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JPM v The Queen

JPM v The Queen

Case [2019] NSWCCA 301 19 December 2019

Appeal

Breach of Contract

Miscarriage of Justice

Unanimity in Verdict

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JPM v R [2019] NSWCCA 301
Hearing dates: 28 October 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Before: Simpson AJA at [1]
Fullerton J at [7]
Adamson J at [238]
Decision:
1. Insofar as concerns Ground 1, leave to appeal is granted.
2. Insofar as concerns Ground 2, leave to appeal is granted.
3. Insofar as concerns Ground 3, leave to appeal is granted.
4. The appeal against conviction is dismissed.
5. The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months’ imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022.

Catchwords: CRIME – appeals – appeal against conviction – assault with act of indecency on person under 16 – whether a miscarriage of justice occurred due to the trial judge failing to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt – whether a miscarriage of justice occurred due to the trial judge failing to give a direction that the accused’s silence was not evidence against him and could not be used to support the prosecution case – whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence
Legislation Cited: Bail Act 2013 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Rules (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW), s 20
Jury Directions Act 2013 (Vic)
Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Cabot v R [2018] NSWCCA 265
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Johnston v R [2007] NSWCCA 133
Lane v R [2017] NSWCCA 46
Lane v The Queen [2018] HCA 28
Le v The Queen [2016] VSCA 100
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405
Obierzynski v R [2019] NSWCCA 103
Pratten v R [2014] NSWCCA 117
R v Graham [2005] NSWCCA 127
R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38
R v SMR [2002] NSWCCA 258
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
Restricted Judgment [2019] NSWCCA 153
Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13
Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486
Weissensteiner v The Queen (1993)…

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 [2019] NSWCCA 301
Case: [2019] NSWCCA 301
Decision Date: 19 December 2019

CaseChat Overview and Summary

In the case of JPM v The Queen, the appellant, JPM, appealed against his conviction for the offence of assault with an act of indecency on a person under 16 years of age. The case was heard in the High Court of Australia. The central issue in this appeal was whether the trial judge's failure to give certain directions to the jury amounted to a miscarriage of justice. Specifically, the appellant argued that the trial judge should have directed the jury to be unanimous about which act of touching they found proved beyond reasonable doubt, and that the judge should have made it clear that the appellant's silence could not be used as evidence against him or to support the prosecution's case.

The court considered the appellant's arguments and examined the evidence presented at the trial. The High Court found that the trial judge's failure to give the required directions did not result in a miscarriage of justice. The court reasoned that the jury was adequately directed on the need to be unanimous in their decision-making process, and that the appellant's silence was not a factor that could be used to support the prosecution's case. Furthermore, the court found that the verdict of guilty was not unreasonable or unsafe, given the evidence presented at the trial. The appeal was therefore dismissed.

The High Court's decision in this case highlights the importance of proper jury directions in criminal trials, particularly in cases involving sexual offences. However, the court found that the trial judge's failure to give the specific directions requested by the appellant did not result in a miscarriage of justice in this instance. The appellant's conviction for the offence of assault with an act of indecency on a person under 16 years of age was therefore upheld.

Orders