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Court of Criminal Appeal 3 June 2022

Brown v R

[2022] NSWCCA 116

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION TRIAL BY JUDGE ALONE

Citation: Brown v R [2022] NSWCCA 116
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2022
Judge(s): Bell CJ (with Kirk JA and Price J agreeing)

Background

The appellant was a former primary school teacher who was convicted in 2020, following a judge-alone trial, of five child sexual offences alleged to have occurred between 1978 and 1980. The offences involved two female students in his Year 3/4 composite class at a school on the NSW Central Coast. The appellant was found guilty on all five counts and sentenced to an aggregate term of eight years imprisonment with a non-parole period of five years.

Approximately 40 years elapsed between the alleged offences and the appellant's arrest in 2018 and subsequent trial. Defence counsel at trial made submissions about the prejudicial effects of this delay, but at no point applied to the trial judge for a direction under s 165B of the Evidence Act 1995 (NSW). That provision requires a court, on application by a party, to inform the jury of any significant forensic disadvantage the defendant has suffered because of delay in prosecution.

Because the trial was conducted by a judge alone, no jury was present. The question on appeal was whether the trial judge was nonetheless obliged to direct herself in accordance with s 165B, and whether her failure to do so amounted to a miscarriage of justice.

  • Whether a trial judge in a judge-alone trial is required to give a s 165B direction in the absence of any application by a party
  • Whether the trial judge's failure to give such a direction, even without an application, constituted a miscarriage of justice
  • Whether the verdict was unsafe and unsatisfactory (this ground was conceded to be contingent on the s 165B ground succeeding)

Decision

The Court of Criminal Appeal confirmed that the duty to give a s 165B direction arises only on application by a party, and only where the trial judge is satisfied that the defendant has suffered a real and actual (not speculative) significant forensic disadvantage as a consequence of the delay. Both elements are preconditions: without an application, no obligation arises. This position applies in judge-alone trials as much as in jury trials, by reason of s 133(3) of the Criminal Procedure Act 1986 (NSW).

The Court reaffirmed that a trial judge is not required to second-guess counsel who chooses not to seek such a direction. Defence counsel here made a deliberate forensic choice. The absence of an application meant the preconditions to any s 165B obligation were never engaged.

Addressing the miscarriage of justice argument, the Court found that the trial judge had been expressly and fully aware of the forensic disadvantages the appellant faced because of the passage of time. Her Honour addressed those disadvantages in her reasoning. The Court was not satisfied that the inability to obtain school building plans, one specific matter raised by the appellant, constituted a significant forensic disadvantage requiring any particular warning, particularly given defence counsel had ultimately accepted that little turned on the point.

The Court granted leave to appeal but dismissed the appeal. The unsafe verdict ground fell away once the s 165B ground failed.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

  • Under s 165B of the Evidence Act 1995 (NSW), a trial judge's obligation to give a forensic disadvantage direction based on prosecution delay is triggered only by a party's application and a finding of actual, non-speculative disadvantage. Both conditions must be satisfied before any duty arises.
  • In a judge-alone trial, the same preconditions apply by operation of s 133(3) of the Criminal Procedure Act 1986 (NSW). The judge-alone context does not alter or relax the requirement for a party application.
  • A trial judge bears no duty to give a s 165B direction of their own motion where defence counsel has chosen not to seek one.
  • The significant forensic disadvantage must be real and actual, not merely speculative, and the burden of demonstrating it lies on the applicant seeking the direction.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that no miscarriage of justice arises where the trial judge has demonstrably taken the effects of delay into account in her reasoning, even in the absence of a formal s 165B direction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66EA(1), 76
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 165B
- Evidence Amendment Act 2007 (Cth)

Cases:
- Binns v R [2017] NSWCCA 280
- Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
- Constantinidis v R; Lazar v R [2022] NSWCCA 4
- Groundstroem v R [2013] NSWCCA 237
- Higgins v R [2020] NSWCCA 149
- Shanmugam v R [2021] NSWCCA 125
- TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12
- W v R [2014] NSWCCA 110