JAD v R [2012] NSWCCA 73

JAD v R [2012] NSWCCA 73

By majority, the appeal was allowed because evidence concerning the complainant's allegation against JM was admissible under Criminal Procedure Act 1986 (NSW) s 293(4)(c) as potentially significant evidence of an alternative cause of the complainant's psychological condition, and its exclusion created a real risk of a miscarriage of justice. A new trial was required on all counts. The majority also held that ground 1 should be rejected because foster parent in Crimes Act 1900 (NSW) s 73 is capable of including a de facto partner of a natural parent who plays a role in the upbringing of the child, so verdicts of acquittal on counts 5 and 6 were not ordered.

Jurisdiction
Australia
Judgment Date
27 April 2012
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the Court of Criminal Appeal From Convictions After Jury Trial in the District Court at Orange
Outcome
Appeal against conviction allowed by majority; convictions quashed; new trial ordered on all counts in the indictment.
Legal Topics
['sexual Offences' 'appeal Against Conviction' 'admissibility of Evidence Relating to Sexual Experience' 'criminal Procedure Act 1986 (nsw) S 293' 'meaning of Foster Parent in Crimes Act 1900 (nsw) S 73' 'miscarriage of Justice' 'tendency Evidence']
['criminal Law' 'criminal Procedure' 'evidence' 'statutory Interpretation'] ['sexual Offences' 'appeal Against Conviction' 'admissibility of Evidence Relating to Sexual Experience' 'criminal Procedure Act 1986 (nsw) S 293' 'meaning of Foster Parent in Crimes Act 1900 (nsw) S 73' 'miscarriage of Justice' 'tendency Evidence']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the Court of Criminal Appeal From Convictions After Jury Trial in the District Court at Orange

Legal Issues

  1. 1 ["Whether the convictions on counts 5 and 6 under Crimes Act 1900 (NSW) s 73(1) could be supported where the appellant was the de facto partner of the complainant's mother and the indictment alleged the complainant was under his special care as his foster parent." "Whether evidence concerning an alleged sexual assault of the complainant by JM was admissible under Criminal Procedure Act 1986 (NSW) s 293(4)(c) as relevant to an alternative explanation for the complainant's psychological condition." 'Whether the exclusion of that evidence created a real risk of a miscarriage of justice requiring a new trial.' 'Whether it was necessary to determine the remaining grounds concerning tendency evidence and Evidence Act 1995 (NSW) warnings.']

Ratio Decidendi

By majority, the appeal was allowed because evidence concerning the complainant's allegation against JM was admissible under Criminal Procedure Act 1986 (NSW) s 293(4)(c) as potentially significant evidence of an alternative cause of the complainant's psychological condition, and its exclusion created a real risk of a miscarriage of justice. A new trial was required on all counts. The majority also held that ground 1 should be rejected because foster parent in Crimes Act 1900 (NSW) s 73 is capable of including a de facto partner of a natural parent who plays a role in the upbringing of the child, so verdicts of acquittal on counts 5 and 6 were not ordered.

Court Disposition

Appeal against conviction allowed by majority; convictions quashed; new trial ordered on all counts in the indictment.

Orders

  • ['Appeal against conviction allowed, convictions quashed.' 'There be a new trial on all counts in the indictment.']