R v Johnson [2000] NSWCCA 474

New South Wales Court of Criminal Appeal

CITATION : R v Johnson [2000] NSWCCA 474 FILE NUMBER(S) : CCA 60724/98 HEARING DATE(S) : 21 November 2000 JUDGMENT DATE : 21 November 2000

PARTIES : Regina v Henry James Johnson JUDGMENT OF : Heydon JA at 1; Studdert J at 46; Greg James J at 47

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/41/0177 LOWER COURT JUDICIAL Payne DCJ OFFICER :

COUNSEL : Crown: Ms P Hock Appellant: Mr C V Jeffreys (Solicitor) SOLICITORS : Crown: S E O'Connor Appellant: Jeffreys & Associates

Basto v R (1954) 91 CLR 628 R v Veverka [1978] 1 NSWLR 478 CASES CITED: R v Amado-Taylor [2000] 2 Cr App R 189 R v Williams (1999) 104 A Crim R 260 R v Tomazos (CCA, unreported, 6 August 1979) DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60724/98

HEYDON JA STUDDERT J GREG JAMES J

Tuesday, 21 November 2000

REGINA v Henry James JOHNSON JUDGMENT

1 HEYDON JA: Background

Henry James Johnson appeals against his conviction by a jury on 21 October 1998 on three charges of indecently assaulting a person under the age of 16 years. On 12 November 1998 he was sentenced on each charge to 15 months imprisonment to expire on 20 January 2000, with an additional term of 12 months to expire on 20 January 2001, the sentences to be served concurrently. The trial judge ordered that he be released on parole on 20 January 2000. At the trial the accused was acquitted of having sexual intercourse with a person under the age of 16 years without consent. 2 The complainant was the accused's niece - the daughter of his sister, who was younger than him. The complainant was born on 2 February 1978. The events in issue allegedly occurred between about 1988 and 1993. The proceedings were instituted after she complained of the events in issue to her mother and then to the police in 1997. 3 The principal Crown witness was the complainant. The accused made no admissions to the police and did not give evidence, but called his wife. 4 The accused owned horses, and the complainant, from the age of 10, developed an interest in horses. He gave her a pony and she frequently visited the accused's house to ride it and care for it and its successors. In due course she joined a Pony Club and competed at gymkhanas. Her uncle transported her on occasion to the gymkhanas. 5 The conduct complained of allegedly occurred while she was visiting her uncle and his wife or staying overnight with them. They lived about a kilometre from her home.