Bathurst CJ at [1]; Leeming JA at [26]; Johnson J at [230]; Button J at [236]; Wilson J at [240].
Decision:
1. Grant leave to appeal confined to grounds 1-5.
2. Appeal dismissed.
Catchwords:
APPEALS – jurisdiction – challenges to evidentiary rulings at trial by Crown and accused – whether jurisdiction of Court of Criminal Appeal to review refusal of permanent stay permitted accused to challenge evidentiary rulings – whether Crown could, in absence of an appeal, challenge a contingent ruling concerning tendency evidence – no jurisdiction to entertain either challenge
APPEALS – stare decisis – Court invited to depart from longstanding authority on statutory provision – sustained criticism of section by courts and law reform bodies – test for departing from settled construction – significance of re-enactment of legislation substantially unaltered despite criticisms
CONSTITUTIONAL LAW – principle in Kable v DPP – whether law which precluded questioning complainant in sexual offence prosecution substantially impaired court's institutional integrity – where court retained power to stay prosecution – challenge to validity dismissed
CRIMINAL LAW – permanent stay – where statute said to cause significant prejudice to accused, to give jury a distorted picture and to detract from prosecutor's obligations of fairness – complainant permitted to be asked certain questions not infringing s 293 – nature and extent of prejudice not presently ascertainable – application dismissed
EVIDENCE – Criminal Procedure Act (NSW), s 293 – provision precludes questions disclosing or implying that complainant has or may have taken part or not taken part in any sexual activity – accused sought to rely on evidence that complainant had previously fabricated claims of sexual assault – evidence of varying qualities, ranging from third hand hearsay to pleading guilty to making a false report – whether s 293 applied to evidence of fabrication – whether s 293 applied to "proven" instances of fabrication – whether instances of false complaint over many years comprised a "connected series of events" occurring "at or about the same time" as the commission of the offence – history of s 293, its predecessors and its counterparts in other jurisdictions considered
[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.
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AGLC
Jackmain (a pseudonym) v The Queen [2020] NSWCCA 150
Case
[2020] NSWCCA 150
Decision Date
CaseChat Overview and Summary
Jackmain (a pseudonym) appealed against a decision of the Supreme Court of New South Wales, which had dismissed his application for a permanent stay of proceedings against him on the basis of alleged prejudice caused by section 293 of the Criminal Procedure Act. The court was required to determine the jurisdiction of the Court of Criminal Appeal to review the refusal of a permanent stay and whether the Crown could challenge a contingent ruling concerning tendency evidence in the absence of an appeal. The court was also asked to consider the validity of section 293, and whether it substantially impaired the court's institutional integrity by precluding questioning of the complainant in a sexual offence prosecution.
The Court of Criminal Appeal held that it did not have jurisdiction to review the refusal of a permanent stay, as there was no appeal against the underlying conviction or sentence. The court found that the Crown could not challenge a contingent ruling concerning tendency evidence in the absence of an appeal. The court considered the test for departing from settled construction of a statutory provision and concluded that the re-enactment of legislation substantially unaltered despite criticisms was significant. The court dismissed the challenge to the validity of section 293, finding that it did not substantially impair the court's institutional integrity as the court retained power to stay the prosecution.
The court held that the nature and extent of the prejudice caused by section 293 was not presently ascertainable and dismissed the application for a permanent stay. The court found that section 293 did not apply to evidence of the complainant's previous fabrication of claims of sexual assault, as it did not disclose or imply that the complainant had taken part or not taken part in any sexual activity. The court also found that instances of false complaint over many years did not comprise a "connected series of events" occurring "at or about the same time" as the commission of the offence.
The court dismissed Jackmain's appeal and affirmed the decision of the Supreme Court. The orders of the Supreme Court were upheld, and Jackmain's application for a permanent stay of proceedings was dismissed.