Host [00:06]
From JADE OpenLaw, this is The Petal: In Practice. One practice area, one month, one sitting. This episode, criminal law, and a note before we begin. The month's cases include sexual offending and the neglect of a child. We report them with restraint, for what they teach about the system, and nothing in this episode dwells on the facts. Now, ten decisions made the June cut, from the Supreme Court of New Zealand to the appellate courts of three Australian states, and taken together they are not really ten stories. They are one story told ten ways. This was the month the courts policed the trial itself. Not the guilt or innocence of anyone in the dock, but the machine around them. What a prosecutor may say. What a judge may do. Who must be in the room. What happens when the referee becomes a player. With me, from the Criminal Law Desk of the daily, Rick. And making his debut at this table, our Trans-Tasman correspondent Tony, because the biggest criminal judgment of the month came from Wellington. Welcome, both.
Criminal Law Desk [01:11]
Glad to be here. And you are right about the thread. By the end of June the appellate courts had ordered retrials in three matters, not because the evidence changed, but because the process failed. That is the system auditing itself, and it is the part of criminal law the public never sees. Verdicts make the news. The machinery that makes verdicts trustworthy only makes the law reports, and this month the law reports were the better story.
Trans-Tasman Desk [01:35]
Kia ora. And the Wellington decision is the one every prosecutor on both sides of the Tasman will be handed by Friday. It is about the one piece of evidence you are allowed to use for exactly one purpose, and what happens when it escapes.
Host [01:53]
Start us there, Tony. MB and The King, Supreme Court of New Zealand, the Chief Justice and a bench of five, unanimous.
Trans-Tasman Desk [02:01]
The trial was for serious sexual offending, and it turned entirely on the complainant's credibility. Two people knew what happened, and they told different stories. Into that trial came what we call counter-intuitive evidence, admitted by agreement, and its job is narrow and honourable. Jurors arrive with assumptions. That a genuine victim complains at once. That a genuine victim stays away from the offender. The research says those assumptions are wrong often enough to be dangerous, so the evidence exists to correct the misconception, to let the jury assess the person in front of them without a myth doing the reasoning. That is all it is for. It is educative, never diagnostic. It speaks about complainants generally, and it may not be turned around and pointed at this complainant to say, see, she behaved exactly as the research describes, therefore she is telling the truth. That is the forbidden move, and the Supreme Court found the prosecutor made it twice. In closing, by linking numbered paragraphs of the agreed statement to this complainant's conduct. And worse, in cross examination of the defendant, putting the described behaviours of abusers to him and inviting the jury to notice the match. The court said it is difficult to imagine any cross examination of a defendant on such material that does not invite the forbidden reasoning. The court also warned about the material itself. Probabilistic phrasing, more often than not, only a third report at the time, and passages describing the behaviour of offenders rather than victims, all of it raises the temperature, because numbers invite the jury to do arithmetic on the person in the dock. Such material needs a genuine misconception to justify it, and it makes the judge's direction more important, not less. And the trial judge, who must direct the jury against the misuse, a duty the court called mandatory and non delegable, one that cannot be handed to the prosecutor or buried in an agreed document, did not give it. Convictions quashed. Retrial ordered. The second ground, for balance, failed. Walking the complainant back through her recorded interview with topic questions that oriented her and drew out fresh detail was untidy but not unfair. The problem was never how her evidence came in. It was what was done with the science around it.
Criminal Law Desk [04:04]
And Australian practitioners should not file this under foreign curiosities. Our courts admit the same species of evidence, our juries carry the same misconceptions, and the same syllogism is waiting in every closing address. What the Wellington court has done is draw the brightest line yet. The evidence neutralises myths, it never corroborates a complainant. Even the familiar comfort phrase, that the evidence restores credibility to a zero balance, was discouraged, because the moment you mention the complainant's credibility in the same breath, the link is made. Prosecutors here will be quoting the permissible uses. Defence counsel will be listening for the impermissible ones. And trial judges now have a very clear model of the direction that cannot be skipped, cannot be outsourced to the prosecutor, and cannot be replaced by an agreed piece of paper. Expect this judgment in Australian submissions within the season, and expect it to land, because nothing in the reasoning depends on the statute. It depends on how juries think.
