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Court of Criminal Appeal 11 September 2006

JJT v REGINA

[2006] NSWCCA 283

Also reported as (2006) 67 NSWLR 152
Sexual offences
CRIMINAL LAW PETITION UNDER S 474B OF THE CRIMES ACT INDECENT ASSAULT FRESH EVIDENCE CREDIT OF WITNESS CREDIT OF COMPLAINANT

Citation: JJT v Regina [2006] NSWCCA 283
Court: New South Wales Court of Criminal Appeal
Date: 11 September 2006
Judge(s): McClellan CJ at CL; James J; Simpson J

Background

The appellant was convicted by a jury in 1996 of one count of assault with an act of indecency against his niece. The conviction arose from an incident in June 1995 in which the complainant alleged her uncle touched her genitals while the three of them, including the appellant's twelve-year-old daughter KT, sat together watching television. The appellant was acquitted of three other counts on the same indictment and had long since served his sentence.

A previous appeal to the Court of Criminal Appeal was dismissed in 1997. The present proceedings arose from a petition lodged under s 474B of the Crimes Act 1900, after the appellant's daughter KT retracted her trial evidence. KT had given evidence at the original trial corroborating the complainant on two of the counts. In a 2003 statement, and again in 2004, KT stated she had not seen any assault and claimed she had been pressured into making her original statement against her father.

The Attorney-General referred the matter to the Court of Criminal Appeal under s 474C of the Crimes Act, which required the Court to treat the proceedings as an appeal under the Criminal Appeal Act 1912 (NSW). The Court received fresh evidence and determined the matter itself.

  • Whether the fresh evidence of KT's retraction, together with other available evidence, established a miscarriage of justice warranting the conviction being set aside
  • Whether the verdict remained supportable when the retracted evidence of KT was excluded from consideration
  • Whether the trial judge misdirected the jury regarding the appellant's failure to give evidence at trial, in light of subsequent High Court decisions in RPS v The Queen and Azzopardi v The Queen, which departed from the earlier approach in Weissensteiner v The Queen
  • Whether the Court could entertain a ground of appeal based on a direction that was legally correct at the time of the trial but was subsequently ruled inappropriate

Decision

Fresh evidence and miscarriage of justice

The Court approached the fresh evidence ground by considering all of the evidence, including that given in the appellate proceedings, rather than confining itself solely to what was before the jury. This is because the ground was one of miscarriage of justice, not merely that the verdict was unreasonable on the evidence before the jury. The Court noted that KT's retraction, while significant, had to be weighed against all remaining evidence.

The Court placed considerable weight on the complaint the complainant made spontaneously to a police officer the morning after the incident. That complaint, independently confirmed by the officer, was apparently prompted by an incidental question rather than a deliberate disclosure. Its spontaneous character and specific content, closely mirroring the events alleged in count 2, gave it substantial probative value. The Court found this evidence sufficient to satisfy it that no miscarriage of justice had occurred, even setting aside KT's corroborative trial evidence entirely.

McClellan CJ at CL also observed that the jury's verdict was itself informative. KT had given corroborating evidence on both counts 2 and 3, yet the jury convicted on only one of those counts. That selective outcome suggested the jury was not simply following KT's evidence, but was weighing other material, including the complaint evidence, with care.

Right to silence misdirection

The trial judge had directed the jury in accordance with the principles then applicable under Weissensteiner v The Queen, which permitted certain adverse inferences from an accused's silence. The High Court later modified that position significantly in RPS v The Queen and Azzopardi v The Queen. The Court acknowledged that the direction given would not be appropriate under current law, but found no appealable error on this ground. The direction had been legally correct at the time of the trial, and the Court was not persuaded that the giving of that direction caused a miscarriage of justice warranting intervention.

Orders Made

  • Appeal dismissed; conviction confirmed

Key Takeaways

  • A petition under s 474B of the Crimes Act 1900, referred by the Attorney-General under s 474C, must be treated by the Court of Criminal Appeal as an appeal under the Criminal Appeal Act 1912 and is subject to the same procedures and order-making powers.
  • Where the ground of appeal is miscarriage of justice arising from fresh evidence, the appellate court is not confined to the material that was before the jury. It must consider all evidence, including evidence received in the appellate proceedings.
  • A spontaneous complaint made to police shortly after an alleged assault, confirmed by the officer who received it, can carry substantial independent weight in assessing whether a conviction is sound, even after corroborating trial evidence is retracted.
  • No error was established on the right-to-silence direction ground, because a jury direction that was legally correct under the law as it stood at the time of trial does not, without more, constitute a miscarriage of justice merely because the governing principles were later revised by the High Court.
  • In dismissing the appeal, the Court confirmed that a retraction by a corroborating witness does not automatically produce a miscarriage of justice if the remaining evidence, assessed independently, is sufficient to support the conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 474B, 474C
- Criminal Appeal Act 1912 (NSW), including s 6

Cases
- Mallard v The Queen (2005) 80 ALJR 160
- RPS v The Queen (2000) 199 CLR 620
- Azzopardi v The Queen (2001) 205 CLR 50
- Weissensteiner v The Queen (1993) 178 CLR 217
- R v JJT (unreported, NSWCCA, 3 December 1997)
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Gilbert v The Queen (2000) 201 CLR 414
- Jones v The Queen (1997) 191 CLR 439
- McKinney v The Queen (1991) 171 CLR 468
- Wilson v The Queen (1991-1992) 174 CLR 313
- R v Barlow (1997) 188 CLR
- R v ED [2003] NSWCCA 255
- R v Kanaan [2005] NSWCCA 385
- R v Habib [2005] NSWCCA 223
- R v Heuston (2003) 140 A Crim R 422
- R v Gregory [2002] NSWCCA 199
- R v Khaddour [2005] NSWCCA 303
- R v Murray (1987) 11 NSWLR 12
- R v Chard [1984] AC 279
- R v Boisnier (unreported, NSWCCA, 17 February 1994)
- R v Taulu (unreported, NSWCCA, 30 October 1994)
- R v Unger [1977] 2 NSWLR 990
- R v Wakeley [1994] 2 Qd R 196