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Court of Criminal Appeal 12 September 2011

JG v Regina

[2011] NSWCCA 198

Homicide
CRIMINAL APPEAL SECTION 5F CRIMINAL APPEAL ACT 1912 CHARGE OF MURDER AND THAT PROCEEDINGS BE STAYED LEAVE TO APPEAL REFUSED.

Citation: JG v Regina [2011] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
Date: 12 September 2011
Judge(s): Giles JA, Hall J, Fullerton J

Background

The applicant faced a murder charge relating to the disappearance of his wife in January 2002. No remains were ever found. The Crown's case depended significantly on the evidence of a child witness (CV), who was nine years old at the time of the alleged events and was interviewed by police on video in January 2003, when she was ten.

Following those interviews, CV underwent further interviewing and, critically, was subjected to hypnosis in October 2003. The Crown alleged CV's evidence demonstrated a motive for the murder: CV had told both the deceased and the applicant on the evening before the disappearance that the applicant's father had sexually interfered with her, which the Crown said would have created serious conflict about plans for the family to move in with the applicant's father.

There had already been earlier appellate proceedings concerning this evidence. In 2010, the Court of Criminal Appeal reversed a trial judge's ruling excluding CV's evidence, holding it admissible under s 137 of the Evidence Act. The applicant then brought a further notice of motion seeking exclusion under s 138 (improperly obtained evidence) and a permanent stay of proceedings. The trial judge dismissed both applications, and the applicant sought leave to appeal against that dismissal under s 5F(3) of the Criminal Appeal Act 1912.

  • Whether the applicant had a right of appeal, or should be granted leave to appeal, under s 5F of the Criminal Appeal Act 1912 in respect of the trial judge's dismissal of both the exclusion application and the stay application
  • Whether the applicant's s 138 Evidence Act challenge to CV's evidence raised an arguable case of error that should be permitted to proceed as part of the stay appeal
  • Whether the trial judge erred in refusing to permanently stay the murder proceedings on the basis that any trial would be so fundamentally unfair as to constitute an abuse of process

Decision

The Court first addressed the scope of appeal rights under s 5F. No right of appeal existed against the evidentiary ruling itself (the s 138 application), because s 5F(3A) confers such appeal rights only on the prosecution, not the accused. The Court also declined to allow the applicant to run the evidentiary argument as a supporting plank under his appeal against the refusal of the stay, finding it would be procedurally inappropriate to permit the applicant to contest a ruling he had no right to independently appeal by folding it into a different ground.

On the stay application, the Court applied the well-established principle that a permanent stay is available only in extreme cases where there is a fundamental defect that nothing a trial judge can do in the conduct of the trial can cure. The Court drew on Dupas v The Queen [2010] HCA 20, Jago v The District Court of New South Wales (1989) 169 CLR 23, and R v Glennon (1992) 173 CLR 592 in confirming that the public interest in bringing serious charges to trial means fairness to an accused is not the only consideration.

The Court found no arguable case that the trial judge erred in refusing the stay. The reliability of CV's evidence was characterised as a matter for the jury, not a basis for permanently halting the proceedings. The Court also noted the Crown's case was limited: it did not seek to establish that the alleged sexual interference actually occurred, only that CV reported it, a distinction the Court considered capable of being addressed through appropriate jury directions.

The Court rejected the argument that the failure to use CV's evidence in proceedings against the applicant's father was relevant to whether the current prosecution should be stayed. It observed that the decision not to charge the father shed no light on the admissibility or use of the evidence in the murder trial. The Court also noted that if the applicant were convicted, full appeal rights in relation to CV's evidence and trial fairness would remain available.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Under s 5F of the Criminal Appeal Act 1912, the right to appeal against an interlocutory ruling excluding or admitting evidence is conferred on the prosecution only; an accused person has no independent right of appeal against such a ruling.
  • The Court of Criminal Appeal declined to allow an accused to contest an evidentiary ruling indirectly by incorporating it into an appeal against a refusal of stay, where no right of independent appeal against that ruling existed.
  • A permanent stay of proceedings will only be granted in extreme cases involving a fundamental defect incapable of remedy during the trial itself, and the public interest in bringing serious criminal charges to trial remains a weighty consideration alongside fairness to the accused.
  • No arguable error was established in the trial judge's conclusion that the reliability of a child witness's evidence, even where hypnosis had been involved, was a matter for the jury rather than a basis for staying the prosecution.
  • Remaining intact after leave was refused, the applicant retained full appeal rights on all questions concerning CV's evidence and trial fairness in the event of a conviction.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 306U
- Evidence Act 1995 (NSW), ss 137, 138, 192A

Cases
- Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
- Dupas v The Queen [2010] HCA 20
- Gedeon v R [2009] NSWCCA 278
- Jago v The District Court of New South Wales (1989) 169 CLR 23
- JG v R (No 2) (Buddin J, 6 May 2011, unreported)
- R v Glennon (1992) 173 CLR 592
- R v Groves (CCA, 2 April 1990, unreported)
- R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299
- R v Littler [2001] NSWCA 173; (2001) 120 A Crim R 512
- R v Marchione [2002] NSWCCA 131; (2002) 128 A Crim R 574
- R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
- R v Steffan (1990) 30 NSWLR 633