JPM v R [2019] NSWCCA 301

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JPM v R [2019] NSWCCA 301 Hearing dates: 28 October 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Before: Simpson AJA at [1] Fullerton J at [7] Adamson J at [238] Decision: 1. Insofar as concerns Ground 1, leave to appeal is granted. 2. Insofar as concerns Ground 2, leave to appeal is granted. 3. Insofar as concerns Ground 3, leave to appeal is granted. 4. The appeal against conviction is dismissed. 5. The sentence imposed in the District Court on 5 July 2019 is confirmed subject to the following variation: the sentence of 2 years and 10 months' imprisonment with a non-parole period of 1 year and 5 months is to commence from 16 December 2019. The non-parole period will expire on 15 May 2021. The balance of term will expire on 15 October 2022. Catchwords: CRIME – appeals – appeal against conviction – assault with act of indecency on person under 16 – whether a miscarriage of justice occurred due to the trial judge failing to give a direction about the need for the jury to be unanimous about which act of touching they found proved beyond reasonable doubt – whether a miscarriage of justice occurred due to the trial judge failing to give a direction that the accused's silence was not evidence against him and could not be used to support the prosecution case – whether verdict of guilty is unreasonable and cannot be supported having regard to the evidence Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Rules (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW), s 20 Jury Directions Act 2013 (Vic) Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Cabot v R [2018] NSWCCA 265 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Johnston v R [2007] NSWCCA 133 Lane v R [2017] NSWCCA 46 Lane v The Queen [2018] HCA 28 Le v The Queen [2016] VSCA 100 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nguyen v R [2017] NSWCCA 4; (2017) 264 A Crim R 405 Obierzynski v R [2019] NSWCCA 103 Pratten v R [2014] NSWCCA 117 R v Graham [2005] NSWCCA 127 R v Richards (2002) 128 A Crim R 204; [2002] NSWCCA 38 R v SMR [2002] NSWCCA 258 R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20 Restricted Judgment [2019] NSWCCA 153 Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 SKA v The Queen (2011) 243 CLR 40; [2011] HCA 13 Thi Quyen Le v The Queen [2016] VSCA 100; (2016) 308 FLR 486 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Category: Principal judgment Parties: JPM (Applicant) The Crown (Respondent) Representation: Counsel: G Bashir SC / G Huxley (Applicant) B Hatfield (Crown)