Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Brown v R [2022] NSWCCA 121 Hearing dates: 8 November 2021 Date of orders: 15 June 2022 Decision date: 15 June 2022 Before: Simpson AJA at [1]
Rothman J at [41]
Ierace J at [42]Decision: Leave to appeal refused
Catchwords: CRIME — appeals — application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act1912 (NSW) against orders dismissing the applications for permanent stay or for separate trial — ruling on evidence is not an interlocutory order or judgment amenable to appeal under s 5F(3) of Criminal Appeal Act — the underlying basis for the application is a preliminary ruling on evidence — leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L
Criminal Appeal Act 1912 (NSW), s 5F(3)
Criminal Procedure Act 1986 (NSW), ss 21(2), 29(1), 29A, 130A, 159(1), 290A(1), 293(3), 306I, 294CB
Evidence Act 1995 (NSW), Pt 3.6, ss 97, 101, 192A
Cases Cited: DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Category: Principal judgment Parties: Matthew Brown (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
J Masters (Applicant)
B Hatfield (Crown)
Anthony Cullinan Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/383847 Publication restriction: Statutory prohibition on name of complainant Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Citation:
N/A
- Date of Decision:
- 14 July 2021
- Before:
- Townsden DCJ
- File Number(s):
- 2018/383847
Judgment
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SIMPSON AJA: This is an application, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), for leave to appeal against an interlocutory order of a judge of the District Court made on 14 July 2021.
Relevant circumstances
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The relevant circumstances have a degree of complexity.
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The applicant stands charged in a single indictment with four counts of offences of sexual intercourse without consent, brought under s 61I of the Crimes Act 1900 (NSW), and one count of indecent assault brought under s 61L (now repealed) of the Crimes Act. Three complainants are named in the indictment. Essential elements of an offence against s 61I are that sexual intercourse (as defined in s 61HA) took place and that the sexual intercourse was without the consent of the complainant. The first count on the indictment is an allegation of an offence of sexual intercourse without consent against a complainant to whom I will refer as C1. The second and third counts on the indictment relate to a complainant to whom I will refer to as C2. The fourth and fifth counts relate to a complainant to whom I will refer as C3.
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All offences are alleged to have been committed in Jindabyne between a range of dates commencing in July 2017 and ending in September 2017.
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The Crown alleges that there are common elements to the alleged offences, such as to enliven the…
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- Brown v The The Queen [2022] NSWCCA 121
- Case
- [2022] NSWCCA 121
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the ruling on evidence, determining that it was not an interlocutory order or judgment. Instead, the ruling was a preliminary decision on the admissibility of evidence, which did not conclude the merits of the case or the guilt or innocence of the applicant. Given that the ruling on evidence did not meet the criteria for an interlocutory appeal under the relevant statute, the court found that the application for leave to appeal was not tenable. Consequently, the court dismissed the application for leave to appeal.
The court's reasoning hinged on the statutory interpretation of section 5F(3) of the Criminal Appeal Act and the distinction between interlocutory orders and preliminary rulings on evidence. The court held that because the ruling in question did not finalise the matters on appeal, it did not qualify as an appealable order under the provisions of the Act. As such, the court refused the applicant's request for leave to appeal.
The final orders of the court were that the application for leave to appeal be refused. The court maintained that the ruling on evidence did not constitute an interlocutory order or judgment that was appealable under section 5F(3) of the Criminal Appeal Act. The applicant's applications for a permanent stay or for a separate trial remained dismissed, and no further appeal was permitted on the basis of the preliminary ruling on evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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