R v Mueller - [2005] NSWCCA 47

Reported Decision:
62 NSWLR 476

New South Wales

Court of Criminal Appeal

CITATION:
R v Mueller [2005] NSWCCA 47
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 February 2005

JUDGMENT DATE:

25 February 2005

JUDGMENT OF:
Hunt AJA at 1; Studdert J at 8; Hulme J at 131

DECISION:
Appeal dismissed.

CATCHWORDS:
Assaults with acts of indecency - whether summing up appropriate on issue of "consent" and "reckless indifference" - whether necessity for Shepherd style direction as to knowledge complainant not consenting or recklessly indifferent to whether or not complainant was consenting. Acquittal on two of five counts - whether verdict of jury unreasonable.

LEGISLATION CITED:

Crimes Act, ss 61D, 61M, 61R
Criminal Appeal Act, s 6

CASES CITED:
Fitzgerald v Kennard (1995) 38 NSWLR 184
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Question of Law (No. 1 of 1993) (1993) 59 SASR 214
R v Beserick (1993) 30 NSWLR 510
R v Blayney & Anor [2003] SASC 405
R v Clark (unreported, NSWCCA, 17 April 1998)
R v Henning (unreported, NSWCCA, 11 May 1990)
R v Kitchener (1993) 29 NSWLR 696
R v Morgan (1970) VR 337
R v Shepherd (No. 5) (1990) 170 CLR 573
R v Tillott (1991) 53 A Crim R 46
R v Tolmie (1995) 37 NSWLR 660

PARTIES:
Regina v Alexander Mueller

FILE NUMBER(S):
CCA 2004/2115

COUNSEL:
Ms D. Woodburne (Crown)
Mr D. Patch (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
Rutland's Law Firm (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/1089

LOWER COURT JUDICIAL OFFICER:
Armitage DCJ

2004/2115

HUNT A-JA
STUDDERT J
HULME J
Friday 25 February 2005

REGINA v ALEXANDER MUELLER

Judgment

1 HUNT A-JA: I agree with the orders proposed by Studdert J, for the reasons he has given.

2 I also agree with the additional comment made by Hulme J. There will inevitably be difficulties for a jury in understanding how consent may at the same time be both (a) freely and voluntarily given and (b) given reluctantly or after persuasion. If both directions are given because of the necessity to do so in the particular case, the judge should also give assistance to the jury as to how each of those directions is relevant to the facts of the particular case, with an explanation which removes the likelihood of confusion.

3 The summing-up in this case illustrates the dangers of including in directions concerning absence of consent and knowledge of that absence every statement made by this Court and by other courts on the subject whether directly relevant to the particular case or not.

4 The Chief Justice’s Foreword to the Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales repeats the warning often given in such publications that, in order to ensure a fair trial, the summing-up must be tailored appropriately to the particular circumstances of each case.…

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 Mueller

Details

AGLC: R v Mueller [2005] NSWCCA 47
Case: [2005] NSWCCA 47
Decision Date: 25 February 2005

CaseChat Overview and Summary

The case of R v Mueller involved a criminal prosecution against the defendant, Mueller, who was charged with multiple counts of assault with acts of indecency. The dispute centred on whether the trial judge's summing up on the issues of consent and reckless indifference was adequate and whether the jury's verdict, acquitting Mueller on two of the five counts, was unreasonable. The case was heard in the Court of Appeal, which was called upon to determine the correctness of the trial judge's directions and the jury's verdict.

The court had to decide if the summing up was appropriate in relation to the defendant's knowledge that the complainant was not consenting or was recklessly indifferent to whether or not the complainant was consenting. This involved examining whether a Shepherd style direction was necessary, which is a direction to the jury to consider the defendant's knowledge regarding the complainant's consent. Additionally, the court needed to assess the reasonableness of the jury's verdict in acquitting Mueller on two counts, given the evidence presented.

The Court of Appeal found that the summing up was not adequate in addressing the issue of the defendant's knowledge regarding the complainant's consent. The court held that a Shepherd style direction was necessary to guide the jury on this specific aspect of the case. Furthermore, the court concluded that the jury's verdict was not unreasonable, as it was supported by the evidence and the directions given by the trial judge. The appeal was dismissed, and the original verdict and sentence stood.

The final orders of the court were that the appeal was dismissed, and the original verdict and sentence of the trial court were upheld. The Court of Appeal did not find merit in the defendant's arguments regarding the summing up and the jury's verdict, and thus, the outcome of the trial remained unchanged.

Orders