Citation: Brown v R [2022] NSWCCA 121
Court: Court of Criminal Appeal
Date: 15 June 2022
Judges: Simpson AJA, Rothman J, Ierace J
Background
The applicant faced a single indictment containing five counts of sexual offences against three complainants, all allegedly committed in Jindabyne between July and September 2017. The Crown served tendency evidence notices, and a District Court judge ruled that the evidence of each complainant would be cross-admissible in the trial of charges involving the others.
A central evidentiary issue arose from a printout of Facebook Messenger exchanges between the applicant and the first complainant. Before the trial commenced, the Crown redacted portions of those messages on the basis that they disclosed or implied sexual experience on the complainant's part, making them inadmissible under section 293(3) of the Criminal Procedure Act 1986 (NSW). The trial judge upheld that redaction. The trial was subsequently aborted due to illness, and a new trial was scheduled.
The applicant then filed a notice of motion seeking, in the alternative, a declaration on admissibility under section 192A of the Evidence Act 1995 (NSW), a permanent stay, or a separate trial of Count 1. Townsden DCJ dismissed the motion. The applicant then sought leave to appeal to the Court of Criminal Appeal under section 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether an order dismissing an application for a permanent stay or a separate trial is amenable to a grant of leave to appeal under section 5F(3)(a) of the Criminal Appeal Act.
- Whether, in circumstances where the underlying basis for the application was an adverse evidentiary ruling, leave to appeal should be granted.
- Whether the inability to cross-examine the first complainant on the redacted Facebook messages in a joint trial constituted sufficient prejudice or embarrassment to warrant a separate trial of Count 1.
Decision
Issue 1: Interlocutory appeal and evidentiary rulings
The court confirmed that a ruling on evidence is not an interlocutory judgment or order for the purposes of section 5F(3)(a) of the Criminal Appeal Act, following the established authorities in Powch and Steffan (at [25]). The applicant conceded at the hearing that neither the tendency evidence ruling nor the admissibility ruling on the Facebook messages could be challenged directly under that provision (at [28]).
Orders dismissing applications for permanent stay or separate trial are, in principle, susceptible to a grant of leave under section 5F(3)(a). However, where the underlying basis for such an application is a preliminary ruling on evidence, that is a strong circumstance against granting leave (at [25]).
Issue 2: Whether leave to appeal should be granted
The court found that no issue of principle arose from either evidentiary ruling that would justify granting leave, distinguishing the case from DAO v R where a five-judge bench granted leave because a question of principle concerning the test for tendency evidence admissibility was at stake (at [33]-[34]). The court noted that adverse evidentiary rulings can be tested on appeal if a conviction results, and this is simply part of the trial process (at [34]). The court also found that the excluded material was not of major or critical significance (at [35]).
Issue 3: Separate trial application
Section 29A of the Criminal Procedure Act establishes that a joint trial is the prima facie position where tendency evidence is to be adduced across multiple counts (at [36]). The court found that Townsden DCJ was not persuaded that a joint trial would cause prejudice or embarrassment to the applicant in his defence (at [37]). The only reason advanced for a separate trial was to circumvent the statutory prohibition that rendered the redacted messages inadmissible, and the court was not persuaded that this inability to cross-examine on the redacted messages caused the requisite prejudice or embarrassment (at [38]-[39]).
Orders Made
- Leave to appeal refused.
Key Takeaways
- A ruling on evidence is not an interlocutory judgment or order amenable to appeal under section 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), and this principle is not altered by framing the application as a challenge to an order dismissing a permanent stay or separate trial (at [25]).
- Where the substantive basis for an interlocutory leave application is a preliminary evidentiary ruling, that is a strong circumstance weighing against the grant of leave, even if the formal order sought is technically within the scope of section 5F(3)(a) (at [25]).
- Under section 29A of the Criminal Procedure Act, a joint trial is the prima facie position where the Crown relies on tendency evidence spanning multiple counts; severance requires satisfaction that a joint trial would cause prejudice or embarrassment to the accused in their defence, or that some other reason warrants separate trials (at [36]).
- An evidentiary ruling made by a trial judge during an aborted trial is not a "pre-trial order" under section 130A of the Criminal Procedure Act, but it nonetheless binds the judge in any subsequent trial of the same offence unless the interests of justice require otherwise (at [22]-[23]).
- Refusing leave to appeal, the Court of Criminal Appeal observed that adverse evidentiary rulings made before or during trial remain open to challenge on any appeal following conviction, and that outcome is not a basis in itself for granting interlocutory leave (at [34]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Procedure Act 1986 (NSW) , ss 21(2), 29(1), 29A, 130A, 159(1), 290A(1), 293(3), 306I, 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