JPM v The Queen - [2020] HCATrans 115

[2020] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S8 of 2020

B e t w e e n -
JPM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 AUGUST 2020, AT 1.30 PM

MS G.A. BASHIR, SC: May it please the Court, I appear with MS G.E.L. HUXLEY of counsel, for the applicant. (instructed by Condon Legal)

MS T.L. SMITH, SC: May it please the Court, I appear with my learned friend, MR B.A HATFIELD, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

NETTLE J: Yes, Ms Bashir.

MS BASHIR: Your Honours, we seek an order that the time limit in rule 42 be dispensed with.

NETTLE J: Is that agreed to, Ms Smith, or opposed?

MS SMITH: No, it is not agreed to, your Honours.

NETTLE J: Is it opposed?

MS SMITH: Yes, it is opposed.

NETTLE J: Thank you. We will hear the argument and decide in the course of that. Yes, Ms Bashir.

MS BASHIR: Your Honour, in this matter, in our submission, first addressing the special leave questions found at application book 175, paragraph 4, that is:

What is the appellate task when a ground asserts that a failure to give an Azzopardi direction constitutes a miscarriage of justice?

There referring to Azzopardi v The Queen (2001) 205 CLR 50, and also:

Is it necessary for evidence to be led . . . as to the subjective reasons of counsel, if any, as to why an Azzopardi direction was not sought –

In our submission, there are two exquisite ironies in the manner that the majority dealt with this grant of appeal. The first exquisite irony was it is erroneous on an appeal about silence at trial to use the silence of trial counsel on the appeal to fill a gap or lend weight to a Crown submission of objective advantage. If I could take the Court to application book 144, paragraph 191 of the Court of Criminal Appeal’s decision, that is the majority decision, your Honours will see halfway through the paragraph the Crown’s submission:

that where no evidence has been adduced on the appeal –

from trial counsel:

the Court would more readily conclude that there was an informed forensic decision made –

In our submission, that is an erroneous way of dealing with the appeal and, in our submission, it can be seen that the failure of there being an affidavit on the appeal was taken into account against the applicant. So, if the Court turns to application book 154 at paragraph 221 one sees even in the final conclusion that it is the absence of an explanation from trial counsel in that with that absence the court is:

disposed to accept that it was a rational choice of trial counsel not to seek a direction –

So…

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 JPM v The Queen

Details

AGLC: JPM v The Queen [2020] HCATrans 115
Case: [2020] HCATrans 115
Decision Date

CaseChat Overview and Summary

The applicant, JPM, sought special leave to appeal to the High Court of Australia against a decision of the New South Wales Court of Criminal Appeal. The dispute concerned the applicant's conviction for sexual touching, with grounds of appeal relating to the failure to give an *Azzopardi* direction and the lack of a unanimity direction. The applicant also sought an order dispensing with the time limit for the application.

The legal issues before the High Court included whether the appellate task when a ground asserts a failure to give an *Azzopardi* direction constitutes a miscarriage of justice, and whether evidence of the subjective reasons of trial counsel for not seeking such a direction was necessary. Further, the court considered whether a unanimity direction was required where evidence of touching occurred on multiple occasions, even if not relied upon as tendency or context evidence, and whether the trial judge's directions adequately addressed the need for jury unanimity.

The applicant argued that the Court of Criminal Appeal erred by using the silence of trial counsel on appeal to support the Crown's submission of objective advantage, and by inferring an informed forensic decision from the absence of an affidavit from trial counsel. The applicant contended that the court wrongly concluded that not seeking an *Azzopardi* direction was a rational choice and that this precluded a complaint of a substantial miscarriage of justice. Regarding the unanimity ground, the applicant submitted that *S v The Queen* and related authorities mandated a unanimity direction when a child complainant gives evidence of touching on more than one occasion, particularly in sexual assault trials involving pre-recorded evidence, and that the trial judge's directions on this matter were insufficient.

The High Court granted special leave to appeal on the *Azzopardi* direction ground and heard argument on the merits of both grounds. The Court ultimately dismissed the application for special leave to appeal, finding no error of law in the Court of Criminal Appeal's decision. The Court held that the Court of Criminal Appeal was entitled to conclude that there was an objective forensic advantage in not seeking an *Azzopardi* direction, given the applicant's detailed record of interview which contained clear general denials and was treated by the jury as evidence. The Court also found that the trial judge's directions on the presumption of innocence and onus of proof, coupled with the treatment of the record of interview, adequately addressed the applicant's position. On the unanimity ground, the Court found that the trial judge's directions were sufficient, and that the evidence did not necessitate a unanimity direction in the manner argued by the applicant.

Orders