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10
Court of Criminal Appeal 30 June 2020

WX v R

[2020] NSWCCA 142

Also reported as (2020) 102 NSWLR 467
Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION FIRST TRIAL ABORTED APPLICATION REFUSED GROUND DISMISSED

Citation: WX v R [2020] NSWCCA 142
Court: Court of Criminal Appeal, NSW
Date: 30 June 2020
Judges: Payne JA, Beech-Jones J, N Adams J

Background

The appellant, referred to as WX, was convicted at a third District Court trial in April 2019 of three counts of indecent assault on a child under sixteen and two counts of sexual intercourse with a child under ten, contrary to sections 61M(2) and 66A(1) of the Crimes Act 1900. WX was aged between 14 and 15 at the time of the alleged conduct, and the complainant, CD, was aged seven. Publication restrictions under the Children (Criminal Proceedings) Act 1987 applied throughout the proceedings.

The first trial was aborted after the jury was discharged near the end of the defence case. For the second and third trials, the Crown relied on recorded evidence CD had given at the first trial, tendered under section 306I of the Criminal Procedure Act 1986, rather than calling CD to give fresh evidence. Before the second trial, the appellant applied under section 306J of the same Act for an order compelling CD to attend and be further cross-examined. That application was refused by the trial judge.

The third trial proceeded on the same ruling, and the jury convicted the appellant on all counts. He was sentenced to 2 years and 9 months imprisonment with a non-parole period of 9 months. By the time the appeal was heard in May 2020, WX had been released on parole.

  • Whether the trial judge misconstrued section 306J of the Criminal Procedure Act 1986 in refusing to compel the complainant to give further evidence at the second (and subsequently the third) trial.
  • Whether the Crown Prosecutor's closing address reversed the onus of proof, thereby causing the trial to miscarry.
  • If the convictions were quashed, whether the appropriate remedy was a new trial or acquittal.

Decision

Ground 1: Misconstruction of section 306J
The Court of Criminal Appeal unanimously upheld this ground. Beech-Jones J found that the trial judge had applied the wrong legal test when refusing the appellant's application under section 306J. That section provides a mechanism for an accused to apply to compel a complainant to give further oral evidence where the Crown otherwise intends to tender prior recorded evidence. Because the error concerned a question of law alone, leave to appeal was not required for this ground under section 5(1)(a) of the Criminal Appeal Act 1912.

Ground 2: Reversal of onus of proof
Leave to appeal was granted on this ground, but the Court rejected it. The impugned portions of the Crown Prosecutor's closing address, while the subject of complaint, did not, in the Court's assessment, impermissibly reverse the burden of proof in a manner that caused the trial to miscarry.

Remedy: New trial or acquittal?
The judges divided on the appropriate remedy. Beech-Jones J and N Adams J ordered a new trial, emphasising that the established error did not relate to the quality or nature of the evidence and that no ground alleged the verdicts were unreasonable. Both considered it important that the prosecutorial discretion to proceed with a further trial should remain with the Director of Public Prosecutions rather than be foreclosed by the Court. Payne JA dissented on this point, favouring an acquittal on the basis that a fourth trial would be oppressive given the appellant's age at the time of the offending, the fact he had already served his non-parole period, and the anticipated further delay caused by the COVID-19 suspension of jury trials. The majority position of a new trial prevailed.

Orders Made

  • Leave granted to raise ground 2 of the notice of appeal.
  • Appeal allowed.
  • The appellant's convictions quashed.
  • A new trial ordered.
  • Matter listed in the District Court Arraignments List at Parramatta on 17 July 2020.

(Note: Payne JA dissented from the new trial order and would instead have entered a verdict of acquittal on all charges.)

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's misconstruction of the statutory test under section 306J of the Criminal Procedure Act 1986, governing an accused's right to apply to recall a complainant who gave recorded evidence in a prior trial, constitutes an error of law capable of vitiating subsequent convictions.
  • Where a conviction is quashed on the basis of a legal error unrelated to the quality of the evidence or the reasonableness of the verdicts, the Court of Criminal Appeal's ordinary disposition is to order a new trial and leave the prosecutorial decision to the DPP rather than to enter a verdict of acquittal.
  • Payne JA's dissent illustrates that the interests of justice may, in particular circumstances, require an acquittal rather than a new trial, with relevant factors including the accused's age at the time of the alleged offending, the number of prior trials, time already served, and anticipated further delay.
  • Under section 130A of the Criminal Procedure Act, a ruling made at an earlier trial on the admissibility of prior recorded evidence carried through to bind the third trial judge, amplifying the significance of the initial error in construction of section 306J.
  • Child sexual assault proceedings involving multiple aborted trials raise acute questions about the balance between the public interest in prosecution and the burden imposed on an accused who was himself a juvenile at the time of the alleged conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Criminal Procedure Act 1986 (NSW), ss 130A, 306I, 306J
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Amendment (Evidence) Act 2005 (NSW)

Cases
- Spies v The Queen (2001) 201 CLR 603; [2000] HCA 43
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kalabasi v The Queen (2018) 264 CLR 62; [2018] HCA 7
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- ALS v R [2013] NSWCCA 63
- Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328
- Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331
- MRW v R [2011] NSWCCA 260
- Gilham v R [2012] NSWCCA 131
- R v Davies (1995) 83 A Crim R 502