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Court of Criminal Appeal 2 June 2017

Curran v R

[2017] NSWCCA 123

Sexual offences
CRIMINAL LAW DISCHARGE OF JURY BY TRIAL JUDGE

Citation: Curran v R [2017] NSWCCA 123
Court: Court of Criminal Appeal, NSW
Date: 2 June 2017
Judges: Beazley P; R A Hulme J; Fagan J

Background

The accused was charged with one count of indecent assault and three counts of sexual intercourse without consent, arising from an alleged incident in a university college dormitory in March 2016. The Crown opened its case on the basis that the complainant had not consented to any sexual activity from the outset, and that she had communicated this repeatedly throughout the events in question.

During the complainant's evidence, the Crown tendered a covertly recorded conversation between the complainant and the accused at a Nando's restaurant, recorded approximately one month after the incident. In that conversation, the accused made statements that could be interpreted as an admission that he continued penile/vaginal intercourse for a short period after the complainant said "No." This introduced a possible alternative basis for liability: not that consent was absent from the start, but that consent was withdrawn mid-act and the accused continued regardless.

The trial judge incorporated this alternative theory into a draft written statement of essential elements provided to counsel, prompting objection from senior counsel for the accused. After the Crown confirmed it wished to pursue this alternative theory, the trial judge discharged the jury on the fourth day of trial, finding it would be unfair to the accused to permit the Crown to change its case at that stage. The accused applied to the Court of Criminal Appeal under s 5G of the Criminal Appeal Act 1912 (NSW) for leave to appeal that discharge decision.

  • Whether the trial judge erred in exercising the discretion to discharge the jury
  • Whether it was unfair to the Crown to refuse to permit the change in its case theory mid-trial
  • Whether the discharge was justified on the basis of unfairness to the accused arising from the Crown's proposed change

Decision

The Court of Criminal Appeal held that the trial judge had erred in the exercise of his discretion and set aside the discharge order. The Court identified three essential steps in the trial judge's reasoning: first, that it would be unfair to the Crown to deny it the opportunity to rely on the Nando's conversation as supporting an alternative theory; second, that allowing the Crown to change its case would be unfair to the accused; and third, that discharge was therefore the appropriate response.

The Court rejected the first step in that reasoning as flawed. The Crown had always had access to both the Nando's recording and the accused's police interview. No unexpected event or procedural irregularity had occurred during the trial that would justify characterising the Crown's position as one of unfair disadvantage. The Crown itself conceded, on the urgent hearing of the application, that it had been unfair for it to attempt to change its case in those circumstances.

Because the discharge was grounded in a legally erroneous premise, it could not stand. The Court set aside the decision and remitted the matter to the District Court for the trial to continue. The Court expressly declined to direct what the trial judge should say to the jury about the Nando's conversation, noting that any such direction was a matter for the judge in light of the parties' addresses and submissions.

Orders Made

  • A suppression order prohibiting publication of any information tending to identify the applicant until jury proceedings in the District Court are concluded (made on the ground that publication would prejudice the proper administration of justice)
  • Leave to appeal granted under s 5G of the Criminal Appeal Act 1912 (NSW)
  • Appeal allowed
  • The decision of Berman SC DCJ of 1 June 2017 to discharge the jury vacated
  • Matter remitted to the District Court for continuation of the trial

Key Takeaways

  • A trial judge's decision to discharge a jury is a discretionary one, and an appellate court will only intervene where that discretion was exercised on an erroneous basis.
  • Where the Crown has had access to relevant evidence from the outset and no unexpected trial event has occurred, it is not unfair to the Crown to refuse permission to change the theory of its case mid-trial.
  • The Court of Criminal Appeal confirmed that the Crown's concession of unfairness on the appeal was a significant factor undermining the premise on which the discharge had been ordered.
  • Unfairness to the accused arising from a proposed change in the Crown's case does not automatically justify discharging a jury; the correct response may instead be to refuse the Crown permission to make that change.
  • In remitting the matter, the Court of Criminal Appeal left questions about appropriate jury directions concerning the Nando's conversation entirely to the trial judge, declining to pre-empt those determinations on the s 5G application.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5G
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Cases
- Barber v R; Zraika v R [2016] NSWCCA 125
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Qing An v R [2007] NSWCCA 53
- R v Bartle [2003] NSWCCA 329