AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 19 December 2019

JPM v R

[2019] NSWCCA 301

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION

Citation: JPM v R [2019] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 19 December 2019
Judges: Simpson AJA, Fullerton J, Adamson J

Background

The appellant was convicted by a District Court jury of aggravated indecent assault on a child under 16, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (since repealed). The complainant, a girl aged six or seven at the time, alleged that the appellant had reached inside her pyjama pants during a sleepover at his home and touched her on the outside of her vagina. The two families were neighbours whose children were close school friends.

The trial was conducted under the Child Sexual Offence Evidence Pilot Scheme, which permitted the complainant's evidence to be presented by audiovisual recording, including pre-recorded cross-examination. The appellant did not give evidence at trial but had participated in a recorded police interview (ERISP), which was played to the jury. He was sentenced to 2 years and 10 months' imprisonment with a non-parole period of 1 year and 5 months.

The appellant sought leave to appeal his conviction on three grounds. He raised no appeal against sentence.

  • Whether the trial judge's failure to give a unanimity direction (telling the jury it must agree on which specific act of touching was proved beyond reasonable doubt) caused a miscarriage of justice.
  • Whether the trial judge's failure to direct the jury that the appellant's silence in court was not evidence against him, and could not be used to fill gaps in the prosecution case, caused a miscarriage of justice.
  • Whether the verdict of guilty was unreasonable and could not be supported by the evidence.

Decision

Ground 1 (Unanimity Direction): The Court unanimously rejected this ground. Although the charge was framed on a "between dates" basis, the evidence at trial pointed to a single act of touching reported by the complainant. The Crown conducted its case around one specific incident and there was no real risk that different jurors found guilt on the basis of different, distinct acts. A unanimity direction was therefore not required in the circumstances.

Ground 2 (Silence Direction): The Court divided on this ground, with Fullerton J and Adamson J disagreeing as to whether the omission caused a miscarriage of justice. Adamson J, dissenting on this point, concluded that there was a substantial risk the jury would have inferred guilt from the appellant's election not to give evidence, particularly given the circumstances of the case. Her Honour found that the trial judge's directions on the presumption of innocence and onus of proof were not sufficient to prohibit such reasoning and that the omission had caused the appellant to lose a genuine chance of acquittal.

Simpson AJA and Fullerton J, however, took a different view. They noted that the High Court in Azzopardi v The Queen (2001) 205 CLR 50 did not make a silence direction mandatory, but rather described it as "almost always" desirable. Both concluded that the directions given on the onus of proof, and on the use of the appellant's ERISP answers, were in the circumstances of this case sufficient to convey to the jury that the appellant bore no obligation to give evidence. Simpson AJA added that giving a further silence direction in this case risked undermining those existing directions by highlighting the different status of in-court silence versus the recorded interview answers.

Ground 3 (Unreasonable Verdict): All three judges, each conducting an independent review of the evidence, concluded that the verdict was open to the jury and that Ground 3 should be rejected.

Orders Made

  • Leave to appeal granted on all three grounds (Grounds 1, 2 and 3).
  • The appeal against conviction is dismissed.
  • The sentence of 2 years and 10 months' imprisonment with a non-parole period of 1 year and 5 months is confirmed, with the sentence varied to commence from 16 December 2019. The non-parole period expires 15 May 2021; the balance of term expires 15 October 2022.

Key Takeaways

  • A unanimity direction is not automatically required where a charge is framed on a "between dates" basis. Whether such a direction is needed depends on whether the evidence realistically raises the possibility that jurors reached their verdict by finding guilt on different, separate acts rather than the same act.
  • The Court of Criminal Appeal confirmed that Azzopardi v The Queen does not impose a mandatory obligation to give a direction about in-court silence; rather, such a direction will "almost always" be desirable and whether it must be given turns on all the circumstances of the case.
  • Where a recorded police interview is played to the jury and the trial judge gives strong directions about the onus of proof, those directions may, in some circumstances, be sufficient to discharge the concern that the jury might impermissibly infer guilt from a defendant's election not to give evidence, though this will remain fact-specific.
  • Adamson J dissented on Ground 2, finding a miscarriage of justice. Her Honour's reasoning illustrates that, where the evidence against an accused is essentially a complainant's uncorroborated account, the risk of a jury misusing in-court silence may be elevated to the point where a specific direction becomes necessary.
  • In dismissing the appeal despite the divided reasoning on Ground 2, the majority outcome turned on the specific combination of trial directions given and the way in which the ERISP evidence was treated, rather than any general relaxation of the Azzopardi principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Criminal Procedure Act 1986 (NSW), Sch 2, Pt 29 (Child Sexual Offence Evidence Pilot Scheme)
- Evidence Act 1995 (NSW), s 20
- Bail Act 2013 (NSW), s 22
- Criminal Appeal Rules (NSW), r 4

Cases:
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Lane v The Queen [2018] HCA 28
- Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405
- R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38
- R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
- Cabot v R [2018] NSWCCA 265
- Obierzynski v R [2019] NSWCCA 103
- Lane v R [2017] NSWCCA 46
- Le v The Queen [2016] VSCA 100
- Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77