Brown v R [2022] NSWCCA 116

Brown v R [2022] NSWCCA 116

There was no miscarriage of justice. No application for a s 165B direction was made, and the obligation to give or take such a warning into account depended on such an application and satisfaction of significant forensic disadvantage. In any event, the trial judge was cognisant of the forensic disadvantages arising from the very long passage of time, expressly considered the risk that memories could fade and be distorted, and took the applicant's submissions about delay into account. The asserted disadvantages from faded memories, deceased potential witnesses and missing school records were not shown to require a s 165B warning or to deprive the applicant of a chance of acquittal.

Jurisdiction
Australia
Judgment Date
03 June 2022
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal From District Court Convictions After Judge Alone Trial; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'trial by Judge Alone' 'delay in Prosecution' 'significant Forensic Disadvantage' 'section 165 B Evidence Act Warning' 'miscarriage of Justice' 'historical Child Sexual Offences']
['criminal Law' 'evidence' 'criminal Procedure'] ['appeal Against Conviction' 'trial by Judge Alone' 'delay in Prosecution' 'significant Forensic Disadvantage' 'section 165 B Evidence Act Warning' 'miscarriage of Justice' 'historical Child Sexual Offences']

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal From District Court Convictions After Judge Alone Trial; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether, in a judge-alone trial, the trial judge should have directed herself in terms of s 165B of the Evidence Act 1995 (NSW) when no application for such a direction was made.' 'Whether the applicant suffered a significant forensic disadvantage because of the consequences of delay in prosecution.' 'Whether any failure to give or take into account a s 165B warning resulted in a miscarriage of justice.' 'Whether the verdict was unsafe and unsatisfactory, noting that this was conceded to arise only if the s 165B ground succeeded.']

Ratio Decidendi

There was no miscarriage of justice. No application for a s 165B direction was made, and the obligation to give or take such a warning into account depended on such an application and satisfaction of significant forensic disadvantage. In any event, the trial judge was cognisant of the forensic disadvantages arising from the very long passage of time, expressly considered the risk that memories could fade and be distorted, and took the applicant's submissions about delay into account. The asserted disadvantages from faded memories, deceased potential witnesses and missing school records were not shown to require a s 165B warning or to deprive the applicant of a chance of acquittal.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed.']