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JS v The Queen

JS v The Queen

Case [2022] NSWCCA 145 29 June 2022

Trial

Admissibility of Evidence

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JS v R [2022] NSWCCA 145
Hearing dates: 13 May 2022
Date of orders: 29 June 2022
Decision date: 29 June 2022
Before: Basten AJA at [1];
Hamill J at [53];
Dhanji J at [54]
Decision:
(1) Grant the applicant leave to appeal from his convictions in the District Court.
(2) Dismiss the appeal.

Catchwords:
CRIMINAL PROCEDURE – trial – directions to jury – allegation that accused had sexual interest in complainant and tendency to act on it – jury directed to consider evidence of uncharged and charged acts collectively – whether judge should have directed jury that each act must be proved beyond reasonable doubt before use as tendency evidence – Criminal Procedure Act 1986 (NSW), s 161A
EVIDENCE – record of interview with complainant adduced as evidence-in-chief – admissibility to support complainant’s credibility and as direct evidence of assault
EVIDENCE – credibility evidence – evidence re-establishing credibility – complaints made 10 years after alleged offences – no application for leave to adduce evidence – no objection to evidence – whether admissible to support complainant’s credibility – Evidence Act 1995 (NSW), ss 66, 108(3)
EVIDENCE – tendency evidence – single complainant sexual offences – evidence of uncharged acts – evidence of accused having a sexual interest in complainant and tendency to act upon it – cross-admissibility of charged acts as tendency evidence

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 161A, Sch 2 Pt 29
Evidence Act 1995 (NSW), ss 66, 101A, 102, 108
Jury Directions Act 2015 (Vic), ss 61, 62
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Graham v The Queen (1998) 195 CLR 606; [1998] HCA 61
HML v The Queen (2008) 235 CLR 334; [2008] HCA 16
Kassab (a pseudonym) v R [2021] NSWCCA 46
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Texts Cited:
**

Category: Principal judgment
Parties: JS (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms G Huxley (Applicant)
Mr G Newton (Respondent)
Solicitors:
Murphy’s Lawyers Inc (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2019/387612
Publication restriction: Statutory non-publication order with respect to identity of complainant.
Non-publication order with respect to identity of accused/applicant
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 745

Date of Decision:

8 June 2021

Before:

Bennett SC DCJ

File Number(s):

2019/00387612

Judgment

BASTEN AJA: The applicant seeks leave to appeal from his convictions on two counts of sexual intercourse with a child under 10 years, contrary to s 66A(1) of the Crimes Act 1900 (NSW). The victim^[1] was the applicant’s nephew, who was between 4 and 6 years old at the time of the offending. The applicant was sentenced to imprisonment for 5 years and 9 months, with a non-parole period of 2 years. There is no challenge to the sentence.
1. The term…

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 JS v The Queen

Details

AGLC: JS v The Queen [2022] NSWCCA 145
Case: [2022] NSWCCA 145
Decision Date: 29 June 2022

CaseChat Overview and Summary

The case of JS v The Queen involved a criminal trial where the defendant was accused of sexual offences against the complainant. The central legal issues were whether the judge had correctly directed the jury regarding the consideration of evidence of uncharged and charged acts collectively, the admissibility of a record of an interview with the complainant, and the use of evidence to re-establish the complainant's credibility. The Court of Appeal reviewed the trial judge's handling of these evidentiary matters under the Criminal Procedure Act 1986 (NSW) and the Evidence Act 1995 (NSW).

The court examined whether the trial judge should have directed the jury that each act must be proved beyond reasonable doubt before being used as tendency evidence, as required by section 161A of the Criminal Procedure Act. The court also assessed the admissibility of the record of the interview, which was adduced as evidence-in-chief to support the complainant's credibility and as direct evidence of assault. Additionally, the court considered the admissibility of evidence to re-establish the complainant's credibility, particularly in light of the fact that the complaints were made 10 years after the alleged offences, and whether this evidence was admissible under sections 66 and 108(3) of the Evidence Act.

The court held that the trial judge did not err in directing the jury to consider the evidence of uncharged and charged acts collectively for the purposes of determining the accused's tendency to act on a sexual interest in the complainant. The court found that the record of the interview was admissible to support the complainant's credibility and as direct evidence of the assault. Furthermore, the court determined that the evidence to re-establish the complainant's credibility was admissible, despite the delay in reporting the offences. The court concluded that the trial judge's directions to the jury and the admissibility of the evidence were appropriate.

The final orders of the court were to affirm the decision of the trial judge, with no grounds for appeal found in relation to the evidentiary issues. The conviction of the defendant was upheld.

Orders