JJB v R

Case [2006] NSWCCA 126 26 April 2006

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Reported Decision:
161 A Crim R 187

New South Wales

Court of Criminal Appeal

CITATION: JJB v Regina [2006] NSWCCA 126

HEARING DATE(S): 28/03/06

JUDGMENT DATE:
26 April 2006

JUDGMENT OF: Spigelman CJ at 1; Kirby J at 9; Howie J at 107

DECISION: Leave under Rule 4 refused and the appeal dismissed.

CATCHWORDS: Criminal Practice & Procedure - allegations by child of sexual abuse - delay - accused absconds adding to delay - Longman direction - extended Longman (fragile recollection of child) - error but point not taken - r4 no miscarriae of justice.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Longman v The Queen (1989) 168 CLR 79
R v Johnston (1998) 45 NSWLR 362
Crampton v The Queen (2000) 206 CLR 161
Doggett v The Queen (2001) 208 CLR 343
R v BWT (2002) 54 NSWLR 241
SJB (2002) 129 A Crim R 572
R v GS [2003] NSWCCA 73
R v WSP [2005] NSWCCA 427
R v DGB (2002) 133 A Crim R 227
Christophers v The Queen (2000) 23 WAR 106
Crisafio v The Queen (2003) 27 WAR 169
RBK v The Queen [2004] WASCA 216
Angliss v The State of Western Australia [2005] WASCA 162
R v WSP [2005] NSWCCA 427
R v JBV [2002] NSWCCA 212
Dyers v The Queen (2002) 210 CLR 285
R v GS [2003] NSWCCA 73
R v WRC [2002] NSWCCA 210
R v JBV [2002] NSWCCA 212

PARTIES: JJB (App)
Regina (Crown/Resp)

FILE NUMBER(S): CCA 2005/2299

COUNSEL: H Dhanji (App)
P Barrett (Crown/Resp)

SOLICITORS: S. O'Connor (App)
S. Kavanagh (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0450

LOWER COURT JUDICIAL OFFICER: Nicholson DCJ

LOWER COURT DATE OF DECISION: 03/31/2005

2005/2299

SPIGELMAN CJ
KIRBY J
HOWIE J
Wednesday 26 April 2006

JJB v REGINA

Judgment

1 SPIGELMAN CJ: Subject to the following additional observations I agree with the reasons of Kirby J and to the orders his Honour proposes.

2 His Honour refers to the observations of Deane J and McHugh J in Longman v The Queen (1989) 168 CLR 79 as “the extended Longman direction”. This is a convenient shorthand but must no be confused with the Longman warning which has authoritative force. The observations by Deane J and McHugh J are just that – observations. They have never been given authoritative force either from the High Court or from any intermediate court of criminal appeal.

3 Their Honour’s observations are based on assumptions about child psychology which are widely held but which are not necessarily well founded. Many judges share a conventional wisdom about human behaviour, which may represent the limitations of their background. This has been shown to be so in sexual assault cases. (See R v Johnston (1998) 45 NSWLR 362 at 367-368.)

4 Legislative intervention was required to overcome the tendency of male judges to treat sexual assault complainants as prone to be unreliable. The observations of Deane J and McHugh J in Longman reflect…

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 JJB v R

Details

AGLC: JJB v The Queen [2006] NSWCCA 126
Case: [2006] NSWCCA 126
Decision Date: 26 April 2006

CaseChat Overview and Summary

The case of JJB versus the Crown involved a criminal appeal where the defendant was accused of sexually abusing a child. The defendant had absconded, adding to the delay in the proceedings. The Court of Appeal was tasked with determining the effect of this delay on the trial and whether it constituted a miscarriage of justice. The case was heard in the Victorian Court of Appeal.

The legal issues before the Court were whether the delay in bringing the case to trial, exacerbated by the defendant's flight, was so significant that it would prejudice the fairness of the proceedings. The Court was required to consider the application of the Longman direction in this context, particularly given the child's fragile memory of the events. The court also needed to examine whether the trial judge's error in not extending the Longman direction constituted a miscarriage of justice under rule 4.

In its judgment, the Court of Appeal determined that although the delay was significant, it did not prejudice the fairness of the trial. The court found that the trial judge's error in not extending the Longman direction was not substantial enough to cause a miscarriage of justice. The Court concluded that the evidence presented was sufficient to support the conviction, and therefore, the delay and the error did not affect the outcome of the trial. The appeal was dismissed.

Orders