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Court of Criminal Appeal 29 April 2016

JB v R (No 2)

[2016] NSWCCA 67

Homicide
CRIMINAL LAW MURDER WHICH OCCURRED ON 21 APRIL 2008 VERDICT OF ACQUITTAL ENTERED.

Citation: JB v R (No 2) [2016] NSWCCA 67
Court: Court of Criminal Appeal, New South Wales
Date: 29 April 2016
Judges: Hoeben CJ at CL, Adams J, McCallum J

Background

The applicant, referred to only as JB because he was a child at the relevant time, was convicted by jury in September 2009 of the murder of a man in April 2008. JB was fifteen years old at the time of the offence. He exhausted conventional appeal routes, losing before the Court of Criminal Appeal in 2012 and failing to obtain special leave in the High Court in 2013.

Following those unsuccessful appeals, JB's legal team discovered fresh material and applied under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction. A judge of the Supreme Court referred the whole case to the Court of Criminal Appeal in November 2014, having accepted that three serious matters warranted referral.

Those three matters were: the non-disclosure that a key prosecution witness (identified as A107) was a registered police informer at the time he purportedly acted as a support person for the fifteen-year-old JB during police questioning; the non-disclosure of a police affidavit of assistance filed on A107's behalf that referenced JB's matter; and an undisclosed conflict of interest affecting JB's trial solicitor, who had been simultaneously representing A107 in related fraud proceedings throughout the trial and first appeal.

  • Whether the conviction should be quashed, given the Crown's concession that the appeal must succeed because of the material non-disclosures
  • Whether, following the quashing of the conviction, the Court should enter a verdict of acquittal or order a retrial
  • Whether the evidence remaining available to the Crown, excluding any admissions to A107 (which the Crown conceded it would not call), was sufficient to support a verdict of guilty beyond reasonable doubt
  • What onus applies when determining whether a new trial is the appropriate remedy after a conviction is quashed

Decision

The Crown conceded from the outset that the conviction could not stand, given what the fresh material revealed about A107's status and the non-disclosures surrounding him. The Court quashed the conviction in March 2015. The remaining question was whether justice required a retrial or an acquittal.

The central issue became whether the Crown's remaining evidence, stripped of any admissions attributed to A107, was capable of proving JB guilty of murder beyond reasonable doubt. The Court directed the Crown to file a case statement identifying the evidence it would rely upon at any retrial. After detailed analysis of that proposed evidence, Hoeben CJ at CL concluded it was insufficient to establish guilt.

The majority (Hoeben CJ at CL, with Adams J agreeing) held that the onus rested on the Crown to demonstrate that a retrial was appropriate, and that the Crown had not discharged that onus. The evidence remaining in the case, absent the impugned admissions, would render a guilty verdict unreasonable. On that basis, the majority ordered that a verdict of acquittal be entered.

McCallum J dissented on the question of remedy. Her Honour expressed concern that the determination had been made purely by reference to a prospective analysis of the proposed future Crown case, without consideration of other discretionary factors and the fresh evidence as a whole. She was not persuaded the interests of justice could properly be assessed on that basis alone, though she acknowledged the orders proposed by the Chief Judge may ultimately reflect the just outcome.

Orders Made

  • The appeal against conviction is allowed.
  • The conviction for the murder of Edward Spowart is quashed.
  • A verdict of acquittal is entered in favour of JB.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, where a conviction is quashed on appeal, the default position is entry of a verdict of acquittal unless the Crown establishes that a new trial is appropriate.
  • Under the framework applied by the majority, the Crown bears the onus of demonstrating that the remaining available evidence is sufficient to justify a retrial, rather than the applicant bearing the burden of showing it is not.
  • Where post-trial inquiry reveals that a central prosecution witness was a registered police informer acting as a purported support person for a vulnerable young accused, and those facts were not disclosed to the defence, the resulting conviction cannot stand.
  • The simultaneous, undisclosed representation of both a prosecution witness and the accused by the same solicitor throughout trial and appeal proceedings was identified as a serious conflict of interest contributing to the miscarriage of justice.
  • McCallum J's dissent signals that the proper scope of the Court's analysis when choosing between acquittal and retrial remains a live question, particularly where grounds of appeal extend beyond the sufficiency of remaining evidence to include allegations of prosecutorial misconduct.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8(1), 79(1)(b)

Cases
- JB v R [2012] NSWCCA 12; 83 NSWLR 153
- JB v The Queen [2013] HCA Trans 28
- JB v R [2015] NSWCCA 182
- King v The Queen [1986] HCA 59; 161 CLR 423
- Mallard v The Queen [2005] HCA 68; 224 CLR 125
- The Queen v Taufahema [2007] HCA 11; 228 CLR 232
- R v RWB [2002] NSWCCA 504
- Conway v R [2002] HCA 2; 209 CLR 203
- Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317
- Parker v The Queen [1997] HCA 15; 186 CLR 494
- Spies v The Queen [2000] HCA; 201 CLR 603
- Haoui v R [2008] NSWCCA 209; 188 A Crim R 331
- Gilham v R [2012] NSWCCA 131; 224 A Crim R 22