Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Curran v R [2017] NSWCCA 123 Hearing dates: 2 June 2017 Date of orders: 02 June 2017 Decision date: 02 June 2017 Before: Beazley P; R A Hulme J; Fagan J Decision: (1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders that there is to be no publication of any information that may tend to identify the applicant in these proceedings until proceedings involving a jury are concluded in the District Court. This order is made on the ground that it is necessary in order to prevent prejudice to the proper administration of justice. (2) Application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) is granted. (3) Appeal allowed. (4) The decision of his Honour Berman SC DCJ of 1 June 2017 to discharge the jury is vacated. (5) The matter is remitted to the District Court for continuation of the trial. Catchwords: CRIMINAL LAW – application for leave to appeal under the Criminal Appeal Act 1912 (NSW), s 5G – discharge of jury by trial judge – Crown proposed to change case during the course of trial – trial judge found that it would not be fair to confine Crown to case initially presented – whether trial judge erred in exercising discretion to discharge jury in these circumstances Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5G Cases Cited: Barber v R; Zraika v R [2016] NSWCCA 125 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Qing An v R [2007] NSWCCA 53 R v Bartle [2003] NSWCCA 329 Category: Principal judgment Parties: Joseph Paul Curran (Appellant) Regina (Respondent) Representation: Counsel: G Turnbull SC; G O'Mahoney (Appellant) E Balodis (Regina) Solicitors: Kidman Legal (Appellant) Office of the Director of Public Prosecutions (Regina) File Number(s): CCA 2016/119236 Decision under appeal Court or tribunal: District Court Date of Decision: 01 June 2017 Before: Berman SC DCJ File Number(s): 2016/00119236 Judgment 1. THE COURT: On 29 May 2017, Mr Joseph Curran was arraigned in the District Court upon an indictment and pleaded not guilty to one count of indecent assault and three counts of sexual intercourse without consent. A jury was empanelled and the trial proceeded for three days. On the fourth day, 1 June 2017, the learned trial judge decided to discharge the jury. The accused has applied to this Court under s 5G of the Criminal Appeal Act 1912 (NSW) for leave to appeal that decision. Crown case 1. Very briefly, the allegations arose from the complainant meeting the accused in a bar on the night of 9 March 2016. They had been at primary school together but had not seen each other since. After spending some time together they returned to the complainant's room in a university college dormitory where sexual activity occurred. 2. The four counts in the indictment related to the following allegations: (1) The accused touched the bottom and breasts of the complainant. (2) The accused pulled the complainant on top of him on a bed and had penile/vaginal intercourse with her. (3) The complainant got up but the accused forced her onto her back on the bed, spread her legs and forcibly penetrated her vagina with his finger. (4) The accused then engaged in cunnilingus with the complainant. 1. It was the Crown case that the complainant managed to push the accused away and the incident came to an end. 2. The Crown Prosecutor opened her case by indicating to the jury that the complainant would give evidence (and it was the Crown case) that she did not consent at any stage to sexual intercourse with the accused and that she had said words to that effect repeatedly throughout the acts charged. The complainant in fact gave evidence in chief to that effect and adhered to it under cross-examination. Nando's conversation 1. Towards the end of the complainant's evidence in chief the Crown tendered a recording of a conversation that took place between her and the accused that was covertly recorded by police. The conversation took place at a Nando's Restaurant about a month after the incident giving rise to the charges ("the Nando's conversation"). On one view of it, and although the trial judge expressed misgivings about this, statements made by the accused during the course of this conversation could be taken to amount to an admission that he continued to engage in intercourse with the complainant after she had communicated a withdrawal of consent. He agreed that after she had said "No" while penile/vaginal intercourse was occurring with her on top of him that his penis remained in her vagina for "two fucking to ten seconds"; "no longer than 30 seconds"; "it wouldn't even be 30 seconds, maybe a fact of 10 seconds or 15 seconds". A little later in the conversation he described it as "about 5 or 10 seconds". The trial judge observed that the accused's account was to the effect that there was "little that he could do to withdraw [his penis], given the position in which the two people were having sexual intercourse". 2. In cross-examination by senior counsel for the accused it was put to the complainant that "the scenario that he put to you when you met with him at Nando's, in an undetailed way, was what then happened". She replied, "That never happened". It was put to her that she and the accused then both got up and got dressed but she rejected that as well. Draft elements 1. The trial judge had prepared in draft a written statement of the essential elements of the offences that he proposed to provide to the jury. After having heard the covertly recorded conversation he amended the document to include that the "sexual intercourse" element of Counts 2, 3 and 4 included "the continuation of that penetration" (Counts 2 and 3) or "the continuation of an act of cunnilingus" (Count 4). He provided that draft document to counsel on Tuesday 30 May. 2. At the morning adjournment on Wednesday 31 May, senior counsel for the accused raised a concern with the trial judge about the inclusion of the words concerning the continuation of intercourse. He submitted that "that's not the way the Crown case has been run, that's not the way the complainant's explained it, that's not the way the Crown opened it". The trial judge indicated that there would need to be some discussion about this later, when convenient. Discharge foreshadowed 1. Following the luncheon adjournment the judge indicated that, on further reflection, the issue appeared to be of more substance that he had first appreciated. He foreshadowed that there were "probably three outcomes: (1) I tell the jury that continuation of sexual intercourse is sexual intercourse; (2) I don't tell them; (3) I might discharge the jury". He indicated that he would like the matter resolved the following morning. 