R v RNM

Case [2005] NSWCCA 396 8 December 2005

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Richard Norman Mearns [2005] NSWCCA 396

FILE NUMBER(S):
738/2005

HEARING DATE(S): 20/07/05

JUDGMENT DATE: 08/12/2005

PARTIES:
Respondent - Crown
Appellant - Richard Norman Mearns

JUDGMENT OF: Brownie AJA Buddin J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0331

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:
Crown - Ms V Lydiard
Appellant - Ms A Francis

SOLICITORS:
Crown - S Kavanagh
Appellant - SE OConnor

CATCHWORDS:
Conviction and sentence appeals - child sexual assault - adequacy of Murray direction - direction on contextual or relationship evidence inadvertently raising tendency - no real risk of misuse of that evidence by jury - dates not of the essence of the offence - conduct of trial by counsel

LEGISLATION CITED:
Evidence Act 1995

DECISION:
Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

738/2005
BROWNIE AJA
BUDDIN J
LATHAM J
8 December 2005

R v RICHARD NORMAN MEARNS

Judgment

BROWNIE AJA: I agree with Latham J
BUDDIN J: I agree with Latham J
LATHAM J: The appellant appeals against his conviction on 28 May 2004 at Parramatta District Court on four counts of aggravated indecent assault and one count of aggravated sexual intercourse without consent. The appellant also seeks leave to appeal against the sentences imposed by Sorby DCJ (the Judge) on 2 September 2004.
The appellant lived with the complainant’s mother, LG, in a de facto relationship between 1991 and late 2000. The relationship commenced in about 1990 when the complainant was 3 years old and it continued until late 2002. During the periods when the appellant was not living at the home, he had unrestricted access to the home.
The complainant’s evidence was that between 1999 and 2002, when she was between 11 and 15 years of age, the appellant touched her on the breasts and on the vagina, pushed his fingers into her vagina and exposed his penis to her on various occasions. The appellant’s alleged practice of entering the complainant’s bedroom on a regular basis early in the morning, pulling down the blankets, lifting her shirt to rub and kiss her breasts and placing his hand down her boxer shorts to feel her external genitalia was the subject of relationship evidence. A poem written by the complainant in 2002 was also admitted under s 108(3)(b) of the Evidence Act 1995, in anticipation of the cross-examination of the complainant alleging fabrication on her part.
The Grounds of Appeal assert error by the Judge in the following respects:-
(i)Inadequate and incorrect directions in respect of the relationship evidence;
(ii) Admission of the poem as evidence in the Crown case;
(iii) Inadequate Murray direction in respect of Counts 3, 4 and 5;
(iv)Failing to direct the jury that they must be satisfied beyond reasonable doubt that the incident, the subject of Count 3, occurred between 31 July 2002 and 1 January 2003. In addition, it was…

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 RNM

Details

AGLC: R v RNM [2005] NSWCCA 396
Case: [2005] NSWCCA 396
Decision Date: 8 December 2005

CaseChat Overview and Summary

The appellant appealed against his conviction and sentence for child sexual offences, arguing there were errors in the trial judge's directions to the jury. The case was heard in the NSW Court of Criminal Appeal. The primary issues before the court were whether the trial judge provided adequate directions to the jury regarding the relationship evidence, the Murray direction in respect of certain counts, and whether the dates were of the essence for the offence charged in one count.

The court examined whether the directions given by the trial judge were adequate and correctly framed the issues for the jury. In relation to the relationship evidence, the court found that the trial judge’s direction did not inadvertently raise the accused’s tendency to commit the offences, and thus there was no real risk of the evidence being misused by the jury. The court also found that the Murray direction was sufficient in respect of all counts, including Counts 3, 4 and 5, as there was no real risk that the jury would misuse the evidence. Regarding the dates of the offence, the court concluded that the dates were not of the essence for Count 3 and, therefore, the omission to direct the jury on this point did not affect the safety of the conviction. The court found that the complainant's evidence was capable of supporting a verdict of guilty on Count 3.

The Court of Criminal Appeal dismissed the appeal against conviction and sentence. The appellant's conviction and sentence were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Grounds of Appeal assert error by the Judge in the following respects:-(i)Inadequate and incorrect directions in respect of the relationship evidence;(ii) Admission of the poem as evidence in the Crown case;(iii) Inadequate Murray direction in respect of Counts 3, 4 and 5;(iv)Failing to direct the jury that they must be satisfied beyond reasonable doubt that the incident, the subject of Count 3, