Legal Research
Cases
McKey v The Queen

McKey v The Queen

Case [2012] NSWCCA 1 1 February 2012

Appeal

Miscarriage of Justice

Jurisdiction

Admissibility of Evidence

Implied Admissions

Evidentiary Significance of Post Offence Conduct

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mark McKey v Regina [2012] NSWCCA 1
Hearing dates: 26 September 2011
Decision date: 01 February 2012
Before: Whealy JA
Hislop J
Latham J
Decision:
Decision Under Appeal. Appeal against conviction allowed.
The conviction is quashed and the sentence imposed on 8 October 2009 is set aside.
Enter a verdict of acquittal

Catchwords: CRIMINAL LAW - Appeal against conviction - sexual assault - Crimes Act 1900 s66C - whether miscarriage of justice - whether trial judge erred in failing to adequately direct the jury in relation to the appellants silence or inaction in response to allegations - whether trial judge erred in failing to adequately direct the jury regarding the circumstances in which the appellants silence or inaction could be used as evidence of consciousness of guilt - whether trial judge erred in failing to adequately direct the jury in relation to the submission by the prosecutor to discount the whole of the appellants evidence due to silence or inaction - implied admissions - evidentiary significance of post offence conduct - directions by trial judge where there may be risk of a misunderstanding on the part of a jury - appeal allowed - conviction quashed.
Legislation Cited: Crimes Act 1900
Cases Cited: Edwards v The Queen (1993) 178 CLR 193
R v MMJ [2006] VSCA 226
R v Nguyen [2001] VSCA 1
Category: Principal judgment
Parties: Mark McKey - (Appellant)
Regina - (Crown Respondent)
Representation: COUNSEL
S Corish - (Appellant)
C Maxwell QC (Crown Respondent)
SOLICITORS
Legal Aid Commission of NSW - (Appellant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2009/6577
Decision under appeal

Date of Decision:

2009-10-08 00:00:00

Before:

Freeman DCJ

File Number(s):

2009/6577

Judgment

WHEALY JA : I agree with Latham J.

HISLOP J : I agree with Latham J.

LATHAM J : The appellant appeals against his conviction after trial by jury on one count of sexual intercourse with a child above the age of 14 years and under the age of 16 years (s 66C, Crimes Act 1900). The offence carries a maximum penalty of 10 years imprisonment. The appellant received a sentence of 3 years imprisonment, but there is no appeal against sentence.

The offence was charged in the alternative to an offence of sexual intercourse without consent. It was alleged that the appellant digitally penetrated the complainant, whilst both were staying at the home of the complainant's sister (KN) in preparation for KN's wedding that weekend in Moree. The appellant was the groom's best man at the wedding. The appellant, who gave evidence at trial, disputed that any sexual activity had taken place between himself and the complainant. The jury's verdict reflects an acceptance of the complainant's evidence, albeit a failure to be satisfied beyond reasonable doubt that the complainant did not consent or that the appellant knew that she was not consenting.

All three grounds of the appeal complain of alleged errors in the directions of the trial judge…

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 McKey v The Queen

Details

AGLC: McKey v The Queen [2012] NSWCCA 1
Case: [2012] NSWCCA 1
Decision Date: 01 February 2012

CaseChat Overview and Summary

In the matter of McKey v The Queen, the High Court of Australia reviewed the conviction of the appellant for sexual assault under the Crimes Act 1900. The appellant contested the conviction on several grounds, including the alleged failure of the trial judge to adequately direct the jury about the implications of his silence and inaction in response to the allegations. The court was tasked with determining whether the trial judge's instructions to the jury were sufficient and whether the appellant's conviction could be considered a miscarriage of justice.

The legal issues central to this case revolved around the adequacy of the trial judge's jury directions. Specifically, the court examined whether the judge erred in failing to provide adequate instructions concerning the use of the appellant's silence or inaction as evidence of consciousness of guilt, and whether the judge's directions on the prosecutor's submission to discount the appellant's evidence due to silence or inaction were sufficient. The court also considered whether the trial judge's directions were clear enough to prevent any risk of misunderstanding by the jury.

The High Court found that the trial judge's jury directions were deficient in several respects. The court held that the judge did not adequately address the evidentiary significance of the appellant's silence or inaction, nor did the judge clarify when such silence or inaction could be used as evidence of consciousness of guilt. Additionally, the court found that the judge's directions regarding the prosecutor's submission to discount the appellant's evidence were insufficient. These shortcomings were significant enough to potentially lead to a miscarriage of justice. Consequently, the appeal was allowed, and the appellant's conviction was quashed.

The final orders of the court included the quashing of the appellant's conviction and the allowance of the appeal. The court's decision highlighted the importance of clear and comprehensive jury directions in criminal trials, particularly in cases involving allegations of sexual assault where silence or inaction may be pivotal. The court emphasised the necessity for judges to provide explicit instructions to ensure the jury can properly consider all evidence and avoid any risk of misunderstanding.

Orders