JAD v R

Case [2012] NSWCCA 73 27 April 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: JAD v R [2012] NSWCCA 73
Hearing dates: 17 November 2011
Decision date: 27 April 2012
Before: Whealy JA at 1
Simpson J at 37
Hoeben J at 169
Decision:
(by majority)
1.Appeal against conviction allowed, convictions quashed;
2.there be a new trial on all counts in the indictment.

Catchwords: CRIMINAL LAW - APPEAL - sexual offences - appeal against conviction - Criminal Procedure Act, s 293 - presence of disease - evidence of sexual experience of complainant - psychological condition - s 293(4)(2)(ii) - probative value of evidence - evidence admissible.
CRIMINAL LAW - APPEAL - sexual offences - appeal against conviction - Crimes Act s 73 - meaning of "step-father" - does not include de facto partner of parent of child - R v Miller [2001] NSWCCA 209 - history of sexual offences legislation - meaning of "foster parent" - whether includes de facto partner of parent of child.
STATUTORY INTERPRETATION - literal approach - purposive approach preferred.
Legislation Cited: Adoption Act 2000 (NSW)
Adoption of Children Act 1965
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Crimes (Amendment) Act 1955
Crimes (Child Assault) Amendment Act 1985
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Girls' Protection) Act 1910
Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Bill 2003
Criminal Law Amendment Act 1883 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987
Statute Law (Miscellaneous Provisions) Act 1987
Cases Cited: Beckwith v The Queen [1976] HCA 55; 135 CLR 569
Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292
Dickenson v Fletcher (1873) LR 9 CP
Jones v Wrotham Park Settled Estate [1980] AC 74
Krakouer v The Queen [1998] HCA 43; 194 CLR 202
Murphy v Farmer [1988] HCA 31; 165 CLR 19
Project Blue Sky Inc. & Ors v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Miller (2001) [2001] NSWCCA 209; 127 A Crim R 344
Scott v Causey [1907] HCA 80; 5 CLR 132
Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174
Tokyo Mart Pty Limited v Campbell (1987) 15 NSWLR 275
Texts Cited: Australian Concise Oxford Dictionary, 4th ed
Bennion: Statutory Interpretation, 3rd ed (1997), Butterworths
Blackstone, Commentaries on the Laws of England, 17th ed, 1830, Vol 4
Collins Dictionary, 1979
Concise Oxford Dictionary of Current English, 8th ed
D C Pearce & R S Geddes: Statutory Interpretation in Australia, 6th ed (2006)
Final Report of the Royal Commission into the New South Wales Police Service ("the Royal Commission"), Vol V: The Paedophile Inquiry, August 1997
The Macquarie Dictionary (Federation Edition) 2001
The New Shorter Oxford Dictionary, 1993
The Shorter Oxford Dictionary
Category: Principal judgment
Parties: JAD (Appellant)
The Queen (Respondent)
Representation: J Manuell (Appellant)
J Pickering (Crown)
Lee Dalton & Associates (Appellant)
S Kavanagh (Crown)

File Number(s): 08/16755
Decision under appeal

Jurisdiction:

9101

Date of…

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 JAD v R

Details

AGLC: JAD v The Queen [2012] NSWCCA 73
Case: [2012] NSWCCA 73
Decision Date: 27 April 2012

CaseChat Overview and Summary

The appeal in JAD v R involves the respondent, who was convicted of sexual offences and is now appealing against that conviction. The matter was heard in the High Court of Australia, which was required to consider two main legal issues arising from the appeal. The first issue was whether certain evidence concerning the complainant's sexual experience and psychological condition was admissible under section 293 of the Criminal Procedure Act. The second issue involved statutory interpretation of the term "step-father" in section 73 of the Crimes Act, specifically whether it includes a de facto partner of a child's parent.

The court determined that the evidence in question was admissible, as it held significant probative value in the context of the case, despite its prejudicial nature. The High Court applied a purposive approach to statutory interpretation, rejecting the literal interpretation of the term "step-father" as it did not align with the purpose of the legislation. The court found that the term did not include a de facto partner of the child's parent, relying on the historical context of the sexual offences legislation and the broader meaning of the term "foster parent."

The High Court, therefore, allowed the appeal, quashed the conviction, and ordered a retrial. The court's decision on the admissibility of evidence and statutory interpretation has significant implications for future cases involving similar issues. The final orders of the court were to allow the appeal, quash the conviction, and order a retrial, reflecting the court's findings on both the legal issues presented in the appeal.

Orders