Brown v The The Queen - [2022] NSWCCA 116

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brown v R [2022] NSWCCA 116
Hearing dates: 04 May 2022
Decision date: 03 June 2022
Before: Bell CJ at [1];
Kirk JA at [58];
Price J at [59]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords:
CRIMINAL LAW – appeal against conviction – trial by judge alone – whether trial judge should have directed herself in terms of s 165B of the Evidence Act – where no application for such a direction was made – whether failure to make direction resulted in a miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW) ss 66EA(1), 76
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) s 165B
Evidence Amendment Act 2007 (Cth)

Cases Cited:
Binns v R [2017] NSWCCA 280
Cabot (a pseudonym) v R (No 2) [2020] NSWCCA 354
Constantinidis v R; Lazar v R [2022] NSWCCA 4
Groundstroem v R [2013] NSWCCA 237
Higgins v R [2020] NSWCCA 149
Shanmugam v R [2021] NSWCCA 125
TO v R (2017) 265 A Crim R 191; [2017] NSWCCA 12
W v R [2014] NSWCCA 110

Category: Principal judgment
Parties: Christopher Rowland Brown (Applicant)
The Crown (Respondent)
Representation:
Counsel:
G J Jones (Applicant)
C Curtis (Respondent)
Solicitors:
George Sten & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/289374
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Common Law Division

Date of Decision:

21 August 2020

Before:

Woodburne SC DCJ

File Number(s):

2018/289374

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2020 Christopher Rowland Brown (the applicant) was found guilty of five child sexual offences following a judge-alone trial and sentenced to an aggregate sentence of imprisonment of 8 years and an aggregate non-parole period of 5 years. The offences were alleged to have been committed by the applicant when he was a teacher at Erina Heights School between the years 1978 and 1980.

In 1978 and 1979 the applicant taught a Year 3/4 composite class. In 1978 MB and JT were his students in the Year 3 part of the composite class and in 1979 they had progressed into the Year 4 part of the class. The trial judge held that the applicant assaulted his students MB and JT on a number of occasions during this time. Neither child said anything at the time to each other or to anyone else. In 1981 the applicant resigned as a teacher with the New South Wales Department of Education. He moved to Western Australia where he was employed with the Department of Education in that State.

On 23 October 2018 the applicant was arrested and extradited from Western Australia to New South Wales. On 24 October 2018 he participated in an electronically recorded interview, during which he denied any such sexual misconduct.

At trial, defence counsel made a number of submissions which fixed upon the lengthy passage of time since the events…

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 116
Case: [2022] NSWCCA 116
Decision Date: 03 June 2022

CaseChat Overview and Summary

The appeal before the court was brought by a defendant against their conviction by a trial judge alone. The defendant contended that the trial judge should have directed herself in terms of section 165B of the Evidence Act, which provides for a warning to be given when a person gives evidence that is hostile or adverse to the party who called them as a witness. The defendant argued that the failure to give such a direction resulted in a miscarriage of justice.

The legal issues before the court were whether the trial judge was required to direct herself in terms of section 165B of the Evidence Act, and if so, whether the failure to do so resulted in a miscarriage of justice. The court considered the circumstances of the case, including whether the evidence given by the witness was indeed hostile or adverse to the party who called them, and whether the defendant was prejudiced by the failure to give the warning.

The court found that the trial judge was not required to direct herself in terms of section 165B of the Evidence Act because no application for such a direction was made. The court held that the provision was not mandatory, and the failure to give the warning did not result in a miscarriage of justice. The court found that the evidence given by the witness was not so adverse as to require a warning, and the defendant was not prejudiced by the failure to give the warning. The appeal against conviction was dismissed.

Orders