R v M

Case [2002] NSWCCA 66 12 March 2002

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CITATION: R v M [2002] NSWCCA 66

FILE NUMBER(S): CCA 60120/01

HEARING DATE(S): 12 March 2002

JUDGMENT DATE:
12 March 2002

PARTIES :

R v M

JUDGMENT OF: Heydon JA at 1, 81; Dunford J at 79; Buddin J at 80

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 99/21/1168

LOWER COURT JUDICIAL
OFFICER : Job ADCJ

COUNSEL : W C Terracini SC/G A Newton (Appellant)
G I O Rowling (Crown)

SOLICITORS: W H Parsons & Associates (Appellant)
S E O'Connor (Crown)

CATCHWORDS: Criminal law - indecent assault on child - Crimes Act 1900 (NSW) ss 61M(1), 66A - appellant convicted at trial - appeal against convictions and sentence - questions of fact - tender of fresh evidence

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

CASES CITED:
Azzopardi v R (2001) 75 ALJR 931
R v Birks (1990) 19 NSWLR 677
Gallagher v R (1986) 160 CLR 392
Jones v R (1997) 191 CLR 439
Lawless v R (1979) 142 CLR 659
M v R (1994) 181 CLR 487
Ratten v R (1974) 131 CLR 510

DECISION: See paragraph 78

CCA 60120/01
DC 99/21/1168
HEYDON JA
DUNFORD J
BUDDIN J

12 March 2002

R v M

Judgment

1 HEYDON JA: After a trial lasting four days before Job ADCJ and a jury, the appellant was convicted on the first three counts of the indictment against him. The appellant was represented by counsel, though not the counsel who appeared on this appeal.

2 The first count was:

“[The appellant on] 20 December 1998 … did assault [the complainant] and … he … did, at the time of such assault, commit an act of indecency upon the said [complainant] she then being a child under the age of 10 years namely of the age of 6 years.”

Crimes Act

3 The third count was:

“[The appellant on] 20 December 1998 … did have sexual intercourse with [the complainant] a child then under the age of 10 years namely of the age of six years.”

Crimes Act

4 The appellant was sentenced to six years imprisonment on the third count, which, allowing for time served, was a sentence of five years ten months and fourteen days dating from 22 February 2001. A non-parole period of three years and four months was fixed. On the other two charges the trial judge imposed a fixed term of two years and six months dating from 22 February 2001 to be served concurrently with the sentence on the third count.

5 The…

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 R v M

Details

AGLC: R v M [2002] NSWCCA 66
Case: [2002] NSWCCA 66
Decision Date: 12 March 2002

CaseChat Overview and Summary

The appeal was heard in the Supreme Court of New South Wales. The appellant was convicted of indecent assault on a child, contrary to the Crimes Act 1900 (NSW) ss 61M(1) and 66A. The appeal was against the conviction and sentence imposed by the trial court. The appellant argued that the trial judge erred in refusing to admit fresh evidence that could have potentially exonerated him. The appellant contended that the trial judge should have admitted the fresh evidence, which was relevant to the credibility of the complainant and the reliability of the evidence presented at trial.
The court considered whether the trial judge erred in refusing to admit the fresh evidence. The court examined the relevance, admissibility, and probative value of the fresh evidence. The court held that the trial judge did not err in refusing to admit the fresh evidence. The court found that the fresh evidence was not relevant to the issues in the case, and even if it was relevant, it did not have sufficient probative value to warrant a different outcome. The court held that the trial judge had exercised his discretion appropriately in refusing to admit the fresh evidence.

The appeal was dismissed, and the convictions and sentence were upheld. The court held that the trial judge had properly considered all the evidence before him, and that there was no error in the trial judge's assessment of the evidence. The court held that the appellant's convictions and sentence were supported by the evidence and were not excessive. The court held that the appellant had not demonstrated any grounds for allowing the appeal. The appeal was dismissed, and the convictions and sentence were upheld.

Orders