MLW v The Queen

The applicant, MLW, was convicted by a jury of two counts of maintaining a sexual relationship with a child under 16 years. He appealed his conviction to the Court of Criminal Appeal, arguing that various irregularities during the trial constituted a miscarriage of justice, and that the verdicts were unreasonable and unsupported by the evidence.

The Court was required to determine whether the trial judge’s failure to discharge the jury after the prosecution’s opening and after evidence was led from the complainants’ mother amounted to a miscarriage of justice. It also considered whether the verdicts were unreasonable, given a purported discrepancy in the complainant’s evidence regarding the timing of the offending. Further issues included whether the Crown’s submission that the jury could find guilt if the offending occurred on an occasion other than the complainant’s fourth birthday was improper, and whether the trial judge misdirected the jury regarding challenges to the mother’s evidence. The Court also examined whether a Crown submission suggesting no explanation for a child’s statement to her mother other than the accused’s guilt was improper, and whether the refusal to allow the re-opening of the accused’s re-examination to demonstrate the production of a Google Earth photograph led to a miscarriage of justice.

The Court reasoned that for a material irregularity to constitute a miscarriage of justice, there must be a realistic possibility that the irregularity affected the jury’s verdict. Regarding the timing discrepancy, the Court found that the occasion of the offending was not an element of the offence and its potential ambiguity did not, in itself, create a reasonable doubt. The Crown’s submission about alternative occasions was deemed not to be a miscarriage of justice as the specific occasion was not essential to the conviction. The trial judge’s directions concerning the mother’s evidence were found to accurately reflect the defence’s position and were not erroneous. While acknowledging that a Crown submission risked the jury giving a child’s statement undue weight, the Court found this risk was adequately addressed by the trial judge’s directions. The refusal to re-open the re-examination was also found not to have denied the appellant an opportunity to restore his credibility.

Ultimately, the Court concluded that no aggregate miscarriage of justice had occurred. The appeal was dismissed.