DJF v R [2011] NSWCCA 228

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DJF v R [2011] NSWCCA 228 Hearing dates: 7 October 2011 Decision date: 07 October 2011 Before: Allsop P at [39] Rothman J at [33] Barr AJ at [1] Decision: Leave to appeal is refused Catchwords: APPEAL - application under section 5F of the Criminal Appeal Act 1912 - leave to appeal against interlocutory judgment or order - leave to appeal refused Legislation Cited: Criminal Appeal Act 1912 Cases Cited: Pearce v R [1988] HCA 57; (1998) 194 CLR 610 R v Wilkes (1948) 77 CLR 511 Sali v SPC Limited [1993] HCA 47 (1993) 116 ALR 625 Category: Principal judgment Parties: DJF (Appellant) Regina (Respondent) Representation: Counsel: Dr R Webb (Appellant) Mr J Pickering and Ms J Ratcliffe (Respondent) Solicitors: Voros Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/2852 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-09-09 00:00:00 Before: DCJ Conlon SC File Number(s): 2009/2852

Judgment 1BARR AJ: This is an application under section 5F of the Criminal Appeal Act 1912 in which the applicant, whom I shall call DJF, seeks leave to appeal against an interlocutory judgment or order made in the District Court by Judge Conlon SC, sitting at Wollongong. By reason of subs (3)(a) of that section there is no right to bring an appeal to this Court against an interlocutory order unless the Court first grants leave. 2Before I come to the judgment or order appealed against, I need to review briefly the history. 3DJF is due to face trial beginning next Monday, 10 October 2011, at the District Court at Wollongong on four counts; namely: Count 1: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years Count 2: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years Count 3: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years Count 4: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years 4This is not the first time the applicant has faced trial on these counts. His first trial began in June 2009. They were then five counts in the indictment; the first four for all intents and purposes identical to the four he will face next week and a fifth, namely: Count 5: Between 1 November 1998 and 1 April 2000 at Shellharbour in the State of New South Wales did assault (the complainant) a person then under the age of 10 years namely six or seven years, and at the time of such assault did commit an act of indecency on the said (the complainant) 5The jury found the applicant guilty on all counts and he successfully appealed to this Court, which quashed all the convictions and ordered retrials. The applicant came on for trial again, this time before Judge Knox, QC. The applicant had changed counsel, who conducted the trial, at least so far as the fifth count was concerned, in a manner different from that chosen by counsel at the first trial. At that trial there had been no suggestion that time was of the essence. At the second trial, because of the way the parties conducted their cases, time was of the essence. The defence advanced a case that the complainant must have been wrong when she said that the assault complained of took place at the applicant's premises between particular times because, as was proved in evidence, he did not during the period named in the indictment own the premises where the act was said to have taken place. It also appeared that certain other facilities central to the description of the events giving rise to the charge did not then exist, or at least were not available to the applicant. 6This evidence was, in many ways, like alibi evidence. It emerged late in the trial. Because of the lateness and for other reasons the Crown did not apply, as it might have done, to enlarge the dates in the indictment. Accordingly, I think by consent between the parties, Judge Knox directed the jury to find the applicant not guilty on the fifth count. The jury were unable to agree on the remaining four counts and it is on those counts that the applicant now faces a third trial. The trial was set down for hearing during this year. I think in April an August date was set. 7On 1 August 2011, defence counsel came before Judge Conlon and applied for an order permanently staying execution on the indictment as it then stood. There was a long debate about that and ultimately His Honour refused the stay. 8Defence counsel raised the question of the evidence given at the previous trial by the complainant being erroneous as to time as a result of which Judge Knox had directed the jury to find the applicant not guilty. Defence counsel wished the Crown to understand that it required evidence to be put before the Court at the forthcoming trial of the complainant's evidence in that respect, and, I suppose, for the jury to be told what the limitations as to time were in the indictment. 9The Crown responded by giving notice that it would apply to amend the indictment so as to enlarge the time and so counter an anticipated submission, if the evidence should warrant it, that the complainant should not be accepted as to the time on which any particular thing happened. What the Crown was trying to do, I think, was to avoid the situation it had been faced with late in the piece in the second trial, the result of which was the directed verdict on the fifth count. 