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 2001PARTIES :
R v Stanley John MILLERJUDGMENT 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 - AppellantSOLICITORS: S E O'Connor - Crown
Many Rivers Aboriginal Legal Service - AppellantCATCHWORDS: 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
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…
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- AGLC
- R v Miller [2001] NSWCCA 209
- Case
- [2001] NSWCCA 209
- Decision Date
CaseChat Overview and Summary
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.
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