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Court of Criminal Appeal 24 April 2023

Gardiner v R

[2023] NSWCCA 89

Sexual offences

Citation: Gardiner v R [2023] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 24 April 2023
Judges: Adamson JA (with Button J and McNaughton J agreeing)

Background

The applicant, a former mathematics teacher at a boarding school in Armidale, was convicted in a judge-alone trial of persistent sexual abuse of one former student (TR) and an act of buggery against another (PS). The alleged offences occurred between 1964 and 1968, and the matter did not come to trial until 2021, following a police investigation that began in 2019. Both complainants were boarders at the school at the relevant time.

The trial judge convicted the applicant on two counts and imposed an aggregate sentence of 16 years imprisonment with an 11-year non-parole period. Prior to trial, the applicant sought a permanent stay of proceedings on the basis that the lengthy delay made a fair trial impossible. That application was refused. The Crown relied on tendency evidence from former students who gave evidence of similar conduct by the applicant during their time at the school.

The applicant sought leave to appeal his conviction on nine grounds, challenging, among other things, the refusal of the permanent stay, the trial judge's use of demeanour observations, her reasoning on corroboration and tendency, her reliance on excluded evidence, her use of coincidence reasoning, and the adequacy of the forensic disadvantage direction.

  • Whether the trial judge erred in refusing a permanent stay of proceedings on the basis of inordinate delay
  • Whether the trial judge denied the applicant procedural fairness by using demeanour observations without giving him notice of those observations
  • Whether the trial judge denied procedural fairness by relying on a disparity between trial counsel's cross-examination and the applicant's own evidence without raising the matter with the parties
  • Whether the trial judge erred in her treatment of tendency evidence, including whether individual charges needed to be proved beyond reasonable doubt before being used for tendency purposes
  • Whether the trial judge misused coincidence reasoning where the Crown had not relied on coincidence evidence
  • Whether the trial judge took into account evidence excluded by pre-trial rulings
  • Whether the forensic disadvantage direction under s 165B of the Evidence Act 1995 (NSW) was adequate
  • Whether the trial judge reversed the onus of proof when assessing alleged contamination of prosecution witnesses
  • Whether the trial judge failed to consider the applicant's evidence before returning verdicts

Decision

Permanent stay (Ground 1): The Court of Criminal Appeal held it was open to the trial judge to refuse the permanent stay. A permanent stay on grounds of delay is only appropriate where the delay renders the trial necessarily unfair, such that a conviction would bring the administration of justice into disrepute. The delay in this case did not give rise to an irremediable forensic disadvantage.

Procedural fairness regarding credibility (Grounds 2 and 5): These grounds succeeded. The trial judge made adverse findings about the applicant's credibility based on unspecified demeanour observations made during the trial, without giving the parties fair notice of those observations or an opportunity to respond. She also drew an adverse inference from an alleged disparity between what trial counsel put to TR in cross-examination and the applicant's own evidence, again without raising this with the parties. Both constituted denials of procedural fairness. The Court declined to apply the proviso (which would allow a conviction to stand despite an error if no substantial miscarriage of justice has occurred), finding that the demeanour observations could materially have affected the outcome, even given the apparent strength of the Crown case.

Tendency, coincidence and contamination (Grounds 3, 4 and 9): The Court held that the trial judge did not err in her treatment of tendency evidence, confirming that individual charges need not be proved beyond reasonable doubt before being used for tendency purposes. However, the trial judge erred by engaging in coincidence reasoning when the Crown had not relied on coincidence evidence and without warning the parties of her intention to do so. This was a further procedural fairness failure. The Court found no reversal of the onus of proof in the trial judge's treatment of witness contamination.

Excluded evidence and forensic disadvantage direction (Grounds 6 and 7): The trial judge erred by referring in her judgment to allegations that had been excluded by pre-trial rulings. The forensic disadvantage direction, although not in the precise form of the authorised direction, was found to disclose no error of law when the judgment was read as a whole. The remaining grounds, including the order-of-reasoning challenge under Ground 8, were not established.

Orders and retrial: Given the seriousness of the offences, the apparent strength of the Crown case, and the applicant's continued capacity to stand trial, the Court declined to order an acquittal. A new trial was ordered.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Convictions on counts 1 and 6 quashed
  • New trial of the applicant ordered
  • Matter listed in the District Court arraignments list on 28 April 2023

Key Takeaways

  • A permanent stay on grounds of delay is only warranted where the delay renders the trial necessarily unfair, such that a conviction would bring the administration of justice into disrepute; delay causing some forensic disadvantage does not automatically meet this threshold.
  • Where a judge-alone trial judge proposes to make adverse credibility findings based on demeanour observations or perceived inconsistencies not raised in cross-examination, procedural fairness requires the parties to be given notice and an opportunity to respond before the matter is resolved against the accused.
  • Coincidence reasoning under the Evidence Act 1995 (NSW) requires the Crown to rely on the evidence for that purpose; a trial judge who engages in coincidence reasoning without the Crown seeking to do so, and without warning the parties, commits a procedural fairness error.
  • Under s 161A of the Criminal Procedure Act 1986 (NSW), tendency evidence does not require that each individual charge be proved beyond reasonable doubt before it can be used for a tendency purpose, confirming the approach in JS v R [2022] NSWCCA 145.
  • Even where convictions are quashed for procedural fairness failures, the Court of Criminal Appeal retains a discretion to order a retrial rather than an acquittal, and will do so where the offences are serious and the Crown case was apparently strong.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66EA, 79, 81, 418
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 33, 133, 161A
- Evidence Act 1995 (NSW), ss 95, 97, 98, 164, 165B
- Jury Act 1977 (NSW), ss 68A, 68B

Key Cases:
- Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
- JS v R [2022] NSWCCA 145
- The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- BRS v The Queen (1997) 191 CLR 275; [1997] HCA 47
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
- DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63