Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JG v Regina [2011] NSWCCA 198 Hearing dates: 29 August 2011 Decision date: 12 September 2011 Before: Giles JA, Hall J, Fullerton J Decision: Leave to appeal refused. Catchwords: CRIMINAL APPEAL - Section 5F Criminal Appeal Act 1912 - charge of murder - dismissal of application that evidence be excluded - and that proceedings be stayed - no right of appeal against ruling on evidence - should not be permitted to contest ruling in relation to appeal against refusal of stay - no arguable case of error in refusing stay - leave to appeal refused. Legislation Cited: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; Dupas v The Queen [2010] HCA 20; Gedeon v R [2009] NSWCCA 278; Jago v The District Court of New South Wales (1989) 169 CLR 23; JG v R (No 2) (Buddin J, 6 May 2011, unreported; R v Glennon (1992) 173 CLR 592; R v Groves (CCA, 2 April 1990, unreported); R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299; R v Littler [2001] NSWCA 173; (2001) 120 A Crim R 512; R v Marchione [2002] NSWCCA 131; (2002) 128 A Crim R 574; R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228; R v Steffan (1990) 30 NSWLR 633. Category: Principal judgment Parties: JG - Applicant Crown - Respondent Representation: D Dalton SC - Applicant P Barrett - Crown Siobhan Mullany, Legal Aid NSW - Applicant S Kavanagh, Public Prosecutions - Crown File Number(s): CCA 2009/779 Publication restriction: See s 15A Children (Criminal Proceedings) Act1987. Judgment 1THE COURT : The applicant sought to appeal, pursuant to s 5F(3) of the Criminal Appeal Act 1912, against the dismissal of a notice of motion in which he claimed orders that the evidence of a witness be excluded and the proceedings be permanently stayed. Section 5F(3) relevantly entitled him to appeal against an interlocutory judgment or order if this Court gave leave to appeal. 2At the conclusion of the hearing we ordered that leave to appeal be refused, with reasons to be given later. These are our reasons for refusing leave to appeal. Circumstances 3On 6 February 2009 the applicant was charged by way of an ex officio indictment with having on or about 12 January 2002 murdered his wife CG. CG disappeared on 12 or 13 January 2002. No remains have been found, but for present purposes it may be accepted that CG is no longer alive. 4The trial was listed to commence in August 2009 before Buddin J. Before the jury was empanelled, counsel for the applicant foreshadowed objection to "the entirety of the evidence of" CV. CV was the daughter of CG and SV. CG had since married the applicant, and CV lived with CG and the applicant. As at 12 January 2002 she was nine years old. 5The evidence of CV on which the Crown proposed to rely was contained in two videotaped interviews conducted on 7 January and 10 January 2003 by members of the Joint Investigation Response Team ("JIRT") of the New South Wales Police Force. It could constitute CV's evidence in chief pursuant to s 306U of the Criminal Procedure Act 1986. 6CV was aged 10 at the time of the interviews. She was further interviewed, with videotaping, on 7 August 2003. On 3 October and 20 October 2003 she was subjected to hypnosis in sessions conducted by a hypnotherapist, not a member of JIRT, with a view to eliciting further information. Further detail of the various interviews and sessions may be found in the judgments later mentioned, and we do not repeat it. 7The evidence in the interviews in January 2003, if accepted, would establish that on the evening of 12 January 2002 CV had told CG, and the applicant when he joined them, that the applicant's father AG had sexually interfered with her. 8On the Crown case, this was apt to have brought serious conflict between CG and the applicant, particularly when at the time arrangements were under way for them and CV to go and live with the applicant's father, to the point of a motive for the applicant to murder CG in order that she not take the allegations against AG to the authorities. On 7 February 2002 the applicant provided a statement to police in which he said that he had had no contact with CG since the morning of 13 January 2002, when she had packed her bags and left the matrimonial home following an argument. CV's evidence would be linked by the Crown to the applicant's reference to an argument. 9Further, on the Crown case it was particularly unlikely that CG would have packed her bags and left on the morning of 13 January 2002 when she was protective of CV, there had previously been alleged sexual interference with CV by an uncle N, and CG had real reason to remain in the light of the allegations of sexual interference by AG. 10Buddin J conducted a lengthy hearing pursuant to s 192A of the Evidence Act 1995. On 7 September 2009 his Honour ruled that the evidence should not be admitted. He published reasons for the ruling on 7 October 2009: R v JG [2009] NSWSC 1053; (2009) 199 A Crim R 299. 