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Court of Criminal Appeal 3 November 2011

BJS v Regina

[2011] NSWCCA 239

Sexual offencesAssault & violence
APPEAL CRIMINAL INTERLOCUTORY CRIMINAL PROCEEDINGS ADMISSIBILITY OF TENDENCY EVIDENCE ADMISSIBILITY OF CO

Citation: BJS v Regina [2011] NSWCCA 239
Court: Court of Criminal Appeal, New South Wales
Date: 3 November 2011
Judge(s): Basten JA at [1]; R S Hulme J at [39]; Hall J at [50]

Background

The applicant was a priest and teacher who had resided at a Catholic boarding school in Bathurst. He faced an indictment containing 12 counts relating to seven complainants, all of whom were boarding students under his authority during the 1980s. The charges included assault with acts of indecency on persons under 16 years of age, brought under provisions of the Crimes Act 1900 (NSW) then in force.

Before trial, the applicant sought orders for separate trials in respect of each complainant, as well as rulings on the admissibility of certain evidence. The primary judge, Finnane DCJ in the District Court, severed three counts involving one complainant but otherwise declined to order separate trials, leaving eight counts involving six complainants to be heard together.

The applicant sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). The central question on appeal was whether the evidence relating to each complainant was admissible on the charges involving the others, which in turn determined whether the joinder of counts was appropriate.

  • Whether leave to appeal should be granted in respect of an interlocutory ruling that was, in substance, a ruling on the admissibility of evidence.
  • Whether the evidence of each complainant was admissible as tendency evidence under s 97 of the Evidence Act 1995 (NSW) and/or as coincidence evidence under s 98.
  • Whether the prosecution had sufficiently negated the risk of concoction or contamination arising from the complainants' access to internet material describing alleged abuse at the school.
  • Whether, in light of the admissibility findings, the primary judge was correct to refuse to order separate trials under s 21 of the Criminal Procedure Act 1986 (NSW).

Decision

The Court of Criminal Appeal granted leave to appeal, notwithstanding the general reluctance to entertain appeals that are, in substance, challenges to evidentiary rulings. The Court applied the reasoning from DAO v R [2011] NSWCCA 63, recognising that a pre-trial ruling of this character determines a fundamental aspect of the structure of the trial and, if erroneous, would almost inevitably result in a successful appeal and retrial upon conviction.

On the admissibility questions, the Court examined whether the evidence of the various complainants satisfied the requirements of ss 97 and 98 of the Evidence Act 1995 (NSW). Tendency evidence is admissible only where the court is satisfied that the evidence has significant probative value substantially outweighing any prejudicial effect. Coincidence evidence is admissible where the court is satisfied that it would be reasonable to conclude that the similarity between events is unlikely to be the result of coincidence.

A central issue was the risk of concoction or contamination. Several complainants had accessed internet material, including websites such as "Broken Rites" and "Catholic Cover-up," which described alleged abuse at the school before those complainants gave their statements to police. The applicant argued that this created a real risk that the accounts had been contaminated by a common external source rather than independent recollection, which would undermine the probative force of the evidence and potentially render it inadmissible.

The Court examined the individual complainants' statements in detail (as set out in Schedule 1 to the judgment). It concluded that, notwithstanding the complainants' exposure to internet material, the accounts retained sufficient hallmarks of independent recollection and contained details that did not simply reflect what had been publicly described online. The Court upheld the primary judge's rulings and dismissed the appeal.

Orders Made

  • Leave to appeal granted on the basis stated by Basten JA.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a ruling on admissibility of evidence is not, of itself, an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912 (NSW), but leave to appeal may nonetheless be granted where the ruling determines a fundamental aspect of the structure of the trial and, if wrong, would almost inevitably produce a successful appeal after conviction.
  • Under the established approach to joinder of sexual offence charges, counts involving separate complainants should generally be tried together only where the evidence on each count is admissible in respect of the others; this principle governed the determination of the motion for separate trials.
  • Where complainants have accessed internet material describing alleged abuse before giving their statements, the risk of contamination is a live consideration in assessing the admissibility of tendency and coincidence evidence, but exposure to such material does not automatically render the evidence inadmissible.
  • Sufficient independent detail in each complainant's account, going beyond what had been publicly described, can support a finding that the probative value of coincidence or tendency evidence is not negated by the risk of contamination.
  • In dismissing the appeal, the Court confirmed the primary judge's conclusion that eight counts involving six complainants could lawfully proceed to trial together, with the three counts involving the seventh complainant remaining severed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 21 and 29
- Evidence Act 1995 (NSW), ss 97 and 98
- Crimes Act 1900 (NSW), s 61E
- Crimes (Child Assault) Amendment Act 1985
- Crimes (Amendment) Act 1989

Cases:
- DAO v R [2011] NSWCCA 63
- BP v R; R v BP [2010] NSWCCA 303
- FB v Regina [2011] NSWCCA 217
- Hoch v The Queen (1988) 165 CLR 292
- BRS v The Queen (1997) 191 CLR 275
- HML v The Queen (2008) 235 CLR 334
- KRM v The Queen (2001) 206 CLR 221
- Papakosmas v The Queen (1999) 196 CLR 297
- Phillips v R (2006) 225 CLR 303
- Pfennig v The Queen [1995] HCA 7; 182 CLR 461
- De Jesus v The Queen [1986] HCA 65
- Ludlow v Metropolitan Police Commissioner [1971] AC 29
- Perry v The Queen (1982) 150 CLR 580
- Adam v R (2001) 207 CLR 96
- House v The King (1936) 55 CLR 499
- Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158