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Court of Criminal Appeal 15 June 2022

Brown v R

[2022] NSWCCA 121

Sexual offences

Citation: Brown v R [2022] NSWCCA 121
Court: NSW Court of Criminal Appeal
Date: 15 June 2022
Judges: Simpson AJA (principal judgment); Rothman J and Ierace J (agreeing)

Background

The applicant faced five counts in a single indictment: four charges of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW) and one charge of indecent assault under s 61L, involving three complainants. All alleged offences occurred in Jindabyne between July and September 2017. The Crown sought to run a joint trial by relying on tendency evidence, arguing the applicant had a tendency to perform sexual acts on young women in a sharehouse he managed without their consent.

A central evidentiary dispute arose from Facebook Messenger exchanges between the applicant and the first complainant (C1). Just before trial, the Crown served a redacted version of those messages, removing passages in which C1 mentioned trying to have a child and the applicant responded warmly. The Crown redacted those passages on the basis that they disclosed or implied sexual experience or activity, rendering them inadmissible under s 293(3) of the Criminal Procedure Act 1986 (NSW).

The trial judge ruled the redacted passages inadmissible. The applicant then applied for a permanent stay of the joint trial or, alternatively, a separate trial on Count 1, arguing that the exclusion of those messages prevented him from properly cross-examining C1. A further District Court judge dismissed both applications. The applicant sought leave to appeal that dismissal to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).

  • Whether the order dismissing the applications for a permanent stay or a separate trial was an interlocutory order amenable to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).
  • Whether the underlying evidentiary ruling, excluding portions of the Facebook messages under s 293(3) of the Criminal Procedure Act, was properly the subject of an interlocutory appeal.
  • Whether the exclusion of the redacted messages caused sufficient prejudice or embarrassment to the applicant in his defence to warrant a separate trial under s 21(2) of the Criminal Procedure Act.
  • Whether leave to appeal should be granted under the criteria in s 5F(5) of the Criminal Appeal Act.

Decision

Simpson AJA found that the application for leave to appeal was, at its core, a challenge to the evidentiary ruling made by Bennett SC DCJ during trial. A ruling on evidence is not an interlocutory order or judgment of the kind amenable to appeal under s 5F(3). Framing the challenge as an appeal against the refusal of a permanent stay or a separate trial did not change its true character.

Her Honour distinguished the present case from DAO v R (2011) 81 NSWLR 568, where Spigelman CJ had found that a novel and significant question of principle concerning tendency evidence justified an interlocutory appeal. No such novel issue arose here. The rulings of both Wells SC DCJ (admitting tendency evidence) and Bennett SC DCJ (excluding the redacted Facebook messages) could be tested on appeal in the ordinary way if the applicant were convicted.

Simpson AJA also considered the merits of the separate trial application and found the applicant had not demonstrated that a joint trial would cause him prejudice or embarrassment in his defence within the meaning of s 21(2). The sole reason advanced for a separate trial was to circumvent the statutory prohibition in s 293(3), and the excluded messages were not of major or critical significance to the defence case.

All three judges agreed that leave to appeal should be refused.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A ruling on evidence made during a criminal trial is not, without more, an interlocutory order or judgment amenable to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). Packaging such a challenge as an appeal against a permanent stay or separate trial refusal does not alter its fundamental character.
  • Where an applicant seeks a separate trial primarily to avoid the operation of a statutory prohibition on certain evidence, that purpose alone does not constitute the kind of prejudice or embarrassment to a defence that s 21(2) of the Criminal Procedure Act 1986 (NSW) is designed to address.
  • Under s 293(3) of the Criminal Procedure Act, evidence that discloses or implies a complainant's sexual experience or participation in sexual activity is inadmissible, and that prohibition applied on these facts to Facebook messages in which C1 indicated she was attempting to conceive.
  • In dismissing the leave application, the Court of Criminal Appeal confirmed that adverse evidentiary rulings made before or during trial are ordinarily part of the exigencies of the trial process and may be challenged on appeal following any conviction.
  • Section 29A of the Criminal Procedure Act creates a prima facie requirement for joint trials where tendency evidence relates to multiple counts, and a court's discretion to order separate trials under s 21(2) is not engaged merely because one accused would prefer a different evidentiary regime.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3), s 5F(5)
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Procedure Act 1986 (NSW), ss 21(2), 29(1), 29A, 130A, 159(1), 290A(1), 293(3) (now s 294CB)
- Evidence Act 1995 (NSW), Pt 3.6, ss 97, 101, 192A

Cases
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- DSJ v R; NS v R [2014] NSWCCA 77
- R v Powch (1984) 14 NSWLR 136
- Steffan v R (1993) 30 NSWLR 633