JPM v The Queen

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.