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District Court 25 March 2021

R v Brookman

[2021] NSWDC 110

Sexual offences
CRIMINAL PROCEDURE HISTORICAL SEXUAL ASSAULT OFFENCE PRE TRIAL APPLICATION S CRIMINAL PROCEDURE ACT (NSW) S 293 APPLICATION FOR TRIAL BY JUDGE ALONE

Citation: R v Brookman [2021] NSWDC 110
Court: District Court of New South Wales
Date: 25 March 2021
Judge(s): Abadee DCJ

Background

The accused, a former Senior Minister of a Uniting Church parish in Newtown from 1984 to 1999, faced a single count of indecent assault on a person under the age of 16 years, contrary to s 61E(1A) of the Crimes Act 1900 (NSW). The alleged offending occurred between July and October 1989, when the complainant, then aged 13, was placed in the accused's care and resided at the rectory. The Crown alleged that the accused repeatedly lay on top of the complainant in bed at night, kissed him on the lips, and engaged in pelvic movements while his erect penis pressed against the complainant through the bedcovers.

The accused brought multiple pre-trial applications by notice of motion. Those applications sought rulings on the admissibility of tendency evidence and complaint evidence, a ruling on the admissibility of evidence about the complainant's sexual experience under s 293 of the Criminal Procedure Act 1986 (NSW), and an order for trial by judge alone.

  • Whether the prosecution's tendency evidence, including public statements made by the accused about his sexual history and a former wife's evidence of his sexual interests, was admissible under ss 97, 97A, and 101 of the Evidence Act 1995 (NSW)
  • Whether the statutory presumption under s 97A that such tendency evidence has significant probative value was rebutted, and whether exceptional circumstances arose permitting consideration of matters otherwise excluded by s 97A(5)
  • Whether complaint evidence to be given by a Crown witness met the requirements for admissibility under s 66 of the Evidence Act, including whether it was "fresh in the memory"
  • Whether evidence regarding the complainant's sexual experience should be admitted under s 293 of the Criminal Procedure Act
  • Whether an order for trial by judge alone should be made under s 132 of the Criminal Procedure Act, having regard to concerns about unfair prejudice arising from the likely disclosure that the accused had undergone sexual reorientation, as well as COVID-19 conditions and media publicity

Decision

Tendency Evidence

The court applied the framework introduced by the 2020 amendments to the Evidence Act, which inserted s 97A. That provision creates a presumption that tendency evidence about a defendant's sexual interest in children, or tendency to act on such interest, has significant probative value in proceedings involving child sexual offences. The accused argued the presumption was rebutted and that the evidence should be excluded under s 101 because its probative value was outweighed by the danger of unfair prejudice. The court found the presumption was not rebutted and that the tendency evidence, including the accused's own public statements and his former wife's evidence of his admiration for and sexual attraction to young males, had significant probative value. The court was not satisfied that the prejudicial effect of the evidence substantially outweighed its probative value so as to require exclusion under s 101.

Complaint Evidence

The court considered whether the complaint evidence proposed to be adduced from a Crown witness satisfied the "fresh in the memory" requirement under s 66 of the Evidence Act. The court examined the circumstances and timing of the complaint and addressed whether the evidence could properly be characterised as complaint evidence at all. The court's rulings on the specific complaint evidence resolved these questions in the context of the particular witnesses and statements at issue.

Sexual Experience Evidence

The court considered the accused's application under s 293 of the Criminal Procedure Act, which restricts the adduction of evidence about a complainant's sexual experience. The court addressed whether the statutory grounds for admitting such evidence were satisfied, ultimately ruling on the application in accordance with the statutory criteria.

Trial by Judge Alone

The court rejected the application for trial by judge alone. The accused's primary concern was that jurors, upon learning of his sexual reorientation history through the tendency evidence, would be unable to decide the matter impartially. The court was not persuaded that any resulting prejudice could not be adequately addressed by appropriate jury directions. The court also rejected arguments based on COVID-19 conditions, noting that post-lockdown arrangements with social distancing measures were adequate. On the question of media publicity, the court accepted the Crown's submission that any publicity had substantially abated since the committal proceedings in February 2020. Drawing on the observations of Spigelman CJ in R v Jamal, the court reaffirmed that jurors are presumed capable of following directions and are not to be regarded as especially fragile or prone to prejudice. The court also noted the community's legitimate interest in the prosecution of alleged child sexual abuse offences within institutions.

Orders Made

• The accused's application for trial by judge alone is rejected.

Key Takeaways

  • Under s 97A of the Evidence Act 1995 (NSW), as amended in 2020, a statutory presumption applies that tendency evidence about a defendant's sexual interest in children, or tendency to act on that interest, has significant probative value in child sexual offence proceedings; the accused bears the burden of establishing sufficient grounds to rebut that presumption.
  • Public statements made by a defendant admitting to sexual fantasies involving young males are capable of constituting admissible tendency evidence, even where the statements include what might be characterised as exculpatory qualifications.
  • An application for trial by judge alone will not succeed merely because tendency evidence may expose a defendant's sexual history or reorientation; the court found that appropriate jury directions constitute a sufficient safeguard against unfair prejudice in such circumstances.
  • The District Court reaffirmed the principle, consistent with R v Jamal and the broader weight of authority, that jurors are presumed to be true to their oaths and capable of following judicial directions, and are not to be characterised as exceptionally susceptible to prejudice.
  • Abated pre-trial media publicity, without evidence of continuing or intense coverage, does not of itself provide sufficient grounds for departing from jury trial in favour of a judge-alone trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61E
- Criminal Procedure Act 1986 (NSW), ss 132, 293, 365, 366
- Evidence Act 1995 (NSW), ss 66, 94, 97, 97A, 101, 137
- COVID-19 Legislation Amendment (Stronger Communities and Health) Bill 2021 (NSW)

Cases
- Ayturgrul v The Queen (2012) 247 CLR 170
- DPP v Farrugia [2017] NSWCCA 197
- Hughes v The Queen (2017) 263 CLR 338
- IMM v The Queen (2016) 90 ALJR 529
- Jackmain v R [2020] NSWCCA 150
- JWM v R [2020] NSWCCA 248
- McPhillamy v The Queen (2018) 92 ALJR 105
- R v BD (No.1) [2020] NSWDC 150
- R v Burton [2013] NSWCCA 335
- R v Coleman [2020] ACTSC 97
- R v Edwards [2015] NSWCCA 24
- R v Gregory-Roberts [2016] NSWCCA 92
- R v Jamal (2008) 72 NSWLR 258
- R v Obeid [2015] NSWSC 897
- R v Stanley [2013] NSWCCA 124
- R v XY (2010) 79 NSWLR 629
- The Queen v Bauer (2018) 92 ALJR 846