Johnson v R [2017] NSWCCA 278

Johnson v R [2017] NSWCCA 278

The majority held that the trial judge's directions adequately identified that the Crown had to prove penetration to any extent of the complainant's female genitalia and did not require an anatomy lesson or diagram; the verdict on count 4 was open on the complainant's evidence; admission of the PBS evidence about Viagra did not cause unfairness or a miscarriage of justice because its limited significance was made clear and a Zoneff direction was given; and the Crown sentence appeal should be allowed because the sentencing judge had reduced the non-parole period for totality by reference to an earlier sentence that had been quashed, leaving the non-parole period manifestly inadequate.

Jurisdiction
Australia
Judgment Date
24 November 2017
Procedural Posture
Criminal Conviction Appeal and Crown Sentence Appeal / Appeal From the District Court of New South Wales After Jury Conviction and Sentence
Outcome
Conviction appeal dismissed; Crown sentence appeal allowed; sentence quashed and appellant resentenced to an aggregate term of 10 years imprisonment with a non-parole period of 7 years and 6 months.
Legal Topics
['sexual Assault' 'definition of Female Genitalia' 'penetration' 'unreasonable Verdict' 'admissibility of Business Records' 'fresh or New Evidence' 'miscarriage of Justice' 'crown Sentence Appeal' 'manifest Inadequacy' 'totality']
['criminal Law' 'criminal Procedure' 'sentencing' 'evidence'] ['sexual Assault' 'definition of Female Genitalia' 'penetration' 'unreasonable Verdict' 'admissibility of Business Records' 'fresh or New Evidence' 'miscarriage of Justice' 'crown Sentence Appeal' 'manifest Inadequacy' 'totality']

Case Brief

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Procedural Posture

Criminal Conviction Appeal and Crown Sentence Appeal / Appeal From the District Court of New South Wales After Jury Conviction and Sentence

Legal Issues

  1. 1 ['Whether the trial judge erred in directing the jury in relation to the legal definition of "female genitalia" and the issue of penetration.' 'Whether the verdict in respect of count 4 was unreasonable or could not be supported having regard to the evidence.' 'Whether the trial judge erred in admitting evidence of inquiries and information that Viagra was not on the list of medications prescribed to the appellant under the Pharmaceutical Benefits Scheme.' 'Whether fresh or new evidence that Viagra was not listed on the general Pharmaceutical Benefits Scheme Schedule established a miscarriage of justice.' 'Whether the sentence was manifestly inadequate because the sentencing exercise was based on an earlier sentence that was later quashed.']

Ratio Decidendi

The majority held that the trial judge's directions adequately identified that the Crown had to prove penetration to any extent of the complainant's female genitalia and did not require an anatomy lesson or diagram; the verdict on count 4 was open on the complainant's evidence; admission of the PBS evidence about Viagra did not cause unfairness or a miscarriage of justice because its limited significance was made clear and a Zoneff direction was given; and the Crown sentence appeal should be allowed because the sentencing judge had reduced the non-parole period for totality by reference to an earlier sentence that had been quashed, leaving the non-parole period manifestly inadequate.

Court Disposition

Conviction appeal dismissed; Crown sentence appeal allowed; sentence quashed and appellant resentenced to an aggregate term of 10 years imprisonment with a non-parole period of 7 years and 6 months.

Orders

  • ['Leave to advance ground 2 and the proposed ground 5 is refused. Leave to advance ground 3 is granted.' 'The appeal against conviction is dismissed.' 'Crown appeal allowed.' 'Sentence imposed on 16 December 2016 is quashed.' 'In lieu, the respondent is sentenced pursuant to s 53A of the Crimes (Sentencing...