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Court of Criminal Appeal 6 September 2024

JP v R

[2024] NSWCCA 163

Sexual offences

Citation: JP v R [2024] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 6 September 2024
Judges: Harrison CJ at CL, Dhanji J, Sweeney J

Background

The applicant was convicted by a jury in the District Court of four sexual offences against two of her children, a son and a daughter. The charges included directing the children to watch an adult film while she masturbated in their presence, licking her son's penis, and using a vibrator on herself in her daughter's presence. She was acquitted of a fifth count.

The applicant sought leave to appeal her convictions to the Court of Criminal Appeal. Her two grounds were that the trial judge's jury directions on the element "do sexual act towards a child under 10" were inadequate, and that each guilty verdict was unreasonable on the evidence.

The Court allowed the appeal on the second ground. All three judges independently formed a reasonable doubt about the applicant's guilt, and the Court concluded that the jury's advantage of seeing and hearing the witnesses was incapable of resolving that doubt.

  • Whether the jury directions on the relevant element of the child sex offences were adequate.
  • Whether the guilty verdicts on counts 1, 2, 3 and 5 were unreasonable, applying the test in M v The Queen (1994) 181 CLR 487.

Decision

The Court applied the established unreasonable verdict test from M v The Queen: the question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. A doubt experienced by an appellate court is ordinarily one the jury ought also to have experienced, unless the jury's advantage in seeing and hearing the witnesses is capable of resolving it.

All three judges conducted an independent review of the evidence and each formed a reasonable doubt. Sweeney J, who delivered the principal judgment and reviewed the recorded interviews and evidence in full, found that while the physical acts alleged were not inherently extraordinary, the setting in which they were said to have occurred was implausible. The complainants' evidence showed signs of exaggeration, embellishment, and apparent conflation of things observed around the home or glimpsed in an adult film with the alleged offending conduct.

The Court also found the accounts of both the applicant and a co-resident, whose evidence was considered believable, provided a plausible alternative explanation for the children having been exposed to adult content. An occasion on which the children crept from their bedrooms and briefly observed an adult film the applicant and a friend were watching offered a credible source for elements of the complainants' accounts.

Harrison CJ at CL added an important qualification: the conclusion that these particular verdicts were unreasonable should not be treated as a general proposition that extraordinary evidence from children in sexual offence cases is inherently suspect. The assessment in each case must be confined to the specific circumstances and evidence before the court.

Orders Made

  • Time for filing a Notice of Appeal extended.
  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on counts 1, 2, 3 and 5 quashed.
  • Verdicts of acquittal entered on counts 1, 2, 3 and 5.

Key Takeaways

  • Under the M v The Queen test, a conviction will be unreasonable where an appellate court forms a reasonable doubt that the jury's advantage in seeing and hearing witnesses is incapable of resolving, particularly where the evidence is implausible for reasons apparent from the record itself.
  • A finding that a verdict is unreasonable because children's evidence was implausible in context does not establish any general principle that extraordinary evidence from child complainants is suspect. The Court of Criminal Appeal was explicit that such conclusions are always case-specific.
  • Where complainants' accounts appeared to conflate observed events with alleged offending, and where the defence evidence was found to be credible and consistent with an alternative explanation, the overall reliability of the complainants' testimony was sufficiently undermined.
  • Contrast was drawn with RW v R [2023] NSWCCA 2, where unusual and highly specific detail in a child complainant's evidence enhanced rather than undermined its credibility. The comparison illustrates that unusual content in children's evidence can cut either way depending on the circumstances.
  • In conducting an unreasonable verdict review, appellate judges are not required to view recorded evidence in its entirety provided they form an independent assessment of the evidence; Dhanji J took this approach and reached the same conclusion as Sweeney J, who had viewed all recordings.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 24
- Lang v The Queen (2023) 97 ALJR 758; [2023] HCA 29
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- RW v R [2023] NSWCCA 2