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Morrison v R

Morrison v R

Case [2022] NSWCCA 158 20 July 2022

Appeal

Criminal Liability

Sentencing

Miscarriage of Justice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Morrison v R [2022] NSWCCA 158
Hearing dates: 15 June 2022
Decision date: 20 July 2022
Before: Leeming JA, Garling J, Lonergan J
Decision:
1. Refuse leave to appeal against conviction.
2. Grant leave to appeal against sentence.
3. Allow the appeal against sentence.
4. Quash the sentence imposed by the District Court on 16 April 2021, and in lieu thereof, sentence the applicant to an aggregate sentence of 10½ years imprisonment commencing on 22 August 2019 and expiring on 21 February 2030, with a non-parole period of 7 years expiring on 21 August 2026.

Catchwords:
CRIME – appeals – appeal against conviction – applicant charged with sexual offences upon 13 year old girl – absence of consent an element of two of the counts – oral and written jury direction identified five pathways Crown could establish knowledge of absence of consent – fifth pathway was lack of reasonable basis for belief that complainant was consenting – addition “not” erroneously included in fifth pathway in oral and written direction – error unnoticed during trial – whether error amounted to miscarriage of justice – where absence of reasonable grounds for honest belief removed from issues at trial – where error wholly to advantage of accused because it denied one pathway by which Crown could establish knowledge of absence of consent – no miscarriage of justice established
CRIME – appeals – appeal against sentence – aggregate sentence imposed for five sexual offences – all offences committed upon same complainant, at same location, as a single episode – extremely high level of effective concurrency required – aggregate sentence did not reflect sufficient level of effective concurrency – Evans v R [2017] NSWCCA 281 applied – sentence quashed and applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 61HA, 61HE, 61J, 66C, 66DB, 80AB, 578A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 44, 53A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Campbell v R [2014] NSWCCA 175; 312 ALR 129
Cesan v R (2008) 236 CLR 358; [2008] HCA 52
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Edwards v R [2022] NSWCCA 22
Evans v R [2017] NSWCCA 281
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Hadchiti v R (2016) 93 NSWLR 671; [2016] NSWCCA 63
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Justins v The Queen (2010) 79 NSWLR 544; [2010] NSWCCA 242
Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Lane v R [2013] NSWCCA 317
Malicki v R; R v Malicki [2015] NSWCCA 162
McGrath v R [2010] NSWCCA 48; 199 A Crim R 527
Mehajer v R [2014] NSWCCA 167
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59
Obeid v The Queen (2017) 96 NSWLR…

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 Morrison v R

Details

AGLC: Morrison v R [2022] NSWCCA 158
Case: [2022] NSWCCA 158
Decision Date: 20 July 2022

CaseChat Overview and Summary

In Morrison v R, the applicant appealed against both his conviction and sentence for sexual offences committed against a 13-year-old girl. The applicant was convicted on five counts of sexual assault, and the appeal focused on the sufficiency of jury directions regarding consent and the proportionality of the sentence. The High Court of Australia was tasked with determining whether the trial judge's erroneous jury direction constituted a miscarriage of justice and whether the sentence imposed was appropriate.

The primary legal issue addressed by the Court was whether the erroneous inclusion of the word "not" in the fifth pathway of the jury direction constituted a miscarriage of justice. The Court found that the error in the jury direction did not amount to a miscarriage of justice because the absence of reasonable grounds for an honest belief in consent was not an issue at trial. Moreover, the error was advantageous to the applicant as it eliminated one pathway by which the Crown could establish the applicant's knowledge of the absence of consent.

The Court held that the applicant's conviction should stand, as the error in the jury direction did not prejudice the applicant's defence. Regarding the sentence, the Court found that the aggregate sentence did not reflect an adequate level of effective concurrency, as required by the principles in Evans v R. The sentence was quashed, and the applicant was resentenced.

The Court ordered that the applicant's conviction be upheld, but the sentence was quashed and the applicant was resentenced. The Court's decision underscores the importance of accurate jury directions and the need for sentences to reflect appropriate levels of effective concurrency.

Orders