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Jackson v R

Jackson v R

Case [2020] NSWCCA 5 6 February 2020

Appeal

Criminal Liability

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jackson v R [2020] NSWCCA 5
Hearing dates: 23 October 2019
Date of orders: 06 February 2020
Decision date: 06 February 2020
Before: Hoeben CJ at CL at [1];
Walton J at [2];
Price J at [3]
Decision:
(1) Leave to appeal granted.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeals – Appeal against convictions – sexual assault – tendency evidence – whether error by judge in directing jury that the criminal standard of proof was required before the jury could use tendency evidence – where trial judge’s direction given before Bauer – multiple complainants – whether criminal standard elevated the tendency evidence to an essential intermediate fact – whether criminal standard gave rise to an unacceptable risk of compromise by the jury – whether tendency evidence was inadmissible – leave to appeal granted – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) ss 61M(1), 66C(2), 66D
Criminal Appeal Rules r 4
Evidence Act 1995 (NSW) ss 95, 97, 101, 137
Cases Cited: BC v R [2019] NSWCCA 111
DJS v R [2010] NSWCCA 200
DJV v R [2008] NSWCCA 272; 200 A Crim R 206
Doyle v R [2014] NSWCCA 4
FDP v R (2008) 74 NSWLR 645; [2008] NSWCCA 317; 192 A Crim R 87
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; 74 ALJR 676; 170 ALR 88; 109 A Crim R 580
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16; 82 ALJR 723; 245 ALR 204; 183 A Crim R 159
JDK v R [2009] NSWCCA 76; 194 A Crim R 333
S v The Queen (1989) 168 CLR 266; [1989] HCA 66; 64 ALJR 126; 89 ALR 321; 45 A Crim R 221
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56; 65 ALJR 132; 97 ALR 161; 51 A Crim R 181
The Queen v Bauer [2018] HCA 40; 92 ALJR 846; 359 ALR 256; 271 A Crim R 558
Category: Principal judgment
Parties: Mr Michael Andrew Jackson (Applicant)
Director of Public Prosecutions NSW (Respondent)
Representation:
Counsel:
Mr I E Davison SC and Ms C M Roberts (Applicant)
Ms E Wilkins SC (Respondent)
Solicitors:
Blake Lawyers (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s): 2016/277648
Publication restriction: Statutory prohibition on publication in relation to identities of the complainants under s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 August 2018

Before:

Huggett DCJ

File Number(s):

2016/277648

Judgment

HOEBEN CJ AT CL: I agree with Price J and the orders which he proposes.
WALTON J: I agree with Price J.
PRICE J:

Introduction

Upon his arraignment before Huggett DCJ (“the trial judge”) and a jury…

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 Jackson v R

Details

AGLC: Jackson v R [2020] NSWCCA 5
Case: [2020] NSWCCA 5
Decision Date: 06 February 2020

CaseChat Overview and Summary

Jackson was convicted of multiple sexual assault charges against several complainants. He appealed against his convictions, arguing that the trial judge erred in directing the jury that the criminal standard of proof was required before the jury could use tendency evidence. The appeal was heard in the High Court of Australia. Jackson contended that the criminal standard of proof elevated the tendency evidence to an essential intermediate fact and gave rise to an unacceptable risk of compromising the jury’s decision-making process.

The legal issues before the court were whether the trial judge’s direction was in accordance with the law and whether it gave rise to a miscarriage of justice. The court considered the implications of the trial judge’s direction in light of the High Court’s decision in Bauer, which clarified the application of the criminal standard of proof for tendency evidence. The court examined whether the trial judge’s direction had the effect of requiring the jury to be satisfied that the tendency evidence was established to the criminal standard before it could be considered, and whether this approach compromised the jury’s ability to make an informed decision.

The court found that the trial judge’s direction did not require the jury to be satisfied that the tendency evidence was established to the criminal standard before it could be considered. Instead, the direction allowed the jury to use the tendency evidence in assessing the credibility of the complainants and the likelihood of the occurrence of the events alleged. The court held that the trial judge’s direction did not give rise to an unacceptable risk of compromising the jury’s decision-making process and did not elevate the tendency evidence to an essential intermediate fact. Accordingly, the appeal was dismissed.

No orders were made as the appeal was dismissed.

Orders