M v The Queen - [1999] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: M -v- R [1999] WASCA 52

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 14 MAY 1999

DELIVERED : 15 JUNE 1999

FILE NO/S: CCA 196 of 1998

BETWEEN: M
Appellant
AND
THE QUEEN
Respondent

FILE NO/S :CCA 6 of 1999

BETWEEN :THE QUEEN
Appellant
AND
M
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction - Claim that counsel for accused misled as to time of first complaint in respect of offence of sexual relationship - Evidence of complainant, a child, taken at pre-trial hearing - Contention that accused should have been permitted to recall complainant for further cross-examination - No miscarriage of justice

Criminal law and procedure - Sentencing - Sexual relationship - Sentence of 4‑1/2 years' imprisonment substituted for sentence of 3 years' imprisonment

Legislation:

Nil

Result:

Appeal against conviction dismissed

Crown appeal against sentence allowed

Representation:

CCA 196 of 1998

Counsel:

Appellant: Mr M R Gunning
Respondent: Mr S P Pallaras & Ms L B Black

Solicitors:

Appellant: Gunning
Respondent: Acting State Director of Public Prosecutions

CCA 6 of 1999

Counsel:

Appellant: Mr S P Pallaras & Ms L B Black
Respondent: Mr M R Gunning

Solicitors:

Appellant: Acting State Director of Public Prosecutions
Respondent: Gunning

Case(s) referred to in judgment(s):

R v Grein [1989] WAR 178

Case(s) also cited:

Cameron v The Queen (1990) 2 WAR 1
Kirk v The Queen, unreported; CCA SCt of WA; Library No 980067; 17 February 1997
Re Knowles [1984] VR 751
R v Anderson (1997) 92 A Crim R 348
R v Birks (1990) 19 NSWLR 677
R v Boyle (1987) 34 A Crim R 202
R v Pinder (1992) 8 WAR 19
R v Westall, unreported; CCA SCt of WA; Library No 980287; 27 May 1998
R v Yates (1998) 99 A Crim R 483
Steuart v The Queen, unreported; CCA SCt of WA; Library No 950486; 15 September 1995
Woods v The Queen, unreported; CCA SCt of WA; Library No 940388; 28 July 1994

KENNEDY J On 27 November 1998, after a trial by jury, the appellant was convicted of having had a sexual relationship with his son ("R") between 1 February 1994 and 25 May 1995, R being then a child under the age of 16 years. R had been born on 10 March 1987 and accordingly, as at 1 February 1994, he was just approaching his seventh birthday. On 18 December 1998, the appellant was sentenced to a term of imprisonment of 3 years. It was ordered that he be eligible for parole.
The prosecutor had applied for an order directing that R's evidence be taken at a pre‑trial hearing, it being a Schedule 7 proceeding under the Evidence Act 1906. That evidence was taken on 25 March 1998.
Shortly prior to the taking of R's evidence, the solicitors for the appellant had requested information from Dr M C Parker, who at the time of…

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 M v The Queen

Details

AGLC: M v The Queen [1999] WASCA 52
Case: [1999] WASCA 52
Decision Date: 15 JUNE 1999

CaseChat Overview and Summary

In the matter of M v The Queen, the appellant, M, sought to appeal his conviction for engaging in a sexual relationship with a child, which had occurred some years prior to the trial. The appellant argued that he was misled by his counsel regarding the timing of the first complaint made by the complainant. The High Court of Australia was tasked with reviewing this claim and determining whether there had been a miscarriage of justice. Additionally, the Court examined whether the original sentence of three years' imprisonment was appropriate or if a longer sentence should have been imposed.

The central legal issues that the Court needed to resolve were whether the appellant's counsel had indeed misled him about the timing of the first complaint, and if so, whether this amounted to a miscarriage of justice. The Court also considered whether the appellant should have been allowed to recall the complainant for further cross-examination and if the original sentence was appropriate. The Court focused on the evidence provided by the complainant, which was taken during a pre-trial hearing, and the implications of any alleged misleading by counsel.

The Court found that there was no evidence to suggest that counsel had misled the appellant about the timing of the first complaint. The Court held that the appellant's claim was unfounded and did not result in a miscarriage of justice. The Court further noted that the appellant had not demonstrated any prejudice that would warrant a new trial. Regarding the sentence, the Court determined that the original sentence of three years' imprisonment was insufficient given the gravity of the offence. Consequently, the Court substituted the original sentence with a term of four and a half years' imprisonment.

The High Court of Australia dismissed the appeal against conviction and substituted the sentence of four and a half years' imprisonment for the original sentence of three years.

Orders