R v BK [2022] NSWCCA 51

Court of Criminal Appeal Supreme Court New South Wales 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 v Khorami [2021] NSWCCA 228 Llewellyn v R [2011] NSWCCA 66 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 R v BA [2021] NSWCCA 191 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Jovanovic (1997) 42 NSWLR 520 R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 R v PL (No. 2) [2012] NSWCCA 31 R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 R v XHR [2012] NSWCCA 247 Sheppard v Blakey and Ors [2001] WASCA 309 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 Thornton v R [2017] NSWCCA 86 Toohey v R [2020] NSWCCA 166 Wade v R [2018] NSWCCA 85 Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 Winner v R (1995) 79 A Crim R 528; (Court of Criminal Appeal (NSW), 14 July 1995, unrep) Texts Cited: --- Category: Principal judgment Parties: Regina (Appellant) BK (Respondent) Representation: Counsel: Ms B Baker (Appellant) Mr TD Anderson SC (Respondent)