Brown v The The Queen - [2022] NSWCCA 121

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
DSJ v R; NS v R [2014] NSWCCA 77
R v Powch (1984) 14 NSWLR 136
Steffan v R (1993) 30 NSWLR 633

Category: Principal judgment
Parties: Matthew Brown (Applicant)
Crown (Respondent)
Representation:
Counsel:
J Masters (Applicant)
B Hatfield (Crown)
Solicitors:
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

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

The relevant circumstances have a degree of complexity.
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consent, brought under s 61I of the Crimes Act 1900 (NSW), and one count of indecent assault brought under s 61L (now repealed) of the Crimes Act.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.
All offences are alleged to have been committed in Jindabyne between a range of dates commencing in July 2017 and ending in September 2017.
The Crown alleges that there are common elements to the alleged offences, such as to enliven the…

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 Brown v The The Queen

Details

AGLC: Brown v The The Queen [2022] NSWCCA 121
Case: [2022] NSWCCA 121
Decision Date: 15 June 2022

CaseChat Overview and Summary

The case of Brown v The Queen involved the applicant seeking leave to appeal from the orders of the Supreme Court of New South Wales which dismissed his applications for a permanent stay or for a separate trial. The applicant was facing a criminal charge, and the primary dispute centred on the admissibility of certain evidence in the trial. The application for leave to appeal was made pursuant to section 5F(3) of the Criminal Appeal Act 1912 (NSW). The core legal issue before the court was whether the ruling on the admissibility of evidence constituted an interlocutory order or judgment that was amenable to an appeal under section 5F(3) of the Criminal Appeal Act.

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