Brown v R

1. [1]

   BELL CJ: Christopher Rowland Brown (the applicant, the accused or Mr Brown) was charged with five offences, namely one offence of maintaining an unlawful sexual relationship with a child (s 66EA(1) Crimes Act 1900 (NSW)) and four offences of indecent assault of a female under the age of 16 years (s 76 Crimes Act).

2. [2]

   The terms of the indictment were as follows:

3. [3]

   On 24 August 2020, following a trial by judge alone, the applicant was found guilty on all five counts.

4. [4]

   On 18 December 2020, the trial judge sentenced the applicant to an aggregate sentence of imprisonment of 8 years from 3 December 2020 to 2 December 2028 and an aggregate non-parole period of 5 years from 3 December 2020 to 2 December 2025.

5. [5]

   The applicant has appealed principally on the ground that there was a miscarriage of justice in that the trial judge did not direct herself pursuant to s 165B of the Evidence Act 1995 (NSW) that the applicant had suffered a “significant forensic disadvantage” because of the consequences of delay such that, in the context of a judge-alone trial, the trial judge needed to inform herself of the nature of the disadvantage and take it into account when considering the evidence.

6. [6]

   The delay related to the period between the offences and the charging of the applicant and his trial, which was in the vicinity of 40 years.

7. [7]

   The applicant also submitted that the verdict was unsafe and unsatisfactory, although in written submissions it was conceded that “such only arises upon the s 165B ground being successful”.

8. [8]

   Section 165B of the Evidence Act provides (with emphasis added):

9. [9]

   Section 165B(6)(b) makes it plain that delay per se is not sufficient to be regarded as a “significant forensic disadvantage” for the purposes of the section.

10. [10]

    Section 165B of the Evidence Act was enacted by the passage of the Evidence Amendment Act 2007 (Cth). As Basten JA explained in Binns v R, [1] “its purpose was to address criticisms of the requirement in Longman v The Queen that a warning should be given where ‘[t]he fairness of the trial had necessarily been impaired by the long delay’”. [2]

11. [11]

    This Court has held that the duty to give the direction pursuant to s 165B only arises on application. [3] In Groundstroem, Adams J (with whom Macfarlan JA and Button J agreed) stated at [55]:

12. [12]

    Price J in TO v R at [167] (with whom Button and Fagan JJ agreed on this issue) summarised the effect of s 165B and cited the above passage in support of the proposition that the duty on the judge to give a direction in accordance with s 165B(2) arises only on application by a party, and what is said to be the particular significant forensic disadvantage must form part of the application.

13. [13]

    Section 133(3) of the Criminal Procedure Act 1986 (NSW) provides that, in a judge alone trial, if any Act or law requires a warning to be given to a jury, the judge sitting by him or herself is to take the warning into account in dealing with the matter.

14. [14]

    The appeal proceeded on the basis that “informing the jury of the nature of the significant forensic disadvantage(s)” suffered by the applicant because of the consequences of delay within the meaning of s 165B(4) of the Evidence Act, and noting the need to take that or those disadvantage(s) into account when considering the evidence, was a “warning“ of the kind to which s 133(3) of the Criminal Procedure Act applied.

15. [15]

    In the recent decision of this Court in Constantinidis v R; Lazar v R, [4] it was observed that:

16. [16]

    In the present case, not only was no application under s 165B(2) of the Evidence Act made during the trial but the trial judge expressly raised with defence counsel at the end of her address whether there were any other directions or warnings sought over and above those proposed by the Crown, to which the response was “[n]o. No, the Crown has a comprehensive list in MFI 7.” That list did not contain a s 165B warning.

17. [17]

    On one view (which I think is correct although not necessary to decide definitively), defence counsel’s failure to seek such a “warning” or direction supplies a complete answer to the applicant’s case because s 133(3) of the Criminal Procedure Act only operates when an “Act or law requires” a warning to be given, and the requirement under s 165B of the Evidence Act is dependent upon an application having been made to the judge and the trial judge being satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay. In Binns at [11], Basten JA described the existence of the obligation in s 165B(2) as subject to a precondition, namely that the judge “is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay”. The making of an application for a s 165B warning may similarly be seen as a precondition to the obligation to give such a warning. That is certainly the effect of the cases referred to at [11]-[12] above.

18. [18]

    On appeal, however, counsel for the applicant submitted that the trial judge should have directed herself in terms of s 165B even without an application for such a direction or warning having been made, and that the failure to do so resulted in a miscarriage of justice.

