WX v R [2020] NSWCCA 142
WX v R [2020] NSWCCA 142 · Read the judgment on AustLII
Catchwords: Retrials for sexual assault matters – recorded evidence from earlier trials – statutory construction
In this decision the CCA has carefully analysed the legislation allowing a complainant to be recalled under certain circumstances, notwithstanding legislation providing a presumption that they will not be recalled. The test, the CCA observed, is not whether there was a miscarriage of justice occasioned by counsel’s conduct in an earlier trial, but rather the specific words from s 306 of the Criminal Procedure Act.
The appellant was convicted of a range of child sex offences. This was his third trial. In the first the complainant gave the whole of their evidence, which was recorded. The trial aborted. Ahead of the second trial the Crown gave notice that it intended to play the recording of that original evidence. The appellant sought an order requiring the complainant to return to be cross-examined. The second trial judge dismissed that application – for reasons that will become clear the appeal was really against this decision. The second trial also aborted, for reasons undescribed in the judgment. Then came the third attempt at a trial, before a third judge. That trial judge applied s 130A of the Criminal Procedure Act, meaning that the second trial judge’s ruling was applied in this trial. The appellant was convicted. He appealed, relying on two grounds (only one of which is addressed in this summary) to the effect that the second judge had applied the incorrect interpretation of s 306I and s 306J(1) of the Criminal Procedure Act, which are the provisions relating to the use of recordings of complainants’ evidence in subsequent trials.
The CCA (Beech-Jones J, with whom N Adams J agreed; Payne JA agreeing that the appeal should be allowed but expressing a different view as to consequential orders) helpfully started by making four observations about the operation of s306J(1): First, the starting point is the presumption that the complainant is not compellable (at [38]). Second, the section does not confer a discretion, but instead requires an evaluative judgment, such that if the court is satisfied in the terms of the section, then the complainant is deemed compellable (at [39]). Third, before it is deemed that a complainant is compellable, the court must be satisfied that it is ‘necessary’ for the complainant to give further evidence as per any of ss 306(J)(1)(a) to (c). ‘Necessary’ is a strong word and requires more than an opinion that something is convenient, reasonable or sensible (at [40]). Fourth, however, each of ss 306(J)(1)(a) to (c) is expressed in relatively broad terms. In this context the phrase ‘interests of justice’ clearly embraces (and requires) a consideration of the impact on the accused’s forthcoming trial if the complainant does not give evidence, and the desirability of not occasioning further trauma to the complainant if they do. If the court concludes that a trial will definitely be unfair if the complainant is not called, that would almost certainly compel a conclusion that the section is satisfied. However, it does not follow that it is necessary to find that a trial must be rendered unfair for the section to be satisfied (at [41]-[42]).
The trial judge had proceeded on the basis that if the cross-examination of the complainant at the first trial was objectively capable of being justified by ‘considered forensic decisions’, then that was determinative of whether s 306J(1) is satisfied. That was an unwarranted gloss on the statutory test which had no basis in the statute (at [43]). In applying the test, the trial judge did not expressly address the impact on any subsequent trial if the complainant was not recalled, particularly considering a change in the defence case. Instead, his Honour treated his findings about the conduct of counsel at the first trial as determinative of whether the test was made out (at [64]). There was additional evidence which had come to light, and the trial judge purported to limit consideration to evidence which was not reasonably available in the original proceedings. Rather than applying the statutory test, the trial judge applied a test used by the CCA on appeal where it is alleged that a miscarriage of justice was occasioned by the incompetence of counsel (at [67]).
The wrong test having been applied, it followed that the appeal was upheld. By majority (Beech-Jones J, N Adams J agreeing) ordered a retrial, but suggested the DPP re-consider its position.