MM v R - [2011] NSWCCA 262

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MM v R [2011] NSWCCA 262
Hearing dates: 28/10/2011
Decision date: 09 December 2011
Before: Beazley JA at [1]
James J at [2]
Fullerton J at [3]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal against conviction - sexual intercourse with a child - indecent assault of a child - whether verdict unreasonable - whether trial judge erroneously granted leave to amend timeframe within which offences were allegedly committed - whether evidence of complainant unreliable
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited: Borodin v R [2006] NSWCCA 83
House v R [1936] HCA 40; 55 CLR 499
M v R [1994] HCA 63; 181 CLR 487
MFA v R [2002] HCA 53; 213 CLR 606
Raumakita v R [2011] NSWCCA 126
SKA v R [2011] HCA 13
Category: Principal judgment
Parties: MM (Appellant)
The Crown
Representation: M Thangaraj SC (Appellant)
M Cinque (Crown)
Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (Crown)

File Number(s): 2009/6576
Decision under appeal

Date of Decision:

2009-12-11 00:00:00

Before:

Bennett DCJ

File Number(s):

2009/11/0989

Judgment

BEAZLEY JA: I agree with Fullerton J.

JAMES J: I agree with Fullerton J.

FULLERTON J: On 11 December 2009 the appellant was convicted after trial of four counts of sexual intercourse with a child (LP) under the age of 10 years and three counts of indecent assault of the same child. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. He appeals his conviction on all counts. There is no application for leave to appeal against sentence.

The appellant required an extension of time within which to bring the appeal. In light of the matters outlined in the affidavit of Brian Peter Dowe, sworn 2 May 2011, the Crown did not oppose leave being granted.

The charges relate to two discrete occasions whilst the complainant was being cared for at a childcare facility operated by the appellant's mother from her home in Moree. As originally particularised, counts 1 to 4 (two counts of sexual intercourse and two counts of indecent assault) were committed on one afternoon between 25 December 1995 and 16 March 1996 when the complainant was 3 years of age and counts 4 to 7 (two counts of sexual intercourse and one count of indecent assault) were committed on another afternoon between 1 June 1997 and 31 December 1998 when she was between 5 and 6 years of age. After amendment the timeframe within which counts 1 to 4 were committed was extended to between 16 March 1996 and 1 December 1997 when the complainant was aged 3 and 5 years.

The appellant filed seven grounds of appeal. At the hearing of the appeal he relied only on the first and sixth grounds. The first ground contended that each of the verdicts is unreasonable and cannot be supported on the evidence as provided for in s…

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 MM v R

Details

AGLC: Mm v The Queen [2011] NSWCCA 262
Case: [2011] NSWCCA 262
Decision Date: 09 December 2011

CaseChat Overview and Summary

In the case of MM v R, the appellant, MM, sought to appeal against his conviction for sexual intercourse with a child under the age of ten and indecent assault of a child under the age of sixteen. The appeal was heard by the High Court of Australia. MM was convicted following a trial in the Supreme Court of Queensland, where the jury found him guilty of both offences based on the testimony of the child complainant and other evidence presented.

The primary legal issues before the court were whether the verdict was unreasonable, considering the evidence presented, and whether the trial judge had erroneously granted leave to amend the timeframe within which the offences were alleged to have occurred. The court also considered whether the evidence of the complainant was reliable and if there were any errors in the trial judge's directions to the jury.

The High Court determined that the verdict was not unreasonable, given the evidence presented at trial. The court found that the trial judge had not erred in granting leave to amend the timeframe, as the amendment did not prejudice the appellant's defence. Furthermore, the court held that the evidence of the complainant was reliable and that there were no errors in the trial judge's directions to the jury. Consequently, the appeal was dismissed, and the convictions were upheld.

Orders