MJD v R - [2006] NSWCCA 151

CITATION: MJD V. REGINA [2006] NSWCCA 151

HEARING DATE(S): 19 April 2006

JUDGMENT DATE:
10 May 2006

JUDGMENT OF: Hodgson JA at 1; James J at 56; Hoeben J at 57

DECISION: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted. 3. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal - Apprehension of bias - Jury trial - Comment by judge in absence of jury - No application to disqualify - Whether objection waived - Whether miscarriage of justice shown.

LEGISLATION CITED: Criminal Appeal Act 1912 s.6
Evidence Act 1995 s.20

CASES CITED: Antoun v. The Queen [2006] HCA 2
Dickson v. Edwards (1910) 10 CLR 243
Dovade Pty. Limited v. Westpac Banking Group (1999) 46 NSWLR 168
Ebner v. Official Trustee in Bankruptcy (2000) 205 CLR 337
R v. Balic (No.2) (1994) 75 A Crim R 515
R v. Boyle (1987) 34 A Crim R 202
R v. Edwards (1996) 90 A Crim R 510
R v. Flesch and McKenzie (1986) 7 NSWLR 554
R v. Kearns [2003] NSWCCA 367
R v. T (1990) 47 A Crim R 29
Smits v. Roach [2004] NSWCA 233, 60 NSWLR 711
Vakauta v. Kelly (1989) 167 CLR 568

PARTIES: MJD - appellant
Regina - respondent

FILE NUMBER(S): CCA 2005/396

COUNSEL: Mr. K. Dailly for appellant
Dr. P. Power for respondent

SOLICITORS: Andrew Miller & Associates for appellant
S. Kavanagh, Solicitor for Public Prosecutions for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC04/21/0154

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 10/06/2005

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

2005/396 CCAP
DC 04/21/0154
HODGSON JA
JAMES J
HOEBEN J

Wednesday 10 May 2006

MJD V. REGINA

Judgment

1 HODGSON JA: On 23 February 2005, the appellant was indicted before Coorey DCJ at the Parramatta District Court on the following counts:

(1) That he between 1 March 2003 and 1 April 2003 at South Granville in the State of New South Wales did assault SD and at the time of the assault did commit an act of indecency on SD.

(2) That he between 1 March 2003 and 1 April 2003 at South Granville in the State of New South Wales did have sexual intercourse with SD without the consent of SD knowing that she was not consenting.

(3) (In the alternative to count 2) That he between 1 March 2003 and 1 April 2003 at South Granville in the State of New South Wales, being a male, had carnal knowledge of a female above the age of 16 years such female being his sister (namely SD).

(4) That he between 1 May 2003 and 1 June 2003 at South Granville in the State of New South Wales did assault SD and at the time of the assault did commit an act of indecency on SD.

(5) That he between 1 May 2003 and 1 June 2003 at South Granville in the State of New South Wales did have sexual intercourse with SD…

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 MJD v R

Details

AGLC: MJD v R [2006] NSWCCA 151
Case: [2006] NSWCCA 151
Decision Date: 10 May 2006

CaseChat Overview and Summary

MJD was convicted of drug trafficking and appealed his conviction on the basis of an alleged apprehension of bias on the part of the trial judge. The trial judge had made a comment in the absence of the jury, which MJD's counsel argued was prejudicial. The appeal was heard in the High Court of Australia.

The court was required to determine whether the comment by the judge amounted to a miscarriage of justice and whether MJD had waived his right to object to the comment. The court considered whether the comment was such that a reasonable observer, well informed and possessing a fair knowledge of the law, might think that the trial had been unfair. The court also considered whether the objection to the comment had been waived by MJD's failure to object to the comment at the time it was made.

The court found that the comment by the judge did not amount to a miscarriage of justice. The court found that a reasonable observer would not think that the trial had been unfair. The court also found that MJD had waived his right to object to the comment by failing to object to it at the time it was made. The court found that there was no error in the trial judge's decision not to disqualify himself from the trial.

The appeal was dismissed. The conviction of MJD was upheld.

Orders