17]). Those considerations have no or little relevance to s 306J(1). Section 306J(1) is not concerned with overturning any verdict much less a verdict that followed from a mistake by counsel. Instead, s 306J(1) is concerned with the conduct of second and subsequent trials where no verdict has been reached at a previous trial. As stated, the fact, if it be the fact, that a complainant such as CD was the subject of a cross‑examination that reflects "considered forensic decisions" that "might reasonably" have been taken by counsel may be relevant to an assessment of the fairness of a second trial in which the record of that cross‑examination was sought to be tendered without recalling CD. However, that is a forward-looking assessment of the trial to come and not one exclusively focused on an objective assessment of the competence of counsel at the aborted trial.
A similar error is evident in Colefax DCJ's treatment of so much of the application as sought to invoke s 301J(1)(b) and rely on the material subpoenaed from CD's school. Understandably, Colefax DCJ was sceptical of its evidentiary value concluding that "there is no clear evidence from the subpoenaed documents that the complainant ever received the detailed instructions". However, his Honour also stated:
"... Counsel for the accused now wishes to cross-examine on that topic [ie CD's lack of complaint] on the basis of subpoena material provided by the school. No such subpoena had been issued in the original proceedings. In this regard the following observations should be made.
First, s 306J(1)(b) should, on its proper construction, be limited to material which was not reasonably available in the original proceedings. There is no evidence that such a subpoena could not have been issued and those documents produced in those proceedings…" (emphasis added)
The emphasised portion of this passage reveals that Colefax DCJ construed s 306J(1)(b) in accordance with the test for the admission of evidence on an appeal to this Court against a conviction where that evidence was not led at the trial (Ratten v R (1974) 131 CLR 510 at 517 per Barwick CJ; [1974] HCA 35; "Ratten"; MRW v R [2011] NSWCCA 260 at [46] per Bathurst CJ). The necessity for such evidence to be, inter alia, not reasonably available at the trial reflects the adversarial nature of the system of criminal justice and respect for the finality of the outcome of a jury trial (Ratten at 517). However, for the reasons already explained, that context is very different to the context in which s 306J is being applied. Otherwise, there is nothing in the text of s 306J(1)(b) that warrants the construction adopted by his Honour. The circumstance that in applying s 306J(1)(b) his Honour directly transposed a precondition imposed by this Court when receiving new evidence on appeal, supports the conclusion that in applying ss 306J(1)(a) and (c) his Honour applied a test used by this Court on appeal where it is alleged that a miscarriage of justice was occasioned by the incompetence of counsel.
In its written submissions, the Crown contended that, even if Colefax DCJ applied the wrong test, no miscarriage of justice was occasioned because counsel for the Appellant addressed the inconsistencies in CD's evidence in detail in his final address to the jury at the third trial and no issue arose at that trial as to whether the points made on behalf of CD were adequately taken up with him in cross‑examination (Browne v Dunn (1893) 6 R 67). The Crown also contended that the value of the proposed cross‑examination can be discounted because inconsistencies in recollections of traumatic events are commonplace (see Reed v R [2006] NSWCCA 314 at [64]). This part of the Crown's submissions proceeded on the incorrect premise that this ground of appeal sought to invoke the third limb of s 6(1); that is the Appellant had to demonstrate that a miscarriage of justice was occasioned by reason of his inability to cross‑examine CD at the trial. However, as explained, this ground invokes the second limb and, as a consequence, the onus of persuasion is on the Crown to demonstrate that there was no substantial miscarriage of justice occasioned by the trial judge's error of law. That inquiry looks to the effect of the error of law on the trial which occurred. The points made by the Crown all concern the conduct of the third trial in the absence of CD being called. However, if the effect of the wrong decision on a question of law was to deprive the Appellant of the opportunity to cross‑examine CD at the third trial, then the proviso cannot be applied because the outcome of the (hypothetical) cross‑examination of CD and the impression that CD's appearance, albeit via video link, might have made on the jury cannot be ascertained.
In oral argument during the appeal, the Crown sought to address the proviso by contending that a proper application of s 306J(1) required that the application made to Colefax DCJ nevertheless be rejected and, if that were so, it would follow that there was no substantial miscarriage of justice as there was no relevant effect on the trial and proper regard can be had to the jury's verdict (Kalabasi at [14]; Weiss at [43]). I accept that reasoning is capable of properly engaging the proviso. However, as the Crown carries at least an onus of persuasion that "no substantial miscarriage of justice has actually occurred", it follows that it carries the burden of persuasion that a proper application of the statutory test nevertheless required that the application under s 306J(1) be dismissed. Given that s 306J(1) requires an evaluative judgment in respect of which in many cases, such as this one, reasonable minds might differ as to the outcome, it is not clear whether to invoke the proviso the Court must be satisfied that the only permissible conclusion was that the application must have failed or only demonstrate that, if this Court had to decide the matter, it would have refused this application. The submissions did not address this and, for my part, I consider it far from easy to resolve. In the end result it is not necessary to resolve the issue because on either approach the answer is the same.
I have described the scope of the application under s 306J(1) above. As noted, the context in which the application was made was a significant change in the defence case, namely, the dropping of an allegation that CD's mother had induced CD to lie to distract from her own misconduct. Colefax DCJ's conclusion that the cross‑examination of CD at the first trial reflected "considered forensic decisions" can be accepted, but equally it can also be accepted that the recalibration of the defence case was also a legitimate forensic step. In view of the matters noted in [45] this seems to have been the wisest course. It should also be remembered that the Appellant was a juvenile and facing an extremely serious charge. In those circumstances the responsibility of counsel to make forensic decisions on his behalf is that much greater given the more limited understanding and insight that a juvenile can be expected to possess in providing input and instructions relevant to the conduct of their trial.
