MLB v The Queen - [2010] NTCCA 11

MLB v The Queen [2010] NTCCA 11
PARTIES:MLB

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CCA 3 of 2010 (20825784)
DELIVERED:  17 August 2010
HEARING DATES:  19 July 2010
JUDGMENT OF:  MARTIN (BR) CJ, RILEY AND BLOKLAND JJ
APPEAL FROM:  KELLY J
CATCHWORDS:
CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION
Conviction for sexual intercourse without consent – whether trial Judge erred in admitting evidence pursuant to s 26E of the Evidence Act (NT) – directions regarding distress – failure to summarise evidence – whether conviction unreasonable – whether evidence supported finding of guilt – no miscarriage of justice – appeal dismissed.
Evidence Act 1939 (NT), s 26E(1), s 26F; Evidence Act1995 (NSW) s 55 and s 56
Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; R v Manager [2006] NTSC 85, R v PW [2009] NTSC 8, cited.
Alford v Magee (1952) 85 CLR 437; Darkan v The Queen (2006) 227 CLR 373; Papakosmas v R (1999) 196 CLR 297; R v Joyce (2005) 15 NTLR 134; R v Wojtowicz (2005) 148 NTR 24; Ratten v The Queen [1972] AC 378, followed.
REPRESENTATION:
Counsel:
Appellant:J Tippett QC
Respondent:  E Armitage
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:      A
Judgment ID Number:  Mar 1014
Number of pages:  40

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
MLB v The Queen [2010] NTCCA 11

No. CCA 3 of 2010 (20825784)
BETWEEN:

MLB

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, RILEY AND BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 17 August 2010)
Martin (BR) CJ:
Introduction

This is an appeal with leave against a conviction of the crime of Sexual Intercourse without Consent. The trial took place in September 2009 and it concerned events that occurred on 8 September 2005 when the female complainant was aged 12 years and the appellant 16 years.
The grounds of appeal are as follows:
(1)The learned trial Judge erred in admitting the complainant’s statements to MH on 24 and 25 April 2008 pursuant to s 26E of the Evidence Act (NT);
(2)The learned trial Judge erred in her directions to the jury concerning the complainant’s distress [at the time of making the statements to MH approximately two years and seven months after the events in question];
(3)The learned trial Judge failed to summarise the evidence in the course of her charge to the jury; and
(4)The finding of guilt was unreasonable and not supported by the evidence.
For the reasons that follow in my opinion the appeal should be dismissed.
Evidence - Critical issue
When first arraigned in the absence of the jury, the appellant pleaded guilty to a second count on the indictment…

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 MLB v The Queen

Details

AGLC: MLB v The Queen [2010] NTCCA 11
Case: [2010] NTCCA 11
Decision Date: 17 August 2010

CaseChat Overview and Summary

The appeal concerned a conviction for sexual intercourse without consent. The appellant, MLB, was found guilty of this offence, with a plea of guilty to a lesser charge of indecently dealing with a child under 16 years being entered as an alternative. The complainant and the appellant were cousins, and the alleged offence occurred when they were both present at their aunt's house to babysit. The central issue on appeal was whether the trial judge erred in admitting evidence of statements made by the complainant to her aunt, MH, pursuant to section 26E of the *Evidence Act (NT)*.

The legal issues before the court were whether the trial judge had correctly applied section 26E of the *Evidence Act (NT)* in admitting the complainant's statements to MH, whether the judge's directions to the jury regarding the complainant's distress were adequate, and whether the conviction was unreasonable or unsupported by the evidence. The appellant argued that the statements to MH should not have been admitted as evidence, that the directions concerning distress were insufficient, and that the overall evidence did not support a finding of guilt.

