WX v R

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

Judgment

1. 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.
2. 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.
3. 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).
4. 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.
5. 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.
6. 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").
7. 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.
8. To address the grounds of appeal, it is first necessary to briefly outline the course of the trial and the respective cases.

The Three Trials

1. 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.
2. 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.
3. 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.

The Crown Case

1. 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.
2. 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.
3. 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.
4. 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".
5. 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".
6. 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.

The Appellant's Case

1. 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.
2. 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 ..."
3. 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.
4. 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.

Ground 1: Incorrect Interpretation of Section 306I

1. 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.

Section 306J

1. 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.
2. 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.
3. 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.

Application to Invoke Section 306J

1. 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".
2. 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.
3. 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.
4. 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.
5. 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.

Colefax DCJ's Reasons

1. 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.
2. 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)
3. 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]).

Proviso

1. 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.
2. 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)
3. 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]).
4. 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).

Ground 2: Crown Prosecutor's Address

1. 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.

The Submissions and the Summing Up

1. 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 …"
2. 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."

Was the Jury Invited to Speculate about Why CD Might Have Lied?

1. 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.
2. 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]).
3. 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].

Appropriate Relief

1. 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.
2. 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.
3. 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").
4. 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.

Proposed Orders

1. 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.
2. 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.
3. 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.
4. 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.

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