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BB v The Queen (No 2)

BB v The Queen (No 2)

Case [2017] NSWCCA 142 23 June 2017

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BB v R (No 2) [2017] NSWCCA 142
Hearing dates: 9 June 2017
Date of orders: 23 June 2017
Decision date: 23 June 2017
Before: Hoeben CJ at CL at [1]
Garling J at [2]
Hamill J at [43]
Decision:
Leave to appeal granted to applicant BB; appeal dismissed – Crown appeal dismissed.

Catchwords:
CRIMINAL LAW – whether context evidence improperly excluded – where context evidence of uncharged illegal acts post-dating charged offences – whether necessary to assist jury in understanding complainant’s evidence – whether necessary to explain why an immediate complaint was not made – whether risk of unfair prejudice to applicant by jury conflating charged and uncharged acts – whether risk of jury engaging in impermissible tendency reasoning – whether Crown case substantially weakened
CRIMINAL LAW – application for permanent stay – leave to appeal against refusal – interlocutory judgment or order – where complainant’s evidence to be presented by playing recording of evidence given in earlier trial – re-trial after successful appeal – relevant legislation – absence of discretion in trial judge – where conduct of earlier trial said to be incompetent – failure to distinguish counts from uncharged acts – cross-examination lacking forensic purpose – whether court can predict whether future trial will be unfair – whether stay appropriate when unfairness the result of statute – appeal against refusal to stay dismissed
Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Director of Public Prosecutions Act 1986
Evidence Act 1995

Cases Cited:
B v The Queen [1992] HCA 68; (1992) 175 CLR 599
Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75
BB v R [2015] NSWCCA 308
Browne v Dunn (1893) 6 R 67
Grills v The Queen [1996] HCA Trans 273; (1996) 70 ALJR 905
HML v The Queen, SB v The Queen, OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
Jago v District Court of New South Wales [1989] HCA 46; (1989)168 CLR 23
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
R (Cth) v Rapolti [2016] NSWCCA 264
R v AH (1997) 42 NSWLR 702; 98 A Crim R 71
R v ATM [2000] NSWCCA 475
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Littler [2001] NSWCCA 173
R v MSK and MAK [2004] NSWCCA 308
R v PJE unreported CCA (NSW) 9 October 1995 (Cole JA, Grove and Sperling JJ)
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
R v SJRC [2007] NSWCCA 142
R v Westley [2004] NSWCCA 192
R v X [2014] NSWCCA 168
S v The Queen [1989] HCA 66; (1980) 168 CLR 266
X7 v R [2014] NSWCCA 273

Texts Cited:
Not Applicable

Category: Principal judgment
Parties:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BB v The Queen (No 2)

Details

AGLC: BB v The Queen (No 2) [2017] NSWCCA 142
Case: [2017] NSWCCA 142
Decision Date: 23 June 2017

CaseChat Overview and Summary

In the case of BB v The Queen (No 2), the applicant, who was convicted in an earlier trial, appealed against the refusal of a permanent stay of proceedings. The conviction was quashed and a re-trial ordered. The applicant sought leave to appeal against the refusal of a permanent stay, and the appeal was ultimately dismissed. The case involved a serious sexual assault charge, and the applicant sought to introduce evidence of uncharged illegal acts that occurred after the charged offences. The applicant argued that this evidence was necessary to assist the jury in understanding the complainant's evidence and to explain why an immediate complaint was not made. The court was required to determine whether the exclusion of this context evidence was an error that warranted a permanent stay of proceedings.

The legal issues before the court involved the admissibility of context evidence of uncharged illegal acts that post-dated the charged offences. The court considered whether the evidence was necessary to assist the jury in understanding the complainant’s evidence and to explain why an immediate complaint was not made. The court also weighed the risk of unfair prejudice to the applicant by the jury conflating the charged and uncharged acts, and the risk of the jury engaging in impermissible tendency reasoning. Additionally, the court considered whether the Crown case was substantially weakened by the exclusion of the evidence.

The court concluded that the trial judge's decision to exclude the context evidence was not an error that warranted a permanent stay of proceedings. The court found that the evidence was not necessary to assist the jury in understanding the complainant’s evidence or to explain why an immediate complaint was not made. The court also found that the risk of unfair prejudice to the applicant was not sufficient to warrant a permanent stay. The court further found that the Crown case was not substantially weakened by the exclusion of the evidence. Consequently, the court dismissed the appeal against the refusal to grant a permanent stay.

The court made no orders as to costs. The appeal against the refusal to stay was dismissed.

Orders