R v Brookman [2021] NSWDC 110

R v Brookman [2021] NSWDC 110

Tendency evidence regarding sexual interest in the complainant and young males, with explicit exclusions made for prejudicial aspects, is admissible under ss 97, 97A, and 101 of the Evidence Act as it has significant probative value not outweighed by unfair prejudice; complaint evidence admitted as being fresh in memory; evidence of child prostitution at relevant times is admissible under s 293(4)(b) Criminal Procedure Act after balancing probable distress against probative value; the accused's application for a judge-alone trial is rejected as interests of justice and community involvement favour trial by jury.

Jurisdiction
Australia
Judgment Date
25 March 2021
Procedural Posture
Criminal / Pre Trial Ruling
Outcome
pre-trial applications decided; evidence rulings on admissibility; application for judge-alone trial refused
Legal Topics
['historical Sexual Assault' 'tendency Evidence' 'complaint Evidence' 'sexual Experience Evidence' 'trial by Judge Alone' 'admissibility' 'covid 19 Procedural Measures']
['criminal Law' 'evidence Law' 'criminal Procedure'] ['historical Sexual Assault' 'tendency Evidence' 'complaint Evidence' 'sexual Experience Evidence' 'trial by Judge Alone' 'admissibility' 'covid 19 Procedural Measures']

Case Brief

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Procedural Posture

Criminal / Pre Trial Ruling

Legal Issues

  1. 1 ['admissibility of tendency evidence' 'admissibility of complaint evidence' 'admissibility of sexual experience evidence' 'application for trial by judge alone' 'balancing probative value and prejudice']

Ratio Decidendi

Tendency evidence regarding sexual interest in the complainant and young males, with explicit exclusions made for prejudicial aspects, is admissible under ss 97, 97A, and 101 of the Evidence Act as it has significant probative value not outweighed by unfair prejudice; complaint evidence admitted as being fresh in memory; evidence of child prostitution at relevant times is admissible under s 293(4)(b) Criminal Procedure Act after balancing probable distress against probative value; the accused's application for a judge-alone trial is rejected as interests of justice and community involvement favour trial by jury.

Court Disposition

pre-trial applications decided; evidence rulings on admissibility; application for judge-alone trial refused

Orders

  • ['Tendency evidence admitted with specified exclusions for prejudicial content.' 'Complaint evidence from witness Gammon admitted.' "Redacted YouTube commentary admitted except emotive last sentence and phrase 'it's not homosexuality when'." "Evidence of complainant's sexual activity at the Wall admitted under s...