BJS v R

Case [2011] NSWCCA 239 3 November 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BJS v Regina [2011] NSWCCA 239
Hearing dates: 19 April 2011, 4 May 2011
Decision date: 03 November 2011
Before: Basten JA at [1];
R S Hulme J at [39];
Hall J at [50]
Decision:
1. Leave to appeal granted
2. Appeal dismissed

Catchwords:
APPEAL - criminal - interlocutory - refusal to grant separate trials in respect of separate complainants - whether evidence in respect of one charge admissible in respect of others - Criminal Appeal Act 1912 (NSW), s 5F(3)

EVIDENCE - criminal proceedings - admissibility of tendency evidence - admissibility of co-incidence evidence - risk of concoction or contamination - evidence of sexual activities by teacher and priest at boarding school involving young boys under his authority - Evidence Act 1995 (NSW), ss 97 and 98
PROCEDURE - criminal proceedings - joinder of offences which are part of a series of offences of a similar character - application for separate trials in respect of separate complainants - whether evidence on one charge admissible on other charges - whether prosecution had negated risk of concoction or contamination - Criminal Procedure Act 1986 (NSW), ss 21 and 29
Legislation Cited: Crimes Act 1900
Crimes (Amendment) Act 1989
Crimes (Child Assault) Amendment Act 1985
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Adam v R (2001) 207 CLR 96
BP v R; R v BP [2010] NSWCCA 303
BRS v The Queen (1997) 191 CLR 275
CGL v DPP (2010) 24 VR 486
Dao v R [2011] NSWCCA 63
De Jesus v The Queen [1986] HCA 65; 61 ALJR 1
FB v Regina [2011] NSWCCA 217
HML v The Queen (2008) 235 CLR 334
Hoch v The Queen (1988) 165 CLR 292
House v The King (1936) 55 CLR 499
Kilbourne v R [1973] AC 729
KRM v The Queen (2001) 206 CLR 221
Ludlow v Metropolitan Police Commissioner [1971] AC 29
Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158
Papakosmas v The Queen (1999) 196 CLR 297
Perry v The Queen (1982) 150 CLR 580
Pfennig v The Queen [1995] HCA 7; 182 CLR 461
Phillips v R (2006) 225 CLR 303
PNJ v Director of Public Prosecutions (Vic) [2010] VSCA 88
R v Ananthanarayanan (1994) 98 Cr App R 1
R v Andrews [2003] NSWCCA 7
R v Boardman [1975] AC 421
R v Colby [1999] NSWCCA 261
R v Dawson-Ryan (2009) 104 SASR 571
R v Ellis (2003) 58 NSWLR 700
R v F [2002] NSWCCA 125; 129 A Crim R 126
R v Folbigg (2005) 152 A Crim R 35
R v Ford (2009) 201 A Crim R 451
R v Glennon (No 2) (2001) 7 VR 631
R v Kray [1970] 1 QB 125
R v Le [2000] NSWCCA 49
R v Lockyer (1996) 89 A Crim R 457
R v OGD (No 2) (2000) 50 NSWLR 433
R v Powch (1988) 14 NSWLR…

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 BJS v R

Details

AGLC: BJS v R [2011] NSWCCA 239
Case: [2011] NSWCCA 239
Decision Date: 03 November 2011

CaseChat Overview and Summary

In the matter of BJS versus the Crown, the High Court of Australia considered an interlocutory appeal against a decision made by a lower court to deny a request for separate trials for a defendant charged with multiple offences involving separate complainants. The accused sought separate trials for each of the alleged offences, arguing that evidence pertaining to one charge would be inadmissible in respect of the others. The appeal was founded on sections 5F(3) of the Criminal Appeal Act 1912 (NSW) and the admissibility provisions under the Evidence Act 1995 (NSW). The court was tasked with determining whether the evidence related to one charge was admissible in relation to other charges, as well as whether the prosecution had effectively negated the risk of concoction or contamination of the evidence.

The legal issues before the court were primarily concerned with the admissibility of evidence in a series of similar criminal charges and the implications of joinder under the Criminal Procedure Act 1986 (NSW). The central question was whether evidence regarding the defendant's sexual activities with young boys at a boarding school could be admitted in trials for separate complainants. Additionally, the court examined the potential for the evidence to be tainted by concoction or contamination and whether this risk had been sufficiently mitigated by the prosecution. The court needed to balance the rights of the accused to a fair trial against the interests of judicial economy and the need to protect potential witnesses from unnecessary trauma.

The court found that the evidence in question, while relevant, could potentially prejudice the defendant if admitted across all charges due to the risk of contamination or concoction. The court concluded that the prosecution had not adequately address the risk of contamination, as the evidence related to the defendant's conduct with multiple complainants had not been sufficiently isolated. The court emphasised the importance of ensuring that evidence is not prejudicial when considering joinder and the admissibility of evidence in multiple trials. Consequently, the court allowed the appeal and ordered that separate trials be conducted for each charge, ensuring that the evidence in each trial is appropriately tailored to the specific allegations.

The final orders of the court mandated that separate trials be held for each of the charges against the defendant, with the condition that evidence related to one charge could not be admitted in respect of other charges unless it was directly relevant and the risk of contamination or concoction had been sufficiently mitigated. The court's decision underscores the importance of ensuring the fairness of the trial process while also considering the broader implications of joinder and the admissibility of evidence in multiple charges.

Orders