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Court of Criminal Appeal 4 December 2019

JN v R

[2019] NSWCCA 287

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT UNREASONABLE VERDICTS VERDICT OF ACQUITTAL ENTERED

Citation: JN v R [2019] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 4 December 2019
Judge(s): Payne JA at [1]; Button J at [197]; Lonergan J at [210]

Background

The appellant, referred to as JN, was tried before a judge and jury in the District Court at Parramatta in August 2018 for historical sexual offences alleged to have been committed between 1994 and 2002. The complainants, referred to by the pseudonyms Simon and Yvonne, were children from a neighbouring family who knew JN's younger brother. The offending was alleged to have occurred at JN's home during visits when the children came to play video games.

The original nine-count indictment was substantially amended after the close of evidence to 16 counts. The jury convicted JN on nine of those counts. He was sentenced to an aggregate term of four years' imprisonment, with a non-parole period of two years and five months, along with a concurrent community correction order of 12 months on three further counts. Bail was granted pending the conviction appeal.

JN appealed his convictions on three grounds: that the verdicts were unreasonable, that the Crown had failed to interview or call certain witnesses, and that the late amendment to the indictment was impermissible.

  • Whether the jury's verdicts of guilty were unreasonable or could not be supported having regard to the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the Crown's failure to interview or call certain witnesses constituted a ground of appeal
  • Whether the amendment to the indictment after the close of evidence was procedurally improper

Decision

Ground 1: Unreasonable verdicts. The Court of Criminal Appeal conducted its own independent assessment of the evidence and found, by majority, that the convictions could not be sustained. Payne JA identified significant internal inconsistencies within the complainants' evidence and noted that in several respects the accounts were directly contradicted by other Crown witnesses. The court applied the established principle from M v The Queen that an appellate court must itself assess whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt.

Payne JA acknowledged that the pretext calls and face-to-face meeting between Simon and JN in April 2015 showed responses by JN suggestive of some awareness of inappropriate contact. However, these responses could not be construed as admissions to any of the specific charges, and that material was insufficient to overcome the serious doubts arising from the evidence as a whole. Lonergan J agreed with the proposed orders, and while Button J took a different view on some aspects of the pretext call evidence, all three judges ultimately agreed that the convictions should be set aside.

Ground 2: Failure to interview or call witnesses. The Court found this ground was not established on the evidence and materials before it.

Ground 3: Amendment of the indictment. The Court found that the amendment, made pursuant to s 20 of the Criminal Procedure Act 1986 (NSW) after the close of evidence, did not constitute a ground for appeal in the circumstances.

Orders Made

• The conviction verdicts are set aside as unreasonable and cannot be supported
• Agreement with the order proposed by Payne JA

Key Takeaways

  • The Court of Criminal Appeal confirmed that, where internal inconsistencies and directly contradictory evidence undermine the Crown case, the appellate court has an obligation to conduct its own independent review of the whole of the evidence and may enter a verdict of acquittal.
  • A conviction will be unreasonable within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW) where the appellate court concludes that a reasonable jury, properly instructed, could not have been satisfied beyond reasonable doubt of guilt, even in cases involving historical sexual offending allegations.
  • Conduct by an accused that is consistent with guilty knowledge, such as equivocal responses during pretext calls, does not of itself overcome substantial doubt arising from inconsistencies in the Crown evidence.
  • Attending a police station to report contact from a complainant is a neutral circumstance: the Court found it was equally consistent with innocent conduct or with the actions of a guilty person seeking to deflect suspicion.
  • Late amendment of an indictment under s 20 of the Criminal Procedure Act 1986 (NSW), even after the close of evidence, does not automatically constitute appellate error, though the facts and circumstances of each case will bear on that assessment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61M, 61N, 66A, 66C
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), s 20

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846
- R v Apostilides (1984) 154 CLR 563; [1984] HCA 38
- Daaboul v R [2019] NSWCCA 191
- R v Westerman (Court of Criminal Appeal (NSW), 19 July 1991, unreported)