10That application was opposed and arguments were put before Judge Conlon. Whereas the dates in the indictment before amendment were between 1 May 1998 and 31 August 1998, each count identical in terms of particulars of time, the enlarged time sought by amendment was between 1 January 1997 and 28 August 2000. 11The original time frame had been selected by the Crown Prosecutor who drafted the first indictment and later amended it to extend it by one month, anticipating the evidence of the complainant who said that she was at a particular school in a particular class at that time and taking part in particular activities which, if established, seemed likely to point to the time period selected for the indictment. 12The enlargement of time, on any view, was substantial. 13On 1 August 2011, Judge Conlon said this at page 34 of the transcript: "I believe it is appropriate for me to grant leave for the Crown to widen the time frames within the individual charges of the indictment. But having done that I am also of the view that the accused should be given the opportunity..." 14His Honour went on to consider and grant an application by the defence for an adjournment of the trial which was then imminent. It is as a result of that adjournment that it happens that the trial is due to start next week. 15His Honour's order seems to me capable of being a judgment or order to which section 5F of the Criminal Appeal Act may apply. 16On 9 September 2011, counsel again appeared before his Honour and reference was made to what had happened on 1 August 2011. His Honour was, in effect, asked to reconsider the matter and withdraw the leave previously granted to the Crown to amend the indictment. 17At pages 1 and 2 of the transcript of that day his Honour referred to the order that he had previously made. His Honour appears at first to have thought that he was being asked to reconsider the stay application, but the debate continued after it was made clear that that was not the case. 18No formal judgment was given, yet it appears clear from what his Honour said at pages 1 to 5 of the transcript of 9 September 2011 that his Honour was refusing to reconsider the application in which he granted leave to the Crown to amend, and was directing that the matter go to trial on the amended indictment. 19Upon the hearing before this Court the Crown submitted that there was no interlocutory judgment or order appealed from such as might be dealt with under the provisions of section 5F of the Criminal Appeal Act . That attitude was taken, I think, because of the discursive nature of the debate that took place on 9 September 2011. It is not easy to find any precise order recorded as having been made on that day, but the impression one is driven to is that his Honour effectively refused to reconsider the matter he had decided on 1 August 2011. I think that what his Honour said has to be taken to be a refusal to reverse or reconsider an order previously made. As such, the matter would be susceptible to the jurisdiction of this Court under section 5F; see Sali v SPC Limited [1993] HCA 47; (1993) 116 ALR 62 . 20Alternatively, the problem could easily be solved. If it were sought to deal with it that way, I would, for myself, grant leave to do so by an application by the applicant to amend the application for leave to appeal to this Court under section 5F by substituting an interlocutory judgment or order made by Judge Conlon on 1 August 2011. 21This Court has jurisdiction. I would reject the Crown's initial submission. 22Ultimately the basis of this application is one of asserted unfairness. If I may summarise, without unfairness, the submissions made by Mr Webb on behalf of the applicant they are these. The Crown previously limited its case to a time period of just a few months. As was put before his Honour, it was then the intention of the defence to respond not only by a denial of any misconduct but by an accounting for movements and so on by reference to a number of matters. One was a sojourn in Victoria, another was the occurrence of a flood, others were the receipt of income tax group certificates. 23Counsel did not suggest that, viewed as a whole, the evidence could be regarded as a watertight body of evidence of alibi, but nevertheless the defence had cast its case in a particular way, all of which would be lost if the applicant then had to go to trial upon a much wider indictment. 24This Court had been told something about the way the trials have been conducted in the past and about the way this trial might be expected to be conducted next week. The applicant was six years old during the time period originally nominated in the indictment. Under the enlarged indictment I think she had a range of ages between five and perhaps seven or eight years of age. However one looks at it, she was a little girl and it was in anticipation that a person looking back to such a tender age might find it difficult precisely to date events that made the Crown wish to enlarge the indictment. 25The second thing the court has been told is that, as is the law and practice, complainants giving evidence in trials like this one who allege that they were assaulted when children ordinarily give evidence remotely from the accused person by closed-circuit television. When that is done a record is made in sound and vision of the evidence given. If there has to be a retrial, as there does here, the law provides for that evidence to be given by the playing of a video and audio disk of the evidence given on the former occasion. The court understands that that is what will probably happen at the trial next week, though that is not entirely certain, and the court cannot be sure how the complainant's evidence will be taken. 