Ian Jackson v Regina - [2005] NSWCCA 411

CITATION:
Ian JACKSON v REGINA [2005] NSWCCA 411

HEARING DATE(S): 4 November 2005

JUDGMENT DATE:

30 November 2005

JUDGMENT OF:
Spigelman CJ at 1; Sully J at 11; Hulme J at 40

DECISION:
Appeal against conviction dismissed

LEGISLATION CITED:

Evidence Act 1995

CASES CITED:
R v Williams (1990) 50 A Crim R 213

PARTIES:
Ian Jackson
Regina

FILE NUMBER(S):
CCA 2005/1189

COUNSEL:
D. Frearson SC - Crown
P. Boulten SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0176

LOWER COURT JUDICIAL OFFICER:
Armitage DCJ

2005/1189

SPIGELMAN CJ
SULLY J
HULME J
30 November 2005

Ian JACKSON v REGINA

Judgment

1 SPIGELMAN CJ: The facts and issues appear in the judgment of Sully J which I have read in draft. None of the points agitated in this Court were raised at the trial. The Appellant requires leave under rule 4 of the Criminal Appeal Rules. In each respect, in my opinion, leave should be refused.

2 With respect to Ground 1 the Appellant contended that the differences exceeded the similarities between the two incidents. Accordingly, it was submitted that each was not admissible against the other on the basis that it was not coincidence evidence within s98 or, alternatively, should have been excluded on the basis that its probative value did not substantially outweigh the prejudicial effect within s101 of the Evidence Act 1995. The latter contention emerged in submissions and was not within Ground 1 as formulated. I would not shut out the Appellant from arguing s101 on that basis, but would refuse leave under rule 4.

3 The direction his Honour proposed to give with respect to coincidence evidence was raised with counsel and approved in advance. No request for any redirection was made. His Honour’s direction, set out by Sully J, applied equally to the evidence of each complainant with respect to the use that could be made of that evidence in the charge involving the other complainant.

4 There is no basis, in my opinion, for the submission that there was any risk that the case involving KG was bolstered by the stronger case made in the evidence by JM. I can see no error of law or miscarriage of justice. No explanation is proffered by way of affidavit from trial counsel. It is not the duty of counsel to take every conceivable point in the course of a criminal trial. This Court should do nothing to encourage counsel to do so. On the contrary, this Court should encourage counsel for the accused in a criminal trial to concentrate on their good points. This will generally be in the interests of their clients. Juries sometimes do not take kindly to trial counsel whose conduct leads to continuing interruptions and whose task of persuasion is thereby made more difficult.

5 The issues involved in this ground of appeal are classically matters for judgment. Whether the differences or similarity outweigh similarities in two…

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 Ian Jackson v Regina

Details

AGLC: Ian Jackson v Regina [2005] NSWCCA 411
Case: [2005] NSWCCA 411
Decision Date: 30 November 2005

CaseChat Overview and Summary

Ian Jackson was convicted of sexual offences against two complainants, KG and JM, in a retrial before Armitage DCJ in the District Court. Jackson appealed against his convictions to the NSW Court of Criminal Appeal. The appeal was dismissed by Spigelman CJ, Sully J and Hulme J. Jackson's trial counsel had not objected to the directions given to the jury by the trial judge about coincidence evidence or consent. The Court held that the trial judge's directions were not wrong in law and that there was no miscarriage of justice. The directions were clear and appropriately tailored to the evidence. The jury was left to determine the weight to be given to the evidence of each complainant. The appeal against conviction was dismissed and the convictions were upheld.

Orders