R v MM

Case [2000] NSWCCA 78 24 May 2000

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R. v. M. M. [2000] NSWCCA 78

FILE NUMBER(S):
60258/98

HEARING DATE(S): 20 March 2000

JUDGMENT DATE: 24/05/2000

PARTIES:
Regina (Respondent)
M.M. (Appellant)

JUDGMENT OF: Powell JA Hulme J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 97/31/0438

LOWER COURT JUDICIAL OFFICER: Job DCJ

COUNSEL:
C. K. Maxwell QC - (Respondent)
I. H. McClintock - (Appellant)

SOLICITORS:
S.E. O'Connor, Solicitor for Public Prosecutions - (Respondent)
Heenan & Company (Newtown) - (Appellant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - Sexual assault - Evidence - Cross-examination of complainant - Complainant accused of fabricating evidence - Complainant cross-examined to demonstrate motive - Complainant's evidence "why would I make a story up ..." and "why would I be sitting in this court room ... wasting all these people's time ..." - Accused not cross-examined to demonstrate absence of motive - What, if any, direction to jury called for or permissible.
CRIMINAL LAW AND PROCEDURE - Sexual assaults - Evidence - Similar facts - Admissibility - Relationship evidence - Tendency evidence - Prior sexual acts between complainant and accused - Evidence Act 1995 ss 97, 101 - What direction to jury as to use of evidence called for

LEGISLATION CITED:

DECISION:
Appeal allowed; Conviction and sentence quashed, New trial ordered.

JUDGMENT:

IN THE COURT OF CRIMINAL APPEAL
CCA 60258/98
DC 97/31/0438
POWELL JA
HULME J
DOWD J
24 May 2000

R. v. M.M.
JUDGMENT

POWELL JA: On 27 April 1998, the Appellant was indicted before Job DCJ at Newcastle District Court on the following charges:
Counts 1 to 4
Between 25 May 1983 and 25 May 1984 at Mona Vale did assault his son (ZM) and at the time of such assault did commit an act of indecency upon ZM, he being under the age of 16 years (Crimes Act 1900 s.61E(1)).
Count 5
Between 25 May 1983 and 25 May 1984 at Mona Vale did bugger ZM a male person (Crimes Act 1900 s.79).
Count 6
Between 25 May 1983 and 25 May 1984 at Mona Vale did assault ZM thereby occasioning to him actual bodily harm (Crimes Act 1900 s. 59).
Count 7
Between 25 May 1986 and 25 May 1987 at Terrey Hills did assault ZM and at the time of such assault did commit an act of indecency upon ZM he being under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.61E(1A).
Count 8
Between 25 May 1987 and 25 May 1988 at Charlestown did have sexual intercourse with ZM a person then above the age of 10 years and under the age of 16 years and under the authority of the accused (Crimes Act 1900 s.66C(2)).
Count 9
Between 25 May 1987 and 25 May 1988 at Raymond Terrace did assault ZM and at the time of such assault did commit an act of indecency upon ZM he being under the age of 16 years and under…

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 MM

Details

AGLC: R v MM [2000] NSWCCA 78
Case: [2000] NSWCCA 78
Decision Date: 24 May 2000

CaseChat Overview and Summary

In the case of R v MM, the appellant was convicted of sexual assault. The court was required to consider issues related to the admissibility of evidence concerning the prior sexual relationship between the appellant and the complainant, as well as the manner in which the complainant was cross-examined during the trial. The appeal focused on whether the trial judge appropriately directed the jury regarding the use of this evidence.

The legal issues primarily revolved around the admissibility of similar fact evidence under sections 97 and 101 of the Evidence Act 1995. The appellant argued that the evidence of the prior relationship should not have been admitted because it was not relevant to the charges against him and was unduly prejudicial. Additionally, the appellant contended that the manner in which the complainant was cross-examined, specifically in relation to her motives, was inappropriate and prejudicial. The court had to determine whether the trial judge correctly instructed the jury on how to consider the tendered evidence and whether the cross-examination was within permissible bounds.

The court examined the trial judge's handling of the evidence and the cross-examination. It noted that the trial judge allowed evidence of the prior sexual relationship to demonstrate both the relationship between the parties and the appellant's propensity to commit such offences. The court held that the judge's direction to the jury was appropriate given the nature of the evidence and the arguments presented. Regarding the cross-examination, the court concluded that the trial judge's instructions adequately guided the jury on the relevance and weight of the evidence. The appeal was dismissed as the court found no errors in the trial judge's handling of the evidence or in the manner of cross-examination.

