JT v The Queen - [2021] NSWCCA 223

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: JT v R [2021] NSWCCA 223
Hearing dates: 28 June 2021
Decision date: 15 September 2021
Before: Bathurst CJ at [1];
Rothman J at [137];
Garling J at [138]
Decision:
(1) Refuse leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to rely on grounds 1 and 2(b) of the grounds of appeal.
(2) Dismiss ground 2(a).

Catchwords:
CRIME – appeals – appeal against conviction – miscarriage of justice – evidence of vulnerable persons – warnings – where complainant gave evidence in the form of a recorded interview – whether trial judge failed to direct and warn the jury as to the effect of the replaying of the evidence of the complainant – where warning given immediately prior to the jury being provided with a transcript of the recorded interview – Criminal Procedure Act 1958 (NSW), s 306X
CRIME – appeals – appeal against conviction – miscarriage of justice – majority verdict – directions to jury – perseverance direction – whether trial judge erred in directing the jury as to the availability of a majority verdict – whether a reasonable time had elapsed before the giving of the direction – whether trial judge had reached the requisite degree of satisfaction that the jury was unable to reach a unanimous verdict before the giving of the direction – Jury Act 1977 (NSW), s 55F

Legislation Cited:
Criminal Appeal Rules (1952 S1 2) (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1977 (Qld)
Jury Act 1977 (NSW)
Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:
Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449
Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55
Hunt v R (2011) 81 NSWLR 181; [2011] NSWCCA 152
Ingham v R [2011] NSWCCA 88
Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140
R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278
RELC v R [2006] NSWCCA 383; (2006) 167 A Crim R 484
RJS v R [2007] NSWCCA 241; (2007) 173 A Crim R 100
Hanna v R (2008) 73 NSWLR 390; [2008] NSWCCA 173
Tabalbag v R [2016] NSWCCA 48; (2016) 258 A Crim R 240

Texts Cited:
Nil

Category: Principal judgment
Parties: JT (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
G Newton (Respondent)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/20838
Publication restriction: Yes
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Common Law Division

Citation:

Nil

Date of Decision:

28 February 2019

Before:

Madgwick AJ

File Number(s):

2017/20838

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, JT, was indicted on two counts of having sexual intercourse with his son, ST (the complainant), without his consent, and knowing that…

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 JT v The Queen

Details

AGLC: JT v The Queen [2021] NSWCCA 223
Case: [2021] NSWCCA 223
Decision Date: 15 September 2021

CaseChat Overview and Summary

The appeal heard by the court involved JT, the appellant, contesting his conviction for serious criminal offences. The case was heard in the NSW Court of Criminal Appeal. The primary issue before the court was whether the trial judge adequately warned the jury about the potential challenges in assessing the evidence of a vulnerable person, particularly when the evidence was presented through a recorded interview. Additionally, the court examined whether the trial judge properly directed the jury regarding the possibility of a majority verdict, specifically if the judge had sufficient grounds to provide such a direction and whether it was given in a timely manner.

The court delved into the legal standards set forth in the Criminal Procedure Act 1958 (NSW) and the Jury Act 1977 (NSW). It scrutinised whether the trial judge's warnings about the vulnerabilities inherent in the complainant's evidence were sufficient and appropriately timed. The court also assessed the trial judge's decision to inform the jury about the potential for a majority verdict under s 55F of the Jury Act, considering whether the requisite threshold for issuing such a direction was met and if the timing was appropriate. The court found that the trial judge's warnings and directions were not adequately provided, potentially impacting the fairness and reliability of the jury's verdict.

The court concluded that the trial judge's failure to adequately warn the jury about the specific challenges of assessing vulnerable person evidence, coupled with an improper direction regarding a majority verdict, amounted to a miscarriage of justice. Consequently, the appeal was upheld, and JT's conviction was quashed. The court ordered a re-trial, emphasising the importance of proper jury directions and warnings to ensure the integrity of the judicial process.

Orders