Gardiner v R [2023] NSWCCA 89

Gardiner v R [2023] NSWCCA 89 · Read the judgment on AustLII

Catchwords: Assessment of witnesses – observations of the body of the court – judge-alone-trials

In this decision the Court of Criminal Appeal (‘CCA’) has determined that although judges in judge-alone trials are entitled to take into account the demeanour of witnesses outside the witness box (for example in the dock, or in the well of the Court), the judge should immediately bring to the attention of the parties any observation they make which might be relevant to their assessment of the witness’ credibility. A failure to do so may amount to a denial of procedural fairness which could be (as here) sufficient to vitiate the trial.

The applicant faced a judge-alone trial for a range of historical sexual offences. The applicant was found guilty and sentenced to 16 years, with a non-parole period of 11 years. He appealed on a range of grounds, but this summary only deals with the grounds which asserted a denial of procedural fairness in relation to a finding about the applicant’s demeanour.

The trial was heard on a country circuit, over the course of about 12 days. The trial judge’s decision in relation to the trial was said to have borne some of the hallmarks of being delivered ex tempore, even though it seems the reasons might have actually been reserved (see [62]). The CCA (Adamson JA, with whom Button and McNaughton J agreed) observed that, unlike ex tempore reasons delivered in sentencing proceedings in busy lists, similar latitude is not allowed when assessing the reasons of trial judges following criminal trials (at [100]).

More importantly, during the trial, the applicant gave evidence, to the effect that the events in question never occurred. As part of the trial judge’s conclusions relating to the trial, the her Honour indicated that in addition to the applicant having given evidence, she had had the opportunity of observing him in the dock during the trial over the course of many days. In summary, her Honour found that the impression she had formed of the applicant was that he was an unconvincing witness. And, crucially, she expressed that this conclusion was formed in part based on his demeanour in the dock, although she did not express what it was that she had seen outside the witness box which led to this impression.

Unsurprisingly, the CCA observe that there is no difficulty with the trial judge taking into account the demeanour of the various witnesses, including the accused, in the witness box (at [133]). In general, the tribunal of fact (in this case, the trial judge) is to decide the case solely on the basis of the evidence. However, it would be unreal to expect a tribunal of fact to exclude from its consideration the demeanour of witnesses in the well of the court. But if the trial judge proposes to take into account something which is not evidence, like the demeanour of a witness when in the well of the court, then procedural fairness dictates that the trial judge must bring it to the attention of the parties in a timely manner so that an affected party can have the opportunity to address that matter. That is all the more so because counsel is usually, and necessarily, focusing on witnesses and the bench rather than their client, whereas the judge can see the whole court (at [137]). A trial judge’s observation, if it is potentially significant, should be disclosed to the parties as soon as it has been made, so that the party can obtain instructions and respond to the suggestion (at [138]). These conclusions were supported by a range of authorities (at [139]-[143]).

In this case, the trial judge had observed the applicant in the witness box over 11 days, and used that in some undisclosed way in her assessment of the applicant’s evidence, which was completed in a single day. That is, his credibility had been founding wanting, in part because of an unspecified matter of which he was not given fair notice. This amounted to a denial of procedural fairness, which would entitle him to have his conviction quashed unless the proviso applies (at [144]-[145]). As it transpired, the proviso did not apply, and a retrial was ordered.

Practitioners can probably assume that the same principles as set out above will likely apply equally to Magistrates, at least in relation to taking into account witnesses’ credibility outside the witness box, and the requirement to bring any relevant observations to the attention of the parties. That said, it seems likely that, unlike judge-alone trials in the District Court, Magistrates’ ex tempore reasons at the end of Local Court hearings will probably continue to be allowed latitude – although it is equally safe to assume that for the foreseeable future all judge-alone trials in the District and Supreme Courts will result in a reserved judgment.