The final orders of the court were to dismiss the appeal, affirming the conviction of the appellant. The decision underscored the importance of proper jury directions when dealing with similar fact evidence and the need for cross-examination to remain within the bounds of relevance and fairness.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The present case is, as it seems to me, one which is far removed from those which have been condemned in the authorities to which I have referred, first, since as I have already noted, the Crown Prosecutor did not seek to cross-examine the accused on the subject; second, the defence was conducted on the basis, inter alia, that ZM had a motive to lie; and, third, since, as is clear from that part of his summing-up which I have recorded above (see para. 27) Job DCJ’s reference to the question was little more than a passing reference to that part of ZM’s cross-examination where he (ZM) posed the question in an unresponsive answer to the Appellant’s then counsel and did not amount to any recommendation of the question to the jury as a legitimate process of reasoning to be adopted by them. I would therefore reject this ground of appeal.RELATIONSHIP EVIDENCE/TENDENCY EVIDENCE In the absence of the statements which the Crown Prosecutor made available to Job DCJ at the time at which counsel then appearing for the Appellant made the application to which I have earlier (see para. 5 (above)) referred, it is not possible to know to what matters, other than those relating directly to the offences charged, his Honour’s attention was directed, nor is it possible to know for what purpose any matters, other than those relating to the offences charged, were included in those statements. If the evidence which was in fact given by ZM on the hearing before Job DCJ is to provide any guide, then the only material contained in those statements which went to what might be called a general history of molestation and, thus, went beyond the offences charged, was material of the type which I have recorded in paras. 13-14 above. Whatever may have been the material contained in those statements, the passage from the discussion which occurred before the Appellant was arraigned which I have set out in paragraph 9 (above) would tend to indicate that the evidence which the Crown Prosecutor proposed to lead on the hearing was intended to be relied on by him not merely to establish the offences charged but also to demonstrate that the Appellant was a person who had a propensity for committing offences of the type charged. Thus, in the passage to which I have referred, Job DCJ said: “I assume you’ll be saying that this shows what is sometimes called a guilty passion”, a suggestion to which the Crown Prosecutor assented. Further, his Honour’s statement that he was satisfied that the Appellant had been served with proper notice and that he regarded the evidence as being wholly (quaere highly) probative and such as substantially to outweigh any prejudicial effect it might have clearly indicate that his Honour had in mind the provisions of s.97(1)(a) and 101(2) of the Evidence Act 1995. It is the fact that, to the extent to which it went beyond establishing the offences charged, the evidence led by the Crown Prosecutor on the hearing was directed toward proving both the relationship between ZM and the Appellant and, as well, that the Appellant was a person who had a propensity to commit offences of the type charged, and the direction which Job DCJ gave to the jury as to the use of that evidence which forms the basis for the second ground of appeal.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v MM [2000] NSWCCA 78

Most Recent Citation

R v EJ Smith [2000] NSWCCA 202

Cases citing this decision · 11 of 11 shown

R v Schifilliti
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…ance of what would otherwise appear to be an isolated act occurring without any apparent reason. His Honour made reference, in this regard, to R v MM [2000] NSWCCA 78, 112 A Crim R 519.…
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[2020] NSWCCA 5

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MM v The Queen
[2012] ACTCA 44

…536; R v Hagerty [2004] NSWCCA 89 ; (2004) 145 A Crim R 138; Gipp at [76]; R v TAB [2002] NSWCCA 274; R v RNM [2005] NSWCCA 396. In MM [2000] NSWCCA 78 ; (2000) 112 A Crim R 519, this Court divided on the question). The four members of the High Court who reached this conclusion may not be entirely consistent in th…
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[2012] NSWCCA 179

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…0) 116 A Crim R 536; R v Hagerty [2004] NSWCCA 89; (2004) 145 A Crim R 138; Gipp at [76]; R v TAB [2002] NSWCCA 274; R v RNM [2005] NSWCCA 396. In MM [2000] NSWCCA 78; (2000) 112 A Crim R 519, this Court divided on the question). The four members of the High Court who reached this conclusion may not be entirely con…
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…nt Act 1981 CATEGORY: Principal judgment CASES CITED: Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 HML v R [2008] HCA 16; (2008) 245 ALR 204 MM [2000] NSWCCA 78; (2000) 112 A Crim R 519 Pfennig [1995] HCA 7; (1995) 182 CLR 461 Qualtieri v The Queen [2006] NSWCCA 95; (2006) 171 A Crim R 463 R v AH (1997) 42 NS…
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R v MM
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…lmore (1979) 1 A Crim R 416 R H McL v The Queen (2000) 203 CLR 452 Regina v Merritt [2000] NSWCCA 365 Regina v Mitchell [2002] NSWCCA 380 Regina v MM [2000] NSWCCA 78 DECISION: Leave to appeal granted; appeal dismissed (see paragraph35).…
R v AN
[2000] NSWCCA 372

…arriman v The Queen (1989) 167 CLR 590 R v Beserick (1993) 30 NSWLR 510 Gipp v The Queen (1998) 194 CLR 106 R v Bradley (1989) 41 A Crim R 297 R v MM [2000] NSWCCA 78 R v Lockyear (1989) 89 A Crim R 457 R v Fordham 90 A Crim R 359 DECISION: Appeals allowed…
R v Marsh
[2000] NSWCCA 370

…W, Court of Criminal Appeal, 11 December 1996, unreported) R v Meier (Supreme Court of NSW, Court of Criminal Appeal, 21 May 1996, unreported) R v MM [2000] NSWCCA 78 R v Tripodina (1988) 35 A Crim R 183 DECISION: Leave to appeal granted; appeal allowed; convictions quashed; new trial ordered.…
R v E J Smith
[2000] NSWCCA 202

