AJ v R [2022] NSWCCA 136

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AJ v R [2022] NSWCCA 136 Hearing dates: 1 February 2022 Date of orders: 24 June 2022 Decision date: 24 June 2022 Before: Beech-Jones CJ at CL at [1] Harrison J at [130] Fagan J at [131] Decision: (1) The Applicant be granted leave to raise grounds 1, 2 and 3 of his Notice of Appeal. (2) The appeal be allowed. (3) The Applicant's conviction be quashed. (4) A new trial be ordered. (5) List the matter in the Arraignments List in the Sydney District Court on 8 July 2022 at 9.30am. Catchwords: CRIMINAL LAW – appeal – applicant faced 11 charges of sexual offences against two children SS and NL – convicted on counts 1 to 3 against SS and count 9 against NL – acquitted of counts 4 to 8, 10 and 11 against NL – SS participated in five interviews with police conducted over 13 months and gave pre-recorded evidence for the trial – evidence in support of counts 1 and 2 provided in the third interview and evidence in support of count 3 in the fifth interview – SS recanted her evidence in the fourth interview – NL participated in three interviews and gave pre-recorded evidence for the trial – SS supported NL's evidence on count 9 but not the other counts – prosecution called evidence from "expert" with tertiary qualifications in psychology and law – based on review of various studies expert gave evidence as what the "research" indicated was the typical response of child victims to sexual assault – expert also gave evidence of research about child sex offenders acting in a brazen manner – held expert was qualified by reason of her study to give evidence of responses of child victims – held expert not qualified to give evidence of the behaviour of child sex offenders generally – ground upheld – guilty verdicts not inconsistent with acquittals – jury entitled to conclude that SS provided "something additional" to support the evidence of NL – verdicts of guilty not unreasonable – reasonably open to the jury to be satisfied of applicant's guilt – retrial ordered Legislation Cited: Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Evidence Act 1995 Criminal Procedure Act 1986 Cases Cited: ASIC v Vines [2003] NSWSC 1095 Aziz (a pseudonym) v R [2022] NSWCCA 76 BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210 Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 GBF v The Queen (2020) 94 ALJR 1037; [2020] HCA 40 Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v The Queen (2018) 266 CLR 106; [2018] HCA 48 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348 Martin v R [2020] NSWCCA 192 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R v Abarca (District Court (NSW), 19 March 2021, unrep) R v AS (District Court (NSW), 6 June 2018, unrep) R v Frederick Jones (District Court (NSW), 10 March 2021, unrep) R v Kirkham [2020] NSWDC 658 R v RW (District Court (NSW), 19 March 2021, unrep) R v Soma (2003) 212 CLR 299; [2003] HCA 13 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Rogerson v R; McNamara v R [2021] NSWCCA 160 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 VP v R [2021] NSWCCA 11 Texts Cited: Australian Law Reform Commission Report No 102 Category: Principal judgment Parties: AJ (Applicant) Regina (Crown) Representation: Counsel: Mr J Trevallion; Ms E Hile (Applicant) Mr G Newton (Crown)