Citation: DJF v R [2011] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 7 October 2011
Judges: Allsop P, Rothman J, Barr AJ
Background
The applicant, referred to as DJF, faced a third trial in the District Court at Wollongong on four counts of sexual intercourse with a child under the age of ten years. The alleged offences were said to have occurred between June and August 1998. His first conviction on these and related counts was quashed on appeal, and his second trial resulted in a hung jury on the four remaining counts.
Before the third trial commenced, the Crown applied to amend the indictment to substantially extend the time period specified in each count, from a window of a few months in 1998 to a range spanning January 1997 to August 2000. The Crown's purpose was to prevent a repeat of what had occurred at the second trial, where a directed verdict of not guilty on a fifth count followed late-emerging evidence that cast doubt on the complainant's account of when events occurred.
The applicant opposed the amendment and applied to the District Court for a permanent stay of proceedings, which was refused. Defence counsel later sought to have the leave to amend reconsidered, but the trial judge declined. The applicant then sought leave from the Court of Criminal Appeal to appeal that interlocutory decision under section 5F of the Criminal Appeal Act 1912.
Legal Issues
- Whether there was a valid interlocutory judgment or order susceptible to appeal under section 5F of the Criminal Appeal Act 1912
- Whether leave to appeal that interlocutory order should be granted
- Whether the Crown's amendment of the indictment to substantially enlarge the time periods caused unfairness to the applicant sufficient to warrant intervention before trial
Decision
The Court first addressed the Crown's submission that no identifiable interlocutory order existed. The trial judge had not delivered a formal judgment on 9 September 2011, and the proceedings were discursive in character. However, the Court was satisfied that the judge had effectively refused to reconsider his earlier order of 1 August 2011 granting leave to amend, and that this constituted a refusal to reverse or reconsider a previously made order. Allsop P added that court records confirmed the motion had been formally refused. The Court held this was a judicial act of an interlocutory character sufficient to engage section 5F.
On the question of leave to appeal, the Court refused it. The Court reasoned that any unfairness arising from the enlargement of the time periods in the indictment was not a matter amenable to resolution at the interlocutory stage. Rather, it was a question to be dealt with during the trial itself, depending on how the evidence unfolded and how the trial was conducted.
Rothman J observed that a change in the time period alleged did not necessarily prejudice the applicant. If the complainant's evidence about timing differed from earlier testimony, that discrepancy could affect her credibility before the jury rather than automatically favouring the Crown. The applicant's position was also protected, Rothman J noted, by the availability of a subsequent appeal if he were convicted.
Orders Made
- Leave to appeal refused
- Order that the applicant's name not be published and that he not be identified in any way
Key Takeaways
- Under section 5F of the Criminal Appeal Act 1912, an interlocutory appeal requires leave, and the Court confirmed that a trial judge's refusal to reconsider an earlier interlocutory order can itself constitute a reviewable interlocutory order.
- A substantially enlarged time period in an amended indictment does not, of itself, give rise to unfairness that warrants interlocutory appellate intervention before trial.
- Alleged unfairness flowing from amendments to an indictment is ordinarily a matter for the trial judge to manage as the evidence develops, not a ground for pre-trial appellate relief.
- Where a complainant's account of timing shifts between trials, that inconsistency may go to her credibility as a Crown witness rather than necessarily assisting the Crown's case.
- An accused's position following an unfavourable trial outcome remains protected through the ordinary appeal process, which the Court of Criminal Appeal identified as a reason to decline interlocutory intervention.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
Cases
- Pearce v R [1988] HCA 57; (1998) 194 CLR 610
- R v Wilkes (1948) 77 CLR 511
- Sali v SPC Limited [1993] HCA 47; (1993) 116 ALR 625