Citation: Attorney General for New South Wales v XX [2018] NSWCCA 198
Court: Court of Criminal Appeal, New South Wales
Date: 13 September 2018
Judges: Bathurst CJ; Hoeben CJ at CL; McCallum J
Background
Three Aboriginal children disappeared from the town of Bowraville on the NSW north coast over a five-month period between September 1990 and February 1991. The remains of two of the children were found, and the respondent was charged with their murders. No remains were ever found for the third child, and no murder charge was ever laid in relation to her disappearance.
Before either trial began, a Supreme Court judge ordered that the two murder charges be tried separately. The respondent was acquitted of the first murder in 1994, after which the prosecution of the second was discontinued. Following a police reinvestigation and a coronial inquest in 2004, the respondent was retried for the second murder and acquitted again in 2006.
In December 2016, the Attorney General applied to the Court of Criminal Appeal under s 100(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CARA) for orders that the respondent be retried for both murders. The stated purpose was to allow all three deaths to be tried together on a single indictment, with the prosecution relying on "coincidence reasoning" drawn from the alleged similarities between all three disappearances.
Legal Issues
- Whether s 105(7) of CARA required the Court to assess "fresh and compelling" evidence in relation to the two murder charges together or separately.
- Whether evidence relating to the third child's disappearance (the "Walker evidence") was "fresh" within the meaning of s 102(2) of CARA in relation to the second murder trial.
- Whether any other evidence satisfied the "fresh and compelling" test in relation to the second murder.
- Whether the Court could order a retrial for the first murder alone, even if no order was made for the second, given that the Attorney General had not framed the application on that basis.
Decision
On the operation of s 105(7): The Court held that where a retrial of multiple offences is sought and the Court finds those offences should be tried together on one indictment, s 105(7) does not bypass the requirement that evidence be "fresh" in relation to each offence individually. Freshness must be assessed offence by offence. Only once evidence is found to be fresh in relation to a particular offence may the Court then assess whether that evidence is "compelling" in the context of a future joint trial.
On the Walker evidence and freshness: The Court found that the evidence relating to the third child's disappearance had been available to be tendered or brought forward before the 2006 trial for the second murder. Under s 102(2) of CARA, evidence is not "fresh" if it could have been presented at the original proceedings with the exercise of reasonable diligence, regardless of whether it was actually admissible at the time. Because the Walker evidence was available before that trial, it was not fresh.
On other categories of evidence: Most of the remaining evidence relied upon by the Attorney General was also available before the 2006 trial and therefore not fresh. The only genuinely fresh evidence was a recorded interview the respondent gave to a journalist in 2016. However, the Court held that the statements in that interview could only amount to "implied admissions of guilt" if the respondent's guilt were independently established. Without that independent foundation, the interview evidence did not meet the threshold of being "highly probative" under s 102(3)(c) and was not "compelling" within the meaning of CARA.
On the retrial for the first murder alone: The Attorney General had throughout the six-day hearing maintained that a retrial of both murders together was necessary, actively resisting the respondent's submissions to the contrary. Only at the very conclusion of the hearing did the Attorney General raise, without formal application, the possibility of seeking a retrial for the first murder alone. The Court declined to entertain this late alternative case. Even if leave had been sought, the Court indicated it would not have been granted, noting the principle that the Crown should not be indulged where its need for indulgence arises from a failure to frame its application carefully and in a timely fashion.
Orders Made
• The application is dismissed.
Key Takeaways
- Under s 105(7) of CARA, where retrials of multiple offences are sought on the basis that they should be joined on one indictment, the "freshness" requirement in s 102(2) must still be satisfied separately for each offence. A joint-trial rationale does not allow the freshness requirement to be assessed in aggregate.
- Evidence is not "fresh" for the purposes of s 102(2) of CARA if it was available to be tendered or brought forward at the earlier acquittal proceedings, regardless of whether it was actually admissible in those proceedings.
- Implied admission evidence that requires independent proof of guilt to carry probative weight will not meet the "compelling" threshold under s 102(3) of CARA, applying Edwards v The Queen (1993) 178 CLR 193.
- Refusing to allow the Attorney General to reframe the application at the last minute, the Court of Criminal Appeal confirmed that the Crown is held to the case it runs throughout proceedings, and that late attempts to raise alternative bases for relief will be treated with considerable caution, particularly where the need arises from the Crown's own conduct of the application.
- In dismissing the application, the Court left unresolved the question of whether, in a properly framed application, a retrial for only one of the two murders could ever have been ordered.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 100, 102, 105
- Evidence Act 1995 (NSW)
- Coroners Act 1980 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Justice Act 2003 (UK)
- Criminal Law Consolidation Act 1935 (SA)
- Criminal Appeal Act 2004 (WA)
Key Cases:
- Edwards v The Queen (1993) 178 CLR 193
- Hoch v The Queen (1988) 165 CLR 292
- R v Zhang (2005) 196 FLR 152; [2005] NSWCCA 437
- R v SH [2014] NSWCCA 218
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Katsuno v The Queen (1999) 199 CLR 40
- Coco v The Queen (1993) 179 CLR 427