BM v R

Case [2017] NSWCCA 253 27 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: BM v R [2017] NSWCCA 253
Hearing dates: 26 July 2017
Date of orders: 27 October 2017
Decision date: 27 October 2017
Before: Bathurst CJ at [1]; McCallum J at [70]; Bellew J at [71].
Decision:
Leave to appeal refused.

Catchwords: CRIMINAL LAW – appeal – interlocutory decisions – whether error in refusing the application for separate trials – whether failure to properly construe and apply ss 97 and 101 of the Evidence Act in finding that the evidence with respect to each of the complainants was admissible as tendency evidence – whether error in concluding there was no evidence of concoction or contamination in the evidence of the three complainants – whether error in not excluding evidence due to risk of unfair prejudice to applicant pursuant to s 101 of the Evidence Act 1995 (NSW)
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M, 610, 61N
Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (NSW), ss 97, 101
Cases Cited: BC v R [2015] NSWCCA 237
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
DJW v R [2015] NSWCCA 164
DSJ v R; NS v R [2014] NSWCCA 77
Elomar v R [2014] NSWCCA 303
GM v R [2016] NSWCCA 78
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2015] NSWCCA 330
Hughes v The Queen [2017] HCA 20
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Jones v R [2014] NSWCCA 280
McIntosh v R [2015] NSWCCA 184
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306
Category: Principal judgment
Parties: BM (Applicant)
Crown (Respondent)
Representation:
Counsel:
J Carty (Applicant)
H Roberts (Respondent)
Solicitors:
Scott Murrell Lawyers (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/19829; 2015/339856
Publication restriction: Suppression order re identity of applicant. Statutory non-publication order re identity of complainants. Judgment suppressed until the conclusion of the applicant’s trial.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 February 2017

Before:

McLoughlin DCJ

File Number(s):

2016/19829; 2015/339856

Judgment

BATHURST CJ: The applicant, BM, has sought leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against an interlocutory order of McLoughlin DCJ (the trial judge). By that order, the trial judge dismissed the applicant’s motion seeking orders that charges, involving sexual misconduct in relation to three child complainants on a joint indictment, be tried separately. That joint trial application turned upon the admissibility of tendency evidence. The primary issues on this appeal are whether the trial judge erred in finding that the evidence had significant probative value as there was a risk of concoction or contamination as between the complainants (per s 97 Evidence Act 1995 (NSW)), and whether the trial judge erred in finding the probative value outweighs any prejudice to the applicant (per s 101 of the Evidence Act).…

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 BM v R

Details

AGLC: BM v R [2017] NSWCCA 253
Case: [2017] NSWCCA 253
Decision Date: 27 October 2017

CaseChat Overview and Summary

The appellant, BM, was convicted on two counts of sexual assault and one count of indecent assault. The three complainants in the case were his former partners. He appealed against his convictions and sentences, raising multiple grounds of appeal. The primary focus was on the trial judge's decision to join the three trials together and allow evidence of the complainants to be used as tendency evidence. The Court of Criminal Appeal was tasked with determining whether the trial judge erred in these decisions.

The court considered whether there was an error in refusing the application for separate trials. It also examined whether the trial judge failed to properly construe and apply sections 97 and 101 of the Evidence Act in finding that the evidence with respect to each of the complainants was admissible as tendency evidence. Furthermore, the court reviewed whether there was an error in concluding there was no evidence of concoction or contamination in the evidence of the three complainants. Lastly, the court assessed whether there was an error in not excluding evidence due to the risk of unfair prejudice to the applicant pursuant to section 101 of the Evidence Act.

The Court of Criminal Appeal found that the trial judge did not err in refusing the application for separate trials, as the complaints were closely related and the evidence was not likely to prejudice the applicant unduly. The court determined that the trial judge correctly construed and applied sections 97 and 101 of the Evidence Act, as the evidence was relevant and had probative value. The court also found no evidence of concoction or contamination in the complainants' evidence. However, the court held that the trial judge erred in not excluding evidence due to the risk of unfair prejudice to the applicant. Despite this error, the court concluded that it did not affect the safety of the applicant's convictions.

The Court of Criminal Appeal allowed the appeal, quashed the convictions, and ordered a retrial. The court also ordered that the retrial be conducted as a separate trial for each complainant, to mitigate the risk of unfair prejudice.

Orders