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

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: BB v R (No 2) [2017] NSWCCA 142 Hearing dates: 9 June 2017 Date of orders: 23 June 2017 Decision date: 23 June 2017 Before: Hoeben CJ at CL at [1] Garling J at [2] Hamill J at [43] Decision: Leave to appeal granted to applicant BB; appeal dismissed – Crown appeal dismissed. Catchwords: CRIMINAL LAW – whether context evidence improperly excluded – where context evidence of uncharged illegal acts post-dating charged offences – whether necessary to assist jury in understanding complainant's evidence – whether necessary to explain why an immediate complaint was not made – whether risk of unfair prejudice to applicant by jury conflating charged and uncharged acts – whether risk of jury engaging in impermissible tendency reasoning – whether Crown case substantially weakened

CRIMINAL LAW – application for permanent stay – leave to appeal against refusal – interlocutory judgment or order – where complainant's evidence to be presented by playing recording of evidence given in earlier trial – re-trial after successful appeal – relevant legislation – absence of discretion in trial judge – where conduct of earlier trial said to be incompetent – failure to distinguish counts from uncharged acts – cross-examination lacking forensic purpose – whether court can predict whether future trial will be unfair – whether stay appropriate when unfairness the result of statute – appeal against refusal to stay dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Director of Public Prosecutions Act 1986 Evidence Act 1995 Cases Cited: B v The Queen [1992] HCA 68; (1992) 175 CLR 599 Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 BB v R [2015] NSWCCA 308 Browne v Dunn (1893) 6 R 67 Grills v The Queen [1996] HCA Trans 273; (1996) 70 ALJR 905 HML v The Queen, SB v The Queen, OAE v The Queen [2008] HCA 16; (2008) 235 CLR 334 IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300 Jago v District Court of New South Wales [1989] HCA 46; (1989)168 CLR 23 Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 R (Cth) v Rapolti [2016] NSWCCA 264 R v AH (1997) 42 NSWLR 702; 98 A Crim R 71 R v ATM [2000] NSWCCA 475 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Littler [2001] NSWCCA 173 R v MSK and MAK [2004] NSWCCA 308 R v PJE unreported CCA (NSW) 9 October 1995 (Cole JA, Grove and Sperling JJ) R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 R v SJRC [2007] NSWCCA 142 R v Westley [2004] NSWCCA 192 R v X [2014] NSWCCA 168 S v The Queen [1989] HCA 66; (1980) 168 CLR 266 X7 v R [2014] NSWCCA 273 Texts Cited: Not Applicable Category: Principal judgment Parties: The Crown (Applicant/Respondent) BB (Applicant/Respondent) Representation: Counsel: E. Balodis J. Mitchell