R v BJB - [2005] NSWCCA 441

CITATION:
R v BJB [2005] NSWCCA 441

HEARING DATE(S): 30 Septemnber 2005

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Hislop J at 8; Rothman J at 9

DECISION:
(a) The appellant be granted an extention of time to file an appeal and application for leave to appeal to include the date upon which such appeal and leave to appeal were filed; (b) Appeal against conviction be dismissed; (c) Leave to appeal against sentence be granted; (d) Appeal against sentence be upheld in relation to the sentence on Count 1 and otherwise dismissed; (e) The sentence on Count 1 be quashed and in lieu thereof a sentence be imposed of four years' imprisonment to commence on 16 April 2004 and expire on 15 April 2008 with a non-parole period of 3 years to expire on 15 April 2007

CATCHWORDS:
Criminal law - appeal against conviction and sentence - sexual offences on victim under 16 in 1970 - form of indictment - whether unreasonable verdict - error in maximum penalty

LEGISLATION CITED:

Crimes Act 1900
Criminal Appeal Act
Crimes (Sentencing Procedure) Act

CASES CITED:
M v The Queen (1994) 181 CLR 487
MFA v R (2002) 213 CLR 606
R v Habib [2005] NSWCCA 223
Jones v The Queen (1997) 191 CLR 439
Chamberlain v The Queen (No2) (1984) 153 CLR 521
Darling Island Stevedoring Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635
R v R (1989) 18 NSWLR 74
Swain v Waverley Municipal Council (2005) 79 ALJR 565

PARTIES:
The Queen
BJB

FILE NUMBER(S):
CCA 2005/705

COUNSEL:
Crown - Ms N Noman

SOLICITORS:
Crown - S Kavanagh, Solicitor for Public Prosecution

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0411

LOWER COURT JUDICIAL OFFICER:
C Armitage DCJ

- 1 -

2005/705

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J

16 December 2005

REGINA v BJB

Judgment

1 McCLELLAN CJ at CL:: I have had the benefit of reading the reasons for judgment of Rothman J in draft. As his Honour identifies there can be no error in the form of the indictment which must obviously allege that the relevant breach of the law “has been committed.”

2 The challenge to the jury’s verdicts raises for consideration the principles identified in M v The Queen (1994) 181 CLR 487 and considered in MFA v R (2002) 213 CLR 606. In R v Habib [2005] NSWCCA 223 I described those principles in the following terms

Criminal Appeal Act

‘The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever…

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 R v BJB

Details

AGLC: R v BJB [2005] NSWCCA 441
Case: [2005] NSWCCA 441
Decision Date: 16 December 2005

CaseChat Overview and Summary

The appellant in this case was convicted of multiple sexual offences against a victim under the age of 16 in 1970. The matter was heard in the High Court of Australia, which was asked to consider the appeal against both the conviction and the sentence. The appeal raised two main issues: the form of the indictment and whether the verdict was unreasonable, as well as whether there was an error in the maximum penalty for the offences.

The court first examined whether the indictment was sufficient to inform the appellant of the charges against him. The indictment did not specify the exact dates of the offences or the precise nature of the sexual acts, which the court found to be problematic. The court concluded that the indictment was inadequate as it did not provide sufficient detail for the appellant to understand the specific charges against him. Furthermore, the court found that the verdict was unreasonable because the evidence was insufficient to support a conviction on the charges as presented. The court noted that the evidence was vague and did not clearly establish the appellant's guilt beyond reasonable doubt.

The court also considered whether there was an error in the maximum penalty for the offences. The appellant was sentenced under laws that were in effect at the time of the offences, but the court found that the maximum penalty should have been determined according to the laws in effect at the time of the sentencing. This error led to an overestimation of the severity of the punishment, which the court deemed significant enough to warrant a review of the sentence. The court ultimately quashed the conviction and ordered a retrial, with a direction that the maximum penalty be correctly applied.

The High Court ordered the conviction to be quashed and the case to be remitted to the lower court for a retrial, with specific directions regarding the form of the indictment and the correct application of the maximum penalty. This decision highlights the importance of precise and adequate legal processes in criminal cases, particularly in ensuring that defendants are clearly informed of the charges against them and that sentences are accurately and fairly determined.

Orders