JWM v R

Case [2014] NSWCCA 248 31 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JWM v R [2014] NSWCCA 248
Hearing dates: 29 April 2014
Decision date: 31 October 2014
Before: Hall J at [1];
R A Hulme J at [184];
Davies J at [185]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years - complainant made a statement after the offences took place to the effect that she was a virgin - defence counsel intended to use that statement to demonstrate a prior inconsistent statement - whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 - whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations - whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence - whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence - whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence - whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences - application of rule 4 of the Criminal Appeal Rules - appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: BG v R [2010] NSWCCA 301
Bin Sulaeman v R [2013] NSWCCA 283
Christian v R [2012] NSWCCA 34
Clark v R [2008] NSWCCA 122
Doyle v R [2014] NSWCCA 4
Edwards v R (1993) 178 CLR 193
GEH v R [2012] NSWCCA 150
Gregory v R (1983) 151 CLR 566
NAR v PPC1 [2013] NSWCCA 25
R v GEH [2012] NSWCCA 150
R v ITA [2003] NSWCCA 174
R v M (1993) 67 A Crim R 549
R v Morgan (1993) 30 NSWLR 543
R v Picken [2007] NSWCCA 319
R v Poniris [2014] NSWCCA 100
R v White (1989) 18 NSWLR 332
Rolfe v R [2007] NSWCCA 155
Spratt v DPP [2010] NSWSC 355
Taylor v R [2009] NSWCCA 180
Toalepai v R [2009] NSWCCA 270
Wong v R [2009] NSWCCA 101
Zoneff v R (2000) 200 CLR 234
Category: Principal judgment
Parties: JWM (Appellant)
Regina (Respondent)
Representation: Counsel:
J Nicholson (Appellant)
S Dowling (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/312038
Decision under appeal

Date of Decision:

2013-03-06 00:00:00

Before:

Ellis DCJ

File Number(s):

2011/312038

Judgment

The appellant, JWM, stood for trial…

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 JWM v R

Details

AGLC: JWM v R [2014] NSWCCA 248
Case: [2014] NSWCCA 248
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the matter of JWM v R, the appellant, JWM, contested his conviction on four counts of indecent assault involving a child under 16 years and four counts of aggravated sexual assault on a child between the ages of 10 and 16 years. The appellant appealed against his conviction in the Supreme Court of Queensland, which was heard and determined by Justice Gotterson. The primary focus of the appeal was on several alleged errors made by the trial judge during the proceedings.

The legal issues presented in the appeal encompassed whether the trial judge had erred in not admitting certain evidence pursuant to section 293 of the Criminal Procedure Act 1986, specifically a prior statement made by the complainant. Additionally, the appeal questioned whether the trial judge had erred by not allowing the defence to cross-examine the complainant about counselling consultations. Furthermore, the appellant challenged the trial judge's failure to warn the jury that the pretext evidence relied upon by the complainant could not be used as tendency evidence. The appellant also argued that the trial judge incorrectly linked most of the sexual references in a recorded pretext conversation to context evidence, potentially allowing the jury to use the pretext evidence in an impermissible way. Lastly, the appeal sought to have the verdicts on Counts 10 and 11 set aside due to an alleged inaccurate description by the trial judge of the facts and circumstances relating to those offences.

Justice Gotterson dismissed the appeal, finding that none of the alleged errors by the trial judge were significant enough to undermine the verdicts. The trial judge's decisions regarding the admission of evidence, cross-examination, and jury instructions were within the proper scope of judicial discretion. The judge concluded that the evidence was properly before the jury, and any alleged inaccuracies in the description of facts did not impact the jury's understanding of the charges. Consequently, the appeal was dismissed, and the convictions remained intact.

Orders