SC v The King

[2023] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SC v R [2023] NSWCCA 111

Hearing dates:

17 May 2023

Date of orders:

17 May 2023

Decision date:

17 May 2023

Before:

Garling J at [1]
Ierace J at [15]
McNaughton J at [16]

Decision:

See [14]

Catchwords:

CRIME — appeals — appeal against conviction — where Crown conceded that the trial judge had failed to follow the statutory requirements set out in s 13(5) Evidence Act 1995 — where Crown accordingly accepted that ground 1 in the appeal had been made out — appeal allowed — convictions quashed — retrial ordered — no need to consider any of the other grounds of appeal

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Criminal Appeal Act 1912

Evidence Act 1995

Cases Cited:

MK v Regina [2014] NSWCCA 274

SH v Regina [2012] NSWCCA 79

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

SC (App)
The Crown (Resp)

Representation:

Counsel:
M Johnston / G Lewer (App)
A Bonner (Resp)

Solicitors:
Legal Aid (NSW) (App)
The Director of Public Prosecutions (Resp)

File Number(s):

2018/303573

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12 March 2021

Before:

Norrish QC DCJ

File Number(s):

2018/303573

EX TEMPORE JUDGMENT

1. GARLING J: The applicant seeks an extension of time for leave to appeal pursuant to s 5(1) of the Criminal Appeal Act 1912 against his conviction for 11 offences of a sexual nature against two complainants, both his daughters, on 12 March 2021 following a trial before Norrish QC DCJ and a jury in the District Court.

2. There were 18 counts on the Indictment which was presented in the District Court, to all of which the applicant pleaded not guilty. The jury was unable to agree on its verdict with respect to two of the counts. The Director of Public Prosecutions has directed that there be no further proceedings in respect of those two counts. Of the remaining 16 counts, the applicant was found not guilty of 5 counts and guilty of 11 counts.

3. In respect of the principal complainant, to whom the pseudonym “GC” was given and in respect of whom there is a statutory prohibition, by reason of s 15A of the Children (Criminal Proceedings) Act 1987 and the Crimes Act 1900, on the publication of the complainant’s name and any matter which could identify her, the Judge dealing with pre-trial matters (Shead SC DCJ) found GC not competent to give sworn evidence. The lack of competence arose because GC (who was 20 years old at the time of the pre-trial hearing) suffered from an autism spectrum disorder and also had a moderate intellectual disability which indicated that she had a mental age of about 7 years.

4. The first ground of appeal challenged the admissibility of the evidence of GC upon the basis that prior to her evidence being taken during a pre-recorded session, Shead SC DCJ had not, having determined that GC was not competent to give sworn evidence, followed the statutory requirements set out in s 13(5) of the Evidence Act 1995. In this respect, the Judge’s approach followed the approach adopted by counsel.

5. Section 13(5)(c) of the Evidence Act requires that prior to a person in GC’s position giving unsworn evidence, the Court is obliged to tell the person:

“(c)   that he or she may be asked questions that suggest certain statements are true or untrue and should feel under no pressure to agree with statements that he or she believes are untrue.”

6. The applicant submits that her Honour’s determination, having considered the provisions of s 13(5)(c) of the Evidence Act, which was that “I don’t propose to tell [GC] anything about that in the circumstances” was not open to her because, in accordance with the text of the statutory provision and the existing authorities on the matter, her Honour had no discretion to omit informing GC of the substance of each of the three sub-sections of s 13(5).

7. In particular, the applicant pointed to the judgment of Basten JA (with whom Blanch and Hall JJ agreed) in SH v Regina [2012] NSWCCA 79 which at [33]‑[35] noted the requirement of the provisions of s 13(5) of the Evidence Act. Further, the judgment reached the conclusion that in the absence of such strict compliance, the appropriate conclusion to be drawn in that case was that the complainant was not competent to give unsworn evidence.

8. The decision in SH was followed in MK v Regina [2014] NSWCCA 274 where Hoeben CJ at CL (with whom Fullerton and Hamill JJ agreed) found that the failure to strictly follow the requirements of s 13(5) of the Evidence Act meant that the trial had not been conducted according to law.

9. The applicant submitted that as a consequence his trial was not conducted in accordance with the law and that the convictions should each be set aside.

10. In its written submissions, the Crown accepted that the Judge had not complied with the requirements of the statute, and that:

“… in light of the authorities of this Court as to the interpretation of s 13, failure to give that instruction resulted in a miscarriage of justice to which the proviso in s 6(1) of the Criminal Appeal Act 1912 does not apply.”

11. The Crown did not make any submission to this Court to the contrary of the applicant’s submission that the consequences of the failure of the Judge to follow s 13(5) would lead to this Court upholding the appeal and quashing the convictions.

12. In light of the Crown’s attitude to Ground 1 and the orders which would flow from upholding that ground, the applicant did not press any of the other grounds of appeal. No doubt, the applicant recognised, in respect of Grounds 2 to 5 (inclusive) which dealt with evidentiary rulings, that it would be open to any future trial Judge, to depart from the evidentiary rulings if thought fit, or alternatively, that the prosecutor at any future trial may not adduce the evidence to which objection had been taken.

13. Accordingly, there is no need for this Court to consider any of the further grounds, including Grounds 6 and 7 which were accompanied by a submission that there was an inconsistency in the verdicts of guilty and not guilty such that the guilty verdicts were not sustainable, and that the verdicts were unreasonable and could not be supported by the evidence.

14. I propose the following Orders:

1. Extend time to file an application for leave to appeal and a notice of appeal.

2. Appeal allowed.

3. Convictions entered on 12 March 2021 to Counts 5 to 8 (inclusive), Counts 11 to 16 (inclusive) and Count 18 are quashed.

4. Order that there be a re-trial of the proceedings.

5. Stand the proceedings over to 26 May 2023 in the District Court Arraignment List.

15. IERACE J: I agree with Garling J.

16. McNAUGHTON J: I agree with Garling J.

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Amendments

17 May 2023 - Amendment to coversheet

19 May 2023 - Amendment to coversheet