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Mm v The King

Mm v The King

Case [2023] NSWCCA 236 29 September 2023

Appeal

Criminal Liability

Admissibility of Evidence

Judicial Review

Miscarriage of Justice

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: MM v R [2023] NSWCCA 236
Hearing dates: 20 September 2023
Decision date: 29 September 2023
Before: Adamson JA at [1]; Price J at [63]; Davies J at [64]
Decision:
(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
APPEALS — CRIME — appeal against conviction — indecent assault of a person under 16 — aggravated sexual intercourse — directions — consciousness of guilt reasoning — evidence of applicant’s conduct in response to allegations — whether implied admission of guilt — whether miscarriage of justice occasioned by prosecutor inviting consciousness of guilt reasoning in closing address — whether trial judge failed to direct jury adequately — difference between Edwards and Zoneff directions

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M, 66C
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), s 90
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AB v R [2023] NSWCCA 165
DC v R [2019] NSWCCA 234
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Decision Restricted [2021] NSWCCA 124
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Elmasri v R [2010] NSWCCA 11
Harper v R [2022] NSWCCA 211
McKey v R [2012] NSWCCA 1; (2012) 219 A Crim R 227
Woon v The Queen (1964) 109 CLR 529; [1964] HCA 23
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment
Parties: MM (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Howell (Applicant)
E Nicholson (Respondent)
Solicitors:
Australian Criminal and Family Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/295762
Publication restriction: Publication of names and any information or material that may lead to the identification of the victims is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

7 March 2022

Before:

Hock DCJ

File Number(s):

2020/295762

HEADNOTE

[This headnote is not to be read as part of the judgment]

MM (the applicant) sought leave to appeal against his convictions for 9 sexual offences against his daughter contrary to ss 61M(2) and 66C(4) of the Crimes Act 1900 (NSW) following a jury trial before Hock DCJ.

The applicant sought leave to appeal against his convictions on the ground that a miscarriage of justice was occasioned by a submission made by the Crown Prosecutor in closing address which invited consciousness of guilt reasoning and the trial judge’s failure to direct the jury adequately about consciousness of guilt reasoning.

The applicant’s wife, KM, gave evidence that in the course of an argument about the complainant’s desire to leave home, the complainant told KM that the applicant had been touching…

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 The King

Details

AGLC: Mm v The King [2023] NSWCCA 236
Case: [2023] NSWCCA 236
Decision Date: 29 September 2023

CaseChat Overview and Summary

Mm appeals against a conviction of indecent assault of a person under 16, along with other charges, which the jury found on the basis of circumstantial evidence. The appeal centres on the prosecutor's use of consciousness of guilt reasoning during the closing address, and whether the trial judge's directions to the jury regarding this reasoning were inadequate. The contention is that this may have contributed to a miscarriage of justice by inviting the jury to improperly consider the appellant's post-allegation conduct as an admission of guilt.

The primary legal issues revolve around the application of consciousness of guilt reasoning in criminal trials, particularly when such reasoning is invited by a prosecutor in their closing address. It was argued that the trial judge did not sufficiently direct the jury on the limitations and proper use of such reasoning, potentially leading to an unfair consideration of the appellant's post-allegation conduct as evidence of guilt. The appeal also questions whether the judge's directions were in line with the principles established in Edwards and Zoneff, which delineate the boundaries of permissible inferences from a defendant's silence or conduct following an accusation.

The court found that the prosecutor's use of consciousness of guilt reasoning was problematic, as it may have misled the jury into considering the appellant's post-allegation conduct as an admission of guilt, rather than as circumstantial evidence that might suggest guilt. The trial judge's directions to the jury did not adequately differentiate between the legitimate use of circumstantial evidence and the impermissible use of consciousness of guilt reasoning. This misalignment with established legal principles created a risk of a miscarriage of justice. Consequently, the appeal was allowed, and the conviction was quashed.

Orders