AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 10 December 2012

Jones v R

[2012] NSWCCA 262

Sexual offences
CRIMINAL LAW APPEAL CONVICTION EXPERT EVIDENCE INCONSISTENT VERDICTS APPEAL

Citation: Jones v R [2012] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 10 December 2012
Judges: McClellan CJ at CL; R A Hulme J; Schmidt J

Background

The appellant was approximately 20 years old when, in October 2008, he accompanied a six-year-old boy from a family gathering to a secluded area. The Crown alleged he committed two acts of sexual intercourse on the child that evening, and a further act of indecency the following day.

At a second trial (the first having been aborted), the jury convicted the appellant on the two sexual intercourse counts but could not reach a verdict on the indecency count. The sentencing judge imposed a fixed term of five years for the first count and, for the second, a non-parole period of 11 years with a further term of four years, all served concurrently.

The appellant sought leave to appeal both conviction and sentence.

  • Whether the trial judge's admission of expert medical evidence (from a child protection general practitioner) caused a miscarriage of justice, including whether adjournment should have been granted to permit the defence to obtain a responding expert
  • Whether lay evidence of the complainant's constipation on the journey home was improperly admitted
  • Whether the jury's verdicts were inconsistent, given the conviction on counts 1 and 2 but non-verdict on count 3
  • Whether the verdicts on counts 1 and 2 were unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in applying the standard non-parole period following the High Court's decision in Muldrock v The Queen
  • Whether aggravating factors (victim age, injury, and emotional harm) were properly taken into account, and whether the sentences were manifestly excessive

Decision

Ground 3: Expert evidence of Dr Marks. The Court found no miscarriage of justice in admitting Dr Marks' evidence. The defence had had months between the first and second trial to engage a psychologist or other expert in response but had not done so. The trial judge's refusal of a further adjournment was not in error, as any misunderstanding about the Crown's intention to call Dr Marks had arisen only days before trial, not months earlier. The defence should also have remained alert to the need to respond to her evidence given the history of the proceedings.

Ground 4: Lay evidence of constipation. The Court rejected the argument that the lay evidence of the child's constipation on the return trip to Moree was improperly admitted. Dr Marks' opinion provided the medical context that gave the lay evidence its relevance. The evidence was properly before the jury.

Grounds 6 and 7: Inconsistent and unreasonable verdicts. The Court held that the jury's inability to reach a verdict on count 3 did not render the guilty verdicts on counts 1 and 2 inconsistent. The evidence on count 3 was more limited in detail than that relating to counts 1 and 2. The complainant's account of counts 1 and 2 was detailed and cogent, supported in part by Dr Marks' evidence concerning the anal discharge he described immediately after the assault. The Court was not persuaded the verdicts were unreasonable. R A Hulme J noted that the complainant's graphic and detailed account of the two primary counts, including the physical aftermath, was of a quality that would have satisfied the jury beyond reasonable doubt.

Sentence appeal. The Court found the sentencing judge had erred in the manner identified in Muldrock by treating the standard non-parole period as a determinative benchmark. However, after conducting a fresh sentencing assessment, the Court concluded the sentence was not manifestly excessive and that the same result was appropriate. The aggravating factors of the victim's young age, the injury caused, and the emotional harm were all properly taken into account.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A defence failure to use available time between trials to obtain a responding expert will weigh heavily against a claim that admission of Crown expert evidence constituted a miscarriage of justice, even where there was some misunderstanding about whether that expert would be called.
  • Where lay evidence of a complainant's physical symptoms would otherwise lack probative relevance, expert medical evidence explaining the significance of those symptoms can render the lay evidence properly admissible.
  • Jury inability to reach a verdict on one count does not automatically render guilty verdicts on related counts inconsistent; the evidentiary quality and detail supporting each count may legitimately differ.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a Muldrock error in applying the standard non-parole period does not automatically result in a lesser sentence; the appellate court conducts its own assessment and may arrive at the same term.
  • Aggravating factors including the victim's age, physical injury, and emotional harm were each independently available to the sentencing court on the facts of this case and were not impermissibly double-counted.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- DS v R [2012] NSWCCA 159
- MLP v R [2006] NSWCCA 271; (2006) 164 A Crim R 93
- SGJ v R [2008] NSWCCA 258