Host [04:59]
So that is what a prosecutor may not do with good evidence, and notice the design principle underneath it, the same one that will run through this whole episode. The criminal trial trusts its actors with dangerous tools, and the price of the trust is discipline about purpose. The thread runs next to the judges themselves, and two cases that ask the hardest quiet question in the system. Who judges the judge? One case is about the doubts a judge carries into the room. The other is about what a judge did in it.
Criminal Law Desk [05:36]
Bechara and Rex, New South Wales Court of Criminal Appeal. A drug supply prosecution built on a controlled operation, with the accused alleging police misconduct and seeking a stay, so the judge in the case would be sitting in judgment on police behaviour. Here is the complication. That same judge, decades earlier, had been a detective in a notorious investigation, and a judicial inquiry into those old convictions was on foot, unresolved, with a petitioner alleging the judge had fabricated evidence back then and had lied on oath at the inquiry itself. Asked to step aside, the judge declined. The Court of Criminal Appeal reversed him, and the framework is the familiar one. Identify the factor, articulate its logical connection to a feared departure from impartiality, then ask whether a fair minded lay observer might reasonably apprehend it. The factor was not that the judge had done anything. It was that serious allegations against him were current and undecided while he was being asked to rule on allegations against serving police. The observer might fear the pull in either direction, sympathy for the officers, or a demonstration of sternness to answer his critics, and the direction does not matter. What gives the case its spine is the guard rail the court built beside it. An unsubstantiated allegation against a judge will not, of itself, found an apprehension of bias, otherwise every litigant could manufacture a path to a friendlier bench. This was different in kind, a formal inquiry, on foot, with the judge already cross examined. And because apprehended bias goes to jurisdiction, there is one right answer, reviewed for correctness, not deference. There is a procedural footnote worth the fee as well. Interlocutory criminal appeals are kept on a famously tight rein, but the court granted leave anyway, because the point was fully argued, the substantive application had not begun, and intervening now would fragment nothing. The rein is tight. It is not welded.
Criminal Law Desk [07:24]
Then Courtney and the State of Western Australia, and I will follow the court in using the pseudonym. Two parents tried for neglect of their daughter, and I will say no more of the facts than that. What matters to the profession is the trial. Partway through, the mother became acutely unwell, medically certified as unfit. Her counsel asked for one or two days. The prosecutor did not oppose. The judge refused, and had her follow her own trial from a separate room, able to watch but with no link back into the courtroom. The Court of Appeal held that presence at trial means physical presence. Watching by link is not presence, and a court cannot order an unwilling accused into that arrangement. On top of that sat the interventions. The judge interrupted the two accused during their evidence more than three hundred times between them, largely uninvited by the prosecutor, demanding yes or no, in a tone the transcript preserved, while prosecution witnesses enjoyed the ordinary courtesies. And when the defence considered calling the daughter, by then an adult and willing, the judge foreshadowed powers that did not exist and consequences that should never have been mentioned, and the witness was not called. The adjournment refusal itself miscarried as an exercise of discretion. The application sought a day, perhaps two. The prosecution did not oppose it. The only interest on the other side of the scale was the inconvenience of jurors, and against an accused certified unfit to follow her own trial, that is no contest at all. Nor could the summing up repair any of it. The jury were told the judge had been equally grumpy with everyone and that the interventions were very normal, which the appellate court found was neither accurate nor capable of dispelling what a fair minded observer would by then have apprehended. Convictions set aside, retrial ordered, and a sentence from the judgment that belongs on chambers walls. Where the failure is fundamental, there is no room to say the evidence was strong anyway. Some errors are not weighed. They are fatal.
Host [09:14]
The prosecutor, the judge. Three retrials ordered in a month, and not one of them because a witness changed their story. The thread runs on into the engine room, the evidence rulings and the sentences, and June had opinions about both, quieter decisions, but the kind that decide Tuesday mornings in the District Court for years.
