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R v Miller

R v Miller

Case [2001] NSWCCA 209 24 May 2001

Criminal Liability

Criminal Law

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Reported Decision:
127 A Crim R 344

New South Wales

Court of Criminal Appeal

CITATION: R v Miller [2001] NSWCCA 209

FILE NUMBER(S): CCA 60028/01

HEARING DATE(S): 17 May 2001

JUDGMENT DATE:
24 May 2001

PARTIES :

R v Stanley John MILLER

JUDGMENT OF: Giles JA at 1; Greg James J at 65; Badgery-Parker AJ at 66

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DC 99/31/0378

LOWER COURT JUDICIAL
OFFICER : Freeman DCJ

COUNSEL : G E Smith - Crown
P R Boulten & C Salsone - Appellant

SOLICITORS: S E O'Connor - Crown
Many Rivers Aboriginal Legal Service - Appellant

CATCHWORDS: CRIMINAL LAW - carnal knowledge by step-father of step-daughter - whether step-relationship because of de facto relationship between offender and mother of child - or because of offender's position of authority and control over child - held no - marriage between offender and mother of child is necessary. D.

CASES CITED:
Beckwith v R (1976) 135 CLR 569;
re Burt (1988) 1 Qd R 23;
re Cook; ex parte C (1985) ALJR 669;
Dickenson v Fletcher (1873) LR 9 CP 1;
Mander v O'Toole (1948) NZLR 909;
Murphy v Farmer (1988) 165 CLR 19;
R v Arnold (1992) 65 A Crim R 337;
R v Brown (CCA, 9 December 1998, unreported);
R v Campbell (1968) Tas SR 38;
R v Dawson (1927) 27 SR 78;
R v Frith (1914) VLR 658;
R v G (1997) 91 A Crim R 590;
R v Geddeson (1906) 25 NZLR 323;
R v Reid (1901) 3 WALR 109;
R v Umanski (1961) VR 242;
Tuck & Sons v Priester (1887) QBD 629;
Waugh v Kippen (1986) 160 CLR 156;
Wilkinson v Joughin (1866) LR 2 Eq Cas 319.

DECISION: Appeal dismissed.

IN THE COURT

OF CRIMINAL APPEAL

CCA 60028/01

DC 99/31/0378

GILES JA
Greg JAMES J

BADGERY-PARKER AJ

Thursday 24 May 2001

R v Stanley John MILLER

JUDGMENT

1 GILES JA: The appellant was charged on an indictment containing two counts. The first was that between 1 June 1998 and 20 June 1998 he had sexual intercourse with JW without her consent and knowing that she was not consenting. The second was that between the same dates he “being a step-father did unlawfully and carnally know [JW] … she being then between the age of 16 and 17 years and his step-daughter”.

2 The first count was laid under s 61I of the Crimes Act 1900 (“the Act”). The second count was laid under s 73 of the Act, which provides -

“Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of 16 years, and under the age of 17 years, being his pupil, or daughter, or step-daughter, shall be liable to imprisonment for 8 years.”

3 On 12 July 2000 the appellant entered a plea of not guilty to the first count and a…

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 Miller

Details

AGLC: R v Miller [2001] NSWCCA 209
Case: [2001] NSWCCA 209
Decision Date: 24 May 2001

CaseChat Overview and Summary

In the case of R v Miller, the defendant was charged with carnal knowledge of his step-daughter. The dispute arose from whether the step-relationship was established due to the de facto relationship between the offender and the mother of the child or from the offender's position of authority and control over the child. The case was heard in the relevant Australian court.

The legal issue before the court was to determine the criteria that establish a step-relationship, specifically whether it is the de facto relationship between the offender and the mother of the child or the offender's position of authority and control over the child. The court needed to decide on the necessary conditions for a step-relationship to exist.

The court held that for a step-relationship to be established, it must be due to a marriage between the offender and the mother of the child. The court found that neither the de facto relationship between the offender and the mother of the child nor the offender's position of authority and control over the child were sufficient to establish a step-relationship. Consequently, the court dismissed the charge against the defendant based on this reasoning.

No further orders were made by the court.

Orders