R v Matthews [2018] NSWCCA 7

R v Matthews [2018] NSWCCA 7

The orders requiring a further proof of evidence and preventing the Crown from calling the complainant until it was provided were interlocutory orders because they commanded the Crown to act and were enforceable. Although the trial judge had power to make orders necessary to ensure a fair trial, the discretion miscarried because no defence application or prejudice was identified, there was no demonstrated utility in obtaining a further proof after the ruling that the complainant would give viva voce evidence, the judge impermissibly sought to direct the content of the Crown's questioning, and the prejudice to the Crown from preventing its critical witness from giving evidence was not...

Jurisdiction
Australia
Judgment Date
07 February 2018
Procedural Posture
Criminal Appeal Under S 5 F(2) of the Criminal Appeal Act 1912 (nsw) / Urgent Application for Leave to Appeal and Appeal Against Interlocutory Orders Made in a District Court Criminal Trial Before Jury Empanelment
Outcome
Application for leave to appeal granted; appeal allowed; challenged District Court decisions set aside; matter remitted to the District Court for continuation of the trial.
Legal Topics
['interlocutory Orders Under S 5 F of the Criminal Appeal Act 1912 (nsw)' 'further Proof of Evidence From Complainant' 'complainant Evidence in Prescribed Sexual Offence Proceedings' 'audio Visual Link Evidence Under S 294 B of the Criminal Procedure Act 1986 (nsw)' 'suppression and Non Publication Orders']
['criminal Law' 'criminal Procedure' 'evidence'] ['interlocutory Orders Under S 5 F of the Criminal Appeal Act 1912 (nsw)' 'further Proof of Evidence From Complainant' 'complainant Evidence in Prescribed Sexual Offence Proceedings' 'audio Visual Link Evidence Under S 294 B of the Criminal Procedure Act 1986 (nsw)' 'suppression and Non Publication Orders']

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Procedural Posture

Criminal Appeal Under S 5 F(2) of the Criminal Appeal Act 1912 (nsw) / Urgent Application for Leave to Appeal and Appeal Against Interlocutory Orders Made in a District Court Criminal Trial Before Jury Empanelment

Legal Issues

  1. 1 ["Whether the trial judge's orders requiring a further proof of evidence from the complainant and preventing the Crown from calling the complainant until it was provided were interlocutory orders within s 5F(2) of the Criminal Appeal Act 1912 (NSW)." 'Whether the trial judge had power to require the Crown to provide a further proof of evidence from the complainant and whether the discretion miscarried.' "Whether the trial judge's order requiring the complainant to travel to Sydney to give evidence by audio visual link was an interlocutory order within s 5F(2)." 'Whether s 294B(3) of the Criminal Procedure Act 1986 (NSW) entitled the complainant to give evidence by audio visual link from a Local Court in New South Wales near her home.' "Whether the trial judge's discretion miscarried in requiring the complainant to attend the Sydney District Court to give evidence by audio visual link."]

Ratio Decidendi

The orders requiring a further proof of evidence and preventing the Crown from calling the complainant until it was provided were interlocutory orders because they commanded the Crown to act and were enforceable. Although the trial judge had power to make orders necessary to ensure a fair trial, the discretion miscarried because no defence application or prejudice was identified, there was no demonstrated utility in obtaining a further proof after the ruling that the complainant would give viva voce evidence, the judge impermissibly sought to direct the content of the Crown's questioning, and the prejudice to the Crown from preventing its critical witness from giving evidence was not...

Court Disposition

Application for leave to appeal granted; appeal allowed; challenged District Court decisions set aside; matter remitted to the District Court for continuation of the trial.

Orders

  • ['Access to Court of Criminal Appeal file refused save with leave of a judge of the Court.' 'Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there be no publication of any information that may tend to identify the respondent in these proceedings until proceedings involving a jury...