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Mortimer v The Queen

Mortimer v The Queen

Case [2021] NSWCCA 47 26 March 2021

Appeal

Miscarriage of Justice

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mortimer v R [2021] NSWCCA 47
Hearing dates: 20 July 2020
Date of orders: 26 March 2021
Decision date: 26 March 2021
Before: Johnson J at [1];
Garling J at [223];
Wright J at [224].
Decision:
1. Grant the Applicant leave under Rule 4 Criminal Appeal Rules to rely upon the ground of appeal;
2. grant the Applicant leave to appeal against conviction;
3. allow the appeal and quash the convictions at the Newcastle District Court on 23 February 2018;
4. quash the aggregate sentence passed at the Newcastle District Court on 10 August 2018;
5. order a new trial of the Applicant on each of Counts 1, 2, 3, 4, 7 and 8 of the indictment dated 5 February 2018;
6. list the matter in the Arraignments List at the Sydney District Court at 9.30 am on 9 April 2021.

Catchwords:
CRIME – appeal against conviction – applicant convicted of child sex offences – ground of appeal challenges aspects of summing up to jury – statements by trial Judge concerning evidence of children – whether statements made exceeded permissible comment in accordance with RGM v R [2012] NSWCCA 89 and McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – held that cumulative effect of statements gave rise to miscarriage of justice – appeal allowed – convictions quashed – new trial ordered

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
ABR (a pseudonym) v R [2020] NSWCCA 33
AL v R (2017) 266 A Crim R 1; [2017] NSWCCA 34
Alford v Magee (1952) 85 CLR 437; [1952] HCA 3
ARS v R [2011] NSWCCA 266
CMG v R [2011] VSCA 416
Decision Restricted [2020] NSWCCA 256
Galea v Galea (1990) 19 NSWLR 263
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
McKell v R [2017] NSWCCA 291
McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5
NJB v R [2010] NTCCA 5
OKS v State of Western Australia (2019) 265 CLR 268; [2019] HCA 10
Pyliotis v Director of Public Prosecutions [2020] VSCA 134
R v Heron [2000] NSWCCA 312
R v Murray (1987) 11 NSWLR 12
R v Pavlukoff (1953) 106 CCC 249
R v RTB [2002] NSWCCA 104
R v Sukkar [2005] NSWCCA 54
R v Taleb [2006] NSWCCA 119
R v Wilson (2005) 62 NSWLR 346; [2005] NSWCCA 20
RGM v R [2012] NSWCCA 89
Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192
SC v R [2020] NSWCCA 314
Spurritt v R [2021] VSCA 7
The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36
WX v R [2020] NSWCCA 142

Texts Cited:
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Category: Principal judgment
Parties: David Mortimer (a pseudonym) (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr D Carroll; Mr P Swaine…

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 Mortimer v The Queen

Details

AGLC: Mortimer v The Queen [2021] NSWCCA 47
Case: [2021] NSWCCA 47
Decision Date: 26 March 2021

CaseChat Overview and Summary

Mortimer appealed against his conviction for child sex offences. The appeal focused on the summing up to the jury, specifically the trial judge's comments regarding the evidence of the children. Mortimer contended that these comments exceeded permissible limits set out in RGM v R and McKell v The Queen. The central issue for the court was whether the trial judge's remarks had breached the boundaries established by these authorities, potentially leading to a miscarriage of justice.

The court examined the trial judge's statements in detail, considering whether they had strayed beyond permissible limits. It was established that while individual comments might not have been problematic, the cumulative effect of the remarks was significant. The court found that the judge's comments, when viewed as a whole, had the potential to improperly influence the jury's assessment of the children's evidence. This misstep was deemed to have created a substantial risk of a miscarriage of justice, warranting a reconsideration of Mortimer's conviction.

Consequently, the appeal was allowed. The court quashed Mortimer's convictions and ordered a new trial. The reasoning was grounded in the need to ensure that the trial was conducted fairly, free from judicial comments that could prejudice the jury against the defendant. The court's decision underscored the importance of judicial impartiality and the need for strict adherence to legal standards in summing up to the jury.

Orders