MK v R

Case [2014] NSWCCA 274

Court of Criminal Appeal

New South Wales
Case Title: MK v R
Medium Neutral Citation: [2014] NSWCCA 274
Hearing Date(s): 12.09.2014
Decision Date: 26 November 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [134]
Hamill J at [135]
Decision:

1. To the extent necessary, leave to appeal is granted.
2. Ground of Appeal 1 is upheld but Grounds of Appeal 2 and 3 are dismissed.
3. The convictions recorded against the applicant on 4 October 2012 are quashed.
4. The matter is remitted to the District Court for retrial.
Catchwords: CRIMINAL LAW - conviction appeal - take without consent and indecent assault - evidence - competence of child to take oath - unsworn evidence by child - fundamental defect in giving of unsworn evidence - appeal allowed - whether verdict unreasonable and not open on the evidence - identification by child witnesses - discrepancies in their descriptions - both child witnesses identify very distinctive feature of assailant - whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant - this ground of appeal dismissed - whether submissions by Crown gave rise to a miscarriage of justice - whether the trial judge gave appropriate directions to jury - no miscarriage of justice - this ground of appeal dismissed - matter remitted to District Court for new trial.
Legislation Cited: Crimes Act 1900 - s61M(2) , s86(1)(b)
Criminal Appeal Rules - r 4 Evidence Act 1995 (NSW) - s13
Cases Cited: Dyers v The Queen [2002] HCA 45; 210 CLR 285
FP v R [2012] NSWCCA 182
Knight v Queen (1992) 175 CLR 495
M v The Queen (1994) 181 CLR 487
Pease v R [2009] NSWCCA 136
R v RAG [2006] NSWCCA 343
RJ v R [2010] NSWCCA 263
Sami Kurdi v Regina [2011] NSWCCA 179
SH v Regina [2012] NSWCCA 79; 83 NSWLR 258
SKA v The Queen [2011] HCA 13; 243 CLR 400
Warren v Coombs (1979) 142 CLR 531 at 551
Category: Principal judgment
Parties: MK - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
Mr H Dhanji SC - Applicant
Ms T Smith - Respondent Crown
- Solicitors: Solicitors:
Abigail Bannister - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent
File Number(s): 2011/43255
Decision Under Appeal
- Before: Quirk DCJ
- Date of Decision:  04 October 2012
- Court File Number(s): 2011/43255

JUDGMENT

  1. HOEBEN CJ at CL:

    Offences and sentence
    Between 25 September and 4 October 2012 the applicant was tried before Quirk DCJ and a jury for the following offences:

    Count 1 - Take without consent and with intent to obtain an advantage being an indecent assault contrary to s 86(1)(b) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 14 years.

    Counts 2 and 3 - Indecent assault on a person under 16 namely 6 years contrary to s61M(2) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 10 years and a standard non-parole…

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AGLC
MK v R [2014] NSWCCA 274
Case
[2014] NSWCCA 274
Decision Date

CaseChat Overview and Summary

The case of MK v R involved an appeal against the conviction of the applicant for take without consent and indecent assault. The appeal was heard by the Supreme Court of New South Wales, Court of Criminal Appeal. The primary issue before the court was whether the trial was conducted according to law, specifically whether the child witnesses were competent to give unsworn evidence. Additionally, the court considered whether the verdict was unreasonable and if there was a miscarriage of justice due to the Crown's submissions and the trial judge's directions to the jury.

The court found that the trial was not conducted according to law because the child witnesses were not competent to give unsworn evidence. The trial judge failed to adequately inform the child witnesses about the obligation to tell the truth and agree with statements they believed to be true, as required by section 13(5)(c) of the Evidence Act. This failure constituted a fundamental defect in the giving of unsworn evidence. Consequently, the convictions were quashed, and the matter was remitted to the District Court for a new trial. The court dismissed the other grounds of appeal, finding that the verdict was not unreasonable and that there was no miscarriage of justice due to the Crown's submissions or the trial judge's directions.

