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Court of Criminal Appeal 7 February 2023

Crawford v R

[2023] NSWCCA 8

Sexual offences

Citation: Crawford v R [2023] NSWCCA 8
Court: Court of Criminal Appeal, New South Wales
Date: 7 February 2023
Judge(s): Beech-Jones CJ at CL; Davies J; Adamson J (lead judgment)

Background

The applicant faced a 17-count indictment of sexual offences under the Crimes Act 1900 (NSW) involving five female complainants. Four counts (the "church counts") concerned alleged conduct while the applicant worked as a church acolyte, involving two complainants aged 13 to 19. The remaining 13 counts (the "netball counts") arose from his role as a netball coach and involved three other complainants aged 11 to 16.

The Crown served a tendency notice alleging that, in respect of all counts except one, the evidence of each complainant was cross-admissible against the charges involving each other complainant. The alleged tendency was a sexual interest in female children aged 11 to 16 and a propensity to act on that interest by touching them while occupying a supervisory role.

Before the trial commenced, the applicant applied to the District Court for the church counts and netball counts to be tried separately, arguing the evidence across the two groups was not cross-admissible. The trial judge refused that application, finding the evidence was cross-admissible and that any residual risk of unfairness could be managed through jury directions. The applicant then sought leave from the Court of Criminal Appeal to appeal that interlocutory ruling.

  • Whether the trial judge erred in finding that the probative value of the tendency evidence outweighed the danger of unfair prejudice to the applicant under s 101(2) of the Evidence Act 1995 (NSW)
  • Whether separate trials were required to avoid that danger of unfair prejudice
  • Whether the Court should grant leave to appeal against an interlocutory evidentiary ruling under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW)
  • Whether s 97A of the Evidence Act was relevant to the application

Decision

The Court of Criminal Appeal unanimously refused leave to appeal. Adamson J delivered the principal reasons, with Beech-Jones CJ at CL and Davies J agreeing.

On the substantive challenge, the court found no error in the trial judge's ruling. The alleged conduct across the church and netball counts shared meaningful common features: the complainants were predominantly aged 11 to 16; the alleged touching occurred while the applicant occupied a supervisory or quasi-authority role; and the nature of the physical contact overlapped across multiple complainants (including tapping on the bottom, contact with intimate areas, and touching that was uninvited and occurred in private settings). The trial judge was entitled to conclude that the probative value of this tendency evidence outweighed the danger of unfair prejudice, particularly given that appropriate jury directions could address any residual risk.

Separately, the court declined to address s 97A of the Evidence Act, noting it had not been argued before the trial judge and was not necessary to resolve the leave application.

The court also identified an independent basis on which leave should be refused: the application was filed in an untimely way. The trial judge had refused the separate trial application in August 2022, but the applicant did not file the leave application until December 2022, without alerting the trial judge that reasons were needed for appeal purposes. The trial judge was not notified of the application until late January 2023 and provided reasons on 30 January 2023, meaning the application was heard on the Friday before the trial was due to begin the following Monday. The court observed that disrupting allocated trial dates by filing late interlocutory appeals is a matter courts will weigh against granting leave.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Restraint is required before the Court of Criminal Appeal grants leave to appeal against a refusal of separate trials where the basis of the application is an evidentiary ruling, confirming the approach in DAO v R (2011) 81 NSWLR 568.
  • Where tendency evidence discloses common features across multiple complainants, including the age range of victims, the accused's supervisory role, and the nature of physical contact, a trial judge may find that probative value outweighs prejudice and that jury directions sufficiently protect the accused.
  • A failure to raise s 97A of the Evidence Act before the trial judge will ordinarily preclude the appellate court from addressing it on an interlocutory leave application.
  • Timeliness matters when seeking leave to appeal interlocutory rulings. The court treated the late filing as an independent reason to refuse leave, noting that trial dates should not be disrupted without good cause.
  • Even where an applicant's rights on conviction remain protected, the court may decline leave to avoid vacating a trial date where the underlying challenge lacks merit.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 97, 97A, 101(2)
- Criminal Procedure Act 1986 (NSW), ss 21, 29, 29A
- Crimes Act 1900 (NSW), Part 3, Division 10

Cases
- DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
- JS v R [2022] NSWCCA 145