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May 2014

Recent Cases

• Limits of any appeal to the Court of Appeal – Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133

• Expert evidence about a child witness's account about an alleged sexual assault – De Silva v Director of Public Prosecutions [2013] VSCA 339

Recent Legislation

• Bail Act 2013

RECENT CASES

Updated 30 May 2014

Limits of any appeal to the Court of Appeal

Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 – 17 April 2014 Court of Appeal – Basten, Barrett and Emmett JJA

Judicial review – criminal appeal in District Court – challenge to finding of guilt – application for extension of time – applicant commenced proceedings more than a year after judgment of District Court – no explanation provided for delay – merit of proceedings considered

Issues: The appellant was aggrieved by a decision of a District Court judge rejecting his appeal from an earlier decision of a magistrate. The limits of any appeal to the Court of Appeal from such a decision are examined.

Facts: The appellant was charged with an offence of using a listening device to record a private conversation. Using a concealed video recorder in the shape of a pen, he recorded the examination undertaken by the doctor and the conversation with her. The term "private conversation" is defined to mean "any words spoken by one person to another person … in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only … by themselves … but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else".

The magistrate convicted the appellant and he appealed to the District Court. The judge dismissed the appeal but upheld the appellant's appeal with respect to his sentence. The appellant applied for leave to appeal this decision to the Court of Appeal.

Held: There is no right of appeal from a judgment of the District Court on an appeal from the Local Court in a criminal matter. Further, the judgment of the District Court is protected from both appeal and review by a form of privative clause in s 176 of the District Court Act 1973 (NSW). The effect of that provision is to prevent review by the Court of Appeal under s 69 of the Supreme Court Act 1970 (NSW), except for jurisdictional error: Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [134].

The error alleged was that there was a lack of procedural fairness in that the judge did not take enough time in considering the issues that were raised by the appellant's legal representative in the appeal in the District Court. The Court of Appeal noted that the submissions for the appellant relied on a common misconception to the effect that his own subjective concerns as to the manner in which the appeal was disposed of were relevant. That is not the test. The question is rather whether the appellant had a sufficient opportunity to present submissions as to the ground on which the finding of guilt was challenged. For that purpose, the only relevant evidence before the Court was the transcript of the hearing. That did not disclose any lack of a reasonable opportunity to present the appeal; nor did the lawyer appearing for the appellant object to the manner in which the case was heard.

The appellant also alleged that the judge did not have sufficient time to consider and rule on the issues in the case. The Court found that procedural fairness is not concerned with the decision-making process in the mind of the judge.

The Court found that there was no demonstrated lack of procedural fairness. The appeal was dismissed and the appellant ordered to pay costs.

Remarks: This is a relatively unremarkable case but it demonstrates a commonly held misconception, particularly one held by unrepresented appellants, namely that an appeal lies to the Court of Appeal (or even the High Court) from a decision of a District Court judge hearing an appeal from a magistrate. As noted in this case, the basis for any such appeal is limited to judicial review based on jurisdictional error and is thus not an appeal at large at all.

Updated 22 May 2014

Expert evidence about a child witness's account about an alleged sexual assault

De Silva v Director of Public Prosecutions [2013] VSCA 339 – 28 November 2013 Court of Appeal – Priest JA, Coghlan JA, Lasry AJA

Criminal Law – Appeal against conviction – Appellant convicted of sexual offending against a child under the age of 16 years – Whether trial miscarried because of counsel's failure to adduce evidence of the appellant's good character – Whether trial miscarried because of counsel's failure to object to evidence of an expert – Crown concession – Appeal allowed – Convictions quashed and retrial ordered

Issues: The extent to which an expert witness can give evidence based on specialised knowledge about the credibility of the evidence of another witness. See s 108C of the Evidence Act 1995 (NSW). This relatively new provision has now been subject to two cases in Victoria where identical legislation applies.

Background: In MA v The Queen (2013) 226 A Crim R 575; [2013] VSCA 20, it was held that such evidence is to be "educative" so that the jury may better understand and evaluate the evidence of and about the complainant, see [23]. The court there acknowledged that the provisions of the Evidence Act themselves explicitly recognise that, in some circumstances, opinion evidence may be adduced which is based upon specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse and goes to issues of credibility.

To be admissible, such evidence must be based on "specialised knowledge" and the evidence must be given by a person who has such knowledge. In MA, it was established that the psychiatrist called to give evidence under s 108C did demonstrate that he had specialised knowledge of the effects of sexual abuse upon children and the development and behaviour of child victims during and following abuse.

In furtherance of the point that the evidence should only be educative in nature, a majority of the court noted:

"[100] … expert evidence bearing upon the credibility of a complainant that one would not ordinarily expect an expert to be asked to express an opinion (is evidence) concerning the complainant's actual behaviour after the alleged offending conduct or the reasons of a parent in the case before the court for not accepting the complainant's claim or the complainant's actual reaction to the rejection of her claim. These are questions which are within the jury's province to resolve. The occasion should be relatively rare where an expert should be invited to express an opinion as to the actual behaviour of the victim or the victim's parent and whether it advanced the probabilities of a fact in issue. Where a party seeks to have an expert go so far, the obligation of the trial judge under s 137 of the Evidence Act to exclude evidence if its probative value was outweighed by its prejudice may assume greater significance. …"

In De Silva, the expert was permitted, without objection, to express opinions about the complainant's non-disclosure of sexual activity. It was conceded by the Crown on appeal that this opinion evidence was not permitted as it went further than the educative quality of the evidence.

Held: There was a miscarriage justice in allowing the expert evidence. It was held that it was an error of counsel not to object to the evidence. It was only one of the errors identified by the court. A new trial was ordered.

Remarks: Caution should clearly be exercised when evidence is sought to be led under s 108C of the Evidence Act. The decision in MA provides a good summary of the principles to be considered before such evidence is admitted.

RECENT LEGISLATION

Updated 22 May 2014

Bail Act 2013

The Bail Act 2013 has commenced in NSW on 20 May 2014. Henceforth, applications for bail will have to be made under the new Act.

The Bail Act 1978 has now been repealed. Therefore, all of the rather complex tests that formerly applied to an application for the grant of bail have now been removed.

The new Act has broad ranging implications but for the purposes of the decision to grant bail, ss 17 or 21 of the new Act are the most important.

Under s 16, the question is posed as to whether there is an unacceptable risk to the grant of bail. If the answer is no, then there should be unconditional release. If the answer is yes, the court must consider the nature of the risk. If the risk can be mitigated by conditions then bail can be granted under those conditions. If the risk cannot be mitigated then bail should not be granted.

Section 17 identifies an unacceptable risk as one when an accused person, if released from custody, will:

(a) fail to appear at any proceedings for the offence; or

(b) commit a serious offence; or

(c) endanger the safety of victims, individuals or the community; or

(d) interfere with witnesses or evidence.

Section 17 also sets out an exhaustive list of considerations that a court must take into account in determining whether there is an unacceptable risk posed by an applicant for bail.

Section 21 sets out a series of offences for which there is a right to release. Many but not all summary offences fall within this section.

As the new Bail Act has now commenced, it is essential that a clear understanding of its terms be addressed and referred to by applicants for bail. For the full text of the Bail Act 2013, please refer to Criminal Law NSW.

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