NJB v The Queen

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.