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R v Brookman

R v Brookman

Case [2021] NSWDC 110 25 March 2021

Appeal

Admissibility of Evidence

Tendency Evidence

Presumption

Exceptional Circumstances

Complaint Evidence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Brookman [2021] NSWDC 110
Hearing dates: 23 – 24 March 2021
Date of orders: 25 March 2021
Decision date: 25 March 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 71, 93, 110, 151, 178

Catchwords:
CRIMINAL PROCEDURE – historical sexual assault offence – pre-trial applications – application to adduce evidence regarding complainant’s sexual experience – Criminal Procedure Act (NSW) s 293 – application for trial by judge alone – concern about ‘unfair prejudice’ arising from apprehended disclosure of accused undergoing sexual reorientation after alleged offending – relevance of COVID-19 measures post lockdown
EVIDENCE – criminal proceeding – tendency evidence – presumption that evidence of accused’s sexual interest in complainant, and/or young males has significant probative value – whether sufficient grounds for finding such evidence does not have significant probative value – whether exceptional circumstances arise so as to enable excluded matters proscribed by s 97A(5) to be taken into account – complaint evidence – whether evidence ‘fresh in the memory’

Legislation Cited:
COVID-19 Legislation Amendment (Stronger Communities and Health) Bill 2021 (NSW)
Crimes Act 1900 (NSW) s 61E
Criminal Procedure Act 1986 (NSW) ss 132, 293, 365, 366
Evidence Act1995 (NSW) ss 66, 94, 97, 97A, 101. 137, 293

Cases Cited:
Ayturgrul v The Queen (2012) 247 CLR 170
DPP v Farrugia [2017] NSWCCA 197
Hughes v The Queen (2017) 263 CLR 338
IMM v The Queen (2016) 90 ALJR 529
Jackmain v R [2020] NSWCCA 150
JWM v R [2020] NSWCCA 248
McPhillamy v The Queen (2018) 92 ALJR 105
R v BD (No.1) [2020] NSWDC 150
R vBurton [2013] NSWCCA 335
R v Coleman [2020] ACTSC 97
R vEdwards [2015] NSWCCA 24
R v Gregory-Roberts [2016] NSWCCA 92
R v Jamal (2008) 72 NSWLR 258
R v Obeid [2015] NSWSC 897
R v Stanley [2013] NSWCCA 124
R v XY (2010) 79 NSWLR 629
The Queen v Bauer (2018) 92 ALJR 846

Texts Cited:
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020
Stephen Odgers, Uniform Evidence Law (15th ed, 2020, Thomson Reuters)

Category: Procedural rulings
Parties: Director of Public Prosecutions (NSW)
Mr R Brookman (the accused)
Representation: Solicitors:
Solicitor Advocate for the Director of Public Prosecutions (NSW)
Mr G Walsh (solicitor) for the accused

File Number(s): 2020/12398

Judgment

INTRODUCTION

The accused is charged on indictment that between 31 July 1989 and 8 October 1989, in Newtown, he assaulted the complainant, a person then under the age of 16 years (13 years) and at the time of the assault, committed an act of indecency upon him, being at that time under the authority of the accused, contrary to section 61E(1A) of the Crimes Act 1900 (NSW).
By a notice of motion, dated 3 February 2021, the accused brings multiple applications. He seeks:

a ruling upon the admissibility of tendency evidence to be relied upon by the prosecution;

a ruling upon the admissibility of complaint evidence to be given by a Crown witness…

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 R v Brookman

Details

AGLC: R v Brookman [2021] NSWDC 110
Case: [2021] NSWDC 110
Decision Date: 25 March 2021

CaseChat Overview and Summary

The case of R v Brookman involved the respondent, Brookman, who faced a trial for historical sexual assault offences. The complainant, who had accused Brookman of the assaults, was deceased at the time of the trial. The case was heard in the District Court of New South Wales. The primary dispute was whether certain evidence could be admitted in the trial, particularly evidence related to the complainant's sexual experience and Brookman's sexual reorientation after the alleged offences. Additionally, there was a motion to have the trial conducted by a judge alone, rather than a jury, due to concerns about potential prejudice.

