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RJS v Regina

RJS v Regina

Case [2007] NSWCCA 241 8 August 2007

Jurisdiction

Appeal

Unreasonable or insupportable verdict

Child witnesses

Cross-examination of child complainant

Criminal Law

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Reported Decision: 173 A Crim R 100

New South Wales

Court of Criminal Appeal

CITATION: RJS v Regina [2007] NSWCCA 241

HEARING DATE(S): 27 July 2007

JUDGMENT DATE:
8 August 2007

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 60; Harrison J at 61

DECISION: 1 Appeal allowed; 2 Conviction quashed; 3 A new trial occur.

CATCHWORDS: CRIMINAL LAW – Jurisdiction, Practice and Procedure – Verdict – Unanimous and majority verdicts – Preconditions for the application of s 55F Jury Act 1977 (NSW) where a jury cannot agree – Appropriate directions to be given to a jury unable to agree about the availability of a majority verdict – Appeal upheld - CRIMINAL LAW - Jurisdiction, Practice and Procedure – Child witnesses – Cross-examination of child complainant unfair – Inconsistencies between child witnesses within normal bounds - CRIMINAL LAW – Appeal and new trial – Particular grounds – Unreasonable or insupportable verdict – - CRIMINAL LAW – Appeal and new trial – Power to order new trial or quash conviction and direct entry of judgment of acquittal – Where sentence substantially served by time of appeal – Registration requirements following conviction for child sexual offences a factor in decision whether to order a new trial

LEGISLATION CITED: Child Protection (Offenders Registration) Act 2000
Crimes Act 1900, s61M(2)
Crimes (Sentencing Procedure) Act 1999, s12
Jury Act 1977, s55F

CASES CITED: Black v The Queen (1993) 179 CLR 44
Dyers v The Queen (2002) 210 CLR 285
Parker v The Queen (1997) 186 CLR 494
R v VST (2003) 6 VR 569
R v VST [2003] VSCA 35
Swansson v R (2007) 168 A Crim R 263
The King v Wilkes (1948) 77 CLR 511

PARTIES: RJS (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/950

COUNSEL: P Hamill SC, M King (Appellant)
P Ingram (Respondent)

SOLICITORS: J Witmer, Solicitor for Legal Aid Commission of NSW (Appellant)
S Kavanagh, Solicitor for NSW Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0105

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 27 September 2006

- 19 -

2007/950

SPIGELMAN CJ
SIMPSON J
HARRISON J
Wednesday 8 August 2007

RJS v REGINA

Judgment

1 SPIGELMAN CJ: The Appellant was found guilty by majority verdict of an offence of indecently assaulting TG who was then a person under the age of ten years, namely nine years. This was an offence contrary to s61M(2) of the Crimes Act 1900.

2 On 27 September 2006, the Appellant was sentenced to a term of imprisonment consisting of a non-parole period of six months and a balance of term of six months. His Honour ordered that execution of the sentence be suspended pursuant to the provisions of s12 of the Crimes (Sentencing Procedure) Act 1999. There is no appeal against sentence nor any Crown appeal. The fact that the non-parole period of the suspended sentence has already expired and that the full sentence will soon expire is a matter relevant to 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 RJS v Regina

Details

AGLC: RJS v Regina [2007] NSWCCA 241
Case: [2007] NSWCCA 241
Decision Date: 8 August 2007

CaseChat Overview and Summary

In the matter of RJS v Regina, the appellant, RJS, sought an appeal against his conviction for sexual offences against a child. The case was heard in the Court of Criminal Appeal. The primary issues for the court were whether the trial judge appropriately directed the jury regarding the option of a majority verdict and whether the cross-examination of the child complainant was unfair, thereby affecting the reliability of the evidence provided. Additionally, the court examined whether the verdict was unreasonable or insupportable and if the sentence served was sufficient to warrant a new trial or the quashing of the conviction.

The court began by assessing the trial judge's directions to the jury on the availability of a majority verdict. It was determined that the trial judge did not provide adequate directions, failing to meet the criteria set out in section 55F of the Jury Act 1977 (NSW). Consequently, the court found that this error was substantial enough to potentially influence the jury's decision-making process. Regarding the cross-examination of the child complainant, the court concluded that although the cross-examination was challenging for the child, it did not reach a level of unfairness that would undermine the credibility of the child's testimony. The inconsistencies in the children's testimonies were deemed to be within the normal bounds for child witnesses.

The court found that the errors in the trial process warranted an appeal. It was concluded that the verdict, while not necessarily unreasonable, was affected by the procedural errors identified. Given that the appellant had already served a substantial portion of his sentence by the time of the appeal, the court exercised its discretion under the relevant legislation to order a new trial. The court emphasised that registration requirements following a conviction for child sexual offences played a significant role in their decision to grant a new trial rather than quashing the conviction outright.

Orders