Mura v The Queen - [2021] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mura v R [2021] NSWCCA 240
Hearing dates: 28 July 2021
Date of orders: 6 October 2021
Decision date: 06 October 2021
Before: Macfarlan JA at [1];
Davies J at [60];
Beech-Jones J at [61]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – application for leave to appeal against convictions – unreasonable verdict ground – offences of participate as client in act of child prostitution – whether Crown proved that applicant knew complainants were under 18 years at time of alleged offences – whether one complainant retracted evidence in cross-examination – whether other complainant’s evidence of post-offence conversation capable of proving applicant’s knowledge at time of offence – relevance of retrospectant evidence considered

Legislation Cited:
Crimes Act 1900 (NSW), ss 91C, 91D(1)(b)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)

Cases Cited:
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Hamilton v The Queen [2020] NSWCCA 80
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
R & B Customs Brokers Co Ltd v United Dominions Trust Ltd [1988] 1 All ER 847; [1988] 1 WLR 321
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Biber [2018] NSWCCA 271
R v Musleh (No 5) [2018] NSWSC 1927
Wright v Lemon (No 2) [2021] WASC 159

Texts Cited:
J D Heydon, Cross on Evidence (LexisNexis, online ed at 14 September 2021)

Category: Principal judgment
Parties: Rino Raymond Mura (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Bellanto QC / M Sahade (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Oliveri Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2012/165490; 2012/323986
Publication restriction: Statutory non-publication order on the identity of the complainants under s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceedings) Act 1987 (NSW).
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 October 2020; 11 December 2020

Before:

Robison DCJ

File Number(s):

2012/165490; 2012/323986

Judgment

MACFARLAN JA: Following a 12-day trial before Robison DCJ sitting as a judge alone, his Honour convicted Mr Rino Mura, the applicant, of three counts of participating as a client in an act of child prostitution contrary to s 91D(1)(b) of the Crimes Act 1900 (NSW). Count 1 was alleged to have occurred between 15 March 2010 and 15 March 2011 with CL who was a child aged 15 years. Counts 2 and 3 were alleged to have occurred between 1 May 2011 and 1 January 2012 with TB who was a child aged 15 or 16 years. A child for the purposes of s 91D(1)(b) is a person under the age of 18 years (s 91C Crimes Act).
His Honour acquitted the applicant on two counts of possession of child abuse material (Counts 4 and 5).
The applicant’s sole ground of appeal is that the trial judge ought to have entertained a reasonable…

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 Mura v The Queen

Details

AGLC: Mura v The Queen [2021] NSWCCA 240
Case: [2021] NSWCCA 240
Decision Date: 06 October 2021

CaseChat Overview and Summary

The appeal in Mura v The Queen involved the appellant's challenge against his convictions for participating as a client in acts of child prostitution. The court of appeal was tasked with determining whether the appellant had leave to appeal against these convictions, specifically on the ground that the verdict was unreasonable. The crux of the legal issue was whether the prosecution had sufficiently proven that the appellant knew the complainants were under 18 years of age at the time of the alleged offences. Additionally, the court examined the credibility of the complainants' evidence, particularly in light of one complainant's retraction during cross-examination and the other's evidence of a post-offence conversation that suggested the appellant's knowledge of the complainants' age.

The court considered the appellant's argument that the Crown had failed to prove beyond reasonable doubt that he was aware of the complainants' ages. The court assessed the evidence presented by the complainants and the subsequent retraction of one complainant's testimony. The court also scrutinised the relevance and weight of retrospectant evidence, specifically a conversation that occurred after the alleged offences, which was put forth to demonstrate the appellant's knowledge at the time of the offences. The court concluded that the evidence, when viewed as a whole and taking into account the credibility of the witnesses and the nature of the retraction, was sufficient to support the jury's verdict.

The appeal was ultimately dismissed by the court. The court held that the jury was entitled to accept the evidence of the complainants, notwithstanding the retraction, and that the evidence of the post-offence conversation was relevant and capable of proving the appellant's knowledge at the time of the offences. The court found that the verdict was not unreasonable and that the prosecution had met its burden of proof. The appeal was dismissed, and the convictions were upheld.

Orders