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6
Court of Criminal Appeal 15 June 2016

RKF v R

[2016] NSWCCA 116

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEAL INTERLOCUTORY ORDER APPLICATION FOR TRIAL BY JUDGE ALONE

Citation: RKF v R [2016] NSWCCA 116
Court: Court of Criminal Appeal
Date: 15 June 2016
Judge(s): Bathurst CJ at [1]; Hall J at [57]; R A Hulme J at [58]

Background

The applicant faced trial in the District Court on two charges of aggravated indecent assault and one charge of intimidation involving his daughter, SF. The alleged assaults occurred while SF was unconscious in hospital recovering from a liver transplant, and were witnessed by nursing and social work staff. SF herself stated in a recorded interview that, as far as she was aware, her father had never touched her inappropriately.

The applicant elected to be tried by judge alone, arguing that a jury trial would unfairly expose him to prejudice. Specifically, his defence strategy required disclosing that he had been incarcerated overseas for many years (on charges of which he was ultimately acquitted) to explain his prolonged absence from his daughter's life and the estranged nature of their relationship.

The trial judge, Traill DCJ, refused the election on 9 November 2015, concluding that the interests of justice did not require a judge alone trial. The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).

Legal Issues

  • Whether the trial judge erred in law by failing to apply the principle, articulated in Redman v R, that an accused is entitled to defend himself by all forensically available means without being forced to choose between revealing prejudicial material and censoring his defence.
  • Whether the trial judge failed to properly balance the need to apply objective community standards (relevant to the indecency charges) against the prejudice inherent in a jury trial.
  • Whether the trial judge erred in finding that jury directions could overcome the prejudice arising from disclosure of the applicant's prior incarceration.
  • Whether the trial judge improperly took into account material from SF's recorded interview that neither party had relied upon.

Decision

Ground 1: Failure to apply Redman

The Court held that Redman v R did not compel the outcome the applicant sought. Bathurst CJ noted that neither of the other two judges in Redman concurred in the specific passage upon which the applicant relied, with both observing that the case turned on its particular facts (at [42]). Critically, the facts in Redman were materially different: the incarceration evidence in that case was directly relevant to whether the accused could have committed the offence, whereas here the evidence of prior imprisonment was sought only as background explanation for the applicant's absence from his daughter's life (at [43]-[44]). The Court found no error in the trial judge's refusal to apply the Redman principle in these circumstances (at [48]-[49]).

Ground 2: Failure to balance community standards against prejudice

The Court dismissed this ground briefly. The trial judge had taken the potential prejudice into account and concluded it could be addressed by appropriate directions. No relevant consideration was overlooked, no irrelevant matter (subject to Ground 4) was brought in, and the decision was not unreasonable in the House v The King sense (at [50]).

Ground 3: Jury directions insufficient to address prejudice

The Court rejected the submission that the prejudice from disclosing the applicant's prior overseas incarceration was so grave that no direction could remedy it. It applied the well-established principle, confirmed in R v Belghar, that juries are generally capable of following directions. The Court saw no reason why a jury could not be directed to disregard the fact of incarceration for offences of which the applicant had been acquitted (at [46]). Any prejudice from cross-examination of the hospital staff on this issue was also speculative (at [47]).

Ground 4: Use of extraneous material

The Court accepted that the trial judge had referred to portions of SF's recorded interview not relied upon by either party, which described the father-daughter relationship in 2012 and 2013 as marked by violence and argument (at [52]-[53]). However, a reading of the judgment as a whole did not reveal that this characterisation actually influenced the exercise of the trial judge's discretion. The Court concluded the material did not affect the outcome, and the ground was not made out (at [53]-[54]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the trial judge's refusal of a judge alone election where potential prejudice from disclosure of prior incarceration could be addressed by jury directions, and where the incarceration evidence was only indirectly relevant to the charges (at [44]-[46]).
  • The passage in Redman v R concerning an accused's entitlement to defend by all forensically available means does not state a rule of universal application: the other members of the bench in Redman expressly confined it to its facts, and the Court of Criminal Appeal declined to extend it to materially different circumstances (at [42], [48]).
  • Under s 132(5) of the Criminal Procedure Act 1986 (NSW), a trial judge may refuse a judge alone election where the case involves a factual issue requiring the application of objective community standards, including the question of whether conduct amounts to indecency (at [39]).
  • Referencing material from the record that neither party relied upon will not of itself constitute appellable error if that material did not in fact affect the exercise of the trial judge's discretion (at [53]-[54]).
  • R A Hulme J observed that s 5F interlocutory appeals do not always necessitate vacating the trial date, and that the Court of Criminal Appeal can sometimes hear and determine such applications on an urgent basis to minimise disruption to trial proceedings (at [63]-[65]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes Act 1900 (NSW), s 61M
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 132

Cases
- A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
- Cheih-Wei Lin v R [2015] NSWCCA 264
- DAO v R [2011] NSWCCA 63; 81 NSWLR 568
- House v The King [1936] HCA 40; 55 CLR 499
- R v Belghar [2012] NSWCCA 86
- R v BWM (1998) 91 A Crim R 260
- Redman v R [2015] NSWCCA 110
- Robinson v R [2016] NSWCCA 108
- Turnbull v R [2016] NSWCCA 109