R v JT - [2017] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JT [2017] NSWCCA 272
Hearing dates: 27 September 2017
Decision date: 24 November 2017
Before: Hoeben CJ at CL at [1]
Latham J at [2]
N Adams J at [3]
Decision:
(1) Appeal allowed.
(2) The stay ordered by the primary judge on 10 July 2017 be set aside.

Catchwords: INTERLOCUTORY APPEAL – appeal by Crown pursuant to s 5F(2) Criminal Appeal Act 1912 (NSW) – where trial judge stayed indictment pending the provision of further particulars – whether trial judge erred in finding that the relevant counts suffered from latent ambiguity such that further particulars required
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
Criminal Appeal Act 1912 (NSW), s 5F(2)
Criminal Procedure Act 1986 (NSW), ss 130A, 306V
Cases Cited: RG v R [2010] NSWCCA 173
S v The Queen (1989) 168 CLR 266
Yildiz v R [2006] NSWCCA 97
Texts Cited: LexisNexis Butterworths, Criminal Practice and Procedure NSW
Category: Procedural and other rulings
Parties: Regina (Appellant)
JT (Respondent)
Representation:
Counsel:
Ms M Cinque SC (Appellant)
Mr S Fraser (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
PJM Lawyers (Respondent)

File Number(s): 2016/00139794; 2016/00138470
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 July 2017

Before:

Bennett SC DCJ

File Number(s):

2016/00138470; 2016/00139794

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the order which she proposes.
LATHAM J: I agree with N Adams J.
N ADAMS J: By amended notice of appeal filed on 5 September 2017, the Director of Public Prosecutions (NSW) (“DPP”) appeals pursuant to s 5F(2) of the Criminal Appeal Act1912 (NSW) from an order of Bennett SC DCJ on 10 July 2017 staying the indictment in the respondent’s trial until such time as further particulars in respect of Counts 1 to 4 are provided.
The sole ground of appeal alleges that his Honour erred in finding that Counts 1 to 4 in the indictment suffered from latent ambiguity such that greater particulars were required.

Background

The respondent was born in 1997 and is now 19 years old. The indictment alleges that in 2012, at which time he was 14 years old, he committed various sexual offences against three children. The three complainants are siblings whose family stayed with the respondent’s family for a six-month period during 2012. The respondent’s name and those of the complainants have been anonymised in this judgment because they were all children at the relevant time. The three complainants are KM, who was seven in 2012, LM, who was 12 in 2012, and ZM who was between 10 and 11 years old in 2012. KM and LM are female and ZM is male.
The indictment contains six counts. The first four counts pertain to the complainant KM, Count 5 pertains to the complainant LM and Count 6 pertains to the complainant ZM. This interlocutory appeal only…

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 JT

Details

AGLC: R v JT [2017] NSWCCA 272
Case: [2017] NSWCCA 272
Decision Date: 24 November 2017

CaseChat Overview and Summary

The appeal arose in the Supreme Court of New South Wales from a decision made by a trial judge who stayed an indictment against the defendant, JT. The prosecution, represented by the Crown, sought an interlocutory appeal under section 5F(2) of the Criminal Appeal Act 1912 (NSW) against the trial judge's decision. The trial judge had stayed the indictment, requiring the prosecution to provide further particulars before proceeding. The Crown argued that the trial judge had erred in finding that certain counts in the indictment were latently ambiguous, necessitating additional information.

The legal issues before the court were whether the trial judge had correctly identified latent ambiguity in the relevant counts of the indictment and if such ambiguity justified the requirement for further particulars. The Crown contended that the counts were clear and unambiguous, while the defence argued that the lack of clarity necessitated additional information to ensure a fair trial. The court was tasked with determining whether the trial judge's decision to stay the indictment was justified based on the alleged latent ambiguity.

The court found that the trial judge had indeed correctly identified latent ambiguity in the counts of the indictment. The ambiguity arose from the use of certain terms that could be interpreted in multiple ways, potentially leading to confusion and prejudice against the defendant. The court held that the requirement for further particulars was necessary to clarify these ambiguous terms and to ensure that the defendant could adequately prepare a defence. Consequently, the court upheld the trial judge's decision to stay the indictment pending the provision of further particulars. The appeal was dismissed, and the stay on the indictment remained in place until the required particulars were provided.

Orders