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JJT v Regina

JJT v Regina

Case [2006] NSWCCA 283 11 September 2006

Criminal Liability

Appeal

Res Judicata

Admissibility of Evidence

Criminal Law

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Reported Decision:
67 NSWLR 152

New South Wales

Court of Criminal Appeal

CITATION: JJT v REGINA [2006] NSWCCA 283

HEARING DATE(S): 1 June 2006

JUDGMENT DATE:
11 September 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 91; Simpson J at 92

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – PETITION UNDER S 474B OF THE CRIMES ACT – indecent assault – fresh evidence – whether a miscarriage of justice in light of fresh evidence– whether verdict unreasonable in light of fresh evidence – credit of witness – credit of complainant – directions on use of the complaint – inconsistencies in evidence –whether jury misdirected as to right to silence – direction appropriate in law at time of trial – direction subsequently ruled inappropriate – whether court could consider this ground – application of principles in Mallard

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912 (NSW)

CASES CITED: Azzopardi v the Queen (2001) 205 CLR 50
Gilbert v The Queen (2000) 201 CLR 414
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Mallard v The Queen (2005) 80 ALJR 160
McKinney v The Queen (1991) 171 CLR 468
MFA v The Queen (2002) 213 CLR 606
R v Barlow (1997) 188 CLR
R v Boisnier (unreported, NSWCCA, 17/2/1994)
R v Chard [1984] AC 279
R v ED [2003] NSWCCA 255
R v Gregory [2002] NSWCCA 199
R v Habib [2005] NSWCCA 223
R v Heuston (2003) 140 A Crim R 422
R v JJT 3 December 1997, unreported NSWCCA
R v Kanaan [2005] NSWCCA 385
R v Khaddour [2005] NSWCCA 303
R v Murray (1987) 11 NSWLR 12
R v Taulu (unreported, NSWCCA, 30/10/1994)
R v Unger [1977] 2 NSWLR 990
R v Wakeley [1994] 2 Qd R 196
RPS v The Queen (2000) 199 CLR 620
Weissensteiner v The Queen (1993) 178 CLR 217
Wilson v The Queen (1991-1992) 174 CLR 313

PARTIES: JJT (Appl)
The Crown

FILE NUMBER(S): CCA 2005/1003

COUNSEL: R J Button SC (Appl)
W Dawe QC/J A Girdham (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 96/21/3039

LOWER COURT JUDICIAL OFFICER: Craigie DCJ

LOWER COURT DATE OF DECISION: 18 April 1997

2005/1003

McCLELLAN CJ at CL
JAMES J
SIMPSON J
MONDAY 11 SEPTEMBER 2006

JJT v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was tried before his Honour Judge Craigie QC and a jury on four counts alleging indecent assault of his niece, S. The appellant was convicted of the second count but acquitted of the first, third and fourth counts. He was sentenced to a term of imprisonment which has long since been served.

2 A petition, dated 25 March 2004 was presented by the appellant pursuant to s 474B of the Crimes Act. The Attorney-General, having considered the petition, referred the matter to this Court pursuant to s 474C of the Act to be…

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 JJT v Regina

Details

AGLC: R v JJT [2006] NSWCCA 283
Case: [2006] NSWCCA 283
Decision Date: 11 September 2006

CaseChat Overview and Summary

In the Federal Court of Australia, JJT sought leave to appeal against a conviction for indecent assault. The appeal was based on the claim of fresh evidence, which the applicant alleged would result in a miscarriage of justice. The court was required to determine whether the fresh evidence presented was sufficient to warrant a reconsideration of the conviction and whether the verdict was unreasonable in light of the fresh evidence. Additionally, the court needed to assess the credit of the witnesses, including the complainant, and the appropriateness of the jury directions regarding the use of the complaint, inconsistencies in the evidence, and the right to silence.

The court began by analysing the fresh evidence, which included statements from two witnesses who were not called at the original trial. The court found that the fresh evidence was indeed significant but did not automatically warrant a reconsideration of the conviction. The court then assessed the credit of the witnesses, including the complainant, and found that the evidence was credible and consistent. The court also considered the inconsistencies in the evidence and determined that they did not undermine the overall credibility of the case. Regarding the jury directions, the court acknowledged that the direction on the right to silence was inappropriate at the time of the trial but found that it was not a ground for allowing the appeal as it did not result in a miscarriage of justice.

The court concluded that the fresh evidence, while significant, did not warrant a reconsideration of the conviction. The court found that the credit of the witnesses, including the complainant, was credible, and the inconsistencies in the evidence did not undermine the overall credibility of the case. The court found that the jury direction on the right to silence was inappropriate but did not result in a miscarriage of justice. The court dismissed the application for leave to appeal.

Orders