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Court of Criminal Appeal 6 May 2020

Jurd v R

[2020] NSWCCA 91

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION VOIR DIRE CONDUCTED PROCEDURAL UNFAIRNESS TO THE WITNESS APPLICATION OF PROVISO FORENSIC CHOICE OF COUNSEL

Citation: Jurd v R [2020] NSWCCA 91
Court: Court of Criminal Appeal, NSW
Date: 6 May 2020
Judges: Hoeben CJ at CL, Price J, Campbell J

Background

The applicant was convicted by a District Court jury of two counts of aggravated indecent assault on a child under 16, committed over the course of a single overnight stay at the home of a friend. He was sentenced to an aggregate term of seven years' imprisonment with a non-parole period of four years.

The prosecution called the applicant's de facto partner, Ms Best, as a witness. She gave evidence before the jury on the third day of trial. Neither the Crown nor defence counsel drew the trial judge's attention to section 18 of the Evidence Act 1995 (NSW), which gives a de facto partner the right to object to being compelled to give evidence for the prosecution.

The judge became aware of the issue the following day and recalled Ms Best for a voir dire (a hearing conducted in the absence of the jury to determine an evidentiary question). Ms Best said she would have objected had she been informed of her right. Despite this, the judge ruled the evidence admissible, finding the procedural error could be corrected retrospectively. The applicant appealed against both his conviction and his sentence.

  • Whether the trial judge erred in admitting Ms Best's evidence after failing to raise section 18 of the Evidence Act before she testified before the jury
  • Whether the procedural unfairness to Ms Best could be corrected retrospectively by recalling her for a voir dire the following day
  • Whether the judge adequately made Ms Best aware of the effect of section 18 during the voir dire
  • Whether, if the evidence was wrongly admitted, the proviso under section 6(1) of the Criminal Appeal Act 1912 (NSW) applied so that no substantial miscarriage of justice resulted
  • Whether the sentence of seven years' imprisonment was manifestly excessive

Decision

On the section 18 issue: The Court accepted that the trial judge erred in failing to draw section 18 to Ms Best's attention before she gave evidence before the jury. Section 18(4) places an obligation on the court to satisfy itself that a person who may have the right to object is aware of the effect of the section. That obligation was not met in time. The Court also found that the voir dire conducted the following day did not adequately remedy the situation, as the judge had not sufficiently explained the effect of section 18 to Ms Best during that hearing.

On the proviso: Despite finding error in the admission of Ms Best's evidence, the Court applied the proviso under the Criminal Appeal Act. The proviso permits a court to dismiss an appeal against conviction even where error is established, provided it is satisfied that no substantial miscarriage of justice actually occurred. The Court examined the remaining evidence, including the complainant's account, the evidence of the complainant's mother, and admissions made by the applicant, and concluded that the jury would inevitably have returned the same guilty verdicts. The Court was satisfied beyond reasonable doubt that the evidence properly admitted proved the applicant's guilt.

On the sentence appeal: The Court rejected the contention that the sentence was manifestly excessive. Neither the assessment of the objective seriousness of the offending nor the applicant's subjective case was challenged. Campbell J noted the significance of the now-repealed standard non-parole period of eight years for this offence category, alongside the unchallenged finding of objective seriousness, as further support for the conclusion that the sentence was not plainly unjust.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under section 18(4) of the Evidence Act 1995 (NSW), a court is obliged to satisfy itself that a de facto partner of a defendant is aware of the effect of section 18 before that person gives evidence for the prosecution. Failure to do so constitutes error.
  • Recalling a witness for a voir dire the following day does not automatically cure a failure to comply with section 18(4), particularly where the judge does not adequately explain the witness's rights and the practical effect of the provision during that subsequent hearing.
  • In dismissing the conviction appeal, the Court confirmed that even where evidence has been wrongly admitted, the proviso under section 6(1) of the Criminal Appeal Act 1912 (NSW) may operate to prevent a successful appeal if the court is satisfied beyond reasonable doubt that a properly instructed jury would inevitably have reached the same verdict on the remaining evidence.
  • No substantial miscarriage of justice arose in these circumstances because the properly admitted evidence independently and sufficiently established the applicant's guilt beyond reasonable doubt.
  • Upholding the sentence, the Court of Criminal Appeal reaffirmed that legislative guideposts such as standard non-parole periods remain relevant sentencing considerations, even where they have been subsequently repealed, when assessing whether a sentence is plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 18, 38, 65

Cases:
- De Silva v The Queen [2019] HCA 48
- Dinsdale v The Queen (2000) 202 CLR 321
- Filippou v The Queen (2015) 256 CLR 47
- Fletcher v R (2015) 45 VR 634
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Hofer v R [2019] NSWCCA 244
- James v The Queen (2014) 253 CLR 475
- Kalbasi v Western Australia (2018) 264 CLR 62
- Lane v The Queen (2018) 265 CLR 196
- Markarian v The Queen (2005) 228 CLR 357
- McKinnin v The Queen [2019] VSCA 114
- Muldrock v the Queen (2011) 244 CLR 120
- Mulvihill v R [2016] NSWCCA 259
- OKS v Western Australia (2019) 265 CLR 268
- R v A2; R v KM; R v Raziri (No 4) [2015] NSWSC 1306
- R v B.O. [2012] NSWDC 195
- R v Nakash [2017] NSWCCA 196
- TKWJ v The Queen (2002) 212 CLR 124
- Tran v R [2017] NSWCCA 93
- Tran v R [2018] NSWCCA 145