The court was required to decide several legal issues, including whether evidence of the complainant's sexual experience was admissible and whether it was relevant and had significant probative value. Another issue was whether evidence of Brookman's sexual reorientation could be considered, given its potential to unfairly prejudice the trial. Furthermore, the court had to determine if the evidence of the complainant's sexual experience was still fresh in the memory and whether the COVID-19 pandemic measures could influence the trial proceedings.

The court, in its reasoning, noted that the evidence of the complainant's sexual experience was deemed relevant and had significant probative value. It was held that there were no exceptional circumstances that would allow evidence proscribed by s 97A(5) to be taken into account. The court found that the evidence was fresh in the memory and thus admissible. Regarding the application for a trial by judge alone, the court held that the concerns about potential prejudice were insufficient to warrant a trial without a jury. The court ultimately ruled against admitting certain evidence and denied the application for a trial by a judge alone.

The final orders included the rejection of the application to adduce evidence regarding the complainant's sexual experience, the denial of the application for a trial by a judge alone, and the dismissal of the application to consider certain excluded matters. The trial proceeded with the judge presiding, and the court outlined the evidence that would be considered and the legal standards that would apply.

Orders

Orders of the court

See paragraphs 71, 93, 110, 151, 178

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Brookman [2021] NSWDC 110

Most Recent Citation

R v QX (No 5) [2021] ACTSC 247

Cases Citing This Decision

Director of Public Prosecutions v Timosevski [2024] ACTSC 85
Citation 1

…in s 97A(5) when determining if there are “sufficient grounds” to negate the presumption? … [85] As Abadee DCJ observed in R v Brookman [2021] NSWDC 110 ( R v Brookman ), the first NSW first instance decision applying s 97A, at [39]: “ … the accused's sexual interest in the complainant as at the date of the offendi…
Director of Public Prosecutions v Small [2022] ACTSC 325
Citation 2

…A(5) when determining if there are “sufficient grounds” to negate the presumption? … As Abadee DCJ observed in R v Brookman [2021] NSWDC 110 ( R v Brookman ), the first NSW first instance decision applying s 97A, at [39]: …the accused’s sexual interest in the complainant as at the date of the offending, the expecte…
Director of Public Prosecutions (ACT) v Naing [2022] ACTSC 263
Citation 3

…As Abadee DCJ observed in R v Brookman [2021] NSWDC 110 ( R v Brookman ), the first NSW first instance decision applying s 97A, at [39]:…
R v QX (No 5) [2021] ACTSC 247
Citation 4

…5) 182 CLR 461 R v Amato [2021] ACTSC 155 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Blick [2000] NSWCCA 61; 111 A Crim R 326 R v Brookman [2021] NSWDC 110 R v Ellis [2003] NSWCCA 319; 58 NSWLR 800 R v GAC [2007] NSWCCA 315; 178 A Crim R 408 R v QX (No 4) [2021] ACTSC 246 R v QX [2021] ACTSC 187 Sokolows…

See all citing cases →

Cases Cited

R v XY [2024] NSWSC 1472
Citation 1 (Para 100)

…ted to a range of such examples in case law authority. Nevertheless, it is well-established that the period of delay is not determinative: R v XY (2010) 79 NSWLR 629 at [79]. Indeed, in R v Gregory-Roberts [2016] NSWCCA 92, the Court of Criminal Appeal permitted complaint evidence to be admitted notwithstanding a peri…
TF v The Queen [2020] NSWCCA 248
Citation 2 (Para 122)

…The two requirements in s 293(4)(a)(i) and (ii) are cumulative. That is, both limbs must be satisfied: JWM v R [2020] NSWCCA 248 at [57]. In Jackmain v R [2020] NSWCCA 150 (‘ Jackmain’ ), Leeming JA identified (at [193]) the first limb as imposing a temporal restriction; whilst the second limb imposed a restriction…
Jackmain (a pseudonym) v The Queen [2020] NSWCCA 150
Citation 3 (Para 122)

