BB v R (No 2) [2017] NSWCCA 142

BB v R (No 2) [2017] NSWCCA 142

The Crown appeal failed because the disputed post-2000 context evidence had, at most, very slight probative value: it was not needed to prevent the charged offending from appearing isolated, did not explain why Count 6 was the last charge, and could only marginally relate to a limited part of the delay in complaint, while carrying risks of confusion, unfair prejudice and impermissible tendency reasoning. Its exclusion did not eliminate or substantially weaken the prosecution case, so s 5F(3A) jurisdiction was not enlivened. BB was granted leave to appeal because the stay issue was important and arguable, but the appeal failed because any unfairness flowed from the statutory retrial regime...

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Criminal Appeal / Application by BB for Leave to Appeal Against Refusal of Permanent Stay and Crown Appeal Against Interlocutory Evidentiary Ruling Under S 5 F(3 A) of the Criminal Appeal Act 1912
Outcome
Leave to appeal granted to BB; BB's appeal dismissed; Crown appeal dismissed.
Legal Topics
['historic Child Sexual Assault Offences' 'context Evidence' 'uncharged Acts' 'permanent Stay of Proceedings' 'retrial After Successful Appeal' "complainant's Recorded Evidence" 'unfair Prejudice' 'tendency Reasoning' 'interlocutory Appeals']
['criminal Law' 'criminal Procedure' 'evidence'] ['historic Child Sexual Assault Offences' 'context Evidence' 'uncharged Acts' 'permanent Stay of Proceedings' 'retrial After Successful Appeal' "complainant's Recorded Evidence" 'unfair Prejudice' 'tendency Reasoning' 'interlocutory Appeals']

Case Brief

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Procedural Posture

Criminal Appeal / Application by BB for Leave to Appeal Against Refusal of Permanent Stay and Crown Appeal Against Interlocutory Evidentiary Ruling Under S 5 F(3 A) of the Criminal Appeal Act 1912

Legal Issues

  1. 1 ['Whether the District Court erred in excluding context evidence of sexual contact and an ongoing sexual relationship after the last charged offence.' "Whether exclusion of the disputed context evidence eliminated or substantially weakened the prosecution case so as to enliven the Court's jurisdiction under s 5F(3A) of the Criminal Appeal Act 1912." 'Whether BB should be granted leave to appeal against the refusal of a permanent stay.' "Whether the retrial should be permanently stayed because the complainant's evidence from the first trial would be played under ss 306B-306D of the Criminal Procedure Act 1986 after allegedly incompetent conduct of the first trial." 'Whether the Court could predict prospectively that the retrial would be unfair.']

Ratio Decidendi

The Crown appeal failed because the disputed post-2000 context evidence had, at most, very slight probative value: it was not needed to prevent the charged offending from appearing isolated, did not explain why Count 6 was the last charge, and could only marginally relate to a limited part of the delay in complaint, while carrying risks of confusion, unfair prejudice and impermissible tendency reasoning. Its exclusion did not eliminate or substantially weaken the prosecution case, so s 5F(3A) jurisdiction was not enlivened. BB was granted leave to appeal because the stay issue was important and arguable, but the appeal failed because any unfairness flowed from the statutory retrial regime...

Court Disposition

Leave to appeal granted to BB; BB's appeal dismissed; Crown appeal dismissed.

Orders

  • ['Leave to appeal granted to applicant BB.' "BB's appeal against refusal of a permanent stay dismissed." 'Crown appeal dismissed.']