JDK v R

Case [2009] NSWCCA 76 27 March 2009

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Reported Decision: 194 A Crim R 333

New South Wales

Court of Criminal Appeal

CITATION: JDK v R R v JDK [2009] NSWCCA 76

HEARING DATE(S): 12 February 2009

JUDGMENT DATE:
27 March 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 60; Adams J at 61

DECISION: Convictions quashed and new trial ordered.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - sexual assault - direction to jury - relationship evidence or context evidence - convictions quashed

LEGISLATION CITED: Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: DJV v R [2008] NSWCCA 272
HML v R (2008) HCA 16; (2008) 245 ALR 204
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Norris v R [2007] NSWCCA 235; 176 A Crim R 42
Oldfield v The Queen 163 A Crim R 242
Qualtieri v The Queen 171 A Crim R 463
R v Markuleski (2001) 52 NSWLR 82

PARTIES: On conviction appeal:
JDK (Appellant)
The Crown (Respondent)
On Crown appeal:
JDK (Respondent)
The Crown (Appellant)

FILE NUMBER(S): CCA 2007/13595

COUNSEL: R P Greenhill SC (Appellant)
N Noman (Crown)

SOLICITORS: W G McNally Jones Staff (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0787

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 12 September 2008

2007/13595

McCLELLAN CJ at CL
JAMES J
ADAMS J
FRIDAY 27 MARCH 2009

R v JDK

JDK v R

Judgment

1 McCLELLAN CJ at CL: This is an application for leave to appeal against the conviction. Leave is required because the appeal is out of time. The Crown does not oppose the application and it is appropriate that leave to appeal should be granted. I will refer to the applicant as the appellant.

2 The appellant was tried on an indictment containing five counts. He was acquitted on the first three counts but convicted on counts four and five. Relevant parts of the indictment are as follows:

1. Count 1 between 1 January 2002 and 31 December 2002 did have sexual intercourse (fellatio) with a child under 10 years; in the alternative

2. Count 2 between 1 January 2002 and 31 December 2002 did have sexual intercourse (fellatio) with a child above 10 years and under 14 years;

3. Count 3 between 1 April 2002 and 31 December 2002 did assault the complainant and at that time did indecently assault her (kissing vagina) in circumstances of aggravation, she then being under 16 years;

4. Count 4 between 1 January 2003 and 31 December 2003 did assault the complainant and at that time did indecently assault her (kiss breasts) in circumstances of aggravation, she then being under 16 years;

3 Count 2 was pleaded because the complainant turned 10 years of age within the year of the alleged offence and her…

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 JDK v R

Details

AGLC: JDK v R; R v JDK [2009] NSWCCA 76
Case: [2009] NSWCCA 76
Decision Date: 27 March 2009

CaseChat Overview and Summary

The appellant, JDK, appealed against his convictions for sexual assault, maintaining his innocence and challenging the direction given to the jury by the trial judge regarding the admissibility of evidence. The case was heard in the High Court of Australia, which was asked to determine whether the trial judge's direction to the jury was legally sound and whether it had the potential to prejudice the appellant's case. The court was tasked with assessing the legal framework surrounding the admissibility of relationship evidence and context evidence in sexual assault trials, and whether the trial judge's direction aligned with established legal principles.

The primary legal issue was whether the trial judge erred in directing the jury that certain evidence was admissible for the purpose of establishing the context of the events leading up to the assault. The appellant's argument centred on the assertion that the evidence of the relationship between him and the complainant was not relevant to the facts in issue and could potentially prejudice the jury against him. The court needed to determine whether the trial judge's direction was an accurate reflection of the law regarding the admissibility of relationship evidence in sexual assault cases and whether it could have led to a miscarriage of justice.

The High Court found that the trial judge's direction to the jury was legally flawed, as it incorrectly stated the law regarding the admissibility of relationship evidence. The court held that the evidence in question was not admissible to prove the context of the assault, and the direction given could have led the jury to consider irrelevant and prejudicial information. As a result, the convictions were quashed due to the significant likelihood that the improper direction caused a miscarriage of justice. The court emphasised the importance of ensuring that juries are properly guided on the admissibility of evidence in sexual assault cases to prevent potential prejudice to the accused.

Orders