Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. HARRISON CJ at CL: The direction given to the jury by the trial judge, which is the subject of the present application, was erroneous for the reasons explained by Dhanji J in his judgment, with which reasons I agree. Notwithstanding that error, in accordance with the orders of this Court made at the hearing of the application, it was preferable in the circumstances of this case to remit the matter to his Honour with a view to withdrawing the impugned direction and redirecting the jury in suitable terms in a way, if possible, that corrected or neutralised the error while maintaining the trial or taking such other course as his Honour may have considered appropriate. The error did not automatically mandate that the jury should be discharged and did not mean that a suitably framed redirection could not ensure that Mr Walker's trial was fair.

2. DHANJI J: By notice of appeal filed on 13 March 2025, the Crown, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), appealed against the decision of Everson SC DCJ at the District Court of New South Wales at Penrith to refuse the Crown's application to discharge the jury. The sole ground of appeal was as follows:

"The trial judge erred by refusing the Crown's application to discharge the jury."

3. The Crown's application that the trial judge discharge the jury was made on the basis of a direction given by him in relation to the jury's evaluation of evidence given by "video link", referred to in this judgment as audio visual link ("AVL"). For the purpose of these reasons, I will use the term "AVL" to mean facilities that enable audio and visual communication between persons at different places including closed-circuit television ("CCTV"), consistent with the definition in s 3(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the AVL Act").

4. On 14 March 2025, this Court heard the appeal and made the following orders at the conclusion of the hearing:

1) Allow the appeal.

2) Set aside the order of his Honour Judge Everson SC made on 13 March 2025.

3) Remit the matter to the District Court in order that the application be determined according to law.

4) The Court will provide written reasons in due course.

5. The appellant had sought orders that the appeal be allowed and that the jury be discharged. Prior to making the above orders, the Court indicated to the parties that, despite having formed the view that the trial judge had erred, we were not prepared to order that the jury be discharged. The parties were advised that, while the Court was of the view the direction given by the trial judge was in error, it remained open to his Honour, on remitter, to reconsider the discharge application in the light of the potential for further directions to be given to remedy the error in the impugned direction.

6. My reasons for joining in the orders follow below.

Background

7. At the time the appeal was heard, the respondent, Scott James Walker, was before the District Court, facing trial by jury on indictment for the following offences:

"Count 1 On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.

Count 2: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.

Count 3: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.

Count 4: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did intimidate [JS] with the intention of causing [JS] to fear physical or mental harm.

Count 5: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.

Count 6: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did have sexual intercourse with [JS], without the consent of [JS], knowing she was not consenting.

Count 7: On 19 July 2023, at XXXXXXXXX and elsewhere in the State of New South Wales, did intimidate [JS] with the intention of causing [JS] to fear physical or mental harm.

Count 8: On 19 July 2023, at XXXXXXXXX in the State of New South Wales, did break and enter the dwelling-house of [JS] at XXX XXXXXXXXX XXXX, XXXXXXXXX, with intent to commit a serious indictable offence therein, namely, intimidation."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196799af89b28335865cd372)

Disclaimer: Curated by HT Syndication.