JPM v R [2019] NSWCCA 301

JPM v R [2019] NSWCCA 301

By majority, the Court held that the trial was conducted on the basis of one charged incident of indecent touching described by the complainant to her parents and in the JIRT interview, and that the other references to touching were not live alternative factual bases for conviction, so no unanimity direction was required. The majority also held that the absence of an Azzopardi direction did not cause a miscarriage of justice because the direction is not mandatory, the applicant had the benefit of directions treating his ERISP denials as available evidence, and it was objectively open to view the failure to seek the direction as a rational forensic choice. The Court further held that, on...

Jurisdiction
Australia
Judgment Date
19 December 2019
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Conviction in the District Court
Outcome
Leave to appeal was granted on Grounds 1, 2 and 3, but the appeal against conviction was dismissed by majority and the sentence was confirmed with a varied commencement date.
Legal Topics
['aggravated Indecent Assault' 'child Sexual Offence Evidence' 'jury Unanimity Directions' "accused's Silence in Court" 'azzopardi Direction' 'unreasonable Verdict']
['criminal Law' 'criminal Procedure' 'evidence'] ['aggravated Indecent Assault' 'child Sexual Offence Evidence' 'jury Unanimity Directions' "accused's Silence in Court" 'azzopardi Direction' 'unreasonable Verdict']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Conviction in the District Court

Legal Issues

  1. 1 ['Whether a miscarriage of justice was caused by the trial judge failing to direct the jury that they had to be unanimous about which act of touching was proved beyond reasonable doubt.' "Whether a miscarriage of justice was caused by the trial judge failing to direct the jury that the accused's silence in court was not evidence against him, could not fill gaps in the prosecution case, and could not support the prosecution case." 'Whether the verdict of guilty was unreasonable and could not be supported having regard to the evidence.']

Ratio Decidendi

By majority, the Court held that the trial was conducted on the basis of one charged incident of indecent touching described by the complainant to her parents and in the JIRT interview, and that the other references to touching were not live alternative factual bases for conviction, so no unanimity direction was required. The majority also held that the absence of an Azzopardi direction did not cause a miscarriage of justice because the direction is not mandatory, the applicant had the benefit of directions treating his ERISP denials as available evidence, and it was objectively open to view the failure to seek the direction as a rational forensic choice. The Court further held that, on...

Court Disposition

Leave to appeal was granted on Grounds 1, 2 and 3, but the appeal against conviction was dismissed by majority and the sentence was confirmed with a varied commencement date.

Orders

  • ['Insofar as concerns Ground 1, leave to appeal is granted.' 'Insofar as concerns Ground 2, leave to appeal is granted.' 'Insofar as concerns Ground 3, leave to appeal is granted.' 'The appeal against conviction is dismissed.' "The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the...