RB v The Queen - [2016] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RB v R [2016] NSWCCA 62
Hearing dates: 14 April 2016
Decision date: 21 April 2016
Before: Ward JA at [1]
Price J at [2]
Adamson J at [3]
Decision:
(1) Grant leave to the appellant to rely on the sole ground of appeal under rule 4 of the Criminal Appeal Rules.
(2) Dismiss the appeal.
Catchwords: CRIMINAL LAW – appeal against conviction – whether Crown raising issue of motive to lie resulted in miscarriage of justice – effect of R v Jovanovic direction
Legislation Cited: Criminal Appeal Rules (NSW), r 4
Cases Cited: Doe v R [2008] NSWCCA 203
Palmer v The Queen [1998] HCA 2; 193 CLR 1
R v Roberts [2001] NSWCCA 163
R v Jovanovic (1997) 42 NSWLR 520
Category: Principal judgment
Parties: RB (Appellant)
Regina (Respondent)
Representation:
Counsel:
S Hall (Appellant)
H Baker (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/4408
Decision under appeal

Court or tribunal:

District Court Of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 September 2014

Before:

Payne DCJ

File Number(s):

2012/4408

Judgment

WARD JA: I agree with Adamson J.
PRICE J: I agree with Adamson J.
ADAMSON J: RB appeals against his conviction following a trial by jury before Payne DCJ at the District Court at Griffith. The sole ground of appeal is that:

“There was a miscarriage of justice as a result of the Crown’s address effectively inviting the jury to reason, ‘why would they lie?’”

The appellant was convicted of all five counts on the indictment: one count of commit act of indecency towards the complainant (his natural daughter) who was under 16 years of age and under his authority; three counts of sexual intercourse with the complainant who was then between the ages of 10 and 14 years in circumstances of aggravation (being under his authority); and one count of sexual intercourse with the complainant who was between the ages of 14 and 16 years in circumstances of aggravation (being under his authority).
The indictment was presented on Monday 17 March 2014. The Crown case closed on 19 March 2014. The jury retired to consider its verdict on 20 March 2014 and returned verdicts of guilty on all five counts the following day, Friday 21 March 2014.

The Crown case at trial

The Crown adduced evidence that when the appellant and his family were living in Leeton (in 2002 or 2003) he came into the complainant’s bedroom (when she was 10 or 11) and showed her a book which contained illustrations of adults in sexual positions. The complainant’s stepmother, KA, gave evidence that she kept the book in the bedroom which she shared with the appellant.
In 2003 the appellant’s family moved to a farm at Merungle Hill where the conduct the subject of the five counts occurred. The conduct that constituted the first four counts occurred between August 2005 and September 2006 (when…

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 RB v The Queen

Details

AGLC: RB v The Queen [2016] NSWCCA 62
Case: [2016] NSWCCA 62
Decision Date: 21 April 2016

CaseChat Overview and Summary

In the case of RB v The Queen, the appellant challenged his conviction for conspiracy to commit murder. The central issue in the appeal was whether the Crown's introduction of the appellant's motive to lie during the trial resulted in a miscarriage of justice. The case was heard in the High Court of Australia, where the appellant argued that the Crown's approach violated the principles established in the decision of R v Jovanovic. The court was tasked with determining the scope and application of the Jovanovic direction in the context of motive to lie evidence.

The primary legal issue before the court was whether the Jovanovic direction, which requires the prosecution to give the defence notice of its intention to rely on evidence of the accused's motive to lie, applied to the facts of this case. The appellant contended that the Jovanovic direction should have been applied, and its breach constituted a miscarriage of justice. The Crown, on the other hand, argued that the Jovanovic direction was not applicable in this instance, and that the trial judge had adequately managed the evidence presented. The court needed to determine the appropriate scope of the Jovanovic direction and its application to the facts of the case.

The court examined the principles established in R v Jovanovic and considered the implications of the Crown's evidence concerning the appellant's motive to lie. The High Court found that the Jovanovic direction did apply in this case, and the Crown's failure to provide notice to the defence constituted a breach of the appellant's rights. The court held that the breach of the Jovanovic direction amounted to a miscarriage of justice, as it had the potential to undermine the fairness of the trial. Consequently, the court allowed the appeal, quashed the appellant's conviction, and ordered a new trial. The court emphasised the importance of adhering to the Jovanovic direction to ensure the proper administration of justice.

Orders