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Court of Criminal Appeal 9 December 2022

CF v R

[2022] NSWCCA 260

Sexual offences
CRIME APPEAL FROM INTERLOCUTORY ORDER TRIAL JUDGE REFUSED TO DISCHARGE JURY JURY NOTE LEAVE REFUSED

Citation: CF v R [2022] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 9 December 2022
Judges: Meagher JA; Beech-Jones CJ at CL; Garling J

Background

The applicant faced trial on seven sexual offences alleged to have been committed against the same complainant over a period spanning 2007 to 2009. The counts were divided in time by reference to a camp the complainant attended at Scotts Head commencing 16 January 2009, with some counts charged as occurring before that date and others after it. The complainant's age at the time of each alleged offence was a material element of several charges.

During the complainant's cross-examination, the trial judge received a handwritten note from the jury. The note asked what would happen if a juror believed there was evidence that something occurred before the Scotts Head trip, but was uncertain whether the complainant was then under 16, or whether the conduct might have occurred in the period between 17 December 2008 and 16 January 2009.

Defence counsel applied to discharge the entire jury, arguing the note demonstrated a reasonable apprehension of pre-judgment. The trial judge rejected that application and indicated he would give the jury corrective directions. The applicant then filed this urgent interlocutory application for leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), while the trial was still on foot.

  • Whether the jury's note gave rise to a reasonable apprehension of bias (the "double might" test), such that the trial judge was required to discharge the jury.
  • Whether the trial judge erred in his interpretation of the note by failing to find that it evidenced pre-judgment of the applicant's guilt.
  • Whether the trial judge erred by failing to consider whether proposed directions to the jury could adequately remedy any apprehension of partiality.
  • Whether leave to appeal from an interlocutory order should be granted in circumstances where the trial was continuing and any complaint could be preserved for a conviction appeal.

Decision

Beech-Jones CJ at CL (with whom Meagher JA and Garling J agreed) dismissed the application for leave to appeal. Two threshold considerations weighed against granting leave at the interlocutory stage. First, an appeal mid-trial risked significant disruption to ongoing proceedings. Second, refusing leave did not extinguish the applicant's rights: if convicted, the same complaint about the jury discharge refusal remained available as a ground of appeal against conviction.

On the substance, the Court found no arguable basis for error by the trial judge. The note's use of the phrase "what if" indicated the jury was posing a hypothetical and seeking the court's guidance, not expressing a settled view about guilt. The trial judge correctly applied the "double might" test drawn from Webb v R and R v Czajkowski, which asks whether a fair-minded and informed observer might think there was a reasonable apprehension that the jury might not bring an impartial mind to the issues. The note did not meet that threshold.

The Court rejected the argument that the trial judge had conceded the "double might" test was satisfied by accepting that the note "evidenced a view that something may have taken place before 16 January 2009." That language reflected no more than what the complainant's evidence itself had raised as a possibility. The note did not convey any acceptance by the jury that the conduct had actually occurred before that date.

The third ground, which alleged the trial judge failed to consider whether proposed directions could remedy residual apprehension, was also rejected. The trial judge had concluded the note gave rise to no relevant apprehension before considering directions at all. The directions he proposed were described as a sensible additional precaution rather than a cure for a finding of apprehension, meaning the ground was misconceived.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • A jury note that opens with "what if" is more readily characterised as a request for guidance than as evidence of pre-judgment; the phrasing is relevant to the bias apprehension analysis.
  • Under the "double might" test, the question is whether a fair-minded and informed observer might think there is a reasonable apprehension that the jury might not bring an impartial mind to the issues. A note raising uncertainty about evidence does not automatically satisfy this standard.
  • Granting leave to appeal from an interlocutory order during a continuing trial carries significant weight against the applicant, particularly where any complaint can be preserved for a conviction appeal if the outcome warrants it.
  • No error arises where a trial judge, having already found no relevant apprehension, separately proposes corrective directions to address a jury's apparent misconception about dates or the timing of alleged conduct.
  • Distinguishing between a jury expressing that something "may have occurred" and a jury accepting that it "did occur" is central to the bias apprehension analysis in cases involving jury notes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), former ss 61M(1), 66C(4)
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Jury Act 1977 (NSW), ss 53B, 53C

Cases
- House v The King (1936) 55 CLR 499
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- R v Czajkowski [2002] NSWCCA 530
- Webb v R (1994) 181 CLR 41