AJ v R

Case [2022] NSWCCA 136 24 June 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: AJ v R [2022] NSWCCA 136
Hearing dates: 1 February 2022
Date of orders: 24 June 2022
Decision date: 24 June 2022
Before: Beech-Jones CJ at CL at [1]
Harrison J at [130]
Fagan J at [131]
Decision:
(1)   The Applicant be granted leave to raise grounds 1, 2 and 3 of his Notice of Appeal.
(2)   The appeal be allowed.
(3)   The Applicant's conviction be quashed.
(4)   A new trial be ordered.
(5)   List the matter in the Arraignments List in the Sydney District Court on 8 July 2022 at 9.30am.

Catchwords:
CRIMINAL LAW – appeal – applicant faced 11 charges of sexual offences against two children SS and NL – convicted on counts 1 to 3 against SS and count 9 against NL – acquitted of counts 4 to 8, 10 and 11 against NL – SS participated in five interviews with police conducted over 13 months and gave pre-recorded evidence for the trial – evidence in support of counts 1 and 2 provided in the third interview and evidence in support of count 3 in the fifth interview – SS recanted her evidence in the fourth interview – NL participated in three interviews and gave pre-recorded evidence for the trial – SS supported NL’s evidence on count 9 but not the other counts – prosecution called evidence from “expert” with tertiary qualifications in psychology and law – based on review of various studies expert gave evidence as what the “research” indicated was the typical response of child victims to sexual assault – expert also gave evidence of research about child sex offenders acting in a brazen manner – held expert was qualified by reason of her study to give evidence of responses of child victims – held expert not qualified to give evidence of the behaviour of child sex offenders generally – ground upheld – guilty verdicts not inconsistent with acquittals – jury entitled to conclude that SS provided “something additional” to support the evidence of NL – verdicts of guilty not unreasonable – reasonably open to the jury to be satisfied of applicant’s guilt – retrial ordered

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act1900
Evidence Act 1995
Criminal Procedure Act 1986

Cases Cited:
ASIC v Vines [2003] NSWSC 1095
Aziz (a pseudonym) v R [2022] NSWCCA 76
BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210
Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40
Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v The Queen (2018) 266 CLR 106; [2018] HCA 48
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
M v The Queen (1994) 181 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AJ v R

Details

AGLC: AJ v R [2022] NSWCCA 136
Case: [2022] NSWCCA 136
Decision Date: 24 June 2022

CaseChat Overview and Summary

The applicant, AJ, faced 11 charges of sexual offences against two children, SS and NL. These charges were heard in the court, which considered the applicant's appeal against his convictions. AJ was convicted on counts 1 to 3 against SS and count 9 against NL but was acquitted of counts 4 to 8, 10, and 11 against NL. The evidence provided by the victims, SS and NL, was central to the case. SS participated in five interviews with the police over a period of 13 months and gave pre-recorded evidence for the trial. SS's evidence in support of counts 1 and 2 was provided during the third interview, while evidence in support of count 3 was given during the fifth interview. However, SS recanted her evidence during the fourth interview. NL participated in three interviews and also gave pre-recorded evidence for the trial. SS supported NL's evidence in relation to count 9 but did not support the other counts.

The court was required to decide whether the expert witness, who had tertiary qualifications in psychology and law, was qualified to give evidence about the typical responses of child victims to sexual assault and the behaviour of child sex offenders. The expert's evidence was based on a review of various studies. The court held that the expert was qualified to give evidence regarding the responses of child victims, but not about the general behaviour of child sex offenders. This ground of appeal was upheld. The court also considered whether the guilty verdicts were inconsistent with the acquittals and whether the verdicts were unreasonable. The court found that the jury was entitled to conclude that SS provided "something additional" to support the evidence of NL and that the verdicts of guilty were not unreasonable. The court concluded that it was reasonably open to the jury to be satisfied of the applicant's guilt.

The appeal against conviction was partly upheld, and a retrial was ordered. The convictions on counts 1 to 3 against SS and count 9 against NL were quashed. The applicant was acquitted of counts 4 to 8, 10, and 11 against NL. The remaining counts against SS were not before the court on appeal.

Orders