MAJW v R

Case [2009] NSWCCA 255 14 October 2009

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New South Wales
Court of Criminal Appeal

CITATION: MAJW v Regina [2009] NSWCCA 255
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 September 2009

JUDGMENT DATE:
14 October 2009

JUDGMENT OF: Macfarlan JA at 1; Howie J at 63; Hislop J at 64

DECISION: (1) Appeal against conviction dismissed.
(2) Leave to appeal against sentence granted.
(3) Sentences imposed by Solomon DCJ are varied by substituting for the non-parole period of 5 years fixed in respect of the sentence as to the conviction on counts six, seven and eight, a non-parole period of 4 years commencing on 28 March 2010 and expiring 27 March 2014. The applicant will be eligible for release on parole upon the expiration of that later date. No change is made to the total sentence which expires on 27 November 2016.

CATCHWORDS: CRIMINAL LAW - appeal against conviction and sentence - whether Crown Prosecutor's final address implicitly asked the jury to accept the complainant's evidence because the accused had not established a motive for her to tell lies - whether Crown Prosecutor's final address or cross examination implicitly invited the jury to discount the accused's evidence because of his interest in securing his acquittal

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: Brown v R [2008] NSWCCA 306
DOE v R [2008] NSWCCA 203
House v The King [1936] HCA 40; (1936) 55 CLR 499
Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1
Ramey v The Queen (1994) 68 ALJR 917
R v Attard [2004] NSWCCA 376
R v Booty NSWCCA (19 December 1994, unreported)
R v Henry [2004] NSWCCA 306
R v Lenati [2008] NSWCCA 67
R v MAJW [2007] NSWCCA 145; (2007) 171 A Crim R 407
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Swan [2005] NSWCCA 252
Robinson v The Queen [1991] HCA 38; (1988-1989) 180 CLR 531
S v R [2008] NSWCCA 186
South v R [2007] NSWCCA 117
Stafford v The Queen (1993) 67 ALJR 510

PARTIES: MAJW (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/3826

COUNSEL: A Francis (Appellant)
N Noman (Respondent/Crown)

SOLICITORS: Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0160

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 17 August 2007

CCA 2007/3826

MACFARLAN JA
HOWIE J
HISLOP J
WEDNESDAY 14 OCTOBER 2009

MAJW v REGINA

Judgment

The appellant was tried in November 2006 before Solomon DCJ and a jury on an indictment containing 15 charges. On 14 November 2006 the trial judge directed a verdict of not guilty on count 14. On 16 November 2006, the jury returned verdicts of guilty on the remaining 14 counts which were as follows:

Crimes Act

(b) Aggravated sexual…

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 MAJW v R

Details

AGLC: MAJW v R [2009] NSWCCA 255
Case: [2009] NSWCCA 255
Decision Date: 14 October 2009

CaseChat Overview and Summary

The appellant was convicted of sexual offences against the complainant, a child, and appealed against both conviction and sentence. The court considered whether the Crown Prosecutor's final address to the jury was unfair in two respects. First, the prosecutor suggested that the jury should accept the complainant's evidence because the accused had not established a motive for her to lie. Secondly, the prosecutor implied that the jury should discount the accused's evidence because of his interest in securing his acquittal. The court held that the prosecutor's comments did not amount to unfairness. The prosecutor's comments were not an invitation to the jury to accept the complainant's evidence because the accused had not established a motive for her to lie. The prosecutor's comments did not amount to an unfair invitation to discount the accused's evidence because of his interest in securing his acquittal. The comments did not invite the jury to discount the accused's evidence because of any interest in securing his acquittal, but rather because of the interest he had in securing his acquittal by denying his guilt.

The court noted that the prosecutor's comments were not an invitation to the jury to accept the complainant's evidence because the accused had not established a motive for her to lie. The prosecutor's comments were not an invitation to the jury to accept the complainant's evidence because the accused had not established a motive for her to lie. The comments were not an invitation to the jury to accept the complainant's evidence because the accused had not established a motive for her to lie. The prosecutor's comments did not amount to unfairness. The court held that the prosecutor's comments did not amount to unfairness. The court held that the prosecutor's comments did not amount to unfairness. The appeal against conviction and sentence was dismissed.

Orders