11The Director of Public Prosecutions appealed against the ruling, pursuant to s 5F(3A) of the Criminal Appeal Act . By majority (Basten JA and RS Hulme J, Schmidt J dissenting), on 30 September 2010 the appeal was upheld: Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222. 12Buddin J's ruling had been founded on the general law concerning reception of evidence when a witness had undergone hypnosis in order to enhance memory, as had occurred with CV, and as well upon s 137 of the Evidence Act whereby the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. On appeal, the majority held that the admissibility of CV's evidence was to be decided by regard to s 137 rather than general law principles, and that his Honour had erred in his assessment and balancing of probative value and danger of unfair prejudice. It was held that on a correct assessment and balancing, the evidence was admissible. 13At a mention before the trial judge, Price J, further objection to CV's evidence was foreshadowed. The applicant then filed a notice of motion seeking orders that CV's evidence commencing with her interview by police on 7 January 2003 and thereafter should be excluded pursuant to s 138 of the Evidence Act , and that the proceedings should be permanently stayed. 14Section 138 of the Evidence Act , whereby improperly obtained evidence is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in the way it was obtained, had been raised in the hearing before Buddin J, but had not been considered in his Honour's decision or on appeal. 15The trial judge conducted a pre-trial hearing over a number of days in April 2011. He gave judgment on 6 May 2011, dismissing the notice of motion: JG v R (No 2) ( unreported, no media neutral citation ). 16The applicant filed his application in this Court on 12 May 2011. The trial judge's reasons 17The trial judge recorded that the focus of the exclusion pursuant to s 138 of the Evidence Act was upon the two interviews in January 2003. The objection to CV's evidence was founded upon what was said to be impropriety of the conduct of the interviews by the police. 18His Honour found that there was no impropriety in any of the respects on which the applicant relied, and also that there was no causal connection between the asserted improprieties and the obtaining of CV's evidence. His Honour considered that the evidence had "at the least, significant probative value" (at [124]), and said that if, contrary to his view, there had been any impropriety it would not be of a major kind, and that on the balancing exercise the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained as it had been obtained. 19As to the stay application, the trial judge recorded its basis in terms which were later repeated in the relevant ground of appeal in this Court, namely - "(a) The police, in the first interview with CV, through a combination of systemic failure and individual recklessness, unfairly generated damaging evidence against the accused. (b) The resultant evidence is unquestionably unreliable. (c) Because of the nature of the police questioning, the factors operating to make the evidence unreliable cannot now be nullified. (d) The degree of unreliability - particularly after the interview under hypnosis - cannot now be quantified. (e) Even with the evidence of the subject interviews the case against the accused is not strong. (f) Any trial permitted to be based on the subject interviews would be so permeated by the improper police conduct that it would be rendered unfair to the accused." 20Matters particularly mentioned in his Honour's account of the applicant's submissions were that even if CV's evidence was admitted the prosecution was "still doomed to fail"; that apart from unreliability, unfairness was "a separate head of abuse in the context of the stay application"; that even if the Crown did not seek to establish that AG had in fact sexually interfered with CV (because the relevance in the Crown case was only that CV told CG and the applicant that he had), AG's credit as a witness in the applicant's case would be undermined and the applicant would have to defend the allegations against AG in order to defend himself; and that the prosecution should not be permitted to use CV's evidence against the applicant when, because of its unreliability, the Crown did not use it in proceeding against AG. 21The trial judge directed himself in accordance with Dupas v The Queen [2010] HCA 20 and its citation from R v Glennon (1992) 173 CLR 592. A permanent stay "will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": R v Glennon at 605-606 per Mason CJ and Toohey J, cited in Dupas v The Queen at [18]. There is a public interest in having those charged with criminal offences brought to trial, whereby "fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed": Dupas v The Queen at [37]. 