R v MAJW

Case [2007] NSWCCA 145 24 May 2007

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Reported Decision: 171 A Crim R 407

New South Wales

Court of Criminal Appeal

CITATION: R v MAJW [2007] NSWCCA 145

HEARING DATE(S): 26/04/07

JUDGMENT DATE:
24 May 2007

JUDGMENT OF: James J at 1; Rothman J at 41; Harrison J at 63

DECISION: Question of Law referred by District Court determined

CATCHWORDS: Criminal Law - Criminal Appeal Act s5A - indictments - whether counts in indictment alleged essential factual ingredients of offences - amendment of indictment

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act
English Indictments Act 1915
Queensland Criminal Code

CASES CITED: Ex parte Ryan; re Johnson (1943) 44 SR (NSW) 12
Griffiths v The Queen (1977) 137 CLR 293
Heymann v The Queen (1873) 8 LRQB 102
John L Proprietary Ltd v Attorney General for the State of New South Wales (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Kingswell v The Queen (1985) 159 CLR 264
Maxwell v The Queen (1996) 184 CLR 501
Project Blue Sky v ABA (1998) 194 CLR 355
R v Aspinall and Ors (1876) 2 QBD 48
R v Burns (1920) 20 SR (NSW) 351
R v Dossi (1918) 13 Cr App Rep 15
R v Janceski (2005) 64 NSWLR 10
R v Mai (1991) 26 NSWLR 371
R v Stroulger (1886) 17 QBD 327
Saraswati v The Queen (1991) 172 CLR 1
Taylor v The Queen (1895) 1 QB 25

PARTIES: R v MAJW

FILE NUMBER(S): CCA 2007/732

COUNSEL: D C Frearson SC / N F Noman - Applicant
J S Stratton SC / L T Brasch - Respondent

SOLICITORS: Director of Public Prosecutions - Applicant
McNamara James O'Connor Solicitors - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0160

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

2007/732

JAMES J
ROTHMAN J
HARRISON J
THURSDAY, 24 MAY 2007

R v MAJW

Judgment

1 JAMES J: In this matter his Honour Judge Solomon of the District Court referred certain questions of law to the Court of Criminal Appeal for determination, pursuant to s 5A of the Criminal Appeal Act. His Honour, in submitting the questions of law for determination by this Court, signed a document in the following terms:

“Factual background

On 8 November 2006 the respondent was arraigned before me and a jury of twelve in the District Court at Grafton and pleaded not guilty to 2 counts of produce child pornography and 13 counts alleging various sexual offences upon a child victim.

Counts 9 and 10 on the indictment alleged that, between 4 February 2002 and 22 May 2003, the respondent had sexual intercourse with the victim, a person above the age of 10 years and under the age of 14 years, namely 11 years, in circumstances of aggravation, namely the victim was under the authority of the respondent.

Counts 11 and 12 on the indictment alleged that, between 26 January 2003 and 25 December 2003, the respondent had sexual intercourse with the victim, a person above the age…

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 MAJW

Details

AGLC: R v MAJW [2007] NSWCCA 145
Case: [2007] NSWCCA 145
Decision Date: 24 May 2007

CaseChat Overview and Summary

The case involved an appeal by a defendant against his conviction and sentence. The defendant was charged with multiple counts of sexual offences and contested the validity of the indictments on the basis that they did not adequately allege the essential factual ingredients of the offences. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the counts in the indictments sufficiently alleged the essential factual ingredients of the offences as required by statute. The court was required to determine if the indictments were valid and, if not, whether they could be amended to cure any defects. This involved an analysis of the statutory requirements and how they applied to the specific facts of the case.

The court found that the indictments did not sufficiently allege the essential factual ingredients of the offences. It held that the statutory requirements were not met, as the indictments lacked specific details necessary to inform the defendant of the precise nature of the charges against him. The court further held that the defects in the indictments were not amendable under the Criminal Appeal Act. Consequently, the court quashed the convictions and ordered a retrial, with directions for the prosecution to prepare proper indictments that comply with the statutory requirements.

The final orders of the court were that the convictions be quashed, and the matter be remitted to the lower court for a retrial, with specific directions to the prosecution to ensure the indictments properly allege the essential factual ingredients of the offences.

Orders