The court dismissed the appeal, finding no miscarriage of justice. It reasoned that the trial judge had properly considered the circumstances surrounding the complainant's statements to MH, including the complainant's age, the delay in reporting, her fear of the appellant, and the specific context in which the statements were made. The court found that the complainant's distress during the conversation with MH, which led to her disclosure, was a significant factor supporting the admission of the evidence under section 26E. Furthermore, the court concluded that the directions given to the jury regarding the complainant's distress were sufficient and that the evidence, when considered as a whole, supported the jury's finding of guilt.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that follow in my opinion the appeal should be dismissed.Evidence - Critical issue When first arraigned in the absence of the jury, the appellant pleaded guilty to a second count on the indictment of indecently dealing with a child under the age of 16 years. That count was presented as an alternative to the first count of having sexual intercourse with the complainant without her consent and the Crown did not accept the plea in satisfaction of the indictment. Before the jury, the appellant was arraigned on the first count and pleaded not guilty. The complainant and the appellant are cousins. On the occasion in question they were both at the house of their mutual aunt, MH, for the purpose of looking after an 18 month old baby while adult members of the household went out for a social evening. The complainant was keen to look after the baby, but as she was only 12 it was felt that she should have older company and arrangements were made for the appellant to be present. MH gave evidence that when the appellant arrived, although he was not intoxicated by reason of alcohol, he appeared to be “stoned”. She said his eyes were red and he was very slow. He smelt of “dope”. During cross-examination MH agreed that she had not previously mentioned that the appellant appeared to be affected by cannabis. In September 2008, three years after the events, the appellant told police he would have been drinking as he was always drinking and smoking cannabis. The complainant gave evidence that during the evening the appellant started to kiss her on the neck and then on the mouth. He asked her to move to the bed and she lay down on the mattress beside the baby. The appellant laid next to her and started rubbing her waist. In the words of the complainant:“And I just froze and I don’t know what happened, but the next thing I knew he was on top of me.” The complainant said that her shorts were around her ankles and she was not sure how they came to be in that position. The appellant was naked when he was lying on top of her and his penis penetrated her vagina. She said she was in a lot of pain and started to cry and scream a little. She asked him to stop and he ignored her. She started to hit him about his neck and shoulders, but he brushed her hair and told her everything would be okay. Although she continued to yell at him to stop, the appellant persisted with the act of intercourse for another five minutes. The appellant did not give evidence. He told police that the complainant had been messing around in a sexually provocative manner. This included removing her top and putting her hands down the front of his shorts and playing with his penis. He said they both ended up naked and, while she was masturbating him, he attempted to put his hands between her legs, but she would not move her legs apart. According to the appellant, while this was occurring the complainant said “No, no, no” and he stopped immediately. He got dressed and left the room. He denied that any act of intercourse occurred.

Decision

Reasons for decision

The essential circumstances relevant to determining whether the statements to MH should be admitted pursuant to s 26E were as follows:· At the time of the events, the complainant was aged 12 years and the appellant 16. · The events occurred in the home of the complainant’s aunt, MH, at a time when the complainant and the appellant were babysitting an 18 month old child. · The appellant admitted to police that sexual activity occurred, but denied the occurrence of an act of intercourse.· Between the events and the statements to MH, the complainant had told her cousins that the appellant had raped her. · The statements to MH were made approximately two years and seven months after the events.· The complainant gave evidence that she did not tell MH earlier because she was scared of the appellant and also concerned for him because she thought her family would either have killed the appellant or put him in hospital.· The complainant gave an explanation as to why she finally told MH about the events. She heard her mother and MH talking about the appellant getting kicked out of his flat and she assumed that he might be asked to move in with her mother and MH thereby bringing him into close contact with her. She was scared the appellant would move back into the house and she would not be able to handle it. In addition, she was upset because MH kept going on about the subject of sex and realised that maybe it would be better if she told MH what had happened. · The circumstances in which the statements to MH were made began with MH suggesting that the complainant was always angry with her mother and the complainant’s behaviour and attitude had changed. Initially the complainant became angry. After the conversation ceased for a short time, MH changed the subject and started to talk to the complainant about boyfriends and sex and told the complainant that she wanted her to wait until she was at least 18. The complainant became upset and said she did not want to discuss her virginity or anything like that. MH kept at the complainant and the complainant became extremely distressed, crying very heavily and barely able to stand. It was during this part of the conversation that the complainant said, or hinted, that she was no longer a virgin and that the sex had been the most horrible experience ever. It was then that MH asked if the complainant had been forced and, crying, the complainant responded by nodding her head. · The complainant went to MH in the house and, hesitantly in a scared and nervous manner, told MH that the appellant had raped her. She then started crying.· The complainant gave details of the events. She told MH that it had occurred on the night she had babysat and that the rape occurred in the lounge room. She said that once it was over she ran upstairs and barricaded herself in her bedroom. She said she was worried that her mother and father would try and harm the appellant and end up going to gaol for it. Section 26E - Conclusion

Ratio Decidendi

Legal Principle Established

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