R v Johnston (a pseudonym) - [2019] NSWDC 61

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Johnston (a pseudonym) [2019] NSWDC 61
Hearing dates: 25 February 2019
Date of orders: 25 February 2019
Decision date: 25 February 2019
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Separate trials Counts 1 to 6 and 7 to 11.
Tendency evidence allowed Counts 1 to 6.

Catchwords: Interlocutory orders - separate trials - admissibility of tendency evidence – cross admissibility - application of High Court Authority
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1987
Evidence Act 1995
Cases Cited: Festa v The Queen (2001) 208 CLR 593
GSH v R; R v GSH [2009] NSWCCA 214
Hughes v The Queen (2017) 92 ALJR 52; 344 ALR 187; [2017] HCA 20
IMM V The Queen (2016) 257 CLR 300
McPhillamy v The Queen [2018] HCA 52
The Queen v Bauer (a pseudonym) [2018] HCA 40
The Queen v Dickman [2017] HCA 24
Category: Procedural and other rulings
Parties: Phillip Johnston (Offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr D Coyne (for the offender)
Ms N Keay (for the Director of Public Prosecutions)
Solicitors:
Ms A Fisher (for the offender)
Ms J Azad (for the Director of Public Prosecutions)

File Number(s): 2017/00187461
Publication restriction: No publication of any information that might identify child complainants inluding the identity of the defendant.. Each is to be referred to by a pseudonym which will not be their real initials. The Offender is referred to in this judgment by a pseudonym.

Judgment

Introduction

Phillip Johnston, a pseudonym, was arraigned and pleaded not guilty to 11 offences. Each Count involved an allegation of sexual contact with a child, charged pursuant to either s 66A Crimes Act 1900 - sexual intercourse with a child under 10, or, assault and commit an act of indecency on a child under 16: s 61M(2) Crimes Act 1900. In advance of trial I ordered that six of those Counts be heard separately to the remainder. These are my reasons for that decision.

Background

Three complainants were nominated in the initial indictment; Christine White, Monika Brown and Natalie Green. Counts one to six involve the complainant Christine White; There are four sexual intercourse Counts and two act of indecency Counts. The offences were said to have occurred between August 2008 and August 2012 when Christine was aged between seven and 10 years.
Counts seven, and eight involved allegations of acts of indecency on Monika Brown. These offences were said to have occurred in 2012 and 2013, when Monika was aged 12.
Counts nine and 10 allege assaults with acts indecency between August 2015 and April 2017 on Natalie Green, who was then aged 14.
An Amended Notice of the Prosecution’s intention to adduce evidence of tendency, dated 20 February 2017, was served on the Solicitors for the Accused. The Notice related to evidence proposed to be led from each complainant, Christine, Monika and Natalie, as being cross-admissible in the trials relating to each of the 11 Counts.
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 R v Johnston (a pseudonym)

Details

AGLC: R v Johnston (a pseudonym) [2019] NSWDC 61
Case: [2019] NSWDC 61
Decision Date: 25 February 2019

CaseChat Overview and Summary

The case of R v Johnston involved the defendant facing multiple charges, necessitating a complex legal examination. The dispute centred around the admissibility of certain evidence and the appropriateness of separate trials for different counts. The matter was heard in the Supreme Court, where the presiding judge was tasked with resolving these significant issues.

The primary legal issues revolved around whether certain counts should be tried separately and the admissibility of tendency evidence under the relevant legislation. The court was required to consider whether the evidence had a tendency to prove a fact in issue, whether its probative value outweighed any prejudicial effect, and whether it should be excluded under specific provisions. Additionally, the court needed to decide if the evidence in question could be cross-admissible between the separate trials.

The court determined that separate trials were appropriate for the counts in question, given the complexity and potential prejudice involved. Regarding the admissibility of tendency evidence, the court found that it was relevant and admissible for counts 1 to 6, balancing the probative value against any prejudicial effect. The court also considered the High Court’s authority on the matter, ensuring that the principles of justice were upheld in its decision-making. Ultimately, the court allowed the evidence in question for counts 1 to 6, while maintaining the necessity for separate trials to ensure a fair process.

The final orders of the court mandated separate trials for counts 1 to 6 and 7 to 11, with the admissibility of tendency evidence allowed for counts 1 to 6. These orders reflected the careful consideration of the legal principles and the practicalities of the case, ensuring that the trial would proceed in a manner that was just and equitable for all parties involved.

Orders

Orders of the court

Separate trials Counts 1 to 6 and 7 to 11.

Tendency evidence allowed Counts 1 to 6.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Johnston (a pseudonym) [2019] NSWDC 61
Hearing dates:	25 February 2019
Date of orders:	25 February 2019
Decision date:	25 February 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Separate trials Counts 1 to 6 and 7 to 11. Tendency evidence allowed Counts 1 to 6.
Catchwords:	Interlocutory orders - separate trials - admissibility of tendency evidence – cross admissibility - application of High Court Authority
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1987 Evidence Act 1995
Cases Cited:	Festa v The Queen (2001) 208 CLR 593 GSH v R; R v GSH [2009] NSWCCA 214 Hughes v The Queen (2017) 92 ALJR 52; 344 ALR 187; [2017] HCA 20 IMM V The Queen (2016) 257 CLR 300 McPhillamy v The Queen [2018] HCA 52 The Queen v Bauer (a pseudonym) [2018] HCA 40 The Queen v Dickman [2017] HCA 24
Category:	Procedural and other rulings
Parties:	Phillip Johnston (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr D Coyne (for the offender) Ms N Keay (for the Director of Public Prosecutions) Solicitors: Ms A Fisher (for the offender) Ms J Azad (for the Director of Public Prosecutions)
File Number(s):	2017/00187461
Publication restriction:	No publication of any information that might identify child complainants inluding the identity of the defendant.. Each is to be referred to by a pseudonym which will not be their real initials. The Offender is referred to in this judgment by a pseudonym.