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 97/31/0438POWELL JA
HULME J
DOWD J24 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…
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- AGLC
- R v MM [2000] NSWCCA 78
- Case
- [2000] NSWCCA 78
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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