…1977] 2 NSWLR 452 R v E (1996) 39 NSWLR 450 R v Gallagher (1989) 29 A Crim R 33 R v George (1987) 9 NSWLR 527 R v Kneebone (1999) 47 NSWLR 450 R v MM [2000] NSWCCA 78 R v Newland (1997) A Crim R 455 R v Russell-Jones [1995] 3 All ER 239 R v Sandford (1994) 72 A Crim R 160 R v Tangye (1997) 92 A Crim R 545 Richardso…

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R v AH
[2018] NSWSC 973 Para 9

…omplainant does talk about there being other incidents in that period of time and I do have available R.v. A.H. (?).” (semble R. v. A.H (1997) 42 NSWLR 702) “HIS HONOUR: Yes I’ve read that. I propose to allow the trial to proceed on all fourteen counts, Mr. Crown. ……… HIS HONOUR: I’m satisfied the accused was served p…
R v Jovanovic
[2014] ACTSC 98 Para 8

…ination of the Appellant ( R. v. Palmer (1997-1998) 193 CLR 1) or in the course of final address ( R. v. E. (1996) 39 NSWLR 450); R. v. Jovanovic (1997) 42 NSWLR 520; R. v. AH (1997) 42 NSWLR 702) nor was it, as was the case in R. v. F (1995) 83 A Crim R 502, a case in which the trial judge described as “the central t…
R v Le
[2000] NSWCCA 49 Para 10

…e other incidents were proved beyond reasonable doubt. Authority binding on Job DCJ leads to that conclusion. However for reasons set forth in R v Le [2000] NSWCCA 49 I have difficulty in accepting that that authority is correct. To the references in Le I would now add Pantoja v R (30 November 1999) where the High…
Gipp v The Queen
[1998] HCATrans 212 Para 17

…Although in the course of their separate Judgments in Gipp v. R. (1998) 194 CLR 106 Gaudron J at 111-113 and Callinan J at 168-169 expressed the view that general evidence of sexual abuse on occasions other than those charged is, in the absence of conduct on the part of the defence which raises an issue to which prio…
Palmer v the Queen
[1998] HCA 2 Para 8

…It is to be noted, first, that, in contrast to the situation which arose in some of the authorities (see, for example, R. v. Palmer (1988) 193 CLR 1; R. v. AH (1987) 42 NSWLR 701), the question “why should the Complainant lie” was not raised by the Crown Prosecutor either in the course of cross-examination o…
Harriman v the Queen
[1989] HCA 50 Para 16

…makes it more likely that the offence charged was in fact committed: Martin v. Osborne (1936) 55 CLR 367 and 376 (Dixon J); Harriman v. R. (1989) 167 CLR 590 at 631 (McHugh J); B. v. R. (1992) 175 CLR 559, 602, 609, 610-11, 618). Secondly, the evidence is admissible in order to place the evidence of the offence char…
Phillips v The Queen
[1985] HCA 79 Para 16

…v. Christie [1914] AC 545 at 559, 564; Noor Mohamed v. The King [1949] AC 182 at 192; Driscoll v. R. (1977) 137 CLR at 541; Phillips v. R. (1985) 159 CLR 45 at 51; B. v. R. (at 602, 608, 618). I shall return to the exercise of that discretion later. If the judge declines to exercise that discretion to exclude the e…
Martin v Osborne
[1936] HCA 23 Para 16

…ich is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v. Osborne (1936) 55 CLR 367 and 376 (Dixon J); Harriman v. R. (1989) 167 CLR 590 at 631 (McHugh J); B. v. R. (1992) 175 CLR 559, 602, 609, 610-11, 618). Secondly, the evidence is admissib…
[1914] AC 545
[1914] AC 545 Para 16

…l known discretion in criminal trials to exclude evidence where its probative value is outweighed by its prejudicial effect: R. v. Christie [1914] AC 545 at 559, 564; Noor Mohamed v. The King [1949] AC 182 at 192; Driscoll v. R. (1977) 137 CLR at 541; Phillips v. R. (1985) 159 CLR 45 at 51; B. v. R. (at 602, 608…
[1949] AC 182
[1949] AC 182 Para 16

…dence where its probative value is outweighed by its prejudicial effect: R. v. Christie [1914] AC 545 at 559, 564; Noor Mohamed v. The King [1949] AC 182 at 192; Driscoll v. R. (1977) 137 CLR at 541; Phillips v. R. (1985) 159 CLR 45 at 51; B. v. R. (at 602, 608, 618). I shall return to the exercise of that discr…
[1961] SR 37
[1961] SR 37 Para 7

…ary for me to deal with this ground, it is as well that I do so. In this regard, it is convenient to record what was said by Brereton J in R. v. Ball [1961] SR 37, 41: “This application turns upon the single question whether the learned trial judge wrongly exercised his discretion in refusing to discharge the j…

Legislation cited in this decision · 2

Crimes Act 1900 (ACT)
1, 13, 25, 31, 59), 61E(1)), 61E(1A), 61... 11 mentions (from Para 1)
Evidence Act 1995 (Cth)
101, 97 3 mentions (from Para 11)