BB v The Queen (No 2)

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.