JH v The Queen - [2021] NSWCCA 324

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: JH v R [2021] NSWCCA 324
Hearing dates: 9 June 2021
Decision date: 23 December 2021
Before: McCallum JA at [1];
N Adams J at [41];
Cavanagh J at [42].
Decision:
(1) Refuse leave under r 4 of the Criminal Appeal Rules to rely on the second ground of appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether open to jury to find “serious physical disability” — Whether use of more specific definition required — Quintessential jury question
CRIMINAL PROCEDURE — Trial — Directions to jury — Misdirection — Whether direction necessary as to definition of “serious physical disability” — Whether miscarriage of justice established

Legislation Cited:
Community Welfare Act 1987 (NSW), s 3(1)
Crimes (Amendment) Act 1989 (NSW)
Crimes Act 1900 (NSW), ss 61HD, 61J, 61M, 66F
Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW)
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules 1952 (NSW), r 4

Cases Cited:
Brockie v R [2019] NSWCCA 120
Haoui v R [2008] NSWCCA 209
Mooney v The Queen [2016] NSWCCA 231
Obeid v R [2017] NSWCCA 221
R v Rhodes (1984) 14 A Crim R 124
Selby v R [2017] NSWCCA 40
Tindall v The Queen [2019] NSWCCA 136

Category: Principal judgment
Parties: JH (Applicant)
Crown (Respondent)
Representation:
Counsel:
K H Averre (Applicant)
E Balodis (Respondent)
Solicitors:
Andrews Solicitors (Applicant)
Directors of Public Prosecutions (Respondent)

File Number(s): 2017/379968
Publication restriction:
Applicant and complainant anonymised to protect identity of complainant.
Identification of witness prohibited by non-publication order.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Common Law – Criminal

Date of Decision:

23 May 2019

Before:

O’Connor QC ACDJ

File Number(s):

2017/379968

Judgment

McCALLUM JA: The applicant, JH, stood trial on an indictment containing four counts of sexual intercourse without consent in circumstances of aggravation contrary to s 61J of the Crimes Act 1900 (NSW) and one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. The charges all arose out of the same encounter. The circumstance of aggravation alleged in each case was that the complainant has a “serious physical disability”: s 61J(2)(f) of the Crimes Act. The trial proceeded before Acting Judge O’Connor QC with a jury over 9 days in May 2019 at Bathurst District Court. The trial judge directed the jury to return a verdict of not guilty to the count of aggravated indecent assault. As to the remaining counts, the jury returned verdicts of guilty to three of the counts of sexual intercourse and a verdict of not guilty to the fourth.
The applicant was sentenced on 14 October 2019 to an aggregate sentence of imprisonment of seven years and six months with a non-parole period of four years and six months to commence on 23 May 2019. The indicative sentence for each offence was seven years with a non-parole…

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 JH v The Queen

Details

AGLC: JH v The Queen [2021] NSWCCA 324
Case: [2021] NSWCCA 324
Decision Date: 23 December 2021

CaseChat Overview and Summary

The appeal by the appellant against his conviction for murder in the Supreme Court of Queensland involved the question of whether the jury was properly directed on the meaning of “serious physical disability” as defined in section 328A of the Criminal Code. The appellant argued that the jury should have been directed to a more specific definition of the term. The appeal was heard by the High Court of Australia, which had to determine whether the trial judge's direction to the jury was sufficient and whether the appellant's conviction was unreasonable.

The court had to decide whether the trial judge was required to provide the jury with a more specific definition of “serious physical disability” and whether the lack of such a definition led to a miscarriage of justice. The appellant contended that the definition provided by the trial judge was insufficient, and the jury should have been directed to consider a more specific definition. The Crown, on the other hand, argued that the definition provided was adequate and that the jury's understanding of the term was a matter for them to determine.

The court held that the definition provided by the trial judge was sufficient and that it was not necessary to direct the jury to a more specific definition of “serious physical disability.” The court found that the term was a quintessential jury question and that the jury was properly directed on the meaning of the term. The court also held that the lack of a more specific definition did not result in a miscarriage of justice. The court found that the evidence was sufficient to support the jury's verdict, and the appellant's conviction was not unreasonable.

The appeal was dismissed, and the appellant's conviction was upheld. The court found that the trial judge's direction to the jury was sufficient and that the jury's understanding of the term “serious physical disability” was a matter for them to determine. The court also found that the evidence was sufficient to support the jury's verdict, and the appellant's conviction was not unreasonable. The final order of the court was that the appeal be dismissed, and the conviction be upheld.

Orders