The court's reasoning highlighted the importance of ensuring that child witnesses understand their obligation to tell the truth when giving unsworn evidence. The failure to properly inform the child witnesses about this obligation led to a fundamental defect in the trial process. Despite this defect, the court found that the evidence was sufficient for a properly instructed jury to be satisfied beyond reasonable doubt of the applicant's guilt. Therefore, the matter was remitted for a new trial to ensure that the trial was conducted according to law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant relies upon three grounds of appeal:Ground 1 - The trial was not conducted according to law because the complainant and other child witness CL were not competent to give unsworn evidence.Ground 2 - The verdict was unreasonable and cannot be supported having regard to the evidence.Ground 3 - The trial miscarried by reason of the Crown and the trial judge reversing the onus of proof, misstating the identification evidence and inviting the jury to adopt false logic which overstated the probative force of the identification evidence.Crown case and evidence at trial The Crown case was that on 6 February 2011 the applicant, who was a stranger to the 6 year old complainant, took her by the hand and pulled her underneath the unit block where she lived into a dark section where garages were located. This occurred after the complainant had gone downstairs with her friend, CL, to collect a ball that had gone over the edge of the balcony of the family's apartment. It was alleged that the applicant then removed her shorts and underpants and touched her genital area with his hands. He then touched her bottom with his erect penis. The complainant described her assailant as having a distinctive facial decoration, being three pieces of jewellery, like earrings, on his cheek. The applicant had such an adornment. The complainant said he also had short black hair and described his clothing. A Mazda car bought by the applicant on 29 December 2010 was parked in front of the unit block where the complainant and her family lived on 6 February 2011 from some time in the afternoon on that day until a man (not the applicant) came and drove it away some time after the complainant disclosed the offences to her father. The Crown case was circumstantial and based on facts largely not disputed. The complainant made immediate complaint of having been grabbed by a strange man in the undercover car-park beneath her family unit, dragged to a different part of the car-park where the offences took place. Her playmate, CL, who was also 6 years old gave evidence that a strange man had told him to go and collect leaves and that when he returned, the complainant ran to him from a dark part of the car-park crying and told him that a man had put something like a rock in her mouth. It was not suggested to either witness that the incident did not occur. It was also not in dispute that at about the same time a vehicle owned by the applicant, a grey Mazda, was parked in the building's car-park in a way that blocked access to a resident's garage. Some time after the resident had called triple 0 to complain about the vehicle an unidentified man, who was not the applicant (and was said by the Crown not to be the applicant or the perpetrator), and who was attempting to sell ladies' handbags to residents, drove the vehicle away. The applicant was interviewed by the police three days after the accident and denied any involvement. He indicated that many other people regularly drove his car. When police located the car that morning, it was being driven by the applicant's uncle and the applicant's mother was a passenger.

