CJW v The Queen - [2018] NSWCCA 80

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: CJW v R [2018] NSWCCA 80
Hearing dates: 16 April 2018
Date of orders: 04 May 2018
Decision date: 04 May 2018
Before: Hoeben CJ at CL at [1];
Fullerton J at [89];
Davies J at [91]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – conviction appeal – assault with an act of indecency on a person under the age of 16 years – whether jury verdict unreasonable and cannot be supported having regard to the evidence – no reliance placed on inconsistent verdicts – basis for appeal was that the evidence did not support the offence occurring within the narrow timeframe available – submission that date of offending in the indictment an essential element for the Crown to establish – whether timeframe for offending as narrow as asserted by applicant – open to jury to find offence proved beyond reasonable doubt – leave to appeal granted but appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 61M(2)
Cases Cited: Cawthray v R [2013] NSWCCA 105
Hawi v R [2014] NSWCCA 83
M v The Queen [1994] HCA 63; 181 CLR 487
R v Kennedy [2000] NSWCCA 487; 118 A Crim R 34
SKA v The Queen [2011] HCA 13; 243 CLR 400
Stringer v R [2000] NSWCCA 293; 116 A Crim R 198
Category: Principal judgment
Parties: CJW – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Rosser QC/A Mooney – Applicant
B Hatfield – Respondent Crown
Solicitors:
G Betts – Applicant
C Hyland – Solicitor for Public Prosecutions

File Number(s): 2014/240335
Publication restriction: Non-publication order re the identity of the complainant.
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 September 2017

Before:

Buscombe DCJ

File Number(s):

2014/240335

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was found guilty by a jury on 13 February 2017 that between 3 May 2008 and 7 May 2009 at Lake Haven he assaulted CW and at the time of such assault, committed an act of indecency on CW, who at the time was under the age of 16 years, namely 8 or 9 years (count 5). The offence is contrary to s 61M(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years.

In the trial which concluded on 13 February 2017 the applicant was found not guilty of counts 1 and 4 and the jury were unable to agree on counts 2, 3 and 6. The applicant was re-tried before another jury in May 2017 in respect of counts 2, 3 and 6 was found not guilty of those counts.
On 29 September 2017 the applicant was sentenced by Judge Buscombe in respect of count 5 to imprisonment with a non-parole period of 2 years, commencing 29 September 2017 and expiring…

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 CJW v The Queen

Details

AGLC: CJW v The Queen [2018] NSWCCA 80
Case: [2018] NSWCCA 80
Decision Date: 04 May 2018

CaseChat Overview and Summary

The applicant, CJW, appealed against his conviction for assault with an act of indecency on a person under the age of 16 years. The appeal was heard by the High Court of Australia. The central issue for the court was whether the jury's verdict was unreasonable and not supported by the evidence. The applicant argued that the evidence did not support the offence occurring within the narrow timeframe specified in the indictment, contending that the date of the offending was an essential element for the Crown to establish. The court considered whether the timeframe for the offence was as narrow as the applicant claimed and whether it was open to the jury to find the offence proved beyond reasonable doubt.

The High Court found that the applicant's argument did not place reliance on inconsistent verdicts, which was a significant factor in the assessment of the appeal. The court examined the evidence presented and concluded that the jury was entitled to find the offence occurred within the timeframe alleged. The court held that the evidence was sufficient for the jury to determine the offence beyond reasonable doubt, and thus the verdict was not unreasonable. The appeal was dismissed, and the original conviction was upheld.

The court's reasoning underscored the importance of allowing juries to make factual findings based on the evidence presented, provided those findings are supported by the evidence and are not unreasonable. The court emphasised that the jury's role in criminal trials is to assess the credibility of witnesses and the weight of the evidence, and their verdicts should be respected unless there is a clear miscarriage of justice. In this case, the court found no such miscarriage and confirmed the applicant's conviction.

Orders