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Court of Criminal Appeal 2 May 2025

R v Walker

[2025] NSWCCA 62

Sexual offences
CRIME APPEALS CROWN INTERLOCUTORY APPEAL SEXUAL OFFENCES WRONG PRINCIPLE ERROR IN DETERMINATION OF APPLICATION

Citation: R v Walker [2025] NSWCCA 62
Court: Court of Criminal Appeal
Date: 2 May 2025
Judges: Harrison CJ at CL, Dhanji J, McNaughton J

Background

The respondent faced trial by jury in the District Court at Penrith on five counts of sexual intercourse without consent, two counts of intimidation, and one count of break and enter with intent to commit a serious indictable offence. All charges related to a single complainant, who exercised her entitlement under s 294B(3) of the Criminal Procedure Act 1986 (NSW) to give evidence by closed-circuit television rather than in the courtroom.

During the summing up on 13 March 2025, the trial judge gave a direction telling the jury that any difficulty in assessing a witness's credibility arising from the use of audio visual link (AVL) "should be resolved in favour of the accused." The Crown submitted this direction was unlawful under s 294B(7) of the Criminal Procedure Act, which prohibits directing the jury to give evidence lesser weight because it was given by AVL. The trial judge rejected that submission and refused the Crown's subsequent application to discharge the jury.

The Crown filed a notice of appeal that same afternoon under s 5F of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal convened urgently the following morning, heard the appeal, and made orders allowing it before delivering written reasons in May 2025.

  • Whether a refusal to discharge a jury constitutes an interlocutory order or judgment amenable to a Crown appeal under s 5F of the Criminal Appeal Act 1912 (NSW)
  • Whether the trial judge's direction contravened s 294B(7) of the Criminal Procedure Act 1986 (NSW) insofar as it applied to the complainant
  • Whether the direction carried a further risk of unfairly elevating the significance of demeanour evidence
  • What directions, if any, are permissible under s 294B(7) where evidence is given via AVL
  • Whether the appropriate remedy was discharge of the jury or remitter to the trial judge

Decision

Jurisdiction. The Court held unanimously that a refusal to discharge a jury is an interlocutory judgment or order for the purposes of s 5F(2) and (3) of the Criminal Appeal Act, and that the Court accordingly had jurisdiction to hear the Crown's appeal.

The direction and s 294B(7). The direction instructed the jury to resolve any difficulty in assessing a witness's credibility arising from AVL use "in favour of the accused." The Court held this was, in practical effect, a direction to give the complainant's evidence lesser weight because it was given by AVL, which is precisely what s 294B(7)(b) prohibits. Although the direction was framed in general terms applying to all five AVL witnesses, only the complainant's credibility was genuinely in contest at trial. The direction therefore contravened the statute insofar as it applied to her. The trial judge's reasons for refusing discharge were founded on wrong principle, constituting error within the House v The King sense.

Demeanour. Dhanji J (Harrison CJ at CL agreeing, McNaughton J not deciding this point) held that the direction also ran the real risk of causing the jury to unfairly reject the complainant's evidence by overstating the significance of demeanour. The judgment drew on academic literature and judicial writing showing that the dominant view is AVL evidence is not functionally equivalent to in-person testimony, that its impact may be beneficial or detrimental to either party, and that, in the ordinary case, that impact will not be ascertainable. For those reasons, directions alerting a jury in general terms to the impacts of AVL use will, in ordinary cases, be likely to contravene s 294B(7). The Court noted, however, that s 294B(7) cannot convert poor evidence into clear evidence, and that a specific direction may be available where the impact of AVL can actually be identified on the particular facts.

Remedy. The Court declined to order discharge of the jury itself. The trial judge was better placed to consider whether a further direction withdrawing the impugned direction, and redirecting the jury in suitable terms, could correct or neutralise the error while preserving the trial. The matter was remitted to the District Court for the discharge application to be reconsidered according to law.

Orders Made

  • Appeal allowed
  • The order made by Everson SC DCJ on 13 March 2025 (refusing the Crown's discharge application) set aside
  • Matter remitted to the District Court for the application to be determined according to law

Key Takeaways

  • A refusal to discharge a jury qualifies as an interlocutory judgment or order for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), making it amenable to a Crown interlocutory appeal.
  • Under s 294B(7) of the Criminal Procedure Act 1986 (NSW), a trial judge in prescribed sexual offence proceedings must warn the jury not to draw adverse inferences or give evidence lesser weight merely because it was given by AVL; a direction telling the jury to resolve credibility difficulties arising from AVL use "in favour of the accused" falls squarely within this prohibition.
  • Directions alerting a jury in general terms to the potential impacts of AVL evidence will, in the ordinary case, be likely to contravene s 294B(7), because the impact of AVL on the quality of evidence may be beneficial or detrimental to either party and will ordinarily not be ascertainable.
  • Section 294B(7) does not operate to transform poor evidence into clear evidence; where the specific impact of AVL can actually be identified on the facts of a particular case, a direction addressing that particular quality of the evidence may remain available.
  • Establishing an error in a refusal to discharge a jury does not automatically require the appellate court to order discharge; remitter to the trial judge may be the more appropriate course where a corrective redirection could remedy the error and preserve the trial.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F, 12
- Criminal Procedure Act 1986 (NSW), ss 4, 294B
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3, 5B, 5BAA

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22
- Jago v the District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
- Kahil v R [2020] NSWCCA 56
- R v NE [2021] NSWCCA 54
- R v Alexandroaia (1995) 81 A Crim R 286
- Miller v R [2015] NSWCCA 206; (2015) 252 A Crim R 486
- Khazaal v R [2011] NSWCCA 129
- Maric v The Queen (1978) 52 ALJR 631
- KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
- R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794