Decision

Reasons for decision

HOEBEN CJ
Ground 3 has not been made out.Conclusion The applicant has succeeded in making out Ground 1 but has failed in establishing the other two grounds. In those circumstances, this Court should follow the approach set out in SH. Because the trial was not conducted according to law, the convictions must be quashed. The proviso cannot be invoked by the Crown. The appropriate order for this Court is to order a new trial. The orders which I propose are as follows:(1)To the extent necessary, leave to appeal is granted.(2)Ground of Appeal 1 is upheld but Grounds of Appeal 2 and 3 are dismissed.(3)The convictions recorded against the applicant on 4 October 2012 are quashed.(4)The matter is remitted to the District Court for retrial. FULLERTON J: I agree with Hoeben CJ at CL. HAMILL J: I have had the considerable advantage of reading in draft the judgment of Hoeben CJ at CL. I agree with his Honour's analysis and conclusion in relation to ground 1 and have nothing to add to his careful analysis of that ground of appeal. It follows that the appeal must be upheld. In relation to ground 2, I agree with his Honour's conclusion that it was open to a properly instructed jury to be satisfied beyond a reasonable doubt of the appellant's guilt. I have considered the whole of the record and applied the principles enunciated by the High Court in SKA v The Queen [2011] HCA 13; 243 CLR 400 and M v The Queen (1994) 181 CLR 487. I have also considered the approach adopted by the High Court in circumstantial cases where an appellate court is called upon to consider a ground that a verdict is unreasonable or unable to be supported: see Knight v Queen (1992) 175 CLR 495. I have considered whether in the circumstances of this case the Court is in as good a position as the jury to decide on the proper inferences to be drawn from facts which are undisputed or which are clearly established by the findings of the jury: see, for example, Warren v Coombs (1979) 142 CLR 531 at 551. While this was a circumstantial case in which a number of factual circumstances were not in dispute, it was also a case in which the jury enjoyed the considerable advantage of having observed both children and a number of other witnesses give evidence. The jury was in a far better position than this Court to make assessments of the kinds of criticisms made of the prosecution witnesses both by defence counsel at the trial and by senior counsel on the hearing of this appeal. Those criticisms have been set out in some detail by the Chief Judge at Common Law and I need not repeat them. While there are many details of the descriptions of the assailant which do not match the appearance of the appellant, there remained before the jury a powerful circumstantial case based around the facial piercings of the appellant and the presence of his motor car at the scene of the crime. Added to that was the description that the assailant had tattoos. Whilst that description was inconsistent with the precise location of the tattoos worn by the appellant, it was nevertheless a matter which the jury was entitled to consider along with the various inconsistencies in determining whether or not the Crown had established its case beyond reasonable doubt. It was for the jury to consider the significance of such inconsistencies bearing in mind the tender age of the child witnesses.

Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The Crown made the same submission in relation to CL.Consideration I have a concern about the process followed by her Honour in relation to the conclusion that the complainant and CL lacked the capacity to give sworn evidence. I appreciate that as in Pease, her Honour had watched some 10 minutes of the record of interview made by each of the children some 19 months before the trial. When giving her reasons, however, her Honour made no reference to any aspect of what she had seen. One is left with an impression that the primary basis for her Honour's conclusion were the questions which she put to the child witnesses. Those questions are also a cause for concern. In the case of both the complainant and CL, they were brief in the extreme and expressed in terms of s13(3). In the case of the complainant, the abstract proposition was put as to whether she knew the meaning of the word "obligation". To the extent that there was any investigation of the complainant's understanding of the test in s13(3), it comprised the question "Do you know why it's important to tell the truth?". In accordance with the guidance provided in RAG, I am of the opinion that some further testing of the child witness' understanding of the obligation to give truthful evidence should have been carried out by the use of simple and concrete terminology, such as that described in that case. In the case of CL, there is the additional problem of the sequence of reasoning. As was pointed out by the applicant in submissions and by reference to the analysis of s13 in both RJ and SH, the section is expressed in obligatory terms and requires a sequential mode of reasoning for there to be compliance with it. In the case of CL, as was properly conceded by the Crown, that sequential mode of reasoning did not take place. Her Honour proceeded directly to the s13(5) issue and only engaged in the preliminary but mandatory investigation as to competency to give sworn evidence, when reminded by the Crown. It was implicit in her Honour's approach that she had already reached a conclusion as to competency to give sworn evidence on the part of CL well before she asked the question expressed in terms of s13(3) to which reference has already been made. It is, however, unnecessary to reach a conclusion on those matters. I have raised them not only in deference to the careful submissions made by the applicant, but also to note the concerns which I have as to the process which was followed by her Honour in determining the important preliminary issue of whether a witness was competent to give sworn evidence. A decision on that issue is unnecessary because there was a failure by her Honour to comply with the provisions of s13(5)(c). The requirement of that subsection is clear. The court is obliged to tell the potential witness "that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should not feel pressure to agree with statements that he or she believes are untrue". Her Honour failed to give effect to the requirement to tell the child witnesses that he or she should agree with the statements that he or she believes are true. The important qualification to those "statements" is that they form parts of questions that suggest that they are either true or untrue. That is a qualitatively different proposition to a simple admonition that in giving evidence a proposed witness should tell the truth.