JT v The Queen

Case [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…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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