R v Johnson - [2000] NSWCCA 474

CITATION: R v Johnson [2000] NSWCCA 474

FILE NUMBER(S): CCA 60724/98

HEARING DATE(S): 21 November 2000

JUDGMENT DATE:
21 November 2000

PARTIES :

Regina v Henry James Johnson

JUDGMENT OF: Heydon JA at 1; Studdert J at 46; Greg James J at 47

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/41/0177

LOWER COURT JUDICIAL
OFFICER : Payne DCJ

COUNSEL : Crown: Ms P Hock
Appellant: Mr C V Jeffreys (Solicitor)

SOLICITORS: Crown: S E O'Connor
Appellant: Jeffreys & Associates

CASES CITED:
Basto v R (1954) 91 CLR 628
R v Veverka [1978] 1 NSWLR 478
R v Amado-Taylor [2000] 2 Cr App R 189
R v Williams (1999) 104 A Crim R 260
R v Tomazos (CCA, unreported, 6 August 1979)

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60724/98

HEYDON JA
STUDDERT J
GREG JAMES J

Tuesday, 21 November 2000

REGINA v Henry James JOHNSON

JUDGMENT

1    HEYDON JA:

Background
Henry James Johnson appeals against his conviction by a jury on 21 October 1998 on three charges of indecently assaulting a person under the age of 16 years. On 12 November 1998 he was sentenced on each charge to 15 months imprisonment to expire on 20 January 2000, with an additional term of 12 months to expire on 20 January 2001, the sentences to be served concurrently. The trial judge ordered that he be released on parole on 20 January 2000. At the trial the accused was acquitted of having sexual intercourse with a person under the age of 16 years without consent.

2    The complainant was the accused’s niece - the daughter of his sister, who was younger than him. The complainant was born on 2 February 1978. The events in issue allegedly occurred between about 1988 and 1993. The proceedings were instituted after she complained of the events in issue to her mother and then to the police in 1997.
3    The principal Crown witness was the complainant. The accused made no admissions to the police and did not give evidence, but called his wife.
4    The accused owned horses, and the complainant, from the age of 10, developed an interest in horses. He gave her a pony and she frequently visited the accused’s house to ride it and care for it and its successors. In due course she joined a Pony Club and competed at gymkhanas. Her uncle transported her on occasion to the gymkhanas.
5    The conduct complained of allegedly occurred while she was visiting her uncle and his wife or staying overnight with them. They lived about a kilometre from her home.

The Crown Case: Count 1

6    The Crown case on count 1 was that when the complainant was about 10 there was an occasion when she was in the lounge room of the accused’s house. He placed her on his lap with his back towards her and made her watch a pornographic video although she tried to look away. He undid the zipper on her cream riding jodhpurs…

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 Johnson

Details

AGLC: R v Johnson [2000] NSWCCA 474
Case: [2000] NSWCCA 474
Decision Date: 21 November 2000

CaseChat Overview and Summary

The appeal against conviction by Henry James Johnson, who was found guilty by a jury on three counts of indecently assaulting a person under the age of 16 years, was heard by the NSW Court of Criminal Appeal. The events in question allegedly occurred between 1988 and 1993 when the complainant, the appellant's niece, was between the ages of 10 and 15. The trial judge ordered the appellant to serve 15 months imprisonment on each count, to be served concurrently, and he was released on parole on 20 January 2000. The primary issue before the court was whether the summing up adequately put the defence case to the jury. The appellant's counsel argued that certain improbabilities and inconsistencies in the complainant's evidence, as well as evidence given by the appellant's wife, were not sufficiently highlighted in the summing up, potentially depriving the appellant of a fair trial. The court considered the principles of law regarding the trial judge's responsibility to present the defence case and the need for a fair trial according to law. The court found that while a fuller summing up might have been useful, the appellant did not receive an unfair trial, and the appeal was dismissed. The judges unanimously agreed that the appeal should be dismissed.

Orders