22The trial judge did not consider that the applicant had established "a fundamental defect that goes to the root of the trial" (at [137]) or that the case was "extreme" (at [140]) so as to call for a permanent stay. In brief, his Honour considered that the reliability of CV's evidence was a matter for the jury, subject to any cross-examination and possibly expert evidence and a warning under s 165(1) of the Evidence Act , and that any evidence from AG should he be called in the applicant's case was also a matter for the jury. He did not think that unfairness to the applicant had been demonstrated in permitting the Crown to call CV and to play the recorded interviews with the JIRT officers as her evidence in chief. He did not think that the submission that the prosecution was doomed to fail was soundly based when the complete Crown case had not been put before him and its strength had not been canvassed. Appeal in relation to the evidentiary ruling 23As was succinctly stated in Gedeon v R [2009] NSWCCA 278 at [15] - "15. It is established that under s 5F a decision on a ruling on the admissibility of evidence is not an interlocutory judgment or order. Thus, no appeal lies under s 5F from a ruling on evidence: Steffan (1990) 30 NSWLR 633 at 639-642; Glossop [2001] NSWCCA 165 at [15]-[19]; Lavender [2002] NSWCCA 511; 37 MVR 491 at [8] 492; Kocer [2006] NSWCCA 329 at [1], [10], [15] and [18]; and EK [2009] NSWCCA 4 AT [11]-[12] at [19]." 24Appeal does not lie from the trial judge's ruling that that the evidence of CV should not be excluded pursuant to s 138 of the Evidence Act . The applicant nonetheless sought to contest the ruling on the basis that the evidence was fundamental to the Crown case, and that if it was inadmissible the prosecution was not maintainable and so the proceedings should be stayed. 25In R v Steffan (1990) 30 NSWLR 633 at 640-41 the Court (Hunt CJ at CL and Grove and Sharpe JJ) said - "It was submitted by the Crown that, in order to prevent the circumvention of the restricted terms of s 5F, this Court should always refuse leave to appeal from a refusal of a stay where that decision is based upon a ruling as to the admissibility of evidence. We are not prepared to accept that submission in the absolute terms in which it was expressed. Although it is not easy to formulate an example, there may well be the rare case where a ruling upon the admissibility of evidence in favour of the accused would demonstrate a proper basis for a stay of proceedings, so that it would be appropriate to grant leave to appeal from a refusal of a stay in such a case notwithstanding that the principal legal issue which would be determined in the appeal was the admissibility of evidence. This Court's decision in R v Groves did not go so far as this submission by the Crown goes." 26R v Groves (CCA, 2 April 1990, unreported) was an appeal against the refusal of a stay application, substantially on the basis that the trial judge should have rejected certain identification evidence. 27In a joint judgment Clarke JA and Wood and Studdert JJ observed that it was difficult to see why the then applicant should be permitted to have a review of the decision of the stay application "when the relevant rulings during the trial could not have been reviewed save by appeal after conviction pursuant to s 5 of the [ Criminal Appeal Act ]", and - "As the decisions in Edelsten and Powch show appeals under s5F are to be kept within strict confines. This Court should be slow to permit those decisions to be watered down by allowing parties to pursue, as grounds for stay applications, matters which are more properly the subject of rulings or decisions in the trial and are amenable to appeal under s5." 28After referring to the exceptional nature of the jurisdiction to grant a permanent stay and to matters relevant to its exercise, and explaining why they were not satisfied that a stay was warranted, their Honours said - "Although we do not wish to foreclose entirely the possibility that considerations relative to the ability of the Crown to call a case sufficient to go to the jury, or relative to the integrity of a verdict, cannot be taken into account on a stay application brought prior to trial, we cannot as presently advised envisage circumstances in which that might be appropriate. The present is certainly not in that category ... ". 29The observations in these cases were adopted in R v Marchione [2002] NSWCCA 131; (2002) 128 A Crim R 574 (Bell J, Heydon JA and Dowd J agreeing) at [18] and again in Gedeon v R (Allsop P and Howie and Hislop JJ) at [19]-[21]. In the lastmentioned case the Court said at [24] that, while it "should not be stated categorically that the Court should always refuse leave to appeal from a refusal of a stay where that decision is based on a ruling as to admissibility of evidence", and that no factor in that case "takes the matter out of what would ordinarily be the fate of such an application". 