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Johnson v The Queen

Johnson v The Queen

Case [2017] NSWCCA 278 24 November 2017

Criminal Liability

Appeal

Admissibility of Evidence

Miscarriage of Justice

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Johnson v R [2017] NSWCCA 278
Hearing dates: 6 September 2017
Date of orders: 24 November 2017
Decision date: 24 November 2017
Before: Payne JA at [1]
McCallum J at [88]
Wilson J at [95]
Decision:
Conviction Appeal

(1) Leave to advance ground 2 and the proposed ground 5 is refused. Leave to advance ground 3 is granted.
(2) The appeal against conviction is dismissed.
Sentence Appeal
(3) Crown appeal allowed.
(4) Sentence imposed on 16 December 2016 is quashed.
(5) In lieu, the respondent is sentenced pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate term of 10 years imprisonment, to date from 26 August 2015, and expiring on 25 August 2025. A non-parole period of 7 years and 6 months is fixed, which will expire on 25 February 2023.
Catchwords:
CRIME – conviction appeal – sexual assault – definition of “female genitalia” – adequacy of direction about “the penetration to any extent of the genitalia… of a female person.” – sufficiency of evidence of penetration - question of admissibility of evidence to rebut defence – question of fair trial – admissibility of “fresh” or “new” evidence – miscarriage of justice
CRIME – Crown sentence appeal – whether sentence manifestly inadequate – material alteration on basis upon which sentence imposed – question of totality
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
National Health Act 1953 (Cth)
Veterans' Entitlements Act 1986 (Cth)
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Jarvie v Magistrates' Court (Vic) [1995] 1 VR 84
Johnson v R [2017] NSWCCA 31
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
R v Abou-Chabake [2004] NSWCCA 356
R v AJS (2005) 12 VR 563; [2005] VSCA 288
R v Fletcher (2005) 156 A Crim R 308; [2005] NSWCCA 338
R v Glennon (1992) 173 CLR 592; [1992] HCA 16
R v JDX; JDX v R [2017] NSWCCA 9
R v Ngo (2003) 57 NSWLR 55; [2003] NSWCCA 82
R v Tolmie (1994) 72 A Crim R 416
Romolo v R [2016] NSWCCA 240
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

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 Johnson v The Queen

Details

AGLC: Johnson v The Queen [2017] NSWCCA 278
Case: [2017] NSWCCA 278
Decision Date: 24 November 2017

CaseChat Overview and Summary

In the case of Johnson v The Queen, the appellant, Johnson, was convicted of sexual assault in the County Court of Victoria. The conviction related to an incident involving a complainant, who alleged that the appellant had sexually assaulted her. Johnson appealed against his conviction, challenging the adequacy of the trial judge’s direction to the jury concerning the legal definition of “female genitalia” and whether there was sufficient evidence of penetration to any extent. Johnson also challenged the admissibility of certain evidence that was offered to rebut his defence, arguing that it was fresh evidence that could lead to a miscarriage of justice.

The legal issues before the court were whether the trial judge had properly directed the jury on the legal definition of “female genitalia” and whether the evidence was sufficient to establish penetration. The court had to consider whether the trial judge’s direction to the jury regarding the definition of “female genitalia” was adequate and whether the evidence was sufficient to prove that penetration to any extent had occurred. The court also considered whether the admission of certain evidence to rebut the defence amounted to fresh evidence that was inadmissible and could lead to a miscarriage of justice.

The court found that the trial judge had adequately directed the jury on the legal definition of “female genitalia” and that the evidence was sufficient to establish penetration to any extent. The court held that the trial judge’s direction was clear and concise and that the jury was properly informed of the legal definition of “female genitalia.” The court also found that the evidence was sufficient to establish penetration to any extent and that the jury was properly directed on the issue of penetration. The court further held that the evidence that was offered to rebut the defence was not fresh evidence and did not amount to a miscarriage of justice. The appeal against conviction was dismissed. The court also found that the sentence imposed was manifestly inadequate and that the Crown’s appeal against the sentence was allowed. The matter was remitted to the County Court for resentencing.

Orders