BM v R

Case [2017] NSWCCA 133 19 June 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: BM v R [2017] NSWCCA 133
Hearing dates: 1 May 2017
Decision date: 19 June 2017
Before: Basten JA at [1];
Adamson J at [40];
Campbell J at [52]
Decision:
(1)   Refuse the applicant leave to appeal with respect to grounds (1) and (2).

(2)   Grant the applicant leave to appeal with respect to ground (3).
(3)   Dismiss the appeal.
Catchwords: CRIME – appeal – leave to appeal against conviction – applicant convicted of indecent assault, acts of indecency and sexual intercourse with a child – whether trial judge misdirected jury in focussing on accused’s evidence and shifted evidentiary onus onto accused – whether trial judge misdirected jury as to significance of evidence of witness contradicting evidence of complainant and erred in formulation of Markuleski direction – whether verdicts unsafe and unsupportable on the evidence under Criminal Appeal Act 1912 (NSW) s 6(1)
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW) ss 61E, 61J, 66A, 578A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 38, 164
Cases Cited: Abbey v R [2017] NSWCCA 109
AL v R [2017] NSWCCA 34
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
Longman v The Queen (1989) 168 CLR 79
M v The Queen (1994) 181 CLR 487
MWJ v R [2005] HCA 74; 80 ALJR 329
ND v R [2017] NSWCCA 70
R v Johnston (1998) 45 NSWLR 362
R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Apostilides (1984) 154 CLR 563
Category: Principal judgment
Parties: BM (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Loomes (Applicant)
Ms N Williams (Respondent)
Solicitors:
Stidwill Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/356008
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 April 2016

Before:

Charteris DCJ

File Number(s):

2014/356008

Judgment

BASTEN JA: On 15 February 2016 the Director of Public Prosecutions presented an indictment against the applicant containing four counts, namely (1) a count of indecent assault, (2) and (3) counts alleging acts of indecency and (4) one count of sexual intercourse. In each case the victim was a complainant, known as “MY”, who was at all stages between the ages of 6 and 9 years, but under 10 years.
The accused was the de facto partner of the complainant’s aunt. Although there is no legal constraint on the disclosure of his identity, there is a statutory prohibition on the publication of information or other material that identifies or is likely to lead to the identification of the complainant, who was a child when the offences were committed. [1] To prevent inadvertent contravention of that prohibition, steps have been taken to avoid…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BM v R

Details

AGLC: BM v R [2017] NSWCCA 133
Case: [2017] NSWCCA 133
Decision Date: 19 June 2017

CaseChat Overview and Summary

The applicant, BM, appealed against his conviction in the Supreme Court of New South Wales, seeking leave to appeal against the decision rendered by the District Court. BM was found guilty of indecent assault, acts of indecency, and sexual intercourse with a child, with the offences committed against a young girl over a period of time. The appeal focused on the trial judge’s conduct during the trial, particularly whether the judge misdirected the jury by emphasising the accused’s evidence and inadvertently shifting the evidentiary burden onto the accused. Additionally, the applicant contended that the trial judge incorrectly instructed the jury regarding the importance of a witness’s testimony that contradicted the complainant’s account and erred in providing a direction in line with the case of Markuleski.

The court examined whether the trial judge’s conduct constituted a miscarriage of justice, which would warrant the granting of leave to appeal. The legal issues involved the evaluation of the trial judge’s directions to the jury, the appropriate standard of proof, and the impact of any misdirections on the safety and supportability of the verdicts. The applicant argued that the trial judge’s comments and instructions may have influenced the jury’s decision-making process, resulting in an unsafe and unsupportable verdict. The court was required to determine if the alleged misdirections were so significant that they rendered the verdicts unreliable.

Upon reviewing the trial transcript and the applicable legal principles, the court found that the trial judge’s comments did not constitute a misdirection of such magnitude as to necessitate the granting of leave to appeal. The court held that the jury had been properly instructed on the applicable legal standards, and while there may have been some missteps in the judge’s conduct, they did not amount to a miscarriage of justice. Consequently, the court dismissed the application for leave to appeal, affirming the original convictions.

Orders