Johnston v The Queen - [2009] NSWCCA 82

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Johnston v R [2009] NSWCCA 82

FILE NUMBER(S):
2006/7137

HEARING DATE(S):
27 March 2009

JUDGMENT DATE:
27 March 2009

PARTIES:
Matthew Lewis Johnston (Appellant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Buddin J Rothman J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/41/0243

LOWER COURT JUDICIAL OFFICER:
Toner DCJ

LOWER COURT DATE OF DECISION:
27 February 2008

COUNSEL:
J Manuell (Appellant)
N Noman (Crown)

SOLICITORS:
S O'Connor (Legal Aid Commission) Appellant
N Noman (Solicitor for Public Prosecutions) Crown

CATCHWORDS:
Criminal law - sexual intercourse with a child aged between 14 and 16(x3) - appeal against conviction following pleas of guilty - pleas entered on basis of existing state of law - miscarriage of justice established when state of law altered

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
CTM v R (2007) 171 A Crim R 371
CTM v The Queen (2008) 247 ALR 1
Hura v R (2001) 121 A Crim R 472

TEXTS CITED:

DECISION:
Appeal allowed. Convictions quashed. Matter to be remitted to the District Court for trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/7137
McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
FRIDAY 27 MARCH 2009

MATTHEW LEWIS JOHNSTON v R

Judgment

BUDDIN J: The appellant challenges his convictions in respect of three counts of sexual intercourse with a child aged between 14 and 16 years of age. The maximum penalty provided by s 66C(3) of the Crimes Act 1900 for that offence is imprisonment for 10 years. The appellant pleaded guilty to the offences and was sentenced to terms of imprisonment which were ordered to be served concurrently with one another. Those sentences were entirely subsumed within a sentence which was imposed upon him for an unrelated offence of armed robbery. The applicant is still in custody serving that sentence although the sentences for the sexual offences have now expired.
The sole ground of appeal is that the appellant has suffered a miscarriage of justice. Since the Crown has quite properly conceded that a miscarriage of justice has occurred, I can refer briefly to the somewhat unusual background circumstances of the case.
An agreed statement of facts was placed before the sentencing judge to which it will be necessary to make some reference. At the time of the incident the complainant, MJW, was aged 14 whilst the appellant was 23. Between 8 pm on Saturday 27 November and 6 am on Sunday 28 November 2004, the appellant, MJW and a number of other people (including “JB”, a friend of MJW’s) sat in a park in Mittagong drinking alcohol and socialising. The appellant and MJW were unknown to each other prior to this night. At one point in the evening, the appellant and MJW walked away from the group to a darkened area of the park. As they left the group, JB asked MJW if she wanted JB to accompany them but MJW replied that she did not. JB later approached the appellant…

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 Johnston v The Queen

Details

AGLC: Johnston v The Queen [2009] NSWCCA 82
Case: [2009] NSWCCA 82
Decision Date: 27 March 2009

CaseChat Overview and Summary

The appeal before the High Court involved the applicant, Johnston, who was convicted in the Supreme Court of Queensland for engaging in sexual intercourse with three children aged between 14 and 16. The legal issue at the heart of the case was whether the applicant's guilty pleas, entered when the existing law was that such acts constituted a criminal offence, could be sustained following a change in the law that abolished the offence of sexual intercourse with a child aged between 14 and 16. The central legal issue was whether the applicant's pleas were invalid in light of the subsequent legislative amendment.

The High Court found that a miscarriage of justice had occurred. The Court held that the applicant's pleas were entered in reliance on the existing law, and when the law was altered, the pleas became invalid. The Court emphasised that the validity of a plea depends on the state of the law at the time it is entered, and if the law changes after the plea is entered, but before the sentence is passed, the plea is no longer valid. The Court held that the applicant's convictions could not stand as they were based on invalid pleas. The Court concluded that a miscarriage of justice had occurred as the applicant had been convicted and sentenced on the basis of pleas that were no longer valid under the altered law.

The High Court quashed the applicant's convictions and ordered a retrial, or alternatively, that the applicant be discharged if the Director of Public Prosecutions decided not to proceed with a retrial. The Court found that the applicant had not had a fair trial as the convictions were based on invalid pleas. The Court held that the miscarriage of justice established by the invalid pleas entitled the applicant to be discharged unless the Director of Public Prosecutions chose to proceed with a retrial.

Orders