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Court of Criminal Appeal 5 April 2023

BJ v R

[2023] NSWCCA 77

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION VERDICTS OF GUILTY NOT UNREASONABLE APPEAL DISMISSED CRIME APPEALS

Citation: BJ v R [2023] NSWCCA 77
Court: NSW Court of Criminal Appeal
Date: 5 April 2023
Judges: Harrison J; Fagan J; Yehia J

Background

The applicant, a youth minister and the uncle of the complainant, was convicted by a jury on seven counts of sexual offending against his niece. The offences occurred in late 1999, when the complainant was aged eight to nine years old. Three counts were for assault with an act of indecency under s 61M(2) of the Crimes Act 1900 (NSW), and four counts were for sexual intercourse with a child under 10 years under s 66A. The offences were first reported to police in October 2018, nearly two decades after they allegedly occurred.

The offences were said to have been committed at two locations: the family home of the complainant's maternal grandparents, and the premises of a church in Castle Hill where the complainant's father was a leader and the applicant served as youth minister. The complainant attended the church premises after school on several afternoons when the relevant offences were alleged to have taken place.

The applicant was tried in the District Court in February and March 2021. The jury returned guilty verdicts on all seven counts, and the trial judge imposed an aggregate sentence of 14 years imprisonment with a non-parole period of 10 years. The applicant sought leave to appeal against both his conviction and his sentence.

  • Whether the trial judge erred by failing to discharge the entire jury under s 53C of the Jury Act 1977 (NSW) after one juror was discharged mid-deliberation due to personal commitments, rather than ordering the trial continue with the remaining 11 jurors.
  • Whether the jury's guilty verdicts were unreasonable or could not be supported having regard to the evidence, particularly given alleged inconsistencies between the complainant's account and evidence about the dates the church occupied its premises and when certain equipment was installed.
  • Whether the aggregate sentence of 14 years imprisonment with a 10-year non-parole period was manifestly excessive.

Decision

Ground 1: Discharge of the full jury. During deliberations, one juror was unable to continue because of personal commitments arising in the following week, the trial having run longer than the original estimate given at empanelment. The trial judge discharged that juror and directed that deliberations continue with the remaining 11. The Court of Criminal Appeal found no error in the trial judge's discretionary decision to continue. Crucially, the Court also assessed, with the benefit of hindsight, whether any risk of a miscarriage of justice had in fact materialised. The jury had deliberated for approximately 13 hours without reaching unanimity before the discharge, then returned unanimous guilty verdicts within about one hour of resuming deliberations on the following sitting day, after an intervening weekend. The Court found those circumstances did not support any inference that the discharged juror would have favoured acquittal.

Ground 2: Unreasonable verdicts. The applicant argued that evidence about when the church first occupied its premises and when a movable stage was installed contradicted the complainant's account of the timing and circumstances of the offences. The Court rejected this. The contested circumstances were peripheral to the substance of the complainant's evidence, and the events had occurred more than 20 years before the trial. The Court held that none of the identified inconsistencies incontrovertibly rebutted the complainant's recollection. It was reasonably open to the jury to resolve the conflicts in the evidence, accept the complainant's account on its substance, and be satisfied beyond reasonable doubt of the applicant's guilt on each count. All three judges independently reviewed the trial evidence and reached the same conclusion.

Ground 3: Manifest excess. The applicant relied heavily on a comparison with R v Neville [2018] NSWCCA 125, where the Court of Criminal Appeal had confirmed a sentence of 15 years with a 10-year non-parole period for what the applicant characterised as significantly more serious offending. The Court found that several sentencing considerations in Neville made that comparison unreliable, and reiterated that a single purportedly comparable sentence is not a persuasive indicator of manifest excess. Applying the principle from Dinsdale v The Queen, the Court found the aggregate sentence was not unreasonable or plainly unjust, and full-time custody was plainly warranted.

Orders Made

  • Leave to appeal against conviction and sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A trial judge's decision to continue with 11 jurors after one is discharged mid-deliberation will not constitute error where the circumstances before the judge at the time justified that course and, viewed with hindsight, no risk of miscarriage of justice is demonstrated.
  • The fact that a jury returned unanimous verdicts quickly after resuming deliberations does not, of itself, establish that the discharged juror would have favoured acquittal or that continuing with 11 jurors caused unfairness.
  • Where alleged inconsistencies in a complainant's evidence relate to peripheral circumstances, and the relevant events occurred decades before trial, those inconsistencies will not necessarily render a guilty verdict unreasonable under the M v The Queen standard.
  • Reliance on a single comparable sentence to establish manifest excess is unlikely to succeed; the Court of Criminal Appeal in Dinsdale terms asks whether the sentence is unreasonable or plainly unjust, not whether it can be precisely matched to another outcome.
  • Significant differences in sentencing factors between cases mean that superficially similar sentences from prior decisions carry limited weight in a manifest excess argument.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2) and 66A
- Jury Act 1977 (NSW), ss 53B and 53C

Cases
- BG v R [2012] NSWCCA 139
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Neville [2018] NSWCCA 125
- Wu v The Queen (1999) 199 CLR 99; [1999] HCA 52