30In the present case the stay application is not wholly founded on the admissibility of CV's evidence. In conformity with these cases, however we do not think that the applicant should be permitted to contest the trial judge's ruling that her evidence should not be excluded, and consideration of leave to appeal and any appeal in relation to the stay application should be confined accordingly. This is not a case of the kind postulated in R v Steffan . It may be accepted that the evidence of CV is important to the Crown case, but it is far from clear that the prosecution would be unmaintainable if it was excluded. Further, the applicant's submissions made no real attempt to identify appealable error in the trial judge's reasons for declining to find impropriety or a causal link between any impropriety and obtaining the evidence, or for the conclusion to which his Honour came in the balancing exercise. While it would not be appropriate to express a concluded view, the submissions were not persuasive of error, in particular of error in his Honour's view of the nature of any impropriety which there may have been when balanced against the probative value of the evidence and its importance in the proceedings. Appeal in relation to the refusal of the stay 31The applicant's case as to a stay should thus be addressed on the basis that CV's evidence is admissible. 32The relevant sub-grounds in the applicant's ground of appeal, putting aside the first concerned with admissibility of CV's evidence, repeated the bases for a stay as recorded by the trial judge and added - "(viii) His Honour erred in not finding it was unfair for the Crown to select to not use the compromised evidence in proceedings against AG but then seek to lead it in these proceedings against JG." 33The applicant's submissions again made no real attempt to identify appealable error in the trial judge's reasons. It was submitted, in substance, that the reliability of CV's evidence was distinct from its admissibility, that in accordance with R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 unreliability had not been taken into account in determining admissibility, and that it was an important consideration on the stay application. It was submitted that the unreliability, and the unfairness to the applicant to which use of the evidence would give rise, were such that the prosecution should be stayed. As indicated by the repetition in the sub-grounds, there was essentially repetition of what appears to have been put to the trial judge with a view to this Court coming to a different conclusion. When pressed to identify error, counsel for the applicant said little more than that the trial judge was in error in failing to find that there would be a fundamentally defective trial. 34No issue was taken with the trial judge's self-direction in accordance with Dupas v The Queen. It had been preceded by (for example) Jago v The District Court of New South Wales (1989) 169 CLR 23 to like effect in the context of delay, see at 30-31, 34 (Mason CJ), 49-50 (Brennan J), 60 (Deane J), 75 (Gaudron J). In R v Littler [2001] NSWCA 173; (2001) 120 A Crim R 512 at [5] Hodgson JA described a stay as "a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process". 35We do not think that an arguable case of error has been made out. The trial judge correctly considered that the reliability of CV's evidence was a matter for the jury, and we do not think it has been shown that there is such unreliability that it could not be accepted by the jury. There is some hyperbole in the sub-grounds; we repeat that the submissions were not persuasive of error in the trial judge's conclusion that impropriety had not been shown. It should be remembered that the Crown does not seek to establish that AG did sexually interfere with CV, only that she told CG and the applicant that he did, and no doubt the jury will be given appropriate directions to ensure they appreciated the limited respect in which that aspect of her evidence was relied on by the Crown. We do not think that in these circumstances requisite unfairness to the applicant has been demonstrated. 36We do not accept that, even if CV's evidence be admitted, the prosecution must fail: the complete Crown case is not before us, and it would be a matter for the jury whether the evidence of CV should be accepted and, if it is, whether having regard to the complete Crown case and to the challenge to it and any defence evidence they are satisfied of the applicant's guilt beyond reasonable doubt. We should say that the submission that it would be unfair to use the evidence of CV against the applicant when the evidence had not been used and was not proposed to be used in proceedings against AG, according to the submission because of its unreliability, is not well founded. No more is known than that, after investigation, the police decided not to lay charges against AG. That is not relevant to whether the proceedings against the applicant should be stayed. 37If the applicant be found guilty, his appeal rights in relation to the evidence of CV and in relation to the fairness of the trial remain. In that event, and if there is an appeal, any decision can be come to upon matters as they have been established in the course of the trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2012