…two requirements in s 293(4)(a)(i) and (ii) are cumulative. That is, both limbs must be satisfied: JWM v R [2020] NSWCCA 248 at [57]. In Jackmain v R [2020] NSWCCA 150 (‘ Jackmain’ ), Leeming JA identified (at [193]) the first limb as imposing a temporal restriction; whilst the second limb imposed a restriction in t…
R v BD [2020] NSWDC 150
Citation 4 (Para 157)

…sions of Elkaim J in the Supreme Court of the Australian Capital Territory ( R v Coleman [2020] ACTSC 97) and Lerve DCJ in this Court ( R v BD (No.1) [2020] NSWDC 150, the incidence, and continued risks associated with the Pandemic favour a trial by judge alone. The accused’s solicitor advocate submitted that there…
R v Coleman [2020] ACTSC 97
Citation 5 (Para 157)

…Further, with reference to decisions of Elkaim J in the Supreme Court of the Australian Capital Territory ( R v Coleman [2020] ACTSC 97) and Lerve DCJ in this Court ( R v BD (No.1) [2020] NSWDC 150, the incidence, and continued risks associated with the Pandemic favour a trial by judge alone. The accused’s solicit…
McPhillamy v The Queen [2018] HCA 52
Citation 6 (Para 26)

…act upon that interest, as was shown in some cases in the High Court, including Hughes v The Queen (2017) 263 CLR 338 and McPhillamy v The Queen (2018) 92 ALJR 105.…
R v Bauer [2018] HCA 40
Citation 7 (Para 86)

…conduct appears to have occurred in the previous month. That is not an overtly long period of time for an offence of this kind. The Queen v Bauer (2018) 92 ALJR 846, it was acknowledged that evidence of complaints in cases of alleged sexual abuse may be treated as fresh evidence even “years” after the event (at [89]…
Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
Citation 8 (Para 163)

…by juries and, indeed, is contrary to the existence of the public interest which underpins the conventional practice of trial by jury: DPP v Farrugia [2017] NSWCCA 197 at [10], in which reference is also made to constitutional considerations underpinning trial by jury.…
Hughes v The Queen [2017] HCA 20
Citation 9 (Para 26)

…f the likelihood that the accused would try to act upon that interest, as was shown in some cases in the High Court, including Hughes v The Queen (2017) 263 CLR 338 and McPhillamy v The Queen (2018) 92 ALJR 105.…
R v Gregory-Roberts [2016] NSWCCA 92
Citation 10 (Para 100)

…theless, it is well-established that the period of delay is not determinative: R v XY (2010) 79 NSWLR 629 at [79]. Indeed, in R v Gregory-Roberts [2016] NSWCCA 92, the Court of Criminal Appeal permitted complaint evidence to be admitted notwithstanding a period of delay of 28 years, having regard to the consistency…
IMM v The Queen [2016] HCA 14
Citation 11 (Para 89)

…proceed, for the purpose of the s 137 analysis, on the basis that the evidence of complaint is accepted as credible and reliable: IMM v The Queen (2016) 90 ALJR 529 at [54]-[55].…
R v Obeid [2015] NSWSC 897
Citation 12 (Para 174)

…hat is a significant factor when considering the likelihood of jurors being prejudiced on account of what they have heard in the media: R v Obeid [2015] NSWSC 897 at [61]. In the same decision, Johnson J drew no distinction between long-standing forms of media and the internet (at [62]-[64]).…
R v Edwards [2015] NSWCCA 24
Citation 13 (Para 126)

…arr AJ agreeing) at [79] that the temporal requirement is measured in hours, following later decisions of the Court of Criminal Appeal in R v Edwards [2015] NSWCCA 24 or Jackmain . But I note that in Jackmain , Leeming JA (delivering the lead judgment) at [191] alluded, without disapproval, to part of the Attorney-…
R v Burton [2013] NSWCCA 335
Citation 14 (Para 126)

…, months before the subject offending. In saying this, in my view it is not necessary to determine the continuing status of the holding in R v Burton [2013] NSWCCA 335 per Simpson J (R A Hulme J and Barr AJ agreeing) at [79] that the temporal requirement is measured in hours, following later decisions of the Court o…
R v Stanley [2013] NSWCCA 124
Citation 15 (Para 162)

