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Court of Criminal Appeal 7 February 2018

R v Matthews

[2018] NSWCCA 7

Sexual offencesAssault & violence
CRIMINAL LAW S 5F APPEAL INTERLOCUTORY JUDGMENT OR ORDER

Citation: R v Matthews [2018] NSWCCA 7
Court: Court of Criminal Appeal, NSW
Date: 7 February 2018
Judges: Payne JA, Garling J, Hidden AJ

Background

The respondent faced charges of aggravated sexual assault, assault occasioning actual bodily harm, and incitement to commit an act of indecency. The trial commenced before Maiden SC DCJ in the District Court on 29 January 2018, with pre-trial issues dealt with on 29 and 30 January before a jury was empanelled.

On 30 January 2018, the trial judge made two sets of orders that the Crown challenged by urgent interlocutory appeal. The first set required the Crown to obtain and provide a further proof of evidence from the complainant, and barred the Crown from calling her until that was done. The second required the complainant, who lived in northern NSW, to travel to Sydney to give evidence by audio visual link from the Downing Centre, rather than from a Local Court near her home.

The Crown sought leave to appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal heard the matter urgently on 5 February 2018, the day jury empanelment was scheduled to occur, and announced its orders that morning before providing written reasons shortly afterward.

  • Whether the trial judge had power to require the Crown to obtain a further proof of evidence from the complainant, in circumstances where neither party had applied for such an order
  • Whether the trial judge had power to prevent the Crown from calling the complainant unless that further proof of evidence was provided
  • Whether the trial judge erred in ordering the complainant to travel to Sydney to give evidence by audio visual link from the Downing Centre, rather than from a Local Court near her home in northern NSW, under s 294B(3) of the Criminal Procedure Act 1986 (NSW)

Decision

Further proof of evidence. The trial judge made the order requiring a further proof of evidence on his own motion, without any application from either party. Both the Crown and defence had already cooperated to identify the relevant portions of the complainant's recorded police interviews. The Court of Criminal Appeal found the trial judge had no power to make this order. The judge's stated reasons, including avoiding jury confusion and preventing "rambling" answers, did not justify the exercise of any such power. The order was set aside.

Bar on calling the complainant. Because the order requiring a further proof of evidence was itself beyond power, the consequential order preventing the Crown from calling the complainant without providing that document also fell away and was set aside.

Location of audio visual link evidence. Under s 294B(3) of the Criminal Procedure Act, a complainant in a prescribed sexual offence proceeding is entitled to give evidence by audio visual link from a location of their choosing unless "special reasons" exist under s 294B(6) to require otherwise. The trial judge ordered the complainant to travel to Sydney, reasoning that mental health facilities and support were more accessible there. However, no party had applied for this order, no relevant contemporary evidence was before the court, and the complainant had expressed a wish to give evidence from her home town. The Court found that the trial judge had taken judicial notice of matters not properly before him and had failed to take into account the complainant's expressed preference. These errors constituted House v King error in the exercise of discretion, and the order was set aside.

The Court noted that the respondent remained free to make a fresh application under s 294B(6) if a "special reasons" argument arose during the trial, including in relation to the practicalities of showing the complainant two recently disclosed pieces of recorded footage.

Orders Made

  • Access to the Court of Criminal Appeal file refused, save with leave of a judge of the Court
  • Non-publication order made under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW): no publication of information tending to identify the respondent until jury proceedings concluded in the District Court
  • Leave to appeal under s 5F(2) of the Criminal Appeal Act 1912 (NSW) granted
  • Appeal allowed
  • The following orders of Maiden SC DCJ made on 30 January 2018 set aside:
  • The order requiring the complainant to provide a further proof of evidence
  • The order preventing the Crown from calling the complainant unless that proof of evidence was provided
  • The order requiring the complainant to give evidence by audio visual link from the precincts of the District Court in Sydney
  • Matter remitted to the District Court for continuation of the trial
  • Notation that nothing in the orders prevented the respondent from making further application concerning audio visual link evidence as appropriate during the trial

Key Takeaways

  • A trial judge does not have power to require the Crown to obtain a further proof of evidence from a complainant, and to bar the Crown from calling that witness until one is provided, where neither party has applied for such an order and existing disclosure obligations have been met.
  • Under s 294B(3) of the Criminal Procedure Act 1986 (NSW), a complainant in a prescribed sexual offence proceeding is entitled to give evidence by audio visual link from a location of their choice; a court may only override this under s 294B(6) where "special reasons" are established.
  • Displacing a complainant's expressed preference for a remote evidence location requires a proper evidentiary basis and a genuine application by a party; taking judicial notice of the relative availability of mental health services in Sydney versus regional NSW was insufficient.
  • Where a trial judge exercises a discretion without taking into account a relevant consideration (here, the complainant's own wishes), House v King error is established and the order will be set aside on appeal.
  • Mental health considerations may, in an appropriate case, be relevant to the "special reasons" analysis under s 294B(6), but that does not permit a trial judge to make unsupported assessments about where a complainant's mental health needs are better served.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(2)
- Criminal Procedure Act 1986 (NSW), ss 74, 79(1), 294B(3), 294B(6)
- Crimes Act 1900 (NSW), ss 59(1), 61(2), 61J(1)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
- Interpretation Act 1987 (NSW)

Cases
- House v King (1936) 55 CLR 499 (HCA) (the standard for appellate review of discretionary decisions)
- AF v R [2015] NSWCCA 35
- KN v R [2017] NSWCCA 249
- R v Steffan (1993) 30 NSWLR 633
- Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397
- Richardson v The Queen (1974) 131 CLR 116
- O'Connor v Healy (1961) 69 SR (NSW) 111