Of the various points raised about CD's evidence in support of the application the matters noted in [49] to [53] had particular significance, especially in light of the change in the defence case. Those possible inconsistencies in CD's evidence were potentially of real significance to an acceptance of his evidence either on the basis of a lack of honesty or reliability. They were barely explored at the first trial given the focus on CD and his mother's alleged motive to lie. The potential forensic significance of the inconsistency noted in [51] to [52] was very much diminished by the intervention of the Crown Prosecutor and the trial judge. As noted, there was no evidence that CD would have been affected by being recalled, although s 306J(1) operates on the assumption that it is undesirable and potentially traumatising for complainants to be recalled to give evidence and that assumption should be respected. These considerations are finely balanced. Nevertheless, even allowing for the potential distress to CD from being recalled and for the fact that the application arose from a revision of the defence case, if I had to exercise the function conferred by s 306J(1) I would have been satisfied that the interests of justice warranted CD giving further evidence in respect of the matters noted in [49] to [53]. It follows that I am not persuaded that the result of a proper determination of the application made on behalf of the Appellant under s 306J(1) is that it must have failed.
It further follows that the proviso to s 6(1) of the Criminal Appeal Act is not engaged.
Accordingly, I would uphold ground 1.
After the conclusion of the Crown Prosecutor's address, counsel for the Appellant complained to Bourke DCJ that the address impermissibly invited the jury to speculate as to why CD would lie. The Crown Prosecutor disputed it had that effect. Bourke DCJ did not rule on the dispute but indicated that he would direct the jury on the topic. In his address, counsel for the Appellant referred to the onus of proof and submitted that its effect was "this question cannot happen; 'Why would [CD] lie?'".
In his summing up, Bourke DCJ summarised the Crown Prosecutor's submissions as simply urging an acceptance of CD as a witness of truth. His Honour also gave the following warning:
"Another thing I need warn you about is that, when considering the evidence of [CD], or his mother, for that matter, you must not ask yourself a question like, "Well, why would he make it up? Why would she make it up? Why would he lie about it?" because, if you think about it, that would involve a reversing of the onus of proof. The Crown has the duty of proving the case and asking yourself questions like, "Why would he make that up?" reverses the onus of proof, and it would be quite wrong to do that, because it would suggest that the accused has something to explain, which I have just told you he does not. The Crown always has that duty."
No further direction was sought by counsel for the Appellant.
In Cusack, a Crown Prosecutor asked a jury the rhetorical question "why [would she] add the complications of unprotected sex, worried about pregnancy if that was not the truth?" (at [108]). Beazley JA held that, considered in context, the jury was not being asked to accept the complainant's evidence unless the appellant provided a positive answer to the rhetorical question posed by the Crown Prosecutor. Instead, the effect of the address was that the jury was told it "could assess the complainant's evidence … by considering that she was concerned about becoming pregnant, given that she was a 14 year old girl at the time of the alleged incident" and that, "it would be unlikely that a complainant would give such evidence, unless it was the truth" (at [112]).
The approach in Cusack resolves the complaint raised by ground two. When the portion of the Crown Prosecutor's address extracted in [79] is considered in context, it reveals that the Crown Prosecutor was doing no more and no less than urging the acceptance of CD as a witness of truth. In particular, the Crown Prosecutor referred to the intimate and embarrassing details that CD provided, the number of times he was prepared to reveal those details and the circumstances in which CD's complaints had first emerged as matters bearing on the jury's assessment of the truthfulness of his evidence. I accept that the statement "[b]ut this idea that [CD] would be telling the police and the Court something that was not the truth, you have to grapple with that" considered in isolation comes close to inviting the jury to speculate as to why CD would be lying. However, the balance of the submission points to matters concerning the way in which CD's evidence emerged and the content of the evidence as matters for the jury to consider.
Further, even if this part of the Crown Prosecutor's address had the impugned effect, which it did not, it was addressed by his Honour's direction. Contrary to the Appellant's submission, it was not necessary for his Honour to specifically identify the relevant part of the Crown Prosecutor's submission and repudiate it. To do so would have been unfair to the Crown as it would have undermined its central contention that CD's evidence should be accepted. Instead, Bourke DCJ's summing up and direction operated to ensure the jury would treat the Crown Prosecutor's address as directed to the substantive matters affecting their acceptance of CD's evidence and not inviting them to speculate as to why CD might have lied.
I would grant leave to raise ground 2 but reject the ground.
Against these factors is the seriousness of the charges laid against the Appellant (Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] per Johnson J), the public interest in the due prosecution and conviction of offenders (R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]; "Taufahema"), as well as the public interest in not usurping the role of the Director of Public Prosecutions ("DPP") in deciding to prosecute and the role of the jury in determining the guilt or innocence an accused (Taufahema at [51]).
I have not found this aspect of the appeal easy to resolve. In the end result, the decisive factor in my declining to enter acquittals is the nature of the error that has led to the jury's verdicts being set aside (ALS v R [2013] NSWCCA 63 at [115]). The error did not relate in any way to the nature or quality of the evidence that was led or available to be led in support of the Crown case, but instead concerned the legal test applicable to an interlocutory application to recall CD. Given an error of that kind, the decision as to whether to place the Appellant on trial should be left to the exercise of the DPP's discretion rather than pre-empted by this Court. Needless to say, that discretion should only be exercised after very careful consideration.