…ge alone is respected, but it is hardly determinative. Trial by judge alone is not available simply because the accused asks for it. In R v Stanley [2013] NSWCCA 124, Barr AJ (Macfarlan JA and Campbell J agreeing) at [42]-[43] observed that the interests of the accused are not simply coterminous with the interests o…
R v Jamal [2013] NSWDC 20
Citation 16 (Para 162)

…nity’s involvement in the administration of justice which helps keep the law in touch with community standards. As Spigelman CJ said in R v Jamal (2008) 72 NSWLR 258 (‘ Jamal’ ) at [24], public confidence in the administration of the system of criminal justice turns, to a significant degree, upon its participation.…
Aytugrul v The Queen [2012] HCA 15
Citation 17 (Para 89)

…fact in issue.’ To assess probative value, the Court must look to all the other evidence to be adduced in the proceeding ( Ayturgrul v The Queen (2012) 247 CLR 170 at [30]). Also, I am to proceed, for the purpose of the s 137 analysis, on the basis that the evidence of complaint is accepted as credible and reliable:…

Legislation Cited

Evidence Act 1995 (Cth) 101, 293, 66, 94, 97, 97A
7 mentions (from Para 17)
Criminal Procedure Act 1986 (NSW) 132, 293, 365, 366
5 mentions (from Para 3)
Crimes Act 1900 (ACT) 61E
2 mentions (from Para 1)
Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)
1 mention (from Para 22)

Medium Neutral Citation:	R v Brookman [2021] NSWDC 110
Hearing dates:	23 – 24 March 2021
Date of orders:	25 March 2021
Decision date:	25 March 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 71, 93, 110, 151, 178
Catchwords:	CRIMINAL PROCEDURE – historical sexual assault offence – pre-trial applications – application to adduce evidence regarding complainant’s sexual experience – Criminal Procedure Act (NSW) s 293 – application for trial by judge alone – concern about ‘unfair prejudice’ arising from apprehended disclosure of accused undergoing sexual reorientation after alleged offending – relevance of COVID-19 measures post lockdown EVIDENCE – criminal proceeding – tendency evidence – presumption that evidence of accused’s sexual interest in complainant, and/or young males has significant probative value – whether sufficient grounds for finding such evidence does not have significant probative value – whether exceptional circumstances arise so as to enable excluded matters proscribed by s 97A(5) to be taken into account – complaint evidence – whether evidence ‘fresh in the memory’
Legislation Cited:	COVID-19 Legislation Amendment (Stronger Communities and Health) Bill 2021 (NSW) Crimes Act 1900 (NSW) s 61E Criminal Procedure Act 1986 (NSW) ss 132, 293, 365, 366 Evidence Act1995 (NSW) ss 66, 94, 97, 97A, 101. 137, 293
Cases Cited:	Ayturgrul v The Queen (2012) 247 CLR 170 DPP v Farrugia [2017] NSWCCA 197 Hughes v The Queen (2017) 263 CLR 338 IMM v The Queen (2016) 90 ALJR 529 Jackmain v R [2020] NSWCCA 150 JWM v R [2020] NSWCCA 248 McPhillamy v The Queen (2018) 92 ALJR 105 R v BD (No.1) [2020] NSWDC 150 R vBurton [2013] NSWCCA 335 R v Coleman [2020] ACTSC 97 R vEdwards [2015] NSWCCA 24 R v Gregory-Roberts [2016] NSWCCA 92 R v Jamal (2008) 72 NSWLR 258 R v Obeid [2015] NSWSC 897 R v Stanley [2013] NSWCCA 124 R v XY (2010) 79 NSWLR 629 The Queen v Bauer (2018) 92 ALJR 846
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 25 February 2020 Stephen Odgers, Uniform Evidence Law (15th ed, 2020, Thomson Reuters)
Category:	Procedural rulings
Parties:	Director of Public Prosecutions (NSW) Mr R Brookman (the accused)
Representation:	Solicitors: Solicitor Advocate for the Director of Public Prosecutions (NSW) Mr G Walsh (solicitor) for the accused
File Number(s):	2020/12398