NJB v The Queen - [2010] NTCCA 5

NJB v The Queen [2010] NTCCA 05
PARTIES:NJB

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CCA 16 of 2009 (20807446)
DELIVERED:  17 June 2010
HEARING DATE:  11 June 2010
JUDGMENT OF:  MARTIN (BR) CJ, RILEY AND KELLY JJ
APPEAL FROM:  SOUTHWOOD J
CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION
Convictions for sexual offences against a child under 16 years – directions as to assessment of evidence given by children – other discreditable conduct/uncharged acts – directions as to use – propensity reasoning – absence of warnings concerning disadvantage to appellant due to inability to cross-examine – appeal allowed – convictions set aside – retrial ordered.
REPRESENTATION:
Counsel:
Appellant:S Odgers SC
Respondent:  P Usher
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:      A
Judgment ID Number:  Mar1010
Number of pages:  14

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
NJB v The Queen [2010] NTCCA 05

No. CCA 16 of 2009 (20807446)
BETWEEN:

NJB

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, RILEY AND KELLY JJ
REASONS FOR JUDGMENT
(Delivered 17 June 2010)
Martin (BR) CJ:
Introduction

This is an appeal against convictions for a number of sexual offences against a child under the age of 16 years. The learned trial Judge directed an acquittal with respect to count 1, but the jury convicted the appellant of sexual offences charged in counts 2 to 9 and those sexual offences formed the basis of the conviction of the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years (count 10).
The grounds of appeal raise issues as to the directions given by the trial Judge concerning the assessment of the evidence of children and the absence of directions relating to evidence of discreditable conduct and the inability of the appellant to cross-examine the complainant and another child witness by reason of lack of detail and lack of memory.
For the reasons that follow, in my opinion the appeal should be allowed and the convictions set aside. A retrial should be ordered.
Evidence
The complainant was the stepdaughter of the appellant. It was the Crown case that the offences were committed between 1 June 2007 and 8 March 2008 when the complainant was aged 10 - 11 years. On 8 March 2008 the complainant told her mother that the appellant had been sexually abusing her and a number of interviews were subsequently conducted with the complainant by police (“child forensic interviews”).
At trial, the complainant was aged 11 years. The Crown tendered audio visual records of the child forensic interviews as the bulk of the complainant’s evidence-in-chief and she gave brief oral evidence. Following the playing of the audio visual records of the child forensic interviews, the trial Judge directed the jury to acquit the appellant of 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 NJB v The Queen

Details

AGLC: NJB v The Queen [2010] NTCCA 5
Case: [2010] NTCCA 5
Decision Date: 17 June 2010

CaseChat Overview and Summary

The appeal concerned convictions for sexual offences against a child under 16 years. The appellant, NJB, was the stepfather of the complainant, who was aged 10-11 years at the time of the alleged offences. The complainant reported the abuse to her mother, leading to police interviews. At trial, the complainant's evidence-in-chief consisted primarily of audio-visual recordings of these interviews, with brief oral testimony. The Crown also led evidence from the complainant's siblings, JC and TC, regarding other discreditable conduct by the appellant towards the complainant, which was not the subject of the charges. This evidence was presented as context for the relationship between the appellant and the complainant, rather than to prove a sexual interest. The appeal was heard by Martin (BR) CJ, Riley and Kelly JJ.

The legal issues before the court included whether the trial judge had impermissibly interfered with the jury's function by giving directions on how to assess the evidence of child witnesses. Further issues concerned the trial judge's failure to provide an appropriate warning to the jury regarding the disadvantage to the appellant arising from the lack of detail in the complainant's evidence, and the disadvantage caused by the inability to cross-examine the complainant's sister, TC, who professed a lack of memory about incidents she had described in her child forensic interview.

The court allowed the appeal, set aside the convictions, and ordered a retrial. While not definitively determining all grounds of appeal, the court found that a miscarriage of justice had occurred. The reasoning indicated that there was merit in the appellant's contentions regarding the need for warnings to the jury concerning the disadvantages faced by the appellant due to the nature of the child witnesses' evidence, particularly TC's professed lack of memory after giving a detailed interview. The court concluded that the directions given by the trial judge regarding the assessment of child evidence and the absence of specific warnings were significant enough to warrant setting aside the convictions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow, in my opinion the appeal should be allowed and the convictions set aside. A retrial should be ordered.Evidence The complainant was the stepdaughter of the appellant. It was the Crown case that the offences were committed between 1 June 2007 and 8 March 2008 when the complainant was aged 10 - 11 years. On 8 March 2008 the complainant told her mother that the appellant had been sexually abusing her and a number of interviews were subsequently conducted with the complainant by police (“child forensic interviews”). At trial, the complainant was aged 11 years. The Crown tendered audio visual records of the child forensic interviews as the bulk of the complainant’s evidence-in-chief and she gave brief oral evidence. Following the playing of the audio visual records of the child forensic interviews, the trial Judge directed the jury to acquit the appellant of the charge in count 1 on the basis that there was nothing in the interviews to support that charge. The complainant was then cross-examined by counsel for the appellant. In support of the evidence of the complainant, the Crown led evidence from the complainant’s brother and sister of their observations of the appellant’s conduct with the complainant. The conduct said to have been observed by the brother and sister was of a sexual nature and disclosed offences which were not the subject of charges before the jury. The Crown expressly disavowed any reliance upon the evidence as tending to prove that the appellant possessed a sexual interest in the complainant or a guilty passion for the complainant. The evidence was said by the Crown to be relevant because it provided “context” in which the offences occurred and helped the jury understand the nature of the “relationship” between the appellant and the complainant. The bulk of the evidence-in-chief of both the brother (“JC”) and sister (“TC”) was given by way of child forensic interviews conducted when they were aged 12 and 14 years respectively. Both gave additional oral evidence-in-chief and were cross-examined. An unusual situation arose with respect to the evidence of TC. After the playing of the child forensic interview in which TC spoke of seeing the appellant with his hands on the breasts of the complainant on a number of occasions, in oral evidence-in-chief TC said she remembered giving the interview with the police, but she now had no memory of the incidents about which she spoke in the interview. She said that the time the interview was conducted she had a memory of seeing the appellant touching the complainant on her breasts, but in the witness box she did not have any memory of seeing such incidents occur.Ground 1 Ground 1 is a complaint that the trial Judge impermissibly interfered with the function of the jury in giving directions as to how the jury should approach the evidence of children. Directions concerning the evidence of children were particularly important because the critical evidence in the trial was given by children, namely, the complainant, TC and JC.

Decision

Reasons for decision

Ground 3 is a complaint that the trial Judge erred in failing to give an appropriate warning concerning the disadvantage caused to the appellant by the lack of detail in the complainant’s evidence. Ground 6 relates to the disadvantage to the appellant by reason of the inability to cross-examine the complainant’s sister who professed to a lack of memory about the incidents she had described in her child forensic interview. As I have decided that the appeal should be allowed on other grounds, it is unnecessary to finally determine these questions. It will be a matter for the trial Judge on the retrial to determine whether warnings should be given and the terms of the warnings. It is sufficient to note that there is force in the contention of the appellant that warnings should have been given.Conclusion A miscarriage of justice has occurred. To the extent that leave is required, I would grant leave, allow the appeal, set aside the convictions and order a retrial.Riley J: I agree.Kelly J: I agree.

Ratio Decidendi

Legal Principle Established

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