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Jones v The King

Jones v The King

Case [2025] NSWCCA 38 2 April 2025

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jones v R [2025] NSWCCA 38
Hearing dates: 17 March 2025
Date of orders: 2 April 2025
Decision date: 02 April 2025
Before: Davies J at [1]
Wright J at [81]
Dhanji J at [82]
Decision:
1. Grant leave to appeal.
2. Uphold the appeal.
3. Quash the conviction of the appellant.
4. Order a retrial.
5. Stand the proceedings into the Arraignment List in the District Court on 11 April 2025.

Catchwords:
CRIME – appeals – appeal against conviction – where the appellant was found guilty of one count of using a carriage service to groom a person under 16 years of age – where the jury was directed that in the absence of evidence to the contrary it was established that the appellant believed the person to be under 16 years of age – where the jury was directed that it was a defence to the charges if the appellant established a reasonable possibility that he believed the recipient was at least 16 years of age – whether the trial judge erred in his directions to the jury – where s 474.28(3) of the Criminal Code (Cth) was found to be means of proof only in the event there is no evidence to the contrary – where the appellant gave evidence that he believed he was talking to someone over the age of 18 years – where the appellant’s evidence was held to be “evidence to the contrary” – where s 474.28(3) was found to involve a question of law to be determined by the trial judge not the jury – where the impugned directions should not have been given– where leave was granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) due to the error resulting in a miscarriage of justice – appeal allowed, conviction quashed and new trial ordered

Legislation Cited:
Acts Interpretation Act 1901 (Cth) s 13
Crimes Act 1914 (Cth) s 20
Criminal Appeal Act 1912 (NSW) s 6
Criminal Code (Cth) ss 13.3, 13.4, 13.5, 14.1, 71.14, 91.9, 137.1, 268.110, 471.5, 474.27, 474.27A, 474.28, 474.29
Criminal Code Act 1899 (Qld) s 218A
Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No. 2) 2004 (Cth)
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Acton v R [2024] NSWCCA 92
AHF18 v Minister for Immigration & Anor [2018] FCCA 1458
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Gilham v R [2012] NSWCCA 131; (2012) 224 A Crim R 22
Iskandar v R [2025] NSWCCA 33
Parker v R [2023] NSWCCA 234; (2023) 105 MVR 337
R v Addley [2019] 2 Qd R 46; [2018] QCA 125
R v Matthews [2015] QCA 82
R v Shetty (2005) 2 Qd R 540; [2005] QCA 225
R v Webb [2018] QCA 102
Tomlinson v R (2022)…

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 Jones v The King

Details

AGLC: Jones v The King [2025] NSWCCA 38
Case: [2025] NSWCCA 38
Decision Date: 02 April 2025

CaseChat Overview and Summary

In Jones v The King, the appellant was found guilty of using a carriage service to groom a person under 16 years of age. The central issue in this appeal was whether the trial judge erred in directing the jury regarding the presumption and defence under section 474.28(3) of the Criminal Code (Cth). Specifically, the court had to determine whether the trial judge's directions correctly applied the law in relation to the presumption of age and the onus of proof, as well as whether the trial judge should have decided these issues as a matter of law rather than leaving them to the jury.

The legal issues centred on the interpretation of section 474.28(3) of the Criminal Code, which establishes a presumption that the appellant believed the person to be under 16 years of age in the absence of evidence to the contrary. The appellant argued that the trial judge should have determined whether the evidence presented constituted evidence to the contrary, thus making the issue of age a question of law rather than one for the jury. Furthermore, the appellant contended that the direction provided to the jury incorrectly placed the onus on the appellant to prove the defence.

The court found that the trial judge erred by directing the jury on the presumption and defence in the manner that was done. The court held that section 474.28(3) was a means of proof only in the absence of evidence to the contrary and that the trial judge should have determined whether the appellant's evidence constituted such evidence. Additionally, the court ruled that the defence of establishing a reasonable possibility that the recipient was at least 16 years of age was a question of law to be determined by the trial judge, not the jury. Consequently, the court concluded that the error was significant enough to warrant a new trial, as it had the potential to result in a miscarriage of justice. The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders