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Court of Criminal Appeal 31 August 2022

Teshabaev v R

[2022] NSWCCA 186

Sexual offences
INTERLOCUTORY APPEAL SEXUAL OFFENCES COMPLAINANT YOUNG CHILD LEAVE REFUSED

Citation: Teshabaev v R [2022] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 31 August 2022
Judges: Beech-Jones CJ at CL, Adamson J, Bellew J

Background

The applicant faced trial in the District Court on 15 charges: three counts of exposing a child under 14 to indecent material with intent to procure her for unlawful sexual activity, and 12 counts of having sexual intercourse with a child under 10. The alleged victim, referred to as AY, was 8 or 9 years old at the time of the alleged offending.

In December 2020, AY disclosed the applicant's alleged conduct to her schoolteacher. An incident report prepared by the teacher on the same day also recorded a statement by AY that her grandfather had touched her "rude part." When police interviewed AY later that day, she denied any sexual touching by her grandfather.

The trial judge ruled that the reference to the grandfather's conduct in the incident report, and AY's denial of it during the police interview, were inadmissible under s 294CB(3) of the Criminal Procedure Act 1986 (NSW). The applicant then sought a permanent stay of proceedings on the basis that the exclusion of this evidence made the trial unfair. The trial judge refused the stay, and the applicant sought leave to appeal both rulings to the Court of Criminal Appeal.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act 1912 to review the trial judge's evidentiary ruling excluding the evidence under s 294CB(3) of the Criminal Procedure Act 1986.
  • Whether the trial judge erred in refusing to grant a permanent stay of proceedings.

Decision

On jurisdiction to review the evidentiary ruling, the Court held unanimously that it had no jurisdiction to revisit the trial judge's ruling on admissibility. An evidentiary ruling is not a "judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912. The Court applied Jackmain v R (2020) 102 NSWLR 847, which confirmed this position. Critically, the Court also held that it could not use the appeal against the refusal of a stay as a vehicle to indirectly review the evidentiary ruling. The two issues were treated as distinct and the evidentiary ruling remained outside the Court's appellate reach in this context.

On the refusal of a permanent stay, the Court confirmed that a permanent stay is a drastic and discretionary remedy, available only where there is a fundamental defect in the trial that nothing the trial judge can do would remedy. Applying the House v The King standard, the Court found no error in the trial judge's exercise of discretion. The applicant's contention was, in essence, that the trial judge had undervalued the probative weight of the excluded evidence and overvalued other available material. The Court held that such a complaint does not constitute House error.

The Court also noted a practical difficulty with the applicant's argument: even if the excluded evidence had been admitted, AY and her teacher might not have accepted that AY said what the incident report recorded about her grandfather. The value of the material for attacking AY's credibility was therefore uncertain in any event. The excluded evidence did not directly concern the applicant, and its exclusion fell well short of justifying a permanent stay.

Orders Made

  • Leave to appeal refused.
  • The Director of Public Prosecutions to notify the Court within one week of the completion of the first instance proceedings, and to confer with the applicant's legal representatives about any matters in the judgment requiring anonymisation before wider publication.

Key Takeaways

  • An evidentiary ruling made during a criminal trial is not a "judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912, and the Court of Criminal Appeal has no jurisdiction to review such a ruling on interlocutory appeal.
  • The Court of Criminal Appeal confirmed that an applicant cannot use an appeal against a refusal to grant a permanent stay as an indirect means of challenging an underlying evidentiary ruling: the two issues are treated as legally distinct.
  • A permanent stay of criminal proceedings is available only where a fundamental defect exists that no trial management can cure. The Court of Criminal Appeal reiterated this is a high and rarely met threshold, drawing on Jago v District Court of NSW (1989) 168 CLR 23.
  • Under the House v The King standard, an argument that a trial judge merely attributed insufficient weight to excluded evidence, or too much weight to other material, does not establish appellable error in the refusal of a stay.
  • No error was established in the trial judge's assessment that the excluded evidence, which did not directly relate to the applicant's own conduct, was insufficient to render the trial fundamentally unfair.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1), 66EB(3)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 294CB(3)

Cases:
- Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
- HG v The Queen (1999) 197 CLR 414; [1999] HCA 2
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
- Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
- Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
- Liristis v Director of Public Prosecutions (NSW) [2018] NSWCCA 196
- M v R (1993) 67 A Crim R 549
- R v RD [2016] NSWCCA 84