BJ v The King - [2023] NSWCCA 77

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: BJ v R [2023] NSWCCA 77
Hearing dates: 18 November 2022
Date of orders: 5 April 2023
Decision date: 05 April 2023
Before: Harrison J; Fagan J; Yehia J
Decision:
1. Grant leave to appeal against conviction and sentence.
2. Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – claimed discrepancies in complainant’s evidence – verdicts of guilty not unreasonable – appeal dismissed
CRIME – appeals – appeal against conviction – where one juror discharged during deliberations due to personal commitments – whether trial judge erred in failing to exercise discretion to discharge entire jury – appeal dismissed
CRIME – appeals – appeal against sentence – sexual assault of girl aged 9 years – whether sentence manifestly excessive – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M(2) and 66A
Jury Act 1977 (NSW), ss 53B and 53C

Cases Cited:
BG v R [2012] NSWCCA 139
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R v Neville [2018] NSWCCA 125
Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52

Category: Principal judgment
Parties: BJ (applicant)
Rex (respondent)
Representation:
Counsel:
W Terracini SC (applicant)
C Curtis (respondent)
Solicitors:
Shaddicks Lawyers (applicant)
Solicitor for Public Prosecutions (NSW) (respondent)

File Number(s): 2019/126069
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court Sydney

Jurisdiction:

Criminal

Date of Decision:

27 May 2021

Before:

Huggett DCJ

File Number(s):

2019/126069

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty by a jury of seven counts of sexual offending against his niece in late 1999 when the complainant was eight to nine years old. There were three counts of assault with act of indecency contrary to s 61M(2) of the Crimes Act 1900 (NSW) and four counts of sexual intercourse with a child under 10 years contrary to s 66A. An aggregate sentence of 14 years imprisonment with a non-parole period of 10 years was imposed.

The offences were alleged to have occurred at the premises of an independent church when the complainant attended there after school. The applicant was a youth minister of the church. He contended at trial that the date on which the church first occupied the premises and the date of certain equipment being installed were inconsistent with the complainant’s allegations concerning the dates, place and circumstances of the offences.

During deliberations one juror was unable to continue due to personal commitments in the following week, the trial having continued with beyond the estimate that was given when the jury were empanelled. The trial judge discharged that juror but ordered that the trial continue with the remaining 11.

The grounds of appeal were:

The trial judge erred in failing to discharge the entire jury under s 53C of the Jury Act 1977 (NSW).The verdicts are unreasonable…

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 BJ v The King

Details

AGLC: BJ v The King [2023] NSWCCA 77
Case: [2023] NSWCCA 77
Decision Date: 05 April 2023

CaseChat Overview and Summary

In the matter of BJ v The King, the appellant sought to appeal against his conviction and sentence for various criminal offences. The respondent, the Crown, opposed the appeal. The appellant claimed that the evidence presented by the complainant contained discrepancies and that the verdicts of guilty were unreasonable. Additionally, the appellant argued that the trial judge erred in not discharging the entire jury after one juror was discharged due to personal commitments.

The court was required to determine whether the discrepancies in the complainant's evidence were significant enough to warrant a different outcome and whether the trial judge's decision to not discharge the entire jury was a proper exercise of discretion. The court also had to assess whether the sentence imposed for the sexual assault of a nine-year-old girl was manifestly excessive.

The court found that the discrepancies in the complainant's evidence did not undermine the overall reliability of her testimony, and therefore the verdicts of guilty were not unreasonable. The court also held that the trial judge did not err in declining to discharge the entire jury, as there was no indication that the remaining jurors were unable to fairly consider the case. Finally, the court considered the sentence to be appropriate given the gravity of the offences and dismissed the appeal against sentence as manifestly excessive. Consequently, the appeal was dismissed in its entirety.

Orders