R v Jennings - [2010] NSWCCA 193

New South Wales
Court of Criminal Appeal

CITATION: R v Jennings [2010] NSWCCA 193

HEARING DATE(S): 3 August 2010

JUDGMENT DATE:
2 September 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Latham J at 3

DECISION: Ruling made by his Honour, Judge Toner QC on 30th July 2010 is vacated

CATCHWORDS: CRIMINAL LAW - Appeal pursuant to s5F(3A) Criminal Appeal Act 1912 - tendency and coincidence evidence - whether Judge erred in revoking earlier ruling allowing Crown to rely on evidence of three complainants as tendency and co-incidence evidence.

LEGISLATION CITED: Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Harker [2004] NSWCCA 427

PARTIES: Regina - (Applicant)
James Patrick Jennings (Respondent)

FILE NUMBER(S): CCA 2009/00061262

COUNSEL: D Woodburne SC - (Aplicant)
G Farmer - Respondent

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions - (Applicant)
Elliot Lawyers - (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/00061262

LOWER COURT JUDICIAL OFFICER: Toner SC DCJ

LOWER COURT DATE OF DECISION: 30 July 2010

2009/000161262

McCLELLAN CJ at CL
JAMES J
LATHAM J
2 SEPTEMBER 2010

R v JAMES PATRICK JENNINGS

Judgment

1 McCLELLAN CJ at CL : I agree with Latham J.

2 JAMES J : I agree with Latham J.

3 LATHAM J : On 2 August 2010, the Crown appealed, pursuant to s 5F(3A) of the Criminal Appeal Act 1912, against a ruling made by Toner SC DCJ (the Judge) on 30 July, revoking an earlier ruling which allowed the Crown to rely upon the evidence of three complainants (HP, DP and TL), whose evidence supported counts 1 – 5 on the indictment, as tendency and co-incidence evidence in respect of count 6 on the indictment, which was founded on the evidence of a fourth complainant (RL). This ruling also allowed the evidence of RL to be used in the same way in respect of counts 1 – 5.

4 The revocation came at the end of the evidence in the trial, which commenced on 22 July 2010. All that remained was the addresses and the summing up. In those circumstances, the Court heard the appeal on 3 August 2010 and determined that the appeal should be allowed and the ruling of 30 July vacated. These are the reasons for that decision.

Background

5 It is not necessary for these purposes to relate the Crown case in detail. The accused was a priest in a boys’ Catholic boarding school in 1960 and 1961. He was the Dean of Discipline at the school and occupied a bedroom on an upper floor of the dormitory where the students slept. All six allegations consisted of the accused’s entry into the dormitory at night, after lights out, when he would approach the bed of a complainant, place his hand under the bed covers and indecently assault the boy. In respect of counts 1 – 5, it was alleged that the accused fondled the penis of the relevant complainant. In respect of count 6, it was…

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 Jennings

Details

AGLC: R v Jennings [2010] NSWCCA 193
Case: [2010] NSWCCA 193
Decision Date: 2 September 2010

CaseChat Overview and Summary

The case of R v Jennings was heard by the court, with Jennings being the appellant and the Crown being the respondent. The dispute arose from the appellant's conviction for sexual offences against three complainants. The court was tasked with determining whether the trial judge had erred in revoking an earlier ruling that allowed the Crown to rely on evidence from the three complainants as tendency and coincidence evidence.

The primary legal issue before the court was whether the trial judge's decision to revoke the earlier ruling allowing the Crown to rely on the evidence of the three complainants as tendency and coincidence evidence was correct. The court had to consider the principles governing the admissibility of tendency and coincidence evidence in criminal trials and assess whether the judge's decision was in accordance with these principles.

In its reasoning, the court noted that the trial judge had initially ruled that the evidence of the three complainants could be admitted as tendency and coincidence evidence. However, the judge later revoked this ruling, stating that the evidence was not relevant to the issues in the case. The court held that the trial judge had erred in revoking the earlier ruling, as the evidence of the three complainants was relevant and admissible as tendency and coincidence evidence. The court found that the judge had failed to properly consider the principles governing the admissibility of such evidence and had not adequately weighed the probative value of the evidence against any potential prejudice to the appellant.

The court ordered that the conviction be quashed and a new trial be held. The court found that the trial judge's error in revoking the earlier ruling allowing the Crown to rely on the evidence of the three complainants as tendency and coincidence evidence was likely to have had a significant impact on the outcome of the trial. Therefore, a new trial was necessary to ensure that the appellant received a fair trial.

Orders