Citation: JH v R [2021] NSWCCA 324
Court: NSW Court of Criminal Appeal
Date: 23 December 2021
Judges: McCallum JA; N Adams J; Cavanagh J
Background
The applicant was convicted by a jury of three counts of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J of the Crimes Act 1900 (NSW). The charges arose from a single encounter in December 2017 involving his former girlfriend. The trial ran for nine days at Bathurst District Court before Acting Judge O'Connor QC, and the applicant was sentenced to an aggregate term of seven years and six months imprisonment.
The element of aggravation in each count was that the complainant has a "serious physical disability" within the meaning of s 61J(2)(f) of the Crimes Act. The complainant suffers from cerebral palsy and dystonia, which affect her speech, arm movement, muscle tone, gait, and leg function, among other things. The applicant did not dispute that she had these conditions, but challenged their severity, pointing to evidence that she exercised with weights and had occasionally gone jogging.
Although consent was the central factual dispute at trial, the applicant's appeal focused entirely on the aggravation element. He sought leave to appeal on two grounds: that the jury's verdicts were unreasonable given the evidence, and that the trial judge misdirected the jury on the meaning of "serious physical disability".
Legal Issues
- Whether the evidence was sufficient to support the jury's finding that the complainant has a "serious physical disability" under s 61J(2)(f) of the Crimes Act 1900 (NSW), such that the verdicts were reasonable.
- Whether the trial judge was required to give a more specific direction to the jury on the meaning of "serious physical disability", and if so, whether the failure to do so caused a miscarriage of justice.
- Whether leave should be granted under r 4 of the Criminal Appeal Rules 1952 (NSW) to argue the second ground, given that no objection was taken to the jury direction at trial.
Decision
Ground one: Unreasonable verdict. McCallum JA, with whom N Adams J and Cavanagh J agreed, rejected the submission that the verdicts were unreasonable. The term "serious physical disability" is not defined in the Crimes Act, and the Attorney General who introduced the relevant provision expressly anticipated that its meaning would be a matter for the courts, which in a trial on indictment includes the jury. The Court confirmed that the question is a quintessential jury question, turning on ordinary English words that a jury can understand and apply without further direction.
The evidence of the complainant's condition was detailed and largely uncontested. The jury had the benefit of observing the complainant give evidence (via audio-visual link) and was entitled to assess the credibility and weight of competing accounts about her physical capacity. N Adams J observed that no error was disclosed in the trial judge's approach, and Cavanagh J noted that it was not to the point to compare the complainant's disability with disabilities described in other cases or under other legislation.
Ground two: Misdirection. Because no objection was raised at trial, r 4 of the Criminal Appeal Rules applied, requiring the applicant to obtain leave to argue this ground. McCallum JA noted that a failure to object at trial is ordinarily an indicator that directions were fair and adequate. Leave would be granted only if a miscarriage of justice had occurred that would immediately result in an acquittal. No such miscarriage was established. The trial judge's directions were characterised as entirely appropriate, and the Court refused leave to rely on this ground.
Cavanagh J added a pointed observation: it would be difficult to envisage what further direction a trial judge could give on the meaning of "serious physical disability" without effectively usurping the jury's fact-finding role by directing them towards or away from a finding.
Orders Made
- Leave refused under r 4 of the Criminal Appeal Rules 1952 (NSW) to rely on the second ground of appeal.
- Appeal dismissed.
Key Takeaways
- The phrase "serious physical disability" in s 61J(2)(f) of the Crimes Act 1900 (NSW) is undefined, and the Court of Criminal Appeal confirmed it raises a quintessential question of fact for the jury, requiring no special judicial definition or elaboration.
- A trial judge is not obliged to direct the jury on the meaning of "serious physical disability" by reference to other statutory definitions, comparative cases, or more specific criteria. Doing so might risk encroaching on the jury's role.
- No error arises from leaving ordinary English words to the jury's assessment, provided the evidence relevant to those words has been properly admitted and the jury can apply them on the facts before it.
- Under r 4 of the Criminal Appeal Rules 1952 (NSW), leave to argue a misdirection ground is required where no objection was taken at trial. In dismissing the second ground, the Court confirmed that leave will be refused unless the alleged misdirection produced a miscarriage of justice that would immediately lead to an acquittal.
- Comparing a complainant's disability with disabilities in other cases or under other legislative schemes is not an appropriate basis for challenging whether a jury's finding of "serious physical disability" was open on the evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61HD, 61J, 61M, 66F
- Crimes (Amendment) Act 1989 (NSW)
- Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules 1952 (NSW), r 4
- Community Welfare Act 1987 (NSW), s 3(1)
Cases:
- Brockie v R [2019] NSWCCA 120
- Haoui v R [2008] NSWCCA 209
- Mooney v The Queen [2016] NSWCCA 231
- Obeid v R [2017] NSWCCA 221
- R v Rhodes (1984) 14 A Crim R 124
- Selby v R [2017] NSWCCA 40
- Tindall v The Queen [2019] NSWCCA 136