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Key decisions

  • Gardiner v R [2023] NSWCCA 89
  • Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71

Gardiner v R [2023] NSWCCA 89

Assessment of witnesses – observations of the body of the court – judge-alone trials

In this decision the Court of Criminal Appeal (‘CCA’) has determined that although judges in judge-alone trials are entitled to take into account the demeanour of witnesses outside the witness box (for example, in the dock or the well of the Court), the judge should immediately bring to the attention of the parties any observation they make which might be relevant to their assessment of the witness’ credibility. A failure to do so may amount to a denial of procedural fairness which could be (as here) sufficient to vitiate the trial.

The applicant faced a judge-alone trial for a range of historical sexual offences. The applicant was found guilty and sentenced to 16 years, with a non-parole period of 11 years. He appealed on a range of grounds, but this summary only deals with the grounds which asserted a denial of procedural fairness in relation to a finding about the applicant’s demeanour.

The trial was heard on a country circuit, over the course of about 12 days. The trial judge’s decision in relation to the trial was said to have borne some of the hallmarks of being delivered ex tempore, even though it seems the reasons might have actually been reserved (see [62]). The CCA (Adamson JA, with whom Button and McNaughton J agreed) observed that, unlike ex tempore reasons delivered in sentencing proceedings in busy lists, similar latitude is not allowed when assessing the reasons of trial judges following criminal trials (at [100]).

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