R v MMJ

Case [2006] VSCA 226 24 October 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 153 of 2005

THE QUEEN
	v.
MMJ

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JUDGES:	WARREN, C.J., BUCHANAN and ASHLEY, JJ.A.
WHERE HELD:	WARRNAMBOOL
DATE OF HEARING:	28 March 2006
DATE OF JUDGMENT:	24 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 226

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CRIMINAL LAW – Incest – Appeal against conviction – Admissibility of evidence of accused’s failure to answer an accusation – Whether silence constituted an admission – Whether silence constituted consciousness of guilt – Silence as evidence of relationship between applicant and complainant – Questions of accused in the record of interview on the complainant’s motive to lie – Palmer v. R (1998) 193 CLR 1.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle QC, with Ms E.J. Gardner	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	Fraser Nevett and Frawley

WARREN, C.J.:

The applicant was convicted by a jury in the County Court on one count of maintaining a sexual relationship with a child under 16 (Count 1) and three counts of incest (Counts 2, 4 and 5).[1]
[1]The trial judge directed that the jury acquit the applicant on Count 3 (which was also a count for the offence of incest).

The applicant was aged 51 years at the time of sentence and was aged between 38 and 44 years at the time of his offending. The applicant stood trial, commencing on 11 April 2005 and running over seven days.

On 12 May 2005, the sentencing judge imposed the following sentence:[2]

Count 1 – Maintaining a sexual relationship with a child under 16 years – six years’ imprisonment;
Count 2 – Incest – three years’ imprisonment (one year cumulative);
Count 4 – Incest – three years’ imprisonment (one year cumulative);
Count 5 – Incest – three years’ imprisonment (one year cumulative).

A total effective sentence of nine years’ imprisonment was imposed and a non-parole period of six years and six months was fixed. Pre-sentence detention of 24 days was declared by the sentencing judge, and the applicant was also declared a registrable offender, pursuant to the Sex Offenders Registration Act 2004, upon his conviction for Counts 4 and 5.

[2]The maximum sentence that a court can impose for maintaining a sexual relationship with a child under 16 years (Count 1) is 25 years’ imprisonment, and the maximum sentence that can be imposed for the offence of incest (Counts 2, 4 and 5) is also 25 years’ imprisonment: see Crimes Act 1958 s.47A(4) and s.44(1) respectively.

The victim of the offences (whom I will refer to hereafter as “A”), was the applicant’s stepdaughter, and the offending occurred over a six year period from September 1991 until October 1997. A’s mother (whom I will hereafter call “B”) commenced living with the applicant when A was about five. B and the applicant married when A was eight.

From early on, the applicant was overbearing and imposed himself upon A as an authority figure. A said the applicant would…

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.

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Details

AGLC: R v MMJ [2006] VSCA 226
Case: [2006] VSCA 226
Decision Date: 24 October 2006

CaseChat Overview and Summary

The case of R v MMJ involved an appeal by the accused against a conviction of incest. The court was tasked with determining the admissibility of evidence relating to the accused's failure to answer an accusation. Specifically, the court had to consider whether the accused's silence constituted an admission or an indication of consciousness of guilt, as well as whether it could be used to establish the relationship between the accused and the complainant.

The legal issues at the heart of this case centred around the interpretation of evidence and the admissibility of silence in criminal proceedings. The accused argued that their silence should not be considered as evidence of guilt, while the prosecution contended that it could be used to demonstrate the relationship between the accused and the complainant. The court had to determine the boundaries of admissible evidence and the implications of silence in such a context.

The court's reasoning and outcome were guided by the principles established in previous cases, such as Palmer v. R (1998) 193 CLR 1. The court held that silence could not be used as evidence of guilt or consciousness of guilt in criminal proceedings. However, it could be considered in assessing the relationship between the accused and the complainant. The court found that the silence of the accused did not constitute an admission of guilt or consciousness of guilt, but it did contribute to establishing the relationship between the accused and the complainant. Consequently, the court upheld the conviction, as the evidence of the relationship was sufficient to support the verdict.

The final orders of the court were to affirm the conviction of the accused, MMJ, on the charge of incest. The court's decision highlighted the importance of distinguishing between the admissibility of silence in establishing a relationship and its use as evidence of guilt or consciousness of guilt. This ruling serves as a reminder for legal practitioners to carefully consider the implications of silence when presenting evidence in criminal cases.

Orders