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Court of Criminal Appeal 21 January 2022

Al Bayati v R

[2022] NSWCCA 2

Sexual offences
CRIMINAL LAW PROCEDURE APPLICATION TO AMEND INDICTMENT TRIAL WHERE CHILD DENIED TOUCHING APPREHENDED BIAS

Citation: Al Bayati v R [2022] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 21 January 2022
Judges: McCallum JA; Hamill J; Cavanagh J

Background

The applicant, a head of security at a shopping centre, was convicted by jury at a re-trial on three counts: taking a child under 16 with intent to obtain sexual gratification, aggravated commission of an act of indecency toward a child under ten, and aggravated indecent assault of a child under 16. The charges arose from an incident on 18 December 2016 in which the applicant took a three-year-old girl through a back-of-house service corridor and staircase for approximately eleven minutes while CCTV did not capture them, rather than following the shopping centre's protocols requiring him to take the child directly to the centre management office.

The applicant had faced an earlier trial in 2018 at which the jury was unable to reach a verdict on any count. When the re-trial commenced in May 2019, the indictment contained only two counts, the same counts on which the first jury had been deadlocked. The third count, aggravated indecent assault, had never been charged by police, was not part of the committal, and had not featured at the first trial.

The indecent assault count was added to the indictment mid-trial, during a pre-trial admissibility argument, in circumstances that became the central controversy on appeal. The applicant was sentenced to an aggregate of four years and six months with a non-parole period of two and a half years. The appeal concerned the convictions only.

  • Whether a miscarriage of justice occurred when the Crown was permitted to add a new count (indecent assault) partway through the trial, in circumstances that raised apprehended bias on the part of the trial judge
  • Whether the trial judge "entered the arena" by effectively prompting the prosecution to seek amendment of the indictment, thereby crossing the line between the judicial and prosecutorial roles
  • Whether the verdict on count 3 (indecent assault) was unreasonable or unable to be supported by the evidence
  • Whether the trial judge erred in directing the jury that it could treat the absence of a satisfactory explanation for the eleven-minute off-camera period as a pathway to finding guilt
  • Whether the verdicts on counts 1 and 2 (taking a child for advantage and aggravated act of indecency) were unreasonable or unsupported by the evidence

Decision

Ground 1: Apprehended bias and improper judicial intervention

The Court upheld this ground. During the pre-trial admissibility argument, the trial judge made repeated comments suggesting the indictment as framed was "weird" and "bizarre," and at one point referred to the prospect of the prosecutor "shoving" a new count onto the indictment and invoked the concept of an "incompetent bill finding." The Court found these remarks went well beyond the legitimate judicial function of asking questions to clarify argument. The distinct roles of prosecutor and judge are fundamental: it is for the Director of Public Prosecutions, not the court, to decide what charges to bring. A fair-minded observer would have reasonably apprehended that the judge had prejudged the adequacy of the indictment and was steering the prosecution toward amending it.

The Court applied the established test from Ebner v Official Trustee in Bankruptcy (2000): whether a fair-minded lay observer, knowing the relevant circumstances, might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. The addition of the new count was a direct consequence of the judge's interventions, and the amendment resolved the admissibility controversy in the prosecution's favour. That connection between the judge's conduct and the procedural outcome was central to the finding of miscarriage.

Ground 2: Unreasonable verdict on count 3

The Court also upheld this ground independently. Conducting its own review of the evidence, the Court found that the verdict of guilty on the indecent assault count was not reasonably open on the evidence. The child had not described the relevant touching in terms capable of supporting the charge, and the DNA evidence, while consistent with the applicant's profile, was insufficient on its own to establish the charge beyond reasonable doubt. An acquittal was entered on count 3.

Grounds 3 and 4: Jury direction and verdicts on counts 1 and 2

Leave to rely on ground 3 was refused. The Court declined to uphold ground 4, finding that the verdicts on counts 1 and 2 were not unreasonable having regard to the whole of the evidence, including the CCTV timeline, the DNA evidence, the departure from security protocols, and other circumstantial material. Those convictions were nonetheless quashed because the trial had miscarried, and a re-trial was ordered on counts 1 and 2.

Orders Made

  • Leave to rely on ground 3 refused
  • Leave to appeal against the convictions otherwise granted
  • Appeal allowed; verdicts of guilty on counts 1, 2 and 3 quashed
  • Verdict of not guilty entered on count 3
  • Re-trial ordered on counts 1 and 2, with the matter listed for arraignment in the District Court on 4 February 2022

Key Takeaways

  • A trial judge who repeatedly signals that an indictment is inadequate and hints at the availability of an additional charge may be found to have "crossed the line" from legitimate judicial questioning into conduct giving rise to apprehended bias, particularly where the amendment that follows resolves an admissibility dispute in the prosecution's favour.
  • The decision as to what charges to bring is exclusively a matter for the Director of Public Prosecutions; a judge who effectively prompts the prosecution to add a count infringes upon that prosecutorial function and undermines the appearance of impartial adjudication.
  • Apprehended bias does not require proof that the judge was actually biased. The test, drawn from Ebner, asks only whether a fair-minded observer with knowledge of the relevant circumstances might reasonably apprehend a lack of impartiality.
  • Where a count is added to an indictment mid-trial in circumstances amounting to a miscarriage of justice, the quashing of that conviction does not automatically require re-trial on all remaining counts. The Court of Criminal Appeal conducted an independent review and entered an acquittal on count 3 because the verdict was also independently unreasonable.
  • Verdicts on separate counts can survive a miscarriage affecting one count where the Court is satisfied, after independent review, that those remaining verdicts were not themselves unreasonable on the evidence.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 86(1)(b)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Evidence Act 1995 (NSW), s 165(1)(a)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Antoun v R [2006] HCA 2; (2006) 224 ALR 51
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Ellis v R [2015] NSWCCA 262
- GetSwift Ltd v Webb [2021] FCAFC 26; (2021) 388 ALR 75
- Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
- M v The Queen (1994) 181 CLR 487
- Madden v R [2011] NSWCCA 254
- Maxwell v The Queen (1996) 184 CLR 501
- Pell v R (2020) 268 CLR 123
- Potier v R [2015] NSWCCA 130
- Tarrant v R [2018] NSWCCA 21