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Court of Criminal Appeal 31 March 2021

R v NE

[2021] NSWCCA 54

Sexual offences
CRIMINAL LAW PROCEDURE APPLICATION TO VACATE TRIAL DATE REFUSAL OF ADJOURNMENT APPLICATION ROLE OF PROSECUTOR ROLE OF TRIAL JUDGE

Citation: R v NE [2021] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 31 March 2021
Judges: Hoeben CJ at CL, Campbell J, Hamill J

Background

The respondent faced 11 counts of sexual offending against three separate complainants. The prosecution intended to use each complainant's evidence as tendency evidence in relation to the others, and both parties agreed the trial should proceed with all three complainants present. The trial was listed to commence in Griffith on 22 March 2021.

In the week before trial, one complainant (referred to as MD) was admitted to hospital at 37 weeks pregnant, suffering from pre-eclampsia and a suspected foetal cardiac condition. Her treating doctor provided a report stating she was not expected to be available for court proceedings for two to three weeks. On that basis, the prosecution applied to vacate the trial date, and the accused's counsel supported the application.

The trial judge declined to hear the adjournment application before empanelling the jury, insisting the application could be dealt with after jury selection. A jury was duly sworn, became aware that there were three complainants (including MD), and the judge then heard and refused both the adjournment application and a consequential application to discharge the jury. The prosecution appealed under section 5F of the Criminal Appeal Act 1912 (NSW), effectively as a joint application with the accused.

  • Whether the trial judge's refusal to hear the adjournment application before empanelling the jury was procedurally correct
  • Whether the refusal to vacate the trial date, on the joint application of both parties, was a decision that was unreasonable and plainly unjust
  • Whether the trial judge applied the correct test when refusing to discharge the jury after it had already been empanelled and made aware of the unavailable complainant

Decision

The Court of Criminal Appeal held that the adjournment application was obviously required to be heard and determined before the jury was empanelled. The self-evident problem, which the prosecutor had flagged in the transcript, was that a jury would hear about allegations involving a complainant who could not be called to give evidence. The trial judge disregarded that concern and proceeded to empanelment without even canvassing the basis of the application or inviting the defence to state its position.

Once the jury was sworn, the original adjournment application necessarily became an application to discharge the jury as well. The Court found the trial judge's refusal to vacate the trial date was, in the circumstances, unreasonable and plainly unjust. The medical evidence was uncontested, the witness was hospitalised with serious pregnancy complications, her doctor had certified she was unavailable for two to three weeks, and both parties supported the adjournment. Without MD, the prosecution could not fully present its tendency evidence case.

The Court also found the trial judge had applied the wrong test when refusing to discharge the jury. The question was not whether there "may be a substantial miscarriage of justice" but rather whether, in all the circumstances, the jury should be discharged. The jury had already been made aware of a third complainant whose evidence would not be called, creating an obvious risk of unfairness to the accused.

The Court allowed the appeal and made orders on 24 March 2021, three days after the trial had commenced over both parties' objections.

Orders Made

  • The appeal under section 5F(2) of the Criminal Appeal Act 1912 (NSW) was allowed
  • The orders made by Judge Grant on 22 March 2021 were vacated
  • In lieu thereof:
  • The jury was discharged
  • The trial was vacated
  • The matter was remitted to the District Court for mention and to set a new trial date

Key Takeaways

  • A trial judge's refusal to vacate a trial date, made on the joint application of both parties where the principal witness is medically unavailable and that unavailability is clearly established, may be characterised as unreasonable and plainly unjust, warranting appellate intervention.

  • The proper sequence for case management is that an application to vacate a trial date must be heard and determined before a jury is empanelled. Deferring such an application until after empanelment imposes unnecessary complications, including converting a straightforward adjournment application into an application to discharge a sworn jury.

  • Proceeding to empanel a jury over the objection of both parties, without considering even in overview the basis for the adjournment application, constituted error. The Court noted that apparent listing pressures, while understandable, cannot justify disregarding a well-founded and consented-to application.

  • When a jury has already been made aware of a complainant who will not give evidence, the correct question for the trial judge is whether the jury should be discharged in all the circumstances, not the higher threshold of whether a substantial miscarriage of justice "may" result.

  • Courts have consistently quashed convictions or set aside proceedings where adjournments were refused due to the unavailability of important witnesses, including in cases decided by the High Court in Thornberry v The Queen (1995) and by this Court in R v Reid [1999].

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6(1)
- Criminal Procedure Act 1986 (NSW), Pt 5, ss 3, 294D, 306A, 306H, 306I

Cases
- Ambury v R [2018] NSWCCA 275
- Bell v Imrie & Anor (Unreported, Supreme Court of NSW, Yeldham J, 24 February 1989)
- Crofts v The Queen (1996) 186 CLR 427
- Director of Public Prosecutions (NSW) v Chaouk and Anor [2010] NSWSC 1418
- Hamide v R (2019) 101 NSWLR 455
- House v The King (1936) 55 CLR 499
- IMM v The Queen (2016) 257 CLR 300
- JV v R [2017] NSWCCA 49
- Libdy v R [2021] NSWCCA 34
- Miller v R [2015] NSWCCA 206
- Nitiva v Director of Public Prosecutions & 2 Ors [1999] NSWCA 332
- Noble v Director of Public Prosecutions & Others [2000] NSWSC 920
- Pasoski v R [2014] NSWCCA 309
- R v Lamb; R v Mason; R v Hill [2016] NSWCCA 135
- R v Reid [1999] NSWCCA 258
- R v Shortland [2018] NSWCCA 34
- Stevens v R [2015] NSWCCA 235
- Thornberry v The Queen (1995) 69 ALJR 777
- Tootle v R [2017] NSWCCA 103