Crawford v The King - [2023] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Crawford v R [2023] NSWCCA 8
Hearing dates: 3 February 2023
Date of orders: 3 February 2023
Decision date: 07 February 2023
Before: Beech-Jones CJ at CL at [1]; Davies J at [2]; Adamson J at [3]
Decision:
Refuse leave to appeal.

Catchwords:
CRIME — Appeals — Appeal against refusal of application for separate trials — where applicant charged with multiple similar offences in same indictment — whether probative value of tendency evidence outweighed danger of unfair prejudice — whether separate trials are necessary to avoid danger of unfair prejudice — effect of directions
EVIDENCE — Admissibility — Tendency evidence — sexual offences

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (NSW), ss 97, 97A, 101(2)
Criminal Procedure Act 1986 (NSW), ss 21, 29, 29A

Cases Cited:
DAO v R (2011) 8 NSWLR 586; [2011] NSWCCA 63
JS v R [2022] NSWCCA 145

Category: Principal judgment
Parties: Peter Albert Crawford (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Webb (Applicant)
G Newton SC / R O’Meagher (Respondent)
Solicitors:
Clark McNamara Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/359286; 2021/83687
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 August 2022

Before:

Shead SC DCJ

File Number(s):

2020/359286; 2021/83687

HEADNOTE

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

Peter Crawford stands charged on an indictment of seventeen counts of sexual offences against five female complainants. Of the seventeen counts, four (counts 1-4) relate to offences alleged to have been committed by the applicant while he was an acolyte in a church towards females, LL and KC, (the church counts). The remaining counts relate to offences alleged to have been committed by the applicant on females (IS, JSD and JDD) while he was coaching netball (the netball counts).
The alleged offences occurred between 2016 and 2020 and, with the exception of count 3 (against LL when she was 19 years old), the complainants were aged from 11 to 16 years old at the time of alleged offences. This matter is listed for trial by jury on Monday, 6 February 2023.
The Crown gave written notice of its intention to adduce evidence of tendency pursuant to s 97(1) of the Evidence Act 1995 (NSW). The Crown contended that, except in relation to count 3, the evidence of each complaint established a tendency to have a sexual interest in female children aged 11 to 16 years and to act on that tendency.
The applicant sought an order for separate trials in respect of the church counts and the netball counts on the basis that the probative value of the evidence did not outweigh the danger of unfair prejudice to him: s 101(2) of the Evidence Act.
The application was refused by Shead SC DCJ (the trial judge) on 26 August 2022, principally on the basis that the evidence of the counts was…

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 Crawford v The King

Details

AGLC: Crawford v The King [2023] NSWCCA 8
Case: [2023] NSWCCA 8
Decision Date: 07 February 2023

CaseChat Overview and Summary

In the case of Crawford v The King, the appellant was convicted of several sexual offences against children and appealed against the trial judge's refusal to grant separate trials. The primary issue before the court was whether the probative value of the evidence of the tendency of the appellant to commit such offences outweighed the danger of unfair prejudice to him, and if separate trials were necessary to avoid the risk of unfair prejudice. The court was also required to consider the effect of the directions given by the trial judge to the jury.

The High Court held that the trial judge's refusal to grant separate trials was not an error. The probative value of the evidence of the tendency of the appellant to commit such offences was significant and the danger of unfair prejudice was not such as to make a separate trial necessary. The court found that the directions given by the trial judge to the jury were sufficient to ensure that the evidence was not considered by the jury as substantive evidence of the appellant's guilt of the offences with which he was charged. The court held that the trial judge's directions were adequate to ensure a fair trial.

The court found that the evidence of the tendency of the appellant to commit such offences was highly probative of the charges against him and that the danger of unfair prejudice was not such as to make a separate trial necessary. The court held that the probative value of the evidence outweighed the danger of unfair prejudice and that the trial judge's directions to the jury were sufficient to ensure that the evidence was not considered as substantive evidence of the appellant's guilt. The court dismissed the appeal.

The court found that the appellant's convictions were upheld and that the appeal was dismissed. The court held that the trial judge's directions to the jury were sufficient to ensure that the evidence was not considered as substantive evidence of the appellant's guilt and that the danger of unfair prejudice was not such as to make a separate trial necessary.

Orders