19. [19]

    For the reasons given more fully below, this submission must be rejected. Its merits can be tested and assessed by reference to the submissions put to the trial judge and her Honour’s treatment of the issue of delay and its consequences for the applicant in her reasons for judgment.

20. [20]

    As will be seen, the trial judge was cognisant of the forensic disadvantages suffered by the applicant because of the effluxion of time and expressly had regard to them in dealing with the matter. Those disadvantages had been the subject of submissions to her Honour by defence counsel, the competency of whose conduct of the trial was not called into question.

21. [21]

    Even assuming that the failure of defence counsel to make an application for a warning pursuant to s 165B is not determinative for the purpose of the applicant’s argument, it is telling that defence counsel saw no need for such a warning. This was no doubt because of a combination of the submissions made in respect of the effluxion of time and defence counsel’s view that the experienced trial judge was aware of the forensic disadvantages for the applicant occasioned by reason of the delay. A trial judge does not have a duty to second guess counsel who chooses not to seek a s 165B warning. [5]

Background

1. [22]

   In 1978, 1979 and 1980 the applicant was 27-30 years of age and a teacher at Erina Heights Public School. In 1978 and 1979 he taught a Year 3/4 composite class. In 1978 MB and JT were his students in the Year 3 part of the composite class and in 1979 they had progressed into the Year 4 part of the class. In 1980 both girls moved onto Year 5 with a different teacher. The trial judge held that the applicant assaulted his students MB and JT on a number of occasions. Neither child said anything at the time to each other or to anyone else. In 1981 the applicant resigned as a teacher with the New South Wales Department of Education. He moved to Western Australia where he was employed with the Department of Education in that State.

2. [23]

   In 2017 MB decided to speak about what her teacher Mr Brown had done to her as a child, and she made an appointment to see a solicitor. Anticipating that the solicitor might ask her whether the applicant had done anything to any other child, and believing that something may have happened to JT, MB contacted JT to see if that would be okay with her if she mentioned her name. JT confirmed that it was okay to do so. MB spoke with a solicitor, who advised her to go to the police. Subsequently, MB and her husband attended a police station and MB made a statement to police. JT also attended a police station where she made a statement to police.

3. [24]

   On 23 October 2018 the applicant was arrested and extradited from Western Australia to New South Wales. On 24 October 2018 he participated in an electronically recorded interview, during which he denied any such sexual misconduct.

Course of the trial

1. [25]

   The trial was conducted between 18 and 24 June 2020. In opening address, defence counsel placed emphasis on the passage of time that had passed since the events in question, relevantly observing:

2. [26]

   MB, as well as JT, gave evidence in support of the allegations that were brought by the Crown. Other witnesses were called in the Crown case, some of whose evidence was admitted on a tendency basis. It is not necessary to refer to the detail of that evidence given the relatively narrow way in which the appeal was argued. It is, however, relevant to note that the trial judge declined to place any weight on fellow student LC’s evidence on account of “the stated vagueness of her memories […] especially having regard to the passage of time”.

3. [27]

   It is also relevant to note that defence counsel submitted that the tendency evidence as a whole would ultimately be undermined if the trial judge was to make any findings that there either had been direct or indirect influence by one or more witnesses on the other complainants or witnesses whose evidence was being relied upon for tendency reasoning. In support of this submission, defence counsel provided an analysis of the contact between the witnesses before they made their statements to police. After considering the evidence of contact between the witnesses, the trial judge concluded that she was satisfied that any risk of contamination or collusion had been excluded by the Crown beyond reasonable doubt. Her Honour then relevantly noted:

4. [28]

   Evidence was also led to the effect that investigating officers had been unable to find various records of the school which may have shed light upon whether or not the applicant conducted his class in the relevant period in a demountable classroom, this being an issue as to which he did not have a clear recollection and as to which other witnesses’ recollections differed. In her opening address, defence counsel said in this regard:

5. [29]

   In final address, defence counsel made a number of submissions to the trial judge which fixed upon the passage of time and the consequences thereof. Thus, in relation to the fading of memories over time, it was submitted that:

6. [30]

   In relation to the applicant and his evidence, defence counsel submitted that:

7. [31]

   In some respects, defence counsel called in aid the passage of time to support her submissions in support of the applicant. Thus, she submitted:

8. [32]

   Defence counsel concluded her submissions as follows, again emphasising the passage of time between the alleged offences and the charges being laid:

9. [33]

   The Crown case with respect to count 1 comprised the evidence of MB, some supportive evidence given by others, tendency evidence and a lie said to amount to a consciousness of guilt. It was her Honour’s “overwhelming impression at the time of hearing the evidence” that MB was an honest and reliable witness. The trial judge nevertheless recorded it as “necessary to bring into account those matters raised on behalf of the accused”. Defence counsel submitted that MB, in contrast to JT, was very confident with her answers and did not allow for variation. She submitted that with the passage of time, some allowance should have been made for the possibility of not having a perfect memory of those times. The trial judge recorded that she had “taken this submission into account in assessing [MB’s] evidence”.

