JRJ v The Queen - [2017] NSWCCA 182

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JRJ v R [2017] NSWCCA 182
Hearing dates: 30 June 2017
Date of orders: 28 July 2017
Decision date: 28 July 2017
Before: Hoeben CJ at CL at [1]
Fullerton J at [126]
Garling J at [150]
Decision:
(1)   Leave to appeal against conviction is granted.
(2)   The appeal is allowed.
(3)   The applicant’s conviction for Count 2 is quashed.
(4)   There should be a verdict of acquittal entered in favour of the applicant and he should be released forthwith.

Catchwords: CRIMINAL LAW – conviction appeal – applicant charged with two offences contrary to s 66A(2) of the Crimes Act 1900 (NSW), i.e. aggravated sexual intercourse with a person under the age of 10 years – jury convict on one count but acquit on the other – conviction dependent upon acceptance of evidence of complainant – single ground of appeal – verdict unreasonable and cannot be supported by evidence – important evidence of complainant in recorded interview inherently unbelievable – important change to complainant’s evidence at trial – reasonable doubt established – appeal allowed – verdict of acquittal entered.
Legislation Cited: Crimes Act 1900 (NSW) – s 66A
Criminal Code 1899 (Qld) – 668E
Criminal Procedure Act 1986 (NSW)
Criminal Appeal Act 1912 (NSW) – s 6
Cases Cited: CR v R [2017] NSWCCA 29
HG v The Queen [1995] HCA 2; (1999) 197 CLR 414
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
Category: Principal judgment
Parties: JRJ – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Coady – Applicant
N Williams – Respondent Crown
Solicitors:
R Funston – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/094414
Publication restriction: Yes
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 September 2016

Before:

Flannery SC DCJ

File Number(s):

2015/094414

Judgment

HOEBEN CJ at CL: JRJ (the applicant) seeks leave to appeal from his conviction on Count 2 of the indictment dated 1 June 2016:

“That he did between 21 January 2015 and 23 January 2015 at Bankstown in the State of New South Wales have sexual intercourse with CD, a person then under the age of 10 years, in circumstances of aggravation, namely that at the time of the commission of the offence she was under the authority of JRJ.”

The applicant was convicted by majority verdict following a trial before Flannery SC DCJ and a jury in the NSW District Court, commencing 1 June 2016 and concluding 9 June 2016.
The applicant was arraigned on two counts, pursuant to s 66A(2) of the Crimes Act 1900 (NSW), both relating to the complainant, CD, born August 2006.
Count 1 was pleaded to have occurred between May and December 2014. Count 2 was pleaded to have occurred within a more narrow range of dates in late January 2015.
The…

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 JRJ v The Queen

Details

AGLC: JRJ v The Queen [2017] NSWCCA 182
Case: [2017] NSWCCA 182
Decision Date: 28 July 2017

CaseChat Overview and Summary

JRJ was convicted by a jury in the Supreme Court of New South Wales for one count of aggravated sexual intercourse with a person under the age of 10 years, under section 66A(2) of the Crimes Act 1900 (NSW). The jury acquitted the applicant on a second count of the same offence. The applicant appealed against the conviction, arguing that the verdict was unreasonable and could not be supported by the evidence. The appeal hinged on the reliability of the complainant's evidence, which was central to the conviction. The applicant claimed that the complainant's evidence was inherently unbelievable and that there were significant inconsistencies between the complainant's recorded interview and her testimony at trial, creating reasonable doubt.

The court considered whether the jury could have reasonably found the applicant guilty based on the evidence presented. It focused on the complainant's recorded interview, which the applicant argued was inherently unbelievable, and the changes in her evidence between the interview and her testimony at trial. The court found that these inconsistencies and the inherent unreliability of the complainant's evidence led to a reasonable doubt about the applicant's guilt. Consequently, the court concluded that the jury's conviction was unreasonable and could not be supported by the evidence.

Given these findings, the court allowed the appeal and quashed the conviction. The court ordered that a verdict of acquittal be entered in place of the conviction on the first count. The outcome underscores the importance of reliable and consistent evidence in criminal trials, particularly in cases involving allegations of serious sexual offences against children.

Orders