R v MM

Case [2004] NSWCCA 81

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v MM [2004]  NSWCCA 81 revised - 9/11/2004

FILE NUMBER(S):
60203 of 2003

HEARING DATE(S):               10 October 2003

JUDGMENT DATE: 31/03/2004

PARTIES:
REGINA v MM

JUDGMENT OF:       Levine J Howie J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          01/11/0437

LOWER COURT JUDICIAL OFFICER:     Black DCJ

COUNSEL:
P Ingram
(Crown)

R Hulme SC
(Applicant)

SOLICITORS:
C K Smith
(Crown)

S E O'Connor
(Applicant)

CATCHWORDS:
Longman direction - sufficiency - warning - comment - counsels' adddresses - propriety - s159 Criminal Procedure Act

LEGISLATION CITED:
Criminal Procedure Act 1986 s159, ss291 and 292 (formerly ss118 and 119)
Criminal Appeal Act 1912 s6(3)
Crimes (Sentencing Procedure) Act 1999 s44(2)
Evidence Act 1995 s165(2)

DECISION:

  1. Appeal against conviction dismissed.

  2. Leave to appeal against sentence granted.

  3. Appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60203 of 2003

LEVINE J
HOWIE J
SMART AJ

Wednesday 31 March 2004

REGINA v MM

Judgment

  1. LEVINE J: The appellant has been afforded anonymity in this judgment by reason of orders made by his Honour the trial judge on 21 August 2002 purportedly in pursuance of ss118 and 119 of the Criminal Procedure Act 1986 as it was then in force (now see ss291 and 292 Criminal Procedure Act). Upon a reading of the transcript of the proceedings before his Honour at the time those orders were made, it is clear that both the complainant and the accused desired the benefit of such anonymity as was afforded by the orders his Honour purported to make. It must not be taken, however, that in every case an accused person or an appellant will necessarily be afforded anonymity consequent upon the making of a lawful order that protects the identity of a complainant in a case such as this. Further, it is incumbent upon the appellant or the Crown when an appeal is called, immediately to inform the Court of Criminal Appeal of any orders that have been made in relation to anonymity, hearing in camera and the like.

  2. The appellant, who was tried by jury before his Honour Judge Black QC in the District Court from 21 August 2002 to 3 September 2002, appeals against conviction and seeks leave to appeal against sentence.

  3. The indictment contained nine counts. Counts 1, 2, 3, 5 and 6 were each offences of indecent assault upon a male person committed between 1 January 1982 and 31 December 1982 (s81 Crimes Act 1900; maximum sentence: imprisonment for 5 years). Count 4 was an offence of buggery committed between 1 January 1982 and 31 December 1982 (s79 Crimes Act 1900; maximum sentence: imprisonment for 14 years). Counts 7 and 9 were each offences of indecent assault upon a male committed between 1 January 1983 and 1 January 1984 (s81). Count 8 was an offence of buggery committed between 1 January 1983 and 1 January 1984 (s79).

  4. On 3 September 2002 the jury found the appellant guilty on counts 1,…

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Details
AGLC
R v MM [2004] NSWCCA 81
Case
[2004] NSWCCA 81
Decision Date

CaseChat Overview and Summary

In the case of R v MM, the appellant contested the validity of his convictions on several grounds, including the sufficiency of the trial judge's directions to the jury about the implications of the delayed complaint, the adequacy of warnings regarding the reliability of the complainant's evidence, and the propriety of the prosecutor's address to the jury. The primary issue before the court was whether the trial judge's directions to the jury, particularly regarding the lengthy delay in the complainant's report of the alleged offences, were sufficient to ensure a fair trial. The court was also tasked with determining whether the prosecutor's address to the jury undermined the judge's directions and whether the verdicts were unreasonable or unsupported by the evidence.

The court considered the trial judge's directions and found that while the judge did warn the jury about the potential difficulties caused by the delay in complaint, the appellant's legal representatives did not seek to have these directions clarified or expanded upon. The court held that the judge's directions were adequate and that the trial did not miscarry as a result of any deficiencies in the directions given. Regarding the prosecutor's address, the court determined that it did not undermine the judge's directions and thus did not constitute a miscarriage of justice. The court also rejected the argument that the verdicts were unreasonable, finding that the evidence supported the jury's findings on all counts except one, where the complainant's evidence was marked by imprecision and uncertainty.

The court's reasoning led to the dismissal of all grounds of appeal, affirming the appellant's convictions. The court found no miscarriage of justice in the trial proceedings and concluded that the jury's verdicts were properly based on the evidence presented. The final orders of the court were to dismiss the appeal in its entirety.

