MR v The King - [2024] NSWCCA 119

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MR v R [2024] NSWCCA 119
Hearing dates: 24 June 2024
Date of orders: 10 July 2024
Decision date: 10 July 2024
Before: Harrison CJ at CL at [1]
Garling J at [52]
McNaughton J at [53]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeals.

Catchwords:
CRIME – appeals – appeal against conviction – applicant convicted of assault occasioning actual bodily harm against stepson – acquitted of common assault – whether verdict unreasonable having regard to the evidence
CRIME – appeals – appeal against conviction – aggravated sexual intercourse without consent against twelve-year-old stepdaughter – evidence of particular long-standing sexual arrangement between applicant and wife – evidence that applicant knew his wife was not home at the time of offending – whether sufficient evidence to establish an honest subjective belief – whether any such belief could be reasonably held – whether failure to leave the defence of honest and reasonable mistake of fact caused a miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW) ss 59, 61, 61J, 61M
Criminal Appeal Act 1912 (NSW), s 6(1)

Cases Cited:
Bazouni v R [2021] NSWCCA 256
CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
Elwood v R [2016] NSWCCA 18
Ibrahim v R [2014] NSWCCA 160
Kalabasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
WO v DPP [2009] NSWCCA 275

Category: Principal judgment
Parties: MR (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Carroll (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/349583
Publication restriction: Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prevents the publication of the name of the complainants TG and VL and the names of the applicant’s children in connection with the proceedings.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 and 23 March 2023

Before:

Townsden DCJ

File Number(s):

2020/349583

HEADNOTE

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

On 17 March 2023, MR was convicted by Judge Townsden in a judge alone trial of committing an assault occasioning actual bodily harm against his stepson, TG, contrary to s 59(2) of the Crimes Act 1900 (NSW) (“Count 1”). He was found not guilty of common assault contrary to s 61 of the Crimes Act (“Count 2”). MR appealed against his conviction on the single ground that the verdict is unreasonable and cannot be supported having regard to the evidence (“the first appeal”).

On 23 March 2023, MR was convicted in a separate trial by jury of committing aggravated sexual intercourse without consent in circumstances of aggravation (complainant under the age of 16 years) against his stepchild, VL, contrary to s 61J(1) of the Crimes Act. MR appealed against that conviction on the single ground that…

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 MR v The King

Details

AGLC: MR v The King [2024] NSWCCA 119
Case: [2024] NSWCCA 119
Decision Date: 10 July 2024

CaseChat Overview and Summary

The appeal before the court involved a man who was convicted of assault occasioning actual bodily harm against his stepson and of aggravated sexual intercourse without consent against his twelve-year-old stepdaughter. The applicant was acquitted of common assault against his stepson. The applicant sought to appeal against his convictions, arguing that the verdicts were unreasonable in light of the evidence presented.

The primary legal issue the court had to address was whether the verdicts were unreasonable, considering the evidence. The court also had to determine if there was sufficient evidence to establish an honest subjective belief in the applicant's defence of mistake of fact and whether such a belief could be reasonably held. The court needed to examine if the failure to accept the defence of honest and reasonable mistake of fact led to a miscarriage of justice.

The court thoroughly reviewed the evidence and concluded that the verdicts were not unreasonable. The court found that the evidence did not support an honest subjective belief in the applicant's defence of mistake of fact, and any such belief could not be reasonably held. The court held that the failure to accept the defence of honest and reasonable mistake of fact did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the convictions were upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the convictions.

Orders