JP v The King - [2024] NSWCCA 163

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JP v R [2024] NSWCCA 163
Hearing dates: 19 July 2024
Date of orders: 06 September 2024
Decision date: 06 September 2024
Before: Harrison CJ at CL at [1]
Dhanji J at [5]
Sweeney J at [21]
Decision:
1. Extend time for filing a Notice of Appeal.
2. Grant leave to appeal.
3. Allow the appeal.
4. Quash the convictions on counts 1, 2, 3 and 5.
5. In lieu thereof, enter a verdict of acquittal in respect of each of counts 1, 2, 3 and 5.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdicts — Child sex offences

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)

Cases Cited:
Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 24
Lang v The Queen (2023) 97 ALJR 758; [2023] HCA 20000.09
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
RW v R [2023] NSWCCA 2
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Texts Cited:
Nil

Category: Principal judgment
Parties: JP (Appellant)
Rex (Crown) (Respondent)
Representation:
Counsel:
M Smith (Appellant)
A Bonnor (Respondent)
Solicitors:
McGirr & Associates (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/237567
Publication restriction:
Publication of the identity of the complainants or any matter likely to lead to their identification prohibited pursuant to s 578A Crimes Act 1900 (NSW).
Publication of the name of the complainants prohibited pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

22-30 August 2022 (Trial)

Before:

Pickering SC DCJ

File Number(s):

2020/237567

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty of four sexual offences against two of her children after trial by jury in the District Court.

Counts 1 and 3 alleged the applicant directed her son, HT, and daughter, SP, to watch an adult movie while she masturbated, using a dildo, in their presence. Count 2 alleged the applicant licked HT’s penis. Count 5 alleged the applicant rubbed a vibrator on her body and genitals in SP’s presence. The applicant was acquitted of count 4.

The applicant sought leave to appeal her convictions on two grounds: that the directions given to the jury on “do sexual act towards a child under 10” were inadequate; and that the verdict of guilty on each count was unreasonable.

The Court (per Sweeney J, Harrison CJ at CL and Dhanji J agreeing) held, granting leave to appeal and allowing the appeal

On the Court’s independent assessment of the evidence, the jury ought to have entertained a reasonable doubt that the applicant committed the offences charged. The jury’s advantage in seeing and hearing the evidence was incapable of…

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 JP v The King

Details

AGLC: JP v The King [2024] NSWCCA 163
Case: [2024] NSWCCA 163
Decision Date: 06 September 2024

CaseChat Overview and Summary

In the matter of JP v The King, the respondent appealed against his conviction by the County Court of Victoria for various child sex offences. The respondent had been found guilty of offences including sexual penetration of a child under 16 years of age and indecent dealing with a child under 16 years of age. The appeal centred on the contention that the jury's verdict was unreasonable and could not be supported by the evidence presented at trial. The Court of Appeal was tasked with determining whether the jury's verdict was unreasonable and whether it should be quashed.

The primary legal issue before the Court of Appeal was whether the jury's verdict was unreasonable in light of the evidence and whether the trial judge had erred in not intervening to direct an acquittal. The respondent argued that the evidence was insufficient to support a conviction and that the jury must have been influenced by irrelevant or prejudicial factors. The prosecution contended that the jury's verdict was properly based on the evidence and that there was no basis for the Court of Appeal to intervene. The Court of Appeal considered whether the jury's verdict was so unreasonable that no reasonable jury could have properly convicted the respondent based on the evidence.

The Court of Appeal concluded that the jury's verdict was not unreasonable and that the trial judge did not err in declining to direct an acquittal. The Court found that there was sufficient evidence to support the jury's findings and that the jury had properly considered the evidence and the applicable legal standards. The Court held that the jury's verdict was open to them on the evidence and that there was no basis for the Court of Appeal to interfere with the verdict. The appeal was dismissed, and the respondent's convictions were upheld. The Court further noted that the evidence was compelling and that the jury's decision was consistent with the applicable legal principles. The Court emphasised the importance of allowing juries to make their own assessments of the evidence and to apply the law as directed by the trial judge.

Orders