Orders

Orders of the court

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Background

Background to the litigation

Ground 1 is that the learned trial judge erred by failing to adequately warn the jury about the difficulties occasioned to the appellant by the lengthy delay in complaint. Ground 2: His Honour erred by failing to adequately warn the jury about the use the jury could make of the lengthy delay in complaint in assessing the complainant’s credibility.Ground 3: The trial miscarried because the Crown Prosecutor addressed the jury in a manner that undermined the effect of the directions his Honour gave concerning the need to scrutinise the complainant’s evidence with great care and the problems caused by the very lengthy delay in complaint.Ground 4: The trial miscarried because the Crown failed to call DD, CM and SM1. This ground of appeal was abandoned.Ground 5: His Honour failed to warn the jury that the prosecution witnesses HH and SP may have been unreliable because their recollections of events may have been adversely affected by the passage of time.Ground 6: The verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence.Outline of facts The appellant was a teacher at the school from 1 June 1981 until the end of the school year in 1982. From early in 1983 until 1986 the appellant lived and worked in Victoria. The complainant was a pupil at the school from Year 6 until he left at the end of Year 10 at the end of 1983. He was born on 7 April 1967 and thus was aged between 14 and 16 years at the time of the offences. The appellant was the complainant’s tutor master for one period in 1982 and was also in charge of the school naval cadets. The complainant first spoke to the police about the allegations in January 1999. From 3 February to 20 April 1999 a “comprehensive statement” was taken from the complainant by the police. The appellant was charged on 16 September 1999.Ground 1: His Honour erred by failing to adequately warn the jury about the difficulties occasioned to the appellant by the lengthy delay in complaint At the outset it is to be observed that no steps were taken by trial counsel to have his Honour cure what, on appeal, were submitted to be defects going to the heart of the matter in the learned trial judge’s summing-up. Thus this case is one more in what it seems to me to be a continuing series of appeals founded upon an asserted inadequacy of “Longman directions” in the context of silence by the appellant’s legal representatives at the conclusion of the summing-up. Be that as it may, if it is a “heart of the matter” point, leave should be granted under Rule 4. Relevant parts of his Honour’s summing-up are as follows:“It is very important, however, that whether there was no complaint or whether there was a complaint, it is very important that you realise that it was not until 1999 that the accused was aware that these allegations were being made against him because the passage of time can cause, and in this particular case is said to have caused, significant difficulties to the accused in preparing and mounting his defence to these allegations and the law recognises this and it is necessary for me to give you some very specific warnings about it. Because of the lapse of time here, I am bound to warn you that it will be dangerous to convict the accused on the evidence of [the complainant] unless you, scrutinising the evidence with great care and considering the circumstances relevant to its evaluation and paying heed to that warning which I have given you, were satisfied of its truth and accuracy.The reasons for it being dangerous include the following considerations. First of all it is said that the evidence of the complainant, that is [the complainant], cannot be adequately tested after the passage of so much time and in particular, in this case, a lot of surrounding aspects cannot be fully or, in some cases, at all investigated. I shall give you some examples of those, they have been referred to in the submissions of counsel. It may be that others have occurred to you”. (Emphasis added)

Evidence

Evidence Before The Court

I would refuse leave under Rule 4; if the position was otherwise, no miscarriage occurred by reason of this purported defect in the trial or the summing-up.Ground 6: The verdicts of the jury should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence The “preceding grounds” which the appellant refers to as “not the only reasons why the verdicts were unsafe” have been dealt with. The jury acquitted the appellant on count 6 which alleged that he had indecently assaulted the complainant on the second of three trips that the appellant had allegedly taken with the complainant to the Kangaroo Valley campsite. In his evidence the complainant contended that he attended the campsite with the appellant’s sister and her two children, one male and one female. The appellant has two sisters, both of whom gave evidence. Each denied having attended any camp with the complainant at Kangaroo Valley. KM has one son, J, born in 1982; her son was not one of the children described by the complainant as having attended the camp. MLM, the other sister of the appellant, has a son who was aged 81/2 in 1982. It thus seems unlikely that that child was one of the children described by the complainant as having attended the camp. It is contended that the jury obviously had a reasonable doubt about the circumstances of count 6. The nature and quality of the complainant’s evidence concerning the incident the subject of the count, it was submitted, was not demonstrably different from the evidence concerning the nature and quality of the acts constituting the other counts in the indictment of which he was found guilty. Therefore it is likely that the evidence of the appellant and his sisters was such as caused the jury to doubt the complainant’s evidence about the second trip to Kangaroo Valley. The third component of the appellant’s submissions on ground 6 was made up of approximately five features of the complainant’s evidence said to be “unsatisfactory” and in circumstances where the credibility of the complainant was markedly affected by a successful cross-examination. To these I will return. In relation to the substantial component of this ground, the acquittal on count 6, the Crown submits that the evidence given by the complainant concerning all the counts except count 6 was characterised by detail and precision. The only matter of any real imprecision common to all counts was the precise timing of the commission of the various offences. In contrast to the evidence given on the other counts, the evidence of the complainant concerning count 6 was marked by imprecision, uncertainty and ambiguity in relation to the acts constituting the offence itself and most of the surrounding circumstances. As to those circumstances, the complainant related that this offence occurred on the second of the three camping trips to Kangaroo Valley. He said that the sister of the appellant had been present with her two children, a boy of about three years of age and a girl, somewhat older. The evidence given by the complainant concerning the appellant’s sister was later controverted in the appellant’s case by the appellant’s evidence and that of both of his sisters.

Decision

Reasons for decision

LEVINE J

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Ratio Decidendi

Legal Principle Established

Established by: LEVINE J

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