26A second uncertainty arises over how the evidence previously given by the complainant on the now defunct fifth count will be put before the jury. Perhaps the complainant will give evidence afresh over video link. Perhaps a record of evidence she previously gave will be played. This court does not know. 27Neither does this court know how the issues will turn out at trial. That is important because, as the authorities show, while times named in an indictment are ordinarily regarded as particulars, sometimes the parties will make them essential by the way in which they conduct their cases. In the present case, if the complainant's evidence were to be put before the jury merely by a replaying, without any additional evidence, of a video and audio tape of the evidence she gave at the previous trial, it would seem that the Crown might, in effect, be tied to a period of time that she named or a number of datable events that she identified. But this court cannot know. It seems possible that time may become of the essence at the trial. 28As things stand, it is clear that the limits in the indictment which were enlarged by his Honour's order did not make time of the essence. It is possible when the trial judge is formulating directions for the jury that he may be persuaded to instruct the jury that time is of the essence in some particular respect and to tell the jury in what respect. This court cannot know. 29One can understand the disappointment of an applicant who previously came to trial to conduct a defence in a certain way assuming that the Crown was limiting itself to a period of months for the occurrence of an asserted event now having to conduct a defence to meet a much wider period of time. But as things turn out, that problem may be more apparent than real. 30If there are aspects of unfairness at trial, they are matters that the trial judge can deal with insofar as he is capable of doing so. If there is unfairness at the trial which leads to a conviction, the applicant will have his rights of appeal to this court against conviction. 31In my opinion this Court should not grant leave to appeal under section 5F unless it appears clear that injustice will otherwise result. It seems to me that any risk of unfairness is, first, not really capable of being understood by this court because things are in an inchoate state; and secondly, if unfairness looks like emerging it may be dealt with by the trial judge. 32For these reasons, in my view, leave to appeal should be refused. 33ROTHMAN J: Having heard the reasons of the judgment of his Honour Acting Justice Barr, it is unnecessary for me to deal with the history of the matter. 34I agree with the orders proposed by Acting Justice Barr and generally with the reasons therefor. 35This is an application for leave for an interlocutory appeal under s 5F of the Criminal Appeal Act , as his Honour has pointed out. While I consider it unnecessary to determine finally the issue of whether the refusal of the motion on 9 September 2011 is an interlocutory order, my view is that it is such an order, and I agree with his Honour Acting Justice Barr. If it were not, I would grant leave to amend to raise an appeal against the order of 1 August 2011. 36Essentially the applicant relies on unfairness in extending the period prescribed in the indictment during which the offences charged occurred. Any such unfairness is a matter to be dealt with during the course of the trial and depends on the manner in which the trial is conducted; the evidence that may be adduced; and the history of the matter, including that this and the previous trial arise from an order of this Court for a retrial. Reference is made to R v Wilkes (1948) 77 CLR 511; and the principles adumbrated by the High Court at paragraph 10 of Pearce v R [1988] HCA 57; (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ. 37If the time of the offending alters from previous testimony, it is not necessarily prejudicial to the applicant but may affect the credibility of the central witness for the Crown. This will depend on the evidence and the manner in which it is given. The applicant's position, if he were convicted, is fully protected by any subsequent appeal. 38For those reasons, together with those of Barr AJ, I agree with the orders that are proposed by his Honour. 39ALLSOP P: I agree with the reasons of Justice Barr. I would also add, through the efficiency of the Associate in court, we have been informed that Justice Link records the application on 9 September before Judge Conlon as an application to oppose indictment presented by Crown; and Justice Link further records the outcome as application, or it may be motion, refused. 40For those additional reasons, in my view there was a judicial act which was interlocutory in character affecting the rights of the parties sufficient to enliven section 5F, here relevantly subsection 3. 41The orders of the court are leave to appeal be refused. 42The court would also make an order that the name of the applicant not be published and that he be not identified in any way.