2. The evidence proceeded but during a mid-afternoon break the judge asked the Crown Prosecutor whether she was going to submit to the jury that they could convict on the basis of the Nando's conversation; that is, continuation of sexual intercourse after consent was withdrawn. She replied, "No". The judge asked the prosecutor what she would say to the jury if they asked what they should do with the suggestion that there was a continuation of intercourse after consent had been withdrawn. Senior counsel for the accused responded to the effect that the issue would be clarified after the police officer in charge of the case was called and a recorded interview of the accused was tendered. 3. There followed some discussion about when the Crown would get to tendering and playing the recording of the interview, either that afternoon or the following morning. The judge then asked the Crown Prosecutor whether it was the Crown's position that the words "continuation of that penetration" (etc) should be removed from the elements document. She asked for the opportunity to "consider my position overnight". The judge resolved to have the Crown's response before 10.00am the following morning. 4. After some evidence from the police officer-in-charge, the trial was adjourned to yesterday morning, Thursday 1 June. The jury were told that the evidence would resume at 11.00am. 5. A transcript of the police interview was tendered on the voir dire in order that the judge could read it overnight. In short, the accused's version given to the police was that the following sexual activity occurred with the complainant's consent from the outset: The complainant removed her clothes. There was some kissing and "one thing … lead to another". Penile/vaginal intercourse occurred with the accused on his back and the complainant on top of him. The complainant got off and lay on her back. He kissed her breasts and then licked her vagina. He also digitally penetrated her. The accused then lay on his back and the complainant got on top of him and penile/vaginal intercourse occurred again. While this was occurring the complainant said, "I think we should go back to the party". The accused "stopped having sex with her"; his penis was still inside her, and she said again that they should return to the party. They then moved off the bed and put their clothes on. He said there was "10 seconds, tops" between her first statement about returning to the party and the second. The Crown position changes 1. On the Wednesday evening, the Crown Prosecutor advised by way of email that the Crown's primary position was, in accordance with the way the case had been opened: that there was no consent to intercourse from the beginning and that the accused had knowledge that this was the case. However, on the basis of what the accused said during the Nando's conversation, the Crown would also suggest that it was open to the jury to find that an offence of sexual intercourse without consent had been made out. Accordingly, the Crown supported the inclusion of the words, "and the continuation of that penetration" (etc) in the definition of "sexual intercourse" in the written elements document. Thursday 1 June 1. Discussion proceeded before the trial judge on the morning of Thursday 1 June. The Crown Prosecutor acknowledged that the Crown had "changed its position". The judge reminded her of his indication the previous day that a consequence might be the discharge of the jury. He asked if the Crown would persist with this changed position if the judge would only allow it if the jury was discharged and a new trial had to occur. The prosecutor replied in the affirmative. 2. Senior counsel for the accused opposed the change in the Crown's case. He indicated that certain forensic decisions had been made on the basis of the case being (only) that there was no consent to intercourse from the outset. Cited as examples were that exclusion of the Nando's conversation would have been sought and cross-examination of the complainant would have been conducted differently. The trial judge accepted that there was unfairness and moved to a discussion of the consequences. He saw the choices as being either to not allow the Crown to change its case or to allow it but to discharge the jury. 3. Senior counsel for the accused submitted that the evidence was almost completed; the Crown should not be permitted to change its case; and that the accused wanted the trial to proceed. When asked what should be said if the jury raised a question about continuation of intercourse after consent was withdrawn. Senior counsel replied: "That's not a matter for them at this stage. The issues are no consent. And it is not a question of withdrawal of consent and ongoing intercourse; it's a question of word on word, the stories are starkly different. They have to see whether or not there is a reasonable doubt about the evidence of a person who is, it would seem, at the very least unreliable, but there [are] forensic issues about her honesty. It's as simple as that." 1. The Crown Prosecutor had nothing further to add. The judgment 1. The trial judge accepted the submission of senior counsel for the accused that if the Crown were to be permitted to change its case there would not be a fair trial. He accepted that forensic decisions had been made which would have been different if it had been known from the outset that the Crown case was as it was now being put. 2. Accepting that the accused would not get a fair trial there appeared to the judge to be two options. The first was to deny the Crown the option of submitting that there was an admission by the accused in the Nando's conversation of continuing with intercourse after he knew that consent had been withdrawn. However, the Judge expressed concern that the jury may perceive that there had been such an admission. The judge said he could possibly deal with that by telling the jury that the Crown did not rely upon the conversation in that way but the jury could, nonetheless, reason unfairly towards the accused in a way that could not be anticipated because of what was said in the conversation. 