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Court of Criminal Appeal 17 May 2023

PJ v R

[2023] NSWCCA 105

Also reported as (2023) 111 NSWLR 414
Sexual offences
CRIMINAL LAW CHILD SEXUAL ASSAULT PRE RECORDED EVIDENCE LEAVE SOUGHT TO RE CALL WITNESS

Citation: PJ v R [2023] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 17 May 2023
Judges: Basten AJA (with Walton J agreeing); Hamill J (dissenting)

Background

The applicant faced four charges of sexual offending against his daughter, who was four years old at the time of the alleged incidents. Both the daughter and her brother gave evidence at a pre-recorded evidence hearing in April 2022, a procedure designed under the Criminal Procedure Act 1986 (NSW) to reduce the trauma associated with child witnesses giving evidence at trial.

In February 2023, nearly ten months after that hearing, the applicant sought leave to recall both children for further cross-examination. The basis of the application was that the children had not been questioned about a central plank of the defence: the applicant's claim, made in his electronically recorded police interview, that the children's mother had instigated the fabrication of the allegations to gain advantage in Family Court proceedings. Previous defence counsel had not put those matters to the witnesses during the original pre-recorded hearing.

The trial judge refused leave under clause 87(3) of Schedule 2 to the Criminal Procedure Act, finding the recall was not in the interests of justice. The applicant then sought leave to appeal that ruling to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), which permits interlocutory appeals in criminal proceedings.

  • Whether the trial judge's refusal to permit the recall of the child witnesses constituted an "interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act 1912 (NSW), thereby giving the Court of Criminal Appeal jurisdiction to hear the appeal.
  • Whether the trial judge erred in refusing leave under clause 87(3) of Schedule 2 to the Criminal Procedure Act 1986 (NSW) to allow the children to give further evidence.

Decision

On jurisdiction (s 5F): majority view

Basten AJA, with Walton J agreeing, held that the trial judge's ruling did not constitute an "interlocutory judgment or order" for the purposes of s 5F. Rulings on the admissibility of evidence can engage s 5F where they have the character and effect of putting an end to proceedings, but a refusal to permit the recall of witnesses does not carry that character. The majority likened the ruling to one limiting the scope of cross-examination or refusing to require the prosecution to recall a witness, neither of which engages s 5F regardless of whether the ruling is made before or during trial.

On the refusal of leave: majority view

The majority nonetheless addressed the substantive question. Basten AJA construed clause 87(3) holistically: the "interests of justice" requirement in paragraph (b) is not a freestanding threshold that, once cleared, obliges the court to grant leave. Rather, clause 87 operates as a prohibition subject to a discretionary exception, and that exception is not satisfied by a bare balancing of competing interests and prejudice. The majority found no procedural unfairness in the trial judge's refusal, and observed that if leave had been granted, conditions would have been necessary to confine the scope of further cross-examination.

Hamill J dissenting

Hamill J took a different view on both issues. On jurisdiction, his Honour considered that a ruling finally disposing of the question of whether the witnesses would give any further evidence bore the hallmarks of an interlocutory order and engaged s 5F. On the merits, his Honour found the trial judge had failed to consider a relevant matter, namely the significance of the alleged motive to lie to the defence case, and had wrongly relied on the availability of a Jovanovic direction (a jury instruction about the consequences of failing to put matters to a witness) as a substitute for allowing the matter to be tested in cross-examination. Hamill J would have allowed the appeal and granted leave for further evidence, limited to the specific passages of the police interview.

Orders Made

The application for leave to appeal was dismissed by the majority. The orders listed below reflect those proposed by Hamill J in dissent and were not adopted by the Court:

  • Extend time in which to appeal
  • Grant leave to appeal
  • Allow the appeal
  • Quash the order made in the District Court and grant leave under Schedule 2, clause 87 of the Criminal Procedure Act 1986 (NSW) for the two child witnesses to give further evidence, limited to matters raised by the applicant in specified passages of his police interview

Note: These orders were proposed by Hamill J in dissent. The majority dismissed the application for leave to appeal.

Key Takeaways

  • A trial judge's refusal to permit the recall of child witnesses under clause 87 of Schedule 2 to the Criminal Procedure Act 1986 (NSW) does not, according to the majority of the Court of Criminal Appeal, constitute an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW). The ruling is analogous to limiting cross-examination rather than terminating proceedings.

  • Under clause 87(3), the "interests of justice" test is not a freestanding gateway. The majority confirmed that the clause operates as a prohibition subject to a discretionary exception, and that exception requires more than a balancing of competing prejudices.

  • The pre-recorded evidence scheme exists specifically to reduce trauma to child witnesses. A significant delay between the original hearing and an application to recall, compounded by a change in defence counsel, will weigh heavily against the grant of leave.

  • Where leave to recall witnesses is granted under clause 87, conditions limiting the scope of further cross-examination would ordinarily need to be imposed.

  • The dissenting judgment raises a live question about whether a ruling that finally disposes of the question of a witness giving any further evidence should be treated as an interlocutory order amenable to appeal under s 5F, leaving open the possibility that the jurisdictional question may be revisited in a future case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), Schedule 2, clauses 84, 85, 87, 88, 89; ss 249C, 294CB, 306S, 306U
- Crimes Act 1900 (NSW), ss 66A, 66DA
- Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(4)

Cases
- AF v R [2015] NSWCCA 35
- Brown v R [2022] NSWCCA 121
- Browne v Dunn (1893) 6 R 67
- DAO v The Queen (2011) 81 NSWLR 568
- Hofer v The Queen (2021) 95 ALJR 937
- House v The King (1936) 55 CLR 499
- King v Snow (1915) 20 CLR 315
- KN v R [2017] NSWCCA 249
- Oldfield v The Queen (2006) 163 A Crim R 242
- Palmer v The Queen (1998) 193 CLR 1
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
- R v F (2002) 129 A Crim R 126
- R v Jovanovic (1997) 42 NSWLR 520
- R v Powch (1988) 14 NSWLR 136
- R v RAG [2006] NSWCCA 343
- R v Steffan (1993) 30 NSWLR 633
- SC v R (2020) 104 NSWLR 257
- WX v R (2020) 102 NSWLR 467