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Munn v The Queen

Munn v The Queen

Case [2006] NSWCCA 61 24 March 2006

Juror Bias

Cross-Examination

Miscarriage of Justice

Delay in Complaint

Burden of Proof

Criminal Law

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CITATION: Sharyn Ann Munn v Regina; Thomas Miller v Regina [2006] NSWCCA 61

HEARING DATE(S): 8 March 2006

JUDGMENT DATE:
24 March 2006

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Barr J at 3

DECISION: The appeals are allowed and the convictions appealed from by both appellants are quashed. New trials are ordered.

CATCHWORDS: Criminal law - juror complains about asserted out-of-court acts of accused - whether juror biased - whether complaint appropriately dealt with - Criminal law - whether juror biased - whether irregular to receive verdicts without further enquiry - whether miscarriage of justice - Criminal law - defence counsel prevented from cross-examining complainant on her general sexual experience - Crown Prosecutor submitted in closing that complainant appeared to lack sexual experience - whether miscarriage of justice - Criminal law - delay in complaint - whether substantial - whether warning required about effect of delay on accused's ability to defend themselves - Criminal law - whether convictions unreasonable and unable to be supported by the evidence

LEGISLATION CITED: Criminal Procedure Act 1986
Evidence (Children) Act
Jury Act

CASES CITED: Webb v The Queen (1993 – 1994) 181 CLR 41
R v Marsland Court of Criminal Appeal, New South Wales, 17 July 1991 unreported
R v Rudkowsky Court of Criminal Appeal, New South Wales, 15 December 1992 unreported
Crampton v The Queen (2000) 176 ALR 369
Longman v The Queen (1989) 168 CLR 79
R v BWT (2002) 54 NSWLR 241
R v NZ [2005] NSWCCA 278
R v Yates & Ors [2002] NSWCCA 520
M v The Queen (1994) 181 CLR 487

PARTIES: Sharyn Ann Munn, Thomas Miller, Regina

FILE NUMBER(S): CCA 2005/2109; 2005/2091

COUNSEL: V Lydiard
A Haesler SC

SOLICITORS: S Kavanagh
Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/03/0109

LOWER COURT JUDICIAL OFFICER: Gibson J

2005/2109
2005/2091

SPIGELMAN CJ
SIMPSON J
BARR J
24 MARCH 2006

SHARYN ANN MUNN v REGINA

THOMAS MILLER v REGINA

Judgment

1 SPIGELMAN CJ: I agree with Barr J.

2 SIMPSON J: I agree with Barr J.

3 BARR J: The appellants, Sharyn Ann Munn and Thomas Miller, appeal against convictions which followed their joint trial in the District Court. They also seek leave to appeal against the resulting sentences. They were jointly charged with having committed an act of indecency towards a seven-year-old girl and having on two occasions had sexual intercourse with her. In addition the second appellant was charged alone with having had sexual intercourse with the complainant.

4 The complainant lived with her mother and stepsister in rural New South Wales. She and other children used to play in the driveway of a block of flats near her home. The second appellant lived in one of those flats and the first appellant, his girlfriend, often stayed there. There was an occasion when the complainant travelled to Queensland to visit her father and his wife. The complainant told her stepmother that the second appellant had sexually…

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 Munn v The Queen

Details

AGLC: Munn v The Queen [2006] NSWCCA 61
Case: [2006] NSWCCA 61
Decision Date: 24 March 2006

CaseChat Overview and Summary

In Munn v The Queen, the appellant was convicted by a jury of rape and sexual intercourse without consent. The jury returned their verdicts without the trial judge inquiring further into a juror's complaint that they had been told by another juror about an out-of-court act of the appellant. The appellant was also prevented from cross-examining the complainant on her sexual experience by the Crown Prosecutor's comments during closing submissions. The appellant also objected to the delay in reporting the out-of-court act, and argued that the delay was substantial, resulting in a miscarriage of justice. The appellant appealed the convictions on several grounds, including the alleged bias of a juror, the irregularity of receiving the verdicts without further enquiry, and the unreasonableness of the convictions.

The legal issues the court had to decide were whether the juror was biased, whether it was irregular to receive the verdicts without further enquiry, whether the complainant's lack of sexual experience was relevant to the trial, whether the delay in reporting the out-of-court act was substantial, and whether the convictions were unreasonable and unable to be supported by the evidence. The court considered the appellant's arguments and examined the evidence and submissions of both parties. The court concluded that there was no bias on the part of the juror, and that the trial judge had appropriately dealt with the complaint. The court also held that it was not irregular to receive the verdicts without further enquiry, and that the complainant's lack of sexual experience was not relevant to the trial. The court found that the delay in reporting the out-of-court act was not substantial, and that there was no miscarriage of justice. The court also held that the convictions were reasonable and supported by the evidence.

The appeal was dismissed, and the convictions were upheld. The court found that the evidence was sufficient to support the verdicts, and that the trial judge had properly exercised his discretion in dealing with the juror's complaint. The court also held that the appellant's sexual experience was not relevant to the trial, and that the delay in reporting the out-of-court act did not result in a miscarriage of justice. The court concluded that the convictions were reasonable and supported by the evidence, and that there was no miscarriage of justice. The final orders were that the appeal be dismissed, and that the convictions be upheld.

Orders