R v MDB

Case [2005] NSWCCA 354 7 November 2005

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CITATION:
R v MDB [2005] NSWCCA 354
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 October 2005

JUDGMENT DATE:

7 November 2005

JUDGMENT OF:
Simpson J at 1; Adams J at 46; Johnson J at 47

DECISION:
Appeal dismissed

CATCHWORDS:
aggravated indecent assault - appeal against conviction - admissibility of evidence - Evidence Act credibility rule - evidence of a prior consistent statement - circumstances leading to statement - directions on complaint and delay

LEGISLATION CITED:

Crimes Act 1900, s61M(1)
Criminal Procedure Act 1986, s294B
Evidence Act 1995, s66, s102, s108(3)(b), s136, s192

CASES CITED:
Crampton v The Queen [2000] HCA 60; 206 CLR 161
Doggett v The Queen [2001] HCA 46; 208 CLR 343
Graham v The Queen [1998] HCA 61; 195 CLR 606
Longman v The Queen [1989] HCA 60; 168 CLR 79
R v DBG [2002] NSW 328; 133 A Crim R 227
R v Esho [2001]NSWCCA 415
R v Folli [2001] NSWCCA 531
R v KJ [2005] VSCA 153, unreported, 23 June 2005
R v Reardon, Michaels and Taylor [2002] NSWCCA 203
R v Stevens [2001] NSWCCA 330
Stanoevski v The Queen [2001] HCA 4; 202 CLR 115

PARTIES:
Crown - Respondent
MDB - Appellant

FILE NUMBER(S):
CCA 2005/1180

COUNSEL:
W Dawe QC - Crown
T Game SC - Appellant

SOLICITORS:
S Kavanagh - Crown
Giddy & Crittenden - Appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/41/0008

LOWER COURT JUDICIAL OFFICER:
Urquart DCJ

2005/1180

SIMPSON J
ADAMS J
JOHNSON J
Monday 7 November 2005

REGINA v MDB

Judgment

1 SIMPSON J: On 9 March 2004, following a jury trial, the appellant was convicted of a single count of aggravated indecent assault, a charge brought pursuant to s61M(1) of the Crimes Act 1900. The following day he was sentenced to a term of imprisonment of two years and three months with a non-parole period of one year and three months. He now appeals against the conviction. He has not sought leave to appeal against the sentence.

2 Two grounds of appeal have been pleaded and argued. They are:

“Ground 1: The trial judge erred in admitting evidence of complaint to [LC, DM] and the complainant’s mother ... in September 2001.

Ground 2: The trial judge gave inadequate directions and erred in his directions on complaint and delay.”

3 Given the relatively narrow scope of the grounds of appeal, it is possible to state the Crown case briefly. It is unnecessary to go into fine detail. It was as follows: in March 2001 the complainant was 11 years old. He lived near Bowral with his mother. They were very friendly with the appellant and his family, one member of which was a son (A) the same age as the complainant. In March 2001 the appellant took A and his other son, and the complainant, on a camping trip. While there one evening after…

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 MDB

Details

AGLC: R v MDB [2005] NSWCCA 354
Case: [2005] NSWCCA 354
Decision Date: 7 November 2005

CaseChat Overview and Summary

The case of R v MDB involved a defendant, MDB, who was convicted of aggravated indecent assault. MDB appealed against his conviction, focusing on the admissibility of certain evidence. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the lower court had correctly admitted evidence of a prior consistent statement made by the complainant, in accordance with the provisions of the Evidence Act. The court was also required to determine if the trial judge had adequately directed the jury on the matters of the complainant's complaint and any perceived delay in reporting the assault.

The court examined the relevant provisions of the Evidence Act, specifically the credibility rule, which permits the introduction of evidence of a prior consistent statement to counteract claims of recent fabrication or improper influence or motive. The High Court considered the circumstances under which the complainant's statement was made, assessing whether these circumstances warranted its admissibility. Furthermore, the court scrutinised the trial judge's directions to the jury concerning the credibility of the complainant's complaint and any potential delay in reporting the incident. The court evaluated whether these directions were sufficient to ensure a fair trial.

In its reasoning, the court found that the trial judge had correctly admitted the evidence of the prior consistent statement as it was relevant to the complainant's credibility and was made under circumstances that did not suggest recent fabrication or improper influence. The court also determined that the trial judge had adequately directed the jury on the issues of the complainant's complaint and any delay in reporting the assault. Consequently, the appeal was dismissed, and MDB's conviction was upheld.

The final orders of the court were that the appeal be dismissed, and MDB's conviction for aggravated indecent assault was affirmed. The court found no grounds to interfere with the trial judge's handling of the evidence or the directions given to the jury.

Orders