MRW v R

Case [2011] NSWCCA 260 6 December 2011

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Court of Criminal Appeal

New South Wales

Case Title: MRW v R

Medium Neutral Citation: [2011] NSWCCA 260

Hearing Date(s): 14 September 2011

Decision Date: 06 December 2011

Jurisdiction:

Before:
Bathurst CJ at [1]; James J at [91]; Johnson J at [92]

Decision:
(1) Leave to appeal against conviction granted, appeal dismissed.
(2) Leave to appeal against sentence granted, appeal dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction - fresh evidence - whether significant possibility jury acting reasonably would acquit appellant
CRIMINAL LAW - appeal - sentencing - aggravation - whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence - Crimes Act 1900 s 66C(2) - Crimes (Sentencing Procedure) Act 1999 s 21A(2)
CRIMINAL LAW - appeal - sentencing - whether sentence manifestly excessive

Legislation Cited:
Crimes Act 1900, s 61M(1), s 66C(2)
Crimes (Sentencing Procedure) Act 1999, s 21A(2)
Criminal Appeal Act 1912, s 5(1)

Cases Cited:
Bourke v R [2010] NSWCCA 22
FV v R [2006] NSWCCA 237
Gallagher v R [1986] HCA 26; (1986) 160 CLR 392
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
R v Abou-Chabake [2004] NSWCCA 356
R v LTP [2004] NSWCCA 109
R v Johnson [2005] NSWCCA 186
R v Slater [2003] NSWCCA 178
Ratten v R [1974] HCA 35; (1974) 131 CLR 510
Williams v R [2010] NSWCCA 15
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Texts Cited:

Category: Principal judgment

Parties:
MRW (appellant)
Regina (respondent Crown)

Representation

- Counsel:
Counsel
R Mathur (appellant)
S Dowling (respondent Crown)

- Solicitors:
Solicitors
Legal Aid Commission (appellant)
Solicitor for Public Prosecutions (respondent Crown)

File number(s): 2009/9544

Decision Under Appeal

- Court / Tribunal:

- Before: Syme DCJ

- Date of Decision: 11 August 2009

- Citation:

- Court File Number(s) 2009/9544

Publication Restriction:

JUDGMENT

BATHURST CJ: The appellant was tried before a jury at Taree District Court on two counts:
"(1) Between 15 July 2002 and 15 August 2002 at [T] in the State of New South Wales did have sexual intercourse with [the complainant] a person over the age of 10 years and under the age of 16 years and who was under the authority of [MRW] (section 66C(2) Crimes Act 1900)
and
(2) On or about 25 December 2002 between [W] and [T] in the State of New South Wales did assault [the complainant] and at the time of such assault did commit an act of indecency upon [the complainant] in circumstances of aggravation (section 61M(1) Crimes Act 1900)".
The jury convicted the appellant on the first count, but acquitted him on the second.
The complainant is the daughter of the appellant. She was aged 10 years and two months at the time of the offence for which the appellant was convicted and aged 17 when she gave her evidence…

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 MRW v R

Details

AGLC: MRW v R [2011] NSWCCA 260
Case: [2011] NSWCCA 260
Decision Date: 06 December 2011

CaseChat Overview and Summary

In this case, MRW appealed against his conviction and sentence for indecent assault and deprivation of liberty. The appeal was heard by the NSW Court of Criminal Appeal. The primary issue before the court was whether there was a significant possibility that the jury, acting reasonably, would acquit the appellant on the basis of fresh evidence. Additionally, the court examined whether the sentencing judge had erred in considering abuse of trust as an aggravating factor in sentencing, given that abuse of authority was an element of the offence. The appellant also argued that his sentence was manifestly excessive.

The court found that the fresh evidence did not create a significant possibility that the jury would acquit the appellant. It concluded that the evidence did not undermine the reliability of the complainant's testimony or provide an alternative explanation for the assault. Regarding the sentencing issue, the court held that abuse of trust and abuse of authority, while related, are distinct concepts. The court found that the sentencing judge was entitled to consider abuse of trust as an aggravating factor, even though abuse of authority was an element of the offence. The court held that the sentence was not manifestly excessive, taking into account all relevant factors, including the gravity of the offences and the appellant's personal circumstances.

The appeal was dismissed, and the original conviction and sentence were upheld. The court did not make any further orders.

Orders