JST v Queen - [2001] FCA 1673

FEDERAL COURT OF AUSTRALIA
JST v Queen [2001] FCA 1673
CRIMINAL LAW – practice and procedure – trial – sexual offences - multiple counts – directions to jury – direction deficient as to separate consideration of counts – miscarriage of justice – appeal upheld.
Sutton v The Queen (1983-84) 152 CLR 528, applied
De Jesus v The Queen (1986) 61 ALJR 1, applied
R v Markuleski [2001] NSWCCA 290, considered
R v Tran [2000] FCA 1888, cited
M v The Queen (1994) 181 CLR 487, cited
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, applied
JST v THE QUEEN
A 37 OF 2001
WILCOX, HIGGINS & DOWSETT JJ
6 DECEMBER 2001
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 37 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

JST
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

WILCOX, HIGGINS & DOWSETT JJ

DATE OF ORDER:

6 DECEMBER 2001

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The conviction and sentence in respect of count 1 of the indictment be quashed and, in lieu thereof, a verdict of not guilty be entered in respect of the said count.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

A 37 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

JST
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

WILCOX, HIGGINS & DOWSETT JJ

DATE:

6 DECEMBER 2001

PLACE:

CANBERRA

REASONS FOR JUDGMENT

The appellant was arraigned upon, and pleaded not guilty to, the following counts:
(1)That between 1 October 1980 and 1 August 1982 he assaulted the complainant and at the time of doing so committed an act of indecency upon her, she then being under the age of sixteen years;
(2)That between 1 August 1982 and 1 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years;
(3)That between 1 August 1982 and 1 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years;
(4)That between 1 July 1985 and 26 September 1985 he attempted unlawfully and carnally to know the complainant, his daughter, who was then between the ages of ten and seventeen years; and
(5)That on or about 7 October 1985 he unlawfully and carnally knew the complainant, his daughter, who was then between the ages of ten and seventeen years.
The learned trial Judge directed a verdict of not guilty on count 3. The jury returned verdicts of not guilty on counts 2, 4 and 5 but convicted on count 1.
The complainant, the appellant’s daughter, was born on 7 October 1971. She was about nine years old at the time the offence referred to…

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 JST v Queen

Details

AGLC: JST v Queen [2001] FCA 1673
Case: [2001] FCA 1673
Decision Date: 6 DECEMBER 2001

CaseChat Overview and Summary

In the case of JST v Queen, the appellant appealed against his conviction on multiple counts related to sexual offences. The appeal was heard and determined by the court. The appellant argued that there were deficiencies in the trial judge's directions to the jury, particularly concerning the separate consideration of counts and the scrutiny of evidence. The court considered these arguments and examined the grounds of appeal presented by the appellant.

The primary legal issues before the court were whether the trial judge's directions to the jury were deficient and if so, whether this led to a miscarriage of justice. The court analysed the arguments put forward by the appellant regarding the need for closer scrutiny of the evidence and the impact of the delay in reporting the alleged offences. The court also considered whether the jury should have been directed to take into account any reasonable doubts regarding one count when assessing the credibility of the witness on another count.

The court concluded that while the trial judge's directions were comprehensive, there was a deficiency in directing the jury to consider the separate counts independently and to take into account any reasonable doubts regarding one count when assessing the credibility of the witness on another count. The court found that this deficiency resulted in a miscarriage of justice and that the conviction on count 1 should be quashed. The court allowed the appeal and entered a verdict of not guilty in respect of count 1 of the indictment.

The final orders of the court were that the appeal be allowed, the conviction and sentence in respect of count 1 of the indictment be quashed, and a verdict of not guilty be entered in respect of the said count. The appellant's other grounds of appeal were not considered further as they were deemed unnecessary in light of the court's decision.

Orders

Orders of the court

1. The appeal be allowed.

2. The conviction and sentence in respect of count 1 of the indictment be quashed and, in lieu thereof, a verdict of not guilty be entered in respect of the said count.

Background

Background to the litigation

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Evidence

Evidence Before The Court

This ground of appeal fails.Failure to direct the jury to scrutinize closely the evidence of Ms D As we have observed, Ms D was the only witness on count 1. The learned trial Judge told the jury that this was the case and gave extensive directions as to the dangers inherent in a prosecution so long after the events in question particularly when such evidence is not supported by the alleged victim of the offence. He also drew attention to the fact that Ms D and the appellant were divorced, implying the possibility of hostility. We are inclined to think that any further direction as to scrutiny of her evidence would have been superfluous. Again, we note that no request for such a direction was made at the trial. The appellant submitted that on the current state of the authorities, where there is only one witness to an alleged offence, there must be a direction that the jury should not only closely scrutinize his or her evidence, but also give a warning as to the dangers of convicting on such evidence. This is not an appropriate case for examining that proposition. It is unnecessary to decide upon this ground of appeal.Failure to direct the jury regarding delay in complaining The appellant submitted that the learned trial Judge ought to have directed the jury that it was necessary to scrutinize carefully the evidence of both the complainant and Ms D in view of the lapse of time and that it would be dangerous to convict on their evidence alone unless satisfied of its truth and accuracy. We have previously pointed out that Ms D was the only witness as to count 1 and that his Honour referred to this and gave lengthy directions as to the dangers and difficulties arising in a trial conducted so many years after the events in question. Again, no request for further directions was made at the trial. We doubt there is any substance in this ground of appeal but it is unnecessary to reach a conclusion about it.Failure to direct that in considering count 1 the jury should take into account, in determining the credibility of Ms D, any reasonable doubt they might have in respect of count 4 This ground of appeal reflected the decision of the Court of Criminal Appeal in New South Wales in R v Markuleski [2001] NSWCCA 290. The matter is addressed in the judgment of Spigleman CJ at pars 178 – 194. His Honour considered that the experience of criminal appellate courts in dealing with inconsistent verdicts suggests that juries may not understand that if they disbelieve a witness’s evidence on one count, that may be relevant to the assessment of his or her credibility on other counts. His Honour appreciated that any direction designed to remedy such misunderstanding might undermine the direction that the jury should consider each count separately. Spigleman CJ also said that he was not seeking to prescribe another mandatory direction but was rather formulating a direction, the appropriateness of which would depend upon the facts of the particular case and the way in which it had been conducted. It is not necessary that we consider the matter further in this case save to say that we find it difficult to imagine what else could have been said in order to focus the attention of the jury on the issue of credit.Unreasonable verdict

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 37 OF 2001

BETWEEN:	JST APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	WILCOX, HIGGINS & DOWSETT JJ
DATE OF ORDER:	6 DECEMBER 2001
WHERE MADE:	CANBERRA

JUDGES:	WILCOX, HIGGINS & DOWSETT JJ
DATE:	6 DECEMBER 2001
PLACE:	CANBERRA