10. [34]

    The trial judge considered MB a confident witness who gave consistent evidence and stated on occasions when she could not remember things. Her Honour then noted, “[s]he also, on her account, had good reason to remember the things she stated in evidence, and that was so notwithstanding the lengthy passage of time”.

11. [35]

    The trial judge also stated that she had taken into account that SC, another student in the applicant’s Year 3/4 composite class at the relevant time, said that whilst the applicant cuddled her, she did not sit on his lap and he did not kiss her, whereas MB said that she did see SC being kissed on the cheek and that she did not believe she was wrong about that, and she also remembered seeing SC sitting on the applicant’s knee. Her Honour then stated, “[s]uch differences in account are, in my assessment, reflective of a difference in recollection over the passage of time”, before concluding that those differences did not undermine or damage the evidence given by MB as to the acts the applicant did to her.

12. [36]

    Defence counsel also pointed to the initial evidence of EM, another student in the Year 3/4 composite class, that she did not ever recall seeing the applicant kiss any student in his class. EM’s evidence was adjourned part heard, and on 22 June 2020 she spoke to a detective and told him that the question triggered a vague memory of the applicant kissing people and that he may have kissed her on the cheek. In that regard, EM recalled the applicant’s breath smelt like tuna. The trial judge considered this evidence illustrative as to why it is that the fact EM did not give evidence of observing the applicant regularly kissing MB did not operate to undermine MB’s evidence, either in respect of this or any other matter. Her Honour continued:

13. [37]

    In relation to counts 2-5, the Crown relied upon evidence given by JT. It also relied upon generally supportive evidence given by others, tendency evidence, and again in its case upon a lie as consciousness of guilt. Despite having a strong impression of JT as an honest and reliable witness, the trial judge recorded it as “necessary once again to take into account matters raised on behalf of the accused” and proceeded to do so.

14. [38]

    The trial judge rejected the applicant’s evidence that he did not commit the acts alleged and found his evidence not credible and unreliable. Her Honour regarded the strength of the evidence in the Crown case as “palpable throughout the hearing”, noting that the case “only got stronger” with each witness called.

15. [39]

    Ultimately, the trial judge held that she was satisfied beyond reasonable doubt of the guilt of the applicant for each of the offences.

16. [40]

    In her reasons for judgment, the trial judge made the following observations which are of particular relevance to the appeal:

Consideration

1. [41]

   Counsel for the applicant accepted, as he was bound to do in view of the portion of the reasons for judgment reproduced above, that this was not a case in which the trial judge paid no regard to the passage of time and the consequences of that for the applicant in defending the historic charges of sexual assault. Indeed, he in terms accepted that the trial judge was “alert to […] and aware” of the combination of delay and memory loss. He sought to draw a subtle distinction between a significant forensic disadvantage and the “risk that memories can fade”, noting that the trial judge expressed herself in these terms in the passage extracted from her judgment reproduced at [40] above. His submission was that “risk” fell short of disadvantage.

2. [42]

   I would, with respect, reject this submission. The risk that the memory of material witnesses had faded or disappeared in its entirety is no less capable of constituting a significant forensic disadvantage than an actual loss of memory.

3. [43]

   As noted above, delay per se is not sufficient to be regarded as a “significant forensic disadvantage” for the purposes of s 165B. Section 165B(6) makes that plain. Further, it is not any forensic disadvantage that potentially engages s 165B but one that can fairly be described as “significant”. Further, the disadvantage must be and be shown to be real or actual and not speculative. [6]

4. [44]

   Counsel for the applicant sought to identify the significant forensic disadvantages which he submitted the trial judge should have warned herself of as falling into three groups:

5. [45]

   As to the first matter, the applicant furnished schedules setting out numerous occasions upon which various prosecution witnesses volunteered that they were not able to recall certain matters. How this was a source of disadvantage to the applicant, let alone significant forensic disadvantage to him, was not made plain. Indeed, at trial, defence counsel sought to make much of the passage of time and the frailty of witnesses’ memory as a reason for discounting the quality of witnesses’ memory in relation to those matters that they said that they could recall. This argument has already been dealt with to a significant extent at [41]-[43] above.

