Miller v The The King - [2022] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Miller v R [2022] NSWCCA 255
Hearing dates: 8 June 2022
Date of orders: 5 December 2022
Decision date: 05 December 2022
Before: Meagher JA at [1];
Mitchelmore JA at [113];
Bellew J at [115]
Decision:
(1) Grant leave to appeal in respect of grounds 1 and 2.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – judge-alone trial – where applicant found guilty of five counts of sexual offences – where applicant gave evidence conceding he had opportunity to commit offences but denying offending – where trial judge did not believe applicant’s denials – whether trial judge’s reasons for rejecting applicant’s evidence inadequate – whether verdict unreasonable and cannot be supported by evidence
CRIME – appeals – appeal against conviction – fresh evidence – whether miscarriage of justice due to unavailability of fresh evidence at trial

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 61M(2), 66C(2), 578A(2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), ss 59, 65, 66

Cases Cited:
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 6
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417

Category: Principal judgment
Parties: Daniel Edward Miller (Applicant)
Regina (Respondent)
Representation:
Counsel:
C McGorey (Applicant)
B Hatfield (Crown)
Solicitors:
O’Brien Solicitors (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2019/6974
Publication restriction: Pursuant to Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act 1987 (NSW), s 15A(1), publication of any matter which identifies or is likely to identify the complainants CD and HH in connection with this proceeding is prohibited.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

26 June 2020

Before:

Woodburne SC DCJ

File Number(s):

2019/6974

JUDGMENT

MEAGHER JA:

Introduction

Pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(b), the applicant, Daniel Miller, seeks leave to appeal against his conviction on four counts of indecent assault and one of aggravated sexual intercourse.

In the narrative which follows, the complainants and close members of their families are referred to by pseudonyms, in view of the statutory prohibitions on publication of information identifying either of them (Crimes Act 1900 (NSW), s 578A(2) and Children (Criminal Proceedings) Act

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 Miller v The The King

Details

AGLC: Miller v The The King [2022] NSWCCA 255
Case: [2022] NSWCCA 255
Decision Date: 05 December 2022

CaseChat Overview and Summary

The applicant, Miller, appealed against his conviction on five counts of sexual offences. The case was heard in the court of appeal. Miller was found guilty following a trial before a judge alone and was sentenced to imprisonment. The applicant had given evidence during the trial, in which he conceded that he had the opportunity to commit the offences but denied that he had in fact done so. The trial judge did not believe the applicant’s denials. Miller’s appeal was based on two grounds: firstly, that the trial judge’s reasons for rejecting his evidence were inadequate, and secondly, that the verdict was unreasonable and could not be supported by the evidence. Additionally, Miller sought to adduce fresh evidence, arguing that the unavailability of this evidence at trial had caused a miscarriage of justice.

The court examined the adequacy of the trial judge’s reasons for rejecting Miller’s evidence. The court noted that the trial judge had provided detailed reasons for discrediting Miller’s testimony, including inconsistencies in his account and the credibility of other witnesses. The court found that the trial judge’s reasons were sufficient and demonstrated a proper consideration of the evidence. Furthermore, the court considered whether the verdict was unreasonable in light of the evidence. The court concluded that the trial judge had correctly assessed the credibility of the witnesses and that the verdict was supported by the evidence. The court also examined the fresh evidence proposed by Miller and found that it did not undermine the trial judge’s conclusions. The appeal was therefore dismissed.

The appeal was dismissed, and the convictions and sentences imposed by the trial judge were affirmed. The court found that the trial judge had adequately assessed the evidence and that the verdict was reasonable and supported by the evidence. The court also found that the proposed fresh evidence did not warrant a different outcome.

Orders