3. Another matter was the overall issue of fairness. The judge observed that fairness in a criminal trial operated both in favour of the accused and the Crown. He explained: "Where something is said by an accused which is capable of amounting to an admission, fairness to the Crown, as a representative of the community, would ordinarily require that such evidence, and arguments in support of that evidence, be put before the jury." 1. The second option that appeared open to the judge was described by him as "regrettable in the extreme". He had regard to the fact that the Crown case was almost closed. Addresses would have started yesterday and after the summing up the jury would be retiring today. But, because of the Crown's changed position, it would be necessary to discharge the jury. Delays within the District Court at the Downing Centre were such that a new trial date could not be obtained before next January. He noted that the accused had no doubt paid "a great deal of money, which is now to be thrown away", although he observed that there were avenues for some of that to be alleviated. 2. The judge also had regard to the distress to the accused at the failure of his charges to be dealt with as expeditiously as possible. He also noted that the complainant had given evidence in a manner which indicated that she was distressed. It was possible that she would be required to give further evidence at a new trial; but even if she did not, the delay in having the matter finalised and put behind her would no doubt cause harm to her. 3. The judge concluded: "But ultimately I have to see a fair trial. The way this trial has been run, the way that the Crown has changed the way it wishes to present its case, has meant that the trial will not be fair. It would not be fair to confine the Crown to the case it initially decided to present. Accordingly I have no option but to discharge the jury." Stay pending appeal 1. A stay was then sought in order that an application for leave to appeal could be brought to this Court. The judge acceded to the request and, without giving reasons, told the jury that they would not be required until next Monday, 5 June 2017. 2. An application for leave to appeal pursuant to s 5G of the Criminal Appeal Act was filed yesterday afternoon and listed urgently for hearing this morning. Legal principles 1. The test for the discharge of a jury is well established. In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Toohey, Gaudron, Gummow and Kirby JJ stated, at 440: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact." 1. This Court may only interfere if error is established in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Barber v R; Zraika v R [2016] NSWCCA 125 at [24]. 2. In R v Bartle [2003] NSWCCA 329, Mason P and Barr J observed, at [80], citing Crofts, that "[t]he criterion for the exercise of the discretion [to discharge the jury] was the maintenance of the fairness of the trial" and that "[t]he test for the discharge of the jury was one of necessity". In their Honours' view, at [82], the trial judge in that case had been "correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out", and they rejected the appellant's argument that the jury would have been unable to comply with a direction to put certain prejudicial material out of their mind. 3. Likewise, in Qing An v R [2007] NSWCCA 53, Beazley JA (as her Honour then was) observed, at [51], that it is clear from the authorities "that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred" and that "appropriate directions may, in certain circumstances, be sufficient". Determination 1. We have come to the view that his Honour erred in the exercise of his discretion. 2. There were three essential parts to his Honour's reasoning. First, it would be unfair to the Crown to deny it the opportunity to change its case so as to rely upon something said by the accused as capable of amounting to an admission. Secondly, to allow the Crown to change its case would be unfair to the accused. Accordingly, his Honour would have to discharge the jury. 3. In the Court's opinion, the first reason was flawed. It was not unfair to the Crown to refuse to allow it the opportunity to change its case. The Crown always had available to it the Nando's conversation, as it did the police interview. Accordingly, this was not a case where something unexpected or some irregularity had occurred in the trial. The Crown on the urgent hearing of this application conceded that it was unfair for the Crown to change its case in these circumstances. Accordingly, his Honour's decision to discharge the jury was based on an erroneous reason and should be vacated. 4. The consequence is that the trial should continue in the ordinary course. It is not a matter for this Court on this application to predict what would be appropriate for the judge to say to the jury, if anything, as to what use may be made, or not made, of the Nando's conversation. That is a matter for his Honour in light of the addresses of the parties to the jury and any submissions the parties may make to his Honour. Orders 1. The Court makes the following orders: (1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the Court orders that there is to be no publication of any information that may tend to identify the applicant in these proceedings until proceedings involving a jury are concluded in the District Court. This order is made on the ground that it is necessary in order to prevent prejudice to the proper administration of justice. (2) Application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) is granted. (3) Appeal allowed. (4) The decision of his Honour Berman SC DCJ of 1 June 2017 to discharge the jury is vacated. (5) The matter is remitted to the District Court for continuation of the trial. ********** Amendments 18 July 2017 - Coversheet amended 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: 18 July 2017