6. [46]

   In any event, it is abundantly clear from the passages extracted above from both submissions at trial and the reasons for judgment of the trial judge that her Honour did not need to warn herself in terms of the obvious fact that memories fade over time, and that any assessment of reliability of evidence based upon memory must necessarily bear that fact in mind. The Crown submitted, and I accept, that the fact that there were certain matters that witnesses could not remember after 40 years was readily apparent to the tribunal of fact and did not call for a special direction.

7. [47]

   As to the second matter, counsel for the applicant submitted that the inability to cross examine the deceased mother of one witness to whom the witness said that she had complained at the time of the events in question was a “significant forensic disadvantage”. It is by no means evident that this was or would have been a significant forensic disadvantage to the applicant. It was entirely a matter of speculation whether or not the mother would have been called and, if called, whether or not her evidence would have helped or hindered the applicant in his defence or whether defence counsel would have taken the forensic risk of challenging any corroborative evidence that may have been given. Speculative disadvantage does not engage s 165B of the Evidence Act. [7] At most, it was a disadvantage not to have the opportunity to consider whether or not to cross examine a witness who may or may not have been called had she still been alive. The burden lay on the applicant to demonstrate that he had suffered a significant forensic disadvantage. [8] This burden was not discharged.

8. [48]

   At the trial, the particular witness’ evidence remained uncorroborated by any evidence from her mother and the experienced trial judge would have been well aware that the witness’ claim to have informed her mother could not be improved in the absence of her mother. In any event, even if the absence of the witness’ mother was a significant forensic disadvantage (which I very much doubt), it could not be said that this was a matter that resulted in a miscarriage of justice in the sense of depriving the applicant of a chance of acquittal.

9. [49]

   The trial judge said in her judgment that “I have also kept in mind that the plainly considerable passage of time means that Mr Brown can do little more than he has done in denying the conduct alleged”. This was a succinctly expressed recognition of the forensic disadvantages that may have been attributable to the effluxion of time, including the death of potentially relevant witnesses. Given the way in which the argument was mounted, on the counterfactual that the trial judge had been asked to give herself a s 165B warning in respect of the absence of a deceased potentially corroborative witness supporting the prosecution case, and thus an inability to test that evidence, a “warning” in that respect would not have been warranted or necessary.

10. [50]

    No basis was supplied for concluding that the absence of the deceased mother represented a significant forensic disadvantage for the applicant. It is to be borne in mind, in this regard, that s 165B does not require a direction or warning unless the judge is satisfied that the accused has suffered a significant forensic disadvantage.

11. [51]

    As to the third matter, namely the loss or unavailability of documentary evidence, much was made of the inability to find plans as to how the school at which the offences occurred was configured 40 years ago and, in particular, whether the applicant taught in a demountable.

12. [52]

    It was certainly the case that the investigating officers confirmed that relevant plans of classrooms and the school configuration could not be located for the years in question.

13. [53]

    On this issue the Crown submitted that whether the applicant taught the Year 3/4 composite class in a demountable or in a solid building was of no significance and that the applicant’s suggestion in his ERISP that the demountables were encased in glass (through which inappropriate conduct would have been visible) was of no moment in circumstances where the Crown case was that many of the offences occurred brazenly in a crowded classroom. [9]

14. [54]

    The Crown also submitted that, even on the evidence of the complainants, the classroom they recalled being in had some windows. The applicant himself accepted, in the end, that the classroom may not have been a demountable after all.

15. [55]

    The significance of this issue was reflected in the fact that defence counsel’s closing address accepted that, in the end, little turned on whether the classroom was a demountable or otherwise, having regard to the evidence that, whatever it was, it was in a busy part of the school with a craft room adjacent to it, which, according to at least some witnesses, was regularly occupied by the arts and crafts teacher.

16. [56]

    I am not satisfied that the inability to obtain plans of the school buildings constituted a significant forensic disadvantage to the accused so as to require a specific warning. In any event, when considering whether the failure to give such a warning, even if one had been sought or was otherwise required, resulted in a miscarriage of justice, the trial judge’s general observation set out at [49] above was more than adequate to demonstrate that her Honour was fully cognisant of the forensic limitations and disadvantages which the applicant faced in defending the charges.

17. [57]

    For all of the above reasons, there was no miscarriage of justice. Whilst I would grant leave to appeal, the appeal should be dismissed.

18. [58]

    KIRK JA: I agree with Bell CJ.

19. [59]

    PRICE J: I agree with Bell CJ.