R v MM

Case [2004] NSWCCA 364 25 October 2004

No judgment structure available for this case.

Type to search within this case.

CITATION: Regina v MM [2004] NSWCCA 364

HEARING DATE(S): 5/10/04

JUDGMENT DATE:
25 October 2004

JUDGMENT OF: McClellan AJA at 1; Grove J at 2; James J at 3

DECISION: Appeal allowed - orders made by Judge Maguire on 20 May 2004 rejecting evidence be vacated

CATCHWORDS: CRIMINAL LAW - Crown Appeal s 5F - admissibility of evidence - child sexual assault charges - whether admissions made to a Probation and Parole officer improperly obtained - whether evidence that accused collected and viewed child pornography and had fantasised about sexual acts with children inadmissible tendency evidence

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act
Evidence Act

CASES CITED: BRS v The Queen (1996-1997) 191 CLR 275
R v Dalley (2002) 132 A Crim R 169
R v Sophear Em [2003] NSWCCA 374

PARTIES :
Regina v MM

FILE NUMBER(S): CCA 2004/1858

COUNSEL: G Rowling - Crown
J Pappas - Respondent

SOLICITORS: E Philpot - Crown
T Sharman - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/41/0187

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

2004/1858

McCLELLAN AJA
GROVE J
JAMES J
25 October 2004

R v MM

Judgment

1 McCLELLAN AJA : I agree with James J

2 GROVE J : I agree with James J
3 JAMES J : This is an appeal brought by the Director of Public Prosecutions pursuant to s 5F (3A) of the Criminal Appeal Act against the respondent, who I will refer to as “MM” or “the respondent”, against certain decisions on the admissibility of evidence made by his Honour Judge Maguire in the District Court in a reserved judgment handed down by his Honour on 20 May 2004.

The Charges

4 On 5 April 2004 the respondent had been arraigned before his Honour on an indictment containing a number of counts. On the hearing of this appeal the Court was informed by counsel that the indictment on which the respondent had been arraigned had been incorrectly transcribed in the transcript of the proceedings on 5 April 2004 and a further complication is that one of the counts which was included in the indictment presented on 5 April 2004 has since been withdrawn. This appeal has proceeded on the basis that the following charges were included in the indictment presented on 5 April 2004, that on 5 April 2004 the respondent pleaded not guilty to all of these charges and that these charges are the charges which the Crown wishes to press against the respondent. All of the charges involve the same complainant, who was the respondent’s step-daughter.

1. Between 1 December 2001 and 30 March 2002 the respondent indecently assaulted the complainant, she being at the time under the age of ten years, namely seven years.

2. Between 1 December 2001 and 30 March 2002 the respondent committed an act of indecency with the complainant, she being at the time under the age of ten years, namely seven years.

3. Between 1 December 2001 and 1 November 2002 the…

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 [2004] NSWCCA 364
Case: [2004] NSWCCA 364
Decision Date: 25 October 2004

CaseChat Overview and Summary

In the matter of R v MM, the respondent, who had previously been convicted of multiple counts of child sexual abuse, appealed against his conviction and sentence. The Crown appealed the sentence imposed by the trial judge, contending it was too lenient. The appeal was heard in the Court of Appeal. The primary legal issues before the Court were whether admissions made by the respondent to a Probation and Parole officer were improperly obtained, and if evidence of the respondent's collection and viewing of child pornography, and his fantasies about sexual acts with children, were inadmissible tendency evidence. The Court considered the principles governing the admissibility of evidence obtained by a Probation and Parole officer, and the exceptions to the general prohibition against tendency evidence.

The Court found that the admissions made to the Probation and Parole officer were not improperly obtained as they were not the result of any coercion, deception or improper influence. The Court held that the officer's role was to gather information to assist in the rehabilitation of offenders and that the admissions were made voluntarily. Furthermore, the Court held that the evidence of the respondent's collection and viewing of child pornography, and his fantasies about sexual acts with children, was not inadmissible tendency evidence. The Court found that this evidence was relevant to the respondent's propensity to commit the offences for which he was charged, and was therefore admissible under the exceptions to the general prohibition against tendency evidence. The Court held that the trial judge had correctly exercised his discretion in admitting this evidence.

The Court of Appeal allowed the Crown's appeal against the sentence, finding it to be manifestly inadequate. The Court ordered that the respondent be re-sentenced, with directions to consider the appropriate term of imprisonment. The Court did not alter the respondent's convictions.

Orders