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R v MSK and MAK

R v MSK and MAK

Case [2004] NSWCCA 308 6 September 2004

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Reported Decision:
61 NSWLR 204
148 A Crim R 453

New South Wales

Court of Criminal Appeal

CITATION: REGINA v MSK and MAK [2004] NSWCCA 308 revised - 07/09/2004

HEARING DATE(S): 6 September 2004

JUDGMENT DATE:
6 September 2004

JUDGMENT OF: Mason P at 1; Wood CJ at CL at 64; Barr J at 90

DECISION: 1. The Non publication order referable to the appellants' names is continued and the victims are to be known as "S" and "G"; 2. The Appeal against conviction is dismissed; 3. The application for leave to appeal against sentence will be heard and determined at a later date.

CATCHWORDS: CATCHWORDS - Criminal Procedure Act 1986, s 294A - Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003 - Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 - gang rape - sexual assault in company - appeal against conviction - self-represented defendants - self-represented defendants prohibited from personally cross-examining complainant - whether parliament can validly limit common law right to cross-examine - whether provision discriminatory - whether provision caused trial to be unfair and miscarry - whether s 294A constitutionally invalid for vesting functions in Supreme Court that are incompatible with the exercise of federal judicial power. (D)

LEGISLATION CITED: International Covenant on Civil and Political Rights, Articles 14(3)(d) and (e)
Crimes Act 1900, ss61JA, 409B (repealed)
Constitution Act 1902, s5
Australia Acts 1986, s2
Criminal Procedure Act 1986, 294A
Criminal Procedure Amendment (Sexual Offence Evidence) Act 2003

CASES CITED: Dietrich v The Queen (1992) 177 CLR 272
DJK (1997) 96 A Crim R 443
Doorson v The Netherlands (App No 20524/92, 26 March 1996, Reports 1996-II)
Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399
Foster v The Queen (1993) 67 ALJR 550
Grills v The Queen, PJE v The Queen (1996) 70 ALJR 905
Jago v District Court (NSW) (1989) 168 CLR 23
John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
McKinney v The Queen (1991) 171 CLR 468
Minister for Immigration & Multi-Cultural & Indigenous Affairs v B [2004] HCA 20, 206 ALR 130
Morgan (1993) 67 A Crim R 526
R v Grills (NSWCCA unreported, 12 December 1995)
R v McHardie and Danielson [1983] 2 NSWLR 733
R v Moffatt [1998] 2 VR 229
R v PJE (NSWCCA unreported, 9 October 1995)
R v Whyte (2002) 55 NSWLR 252
Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

PARTIES :
REGINA v MSK and MAK

FILE NUMBER(S): CCA 2004/1711; 2004/1712

COUNSEL: Appellant: Self-Represented (MSK)
Appellant: Self-Represented (MAK)
Crown: R Cogswell SC, Dr J Quilter, A Tibbey

SOLICITORS: Appellant: MSK
Appellant: MAK
Crown: S Kavanagh

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70002/03; SC 70201/03

LOWER COURT
JUDICIAL OFFICER : Sully J

CCA 1711/2004
CCA 1712/2004

MASON P
WOOD CJ at CL
BARR J
Monday…

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 MSK and MAK

Details

AGLC: R v MSK and MAK [2004] NSWCCA 308
Case: [2004] NSWCCA 308
Decision Date: 6 September 2004

CaseChat Overview and Summary

The appellants, MSK and MAK, were convicted of offences arising from a gang rape and sexual assault in company. They appealed against their convictions, arguing that the trial was unfair and miscarried due to the trial judge’s decision to prohibit them, as self-represented defendants, from personally cross-examining the complainant. They contended that this prohibition violated their common law right to cross-examine, was discriminatory, and caused the trial to be unfair and miscarry. They also argued that the relevant statutory provisions were unconstitutional as they vested functions in the Supreme Court that were incompatible with the exercise of federal judicial power.

The court was required to decide whether the prohibition on self-represented defendants personally cross-examining a complainant was a valid exercise of legislative power and whether it was discriminatory. The court also needed to determine whether the provision caused the trial to be unfair and miscarry, and whether section 294A of the Criminal Procedure Act 1986 was constitutionally invalid for vesting functions in the Supreme Court that were incompatible with the exercise of federal judicial power.

The court held that the prohibition on self-represented defendants personally cross-examining a complainant was a valid exercise of legislative power and not discriminatory. The court found that the provision did not cause the trial to be unfair and miscarry, as the appellants had other means of cross-examining the complainant, including through the assistance of a legal representative or by way of questions put to the complainant by the trial judge. The court also held that section 294A was not constitutionally invalid, as the functions vested in the Supreme Court were compatible with the exercise of federal judicial power.

The appeal was dismissed. The convictions of MSK and MAK were upheld.

Orders