MKR v The King - [2025] NSWCCA 1

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: MKR v R [2025] NSWCCA 1
Hearing dates: 29 November 2024
Date of orders: 10 February 2025
Decision date: 10 February 2025
Before: Davies J at [1]
N Adams J at [88]
Yehia J at [89]
Decision:
(1) Extend time for the applicant to appeal to 23 September 2024.
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – judge alone trial - where the applicant was convicted of 11 counts of sexual intercourse with a child and 1 one count of indecent assault – whether the applicant did not have a trial according to law due to the trial judge reversing the evidentiary and persuasive burdens of proof – where the judgment was effectively an ex tempore judgment – where the posing of rhetorical questions did not insinuate that there was an onus on the applicant – where the trial judge clearly stated the correct principles regarding onus and burden of proof – ground of appeal rejected
CRIME – appeals – appeal against conviction – whether the trial judge erred by failing to expose his reasoning linking the relevant legal principles to the findings – where applicant highlighted four areas where directions were not given or were said to be inadequate – where the trial judge’s reasons made clear that reliance on an alibi does not shift the burden of proof – where the trial judge was not obliged to direct himself how character evidence was to be used – where a Liberato direction was not required – where no occasion arose to apply the Markuleski direction because complainant’s evidence not found unreliable on any count – ground of appeal rejected – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 61M (repealed), 66A
Criminal Appeal Act 1912 (NSW) s 6
Criminal Procedure Act 1986 (NSW) ss 32 (repealed), 33 (repealed), 133

Cases Cited:
Barwick v R [2023] NSWCCA 139
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
FB v The Queen [2020] NSWCCA 137
Fleming v R (1998) 197 CLR 250; [1998] HCA 68
Hopgood v R [2019] NSWCCA 246
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
McDonald v R; Obeid v R; Obeid v R [2023] NSWCCA 250
Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

Texts Cited:
Nil

Category: Principal judgment
Parties: MKR (Applicant)
Crown (Respondent)
Representation:
Counsel:
G D Wendler (Applicant)
E Jones (Respondent)
Solicitors:
O’Sullivan Law Firm Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/171640
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

18 January 2022

Before:

J Williams ADCJ

File Number(s):

2020/171640

HEADNOTE

[This headnote is…

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 MKR v The King

Details

AGLC: MKR v The King [2025] NSWCCA 1
Case: [2025] NSWCCA 1
Decision Date: 10 February 2025

CaseChat Overview and Summary

The applicant, MKR, was convicted of 11 counts of sexual intercourse with a child and one count of indecent assault. They appealed against their conviction, arguing that the trial did not proceed according to law due to the trial judge reversing the evidentiary and persuasive burdens of proof, and that the trial judge erred by not adequately exposing his reasoning in his judgment. The case was heard in the relevant appellate court.

The primary legal issues in the appeal were whether the applicant had a trial according to law, despite the trial judge reversing the burdens of proof, and whether the trial judge failed to adequately expose his reasoning in his judgment. The applicant argued that the trial judge's reversal of the burdens of proof meant the trial did not proceed according to law, and that the judge's judgment did not adequately explain his reasoning.

The court found that the trial judge did not reverse the burdens of proof but instead provided an ex tempore judgment, which did not imply an onus on the applicant. The court also found that the trial judge clearly stated the correct principles regarding onus and burden of proof. Additionally, the court found that the trial judge's reasons were sufficient, and that there was no error in the judge's directions or in not applying certain legal directions. The court rejected the grounds of appeal and dismissed the appeal.

The court dismissed the appeal and affirmed the applicant's conviction.

Orders