R v BK

Case [2022] NSWCCA 51


Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: R v BK [2022] NSWCCA 51
Hearing dates: 22 October 2021
Date of orders: 16 March 2022
Decision date: 16 March 2022
Before: Johnson J at [1];
Rothman J at [170];
Hamill J at [224].
Decision:

By majority, pursuant to s.107(5) Crimes (Appeal and Review) Act 2001 (NSW), affirm the acquittal of the Respondent entered by Judge Jeffreys in the District Court on 30 March 2021.

Catchwords:

CRIME – acquittal after Judge-alone trial – child sexual abuse offences allegedly committed in 1985 – complainant a 12-year old student at school where accused was a teacher – Crown appeal against acquittal under s.107 Crimes (Appeal and Review) Act 2001 – appeal on grounds involving questions of law alone – unchallenged evidence admitted at trial as tendency evidence – accused had committed child sexual abuse offences against two other 13-year old students from school between 1985 and 1987– first ground asserted that Judge failed to take tendency evidence into account in acquitting accused – second ground asserted that, if tendency evidence taken into account, Judge erred by failing to record findings concerning tendency evidence - consideration of significance of unchallenged tendency evidence – duty to give reasons – first ground rejected (by majority) – second ground upheld (by majority) – whether discretion should be exercised to quash acquittals and order a new trial – discretionary considerations - held (by majority) that acquittals should not be quashed and a new trial ordered – Crown appeal dismissed - acquittals of accused affirmed under s.107(5) Crimes (Appeal and Review) Act 2001

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Attorney General for NSW v X (2000) 49 NSWLR 653; [2000] NSWCCA 199

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

BRC v R [2020] NSWCCA 176

Browne v Dunn (1893) 6 R 67

Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284

Collector of Customs v Pozzolanic (1993) FCR 280; [1993] FCA 456

Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; (2012) 222 A Crim R 106

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34

Elomar v R [2014] NSWCCA 303; (2014) 300 FLR 323

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22

Hopgood v R [2019] NSWCCA 246

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

IMM v R (2016) 257 CLR 300; [2016] HCA 14

Khorami v R; R…

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R v BK [2022] NSWCCA 51
Case
[2022] NSWCCA 51
Decision Date

CaseChat Overview and Summary

In the case of R v BK, the accused, BK, was acquitted of child sexual abuse offences allegedly committed in 1985 against a 12-year-old student at a school where he was a teacher. The Crown appealed the acquittal, arguing that the trial judge failed to consider relevant tendency evidence and did not properly record findings concerning this evidence. The appeal was heard by the court of appeal, which was required to determine whether the trial judge's failure to consider and record findings on the tendency evidence constituted a legal error warranting a new trial.

The legal issues centred on whether the trial judge failed to take into account unchallenged evidence of similar child sexual abuse offences committed by BK against two other 13-year-old students between 1985 and 1987, and whether this omission constituted a failure to record necessary findings. The court examined the significance of the unchallenged tendency evidence and the trial judge's duty to give reasons for the verdict. The majority of the court found that while the trial judge did not take the tendency evidence into account, this did not constitute a legal error. However, the majority did find that the trial judge's failure to record findings concerning the tendency evidence was a legal error.

Upon considering the discretionary factors, the majority concluded that, despite the legal error, the acquittals should not be quashed, and a new trial should not be ordered. The court reasoned that the unchallenged evidence, while significant, did not undermine the reliability of the complainant's evidence, and the trial judge's overall reasoning and decision were sound. Consequently, the Crown's appeal was dismissed, and BK's acquittals were affirmed under s.107(5) of the Crimes (Appeal and Review) Act 2001.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

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