Criminal Law Desk [09:35]
Three evidence decisions, quickly, because they pair. Douglas and R, New South Wales, is the Hofer problem again. A prosecutor cross examined an accused suggesting recent invention, because his account had not been put to a Crown witness. Absent a proper foundation and an adequate curative direction, that is unfair, and where the whole trial is credibility, it is a miscarriage. Retrial. Camelo-Gomez and R settles a point people keep re-arguing. Reliability is not an admissibility test for expert opinion, an expert may draw on accumulated clinical experience without proving every case beneath it. Admissible, though, is not safe, and a majority still excluded the opinion because its probative value could not be weighed on the thin material offered. And Benson and The King, in Victoria, on improperly obtained evidence. A police search of a phone without lawful authority, and two clarifications. Appellate review of the balancing exercise is for correctness, there is one right answer. And the officer's purpose matters, a protective motive, checked with a supervisor, reduces the gravity of the impropriety. The pair to remember: getting evidence in is not the same as it surviving, and how the police behaved shapes what the trial may use. And note the shared architecture with Bechara. Where a question admits of only one right answer, unlawfully obtained evidence balancing, apprehended bias, appellate courts are reviewing for correctness now, and the space for deferential shrugging is shrinking.
Trans-Tasman Desk [11:01]
And one more from my side of the ditch, lighter in weight but not in interest. The Solicitor-General and Leef, High Court of New Zealand. Gang insignia forfeited on conviction under the new gangs legislation, and a District Court judge, perhaps in a generous mood, directed the patch be returned to the offender. The High Court said no, with feeling. Forfeiture under this Act is absolute, and the statutory words otherwise disposed of mean disposal in the nature of destruction. They do not include handing it back. A court direction is always required before disposal, but return is not on the menu. The court even had the benefit of an amicus, because the offender did not appear, and the construction still ran one way. Parliament built a one way door. Somewhere in New Zealand there is a very tidy evidence room and a very disappointed patch-holder.
Criminal Law Desk [11:47]
Then the sentencing coda, three decisions with one shared spine, honesty about scale and circumstance. Silvey and the State of Western Australia. Repeated frauds, and the court reinforced that the sheer scale of the money taken and lost is integral to overall criminality under the first limb of totality, that general deterrence dominates white collar sentencing, and that comparing yourself to offenders who took a fraction of the amount gets you nowhere. The court also called out something subtler, vulnerability that the offender cultivated, trust built to be breached, aggravates rather than mitigates. Whereat and Rex cast real doubt on the continuing utility of an old guideline judgment for break and enter sentencing, and clarified the deprived-background principles. A causal link between deprivation and offending is not a precondition, but where the link exists, it speaks directly to moral culpability. And Hoang and R is a quiet trap for the defence bar. If the judge rejects the offender's self reported history as unreliable, the expert opinion built substantially on that history may be given no weight at all. Your psychological report is only as strong as the instructions underneath it.
Criminal Law Desk [12:52]
What to watch. Whether the counter-intuitive evidence discipline crosses the Tasman formally, the reasoning is portable and the problem is identical. The outcome of the judicial inquiry that sat behind Bechara, which will be its own story whichever way it lands. Whether the guideline judgment doubted in Whereat is formally retired, which would ripple through a generation of sentencing submissions. And whether the State seeks special leave on the meaning of presence at trial, because the video-link question touches every jurisdiction that modernised its courtrooms in a hurry, and legislatures that want remote attendance to count as presence will now have to say so in words.
Host [13:28]
The judgments, the citations and the month's full docket are in your podcast notes. In Practice is one table in the Petal newsroom. Every weekday there is The Petal daily brief, eight minutes, the day in Australian law on your perambulations. When one judgment deserves the whole table, The Petal: Deep Dive takes it slowly. And from time to time we sit down for The Petal interviews, longer conversations with the people who shape the law. Find them all wherever you found this. Next month, criminal law returns to this table, and if your field is commercial law, your June episode is already waiting. This program is an experiment and your feedback steers it. Tell us whether the thread held, whether twenty minutes is right, and whether your practice area should be next at this table.
Content Standards [14:11]
This episode of The Petal: In Practice was produced by BarNet OpenLaw the creators of JADE, in our knowledge kitchen from the Monthly Petal, Criminal Law edition, for June twenty twenty-six, and reviewed under OpenLaw's content and podcasting standard. Because we believe in the speed of law, the voices in this program are AI-generated, using the latest combobulation technology. If you liked this podcast please subscribe and tell your friends. Nothing in this program is legal advice.
Host [14:43]
That is your criminal June, in one sitting. We will see you next month. Travel well, keep the trial fair, and carry a big stick.
