Orders
90 In my opinion the appeal should be dismissed.
91 JAMES J: I have read in draft the judgments of McClellan CJ at CL and Simpson J and agree, for the reasons given by their Honours, that the conviction should be confirmed.
92 SIMPSON J: On 15 August 1996 JJT was convicted by a jury of a single count (on an indictment containing four counts) of assault with an act of indecency. He was sentenced and has served the whole of the sentence. An appeal against the conviction was dismissed: R v JJT, unreported, NSWCCA, 3 December 1997.
93 Pursuant to s474C(1)(b) of the Crimes Act 1900, on 24 May 2005 the Attorney General for the State of New South Wales referred the case to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912. By s474C(2) such action may be taken only if it appears that there is "a doubt or question" as to the guilt of the person convicted or as to any part of the evidence in the case.
94 The "doubt or question" that, plainly, prompted the Attorney General to refer the case as he did arose as a result of a change of heart on the part of one of the witnesses in the trial: JJT's daughter (KT), who had given evidence in the trial corroborating the evidence of the complainant in respect of two of the counts on the indictment. In a statement dated 11 July 2003 KT retracted the statement she had previously made. She said that she did not see her father assault the complainant and that she had been pressured by the complainant and the complainant's mother to provide a statement against her father. In a further statement made on 3 September 2004 she adhered to her 2003 statement.
95 Because s474C(1)(b) requires this Court to treat the proceedings as an appeal under the Criminal Appeal Act, this Court is obliged to follow procedures apposite to an appeal and is confined to making orders of the kind which may be made following an appeal: see Mallard v The Queen [2005] HCA 68; 80 ALJR 160; 157 A Crim R 121.
96 Like McClellan CJ at CL, whose judgment I have read in draft, and largely for the reasons given by his Honour, I would not interfere with the conviction that followed the jury trial.
97 I wish to add little to what his Honour has said.
98 Because this Court is required to deal with the reference as an appeal under the Criminal Appeal Act, it was necessary for JJT's legal representatives to formulate the grounds upon which they proposed to argue against the conviction, and the orders that they sought.
99 The grounds formulated were:
"There has been a miscarriage of justice, in the light of the fresh evidence.
His Honour misdirected the jury about the failure of the appellant to give evidence in the trial."
100 The orders sought were the setting aside of the conviction and the entry of a verdict of acquittal.
101 It is also necessary for this Court to bear in mind the provisions of s6 of the Criminal Appeal Act, which is set out in full in the judgment of McClellan CJ at CL, and which I do not propose to repeat. It may be, however, as was observed by the High Court in Mallard ([10]), important to bear in mind the proviso to that section.
102 In respect of the first ground, asserting miscarriage of justice, the exercise is not, in my opinion, the same as, or analogous with, the exercise required in an appeal where the ground of appeal is that the verdict of the jury was unreasonable. That is because this Court is not confined to the material that was before the jury. The obligation of this Court is to take into account all of the evidence. That is the evidence given in this Court, as well as the evidence given in the trial.
103 S6 is not a shining example of the draftsperson's art. But, when dissected, it can be seen to provide a number of distinct grounds on which this Court may set aside the verdict of a jury. The first of these is that the verdict is unreasonable, or cannot be supported having regard to the evidence. That, axiomatically, is the evidence that was before the jury. The second ground is erroneous decision of any question of law (which includes admission or rejection of evidence and directions of law given to the jury). The third ground is miscarriage of justice, (which may be constituted by any other mishap, which may be established by new, or fresh evidence, and which may relate to events prior to, or at trial, or postdating trial).
104 The first of the grounds specified on behalf of JJT invokes the third, and not the first, of the grounds provided for by s6. The second ground advanced on his behalf invokes the second of the s6 grounds. Neither alleges unreasonable verdict. Where such a ground is raised it is determined by the Court on the basis of the evidence that was before the jury. Having regard to the grounds advanced in this case, it is not the task of this Court to review the reasonableness of the jury verdict.
105 I agree with McClellan CJ at CL, that, in the assessment of the first ground advanced, the evidence of KT, both at trial and in the present proceedings, ought to be disregarded. Her various changes of position on various issues have the inevitable consequence that she is to be regarded as entirely unreliable, and no weight can be attached to any of her evidence. The evidence available to this Court is, as I have said, that which was given in the trial, together with that which has been given in these proceedings. While KT's evidence was part of those processes, it would be wrong, in my opinion, to give it any weight at all, either in favour of the Crown or in favour of JJT.
106 The subsequently established unreliability of KT's evidence would be a compelling feature of an appeal against conviction on the ground that the verdict was unreasonable if the jury had convicted JJT of both of the charges on which she corroborated the evidence of the complainant. Had that occurred, it would suggest that the jury had attributed significant weight to her corroborative evidence. The fact that the jury convicted on only one of those is, as proposed by McClellan CJ at CL, suggestive that they regarded other evidence as of significantly more weight.
107 But, in any event, the task of this Court is not, as I have said, to review the jury verdict. It is not to the point that the jury might have regarded KT's evidence as significant. The task of this Court is to determine whether, in the light of the evidence as it must now be regarded, a miscarriage of justice has been shown to have occurred. The question now is whether, excluding the evidence of KT, the remaining evidence establishes guilt. That evidence includes JJT's sworn denial, although, like McClellan CJ at CL, I am unpersuaded that that evidence is of significant weight.
108 It is not possible for this Court to assess the credibility of the complainant's evidence in the trial, at least by reference to conventional considerations of her demeanour at that time. It is difficult to assess her credibility as to the account she gave in 1996 of 1995 events by evaluation of her demeanour when giving evidence in the present proceedings. It is, however, possible to make some objective assessment of one significant aspect of her evidence. This was evidence of complaint, which she said was made by her the day after the alleged events of 2 July 1995, the subject of Counts 2 and 3. Her evidence was confirmed in its entirety in this respect by Constable Eades. What is, in my opinion, highly persuasive about this evidence is not merely the fact that the complaint was made: it is also the circumstances in which it was made, and its content. It was an apparently spontaneous response to a question incidentally asked, but which prompted a disclosure that might not otherwise have been made. The apparent spontaneity, and the incidental means by which the complaint was made, may also explain why the complainant made no mention of the breast-biting allegation to Constable Eades (although, it may be, the jury did not perceive it that way).
109 Those circumstances, in my view, invest the evidence of complaint with considerable weight. It is sufficient to persuade me that no miscarriage of justice has occurred.
110 In respect of the second ground, I agree with McClellan CJ at CL.
111 I would, therefore, confirm the conviction.
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