JG v R

Case [2014] NSWCCA 138 25 July 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: JG v R [2014] NSWCCA 138
Hearing dates: 7 February 2014
Decision date: 25 July 2014
Before: Simpson J at [1]
Hall J at [202]
Schmidt J at [592]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - appellant convicted of multiple offences relating to sexual assaults against two complainants - complainants were students at the school at which the appellant resided and was employed - jury in the first trial were unable to agree as to the counts and were discharged - appellant retried before another judge and jury - during the second trial the appellant sought a redetermination of a number of pre-trial orders made by the first trial judge - trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of separate trials on the counts relating to each complainant - trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of tendency and coincidence evidence relied upon by the prosecution - trial judge did not err in refusing an application for a permanent stay of the indictment in respect of one complainant - appellant was not cross-examined contrary to Palmer v R - principles as to impermissible cross-examination referred to in Gonzales v R [2007] NSWCCA 321 - whether there was a miscarriage of justice - basis upon which the appellant conducted his case that complainants and other witnesses had lied - conviction of the appellant was not unsafe or unsatisfactory - appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Barton v The Queen [1980] HCA 48; 147 CLR 75
DAO v R [2011] NSWCCA 63; 81 NSWLR 568
DSJ v DPP (Cth); NS v DPP (Cth) [2012] NSWCCA 9; 84 NSWLR 158
Gonzales v R [2007] [NSWCCA 321; (2007) 178 A Crim R 232
Hoch v The Queen (1988) 165 CLR 292
Jago v The District Court of NSW [1989] HCA 46; 168 CLR 23
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Palmer v The Queen [1998] HCA 2; 193 CLR 1
R v BO [2012] NSWDC 194
R v Cook [2004] NSWCCA 52
R v Daley [2001] NSWSC 1211
R v Edelsten (1989) 18 NSWLR 213
R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
R v Foley (1998) 105 A Crim R 1
R v Ford [2009] NSWCCA 306; 201 A Crim R 451
R v JG (NSWDC, 13 February 2013, unreported)
R v JG (NSWDC, 20 February 2013, unreported)
R v JG (NSWDC, 23 May 2012, unreported)
R v Leak (1969) SASR 172
R v McCarthy (NSWCCA, 12 August 1994, unreported)
R v…

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 JG v R

Details

AGLC: JG v R [2014] NSWCCA 138
Case: [2014] NSWCCA 138
Decision Date: 25 July 2014

CaseChat Overview and Summary

The case of JG v R involved an appellant, JG, appealing against his conviction for multiple offences of sexual assault against two complainants. The complainants were students at the school where JG resided and was employed. Following an initial trial, the jury was unable to reach a unanimous decision on the charges, leading to the jury being discharged. JG was subsequently retried before another judge and jury, which resulted in his conviction. During the second trial, JG sought a redetermination of several pre-trial orders made by the first trial judge.

The primary legal issues before the court were whether the trial judge erred in refusing applications to separate the trials for the counts relating to each complainant, to exclude certain evidence on the grounds of tendency and coincidence, and to permanently stay the indictment in respect of one complainant. The court also considered whether there was a miscarriage of justice based on the manner in which JG conducted his defence, particularly his assertion that the complainants and other witnesses had lied. The court examined these issues in light of relevant statutory provisions and case law, particularly the principles outlined in Palmer v R and Gonzales v R.

The court found that the trial judge did not err in any of the decisions regarding the pre-trial orders. The court held that the trial judge properly exercised his discretion in denying separate trials, in excluding tendency and coincidence evidence, and in refusing a permanent stay of the indictment. Regarding the alleged miscarriage of justice, the court found that the appellant's conviction was not unsafe or unsatisfactory. The court acknowledged the basis of JG's defence but concluded that it did not lead to a miscarriage of justice. Therefore, the appeal was dismissed.

No further orders were made by the court.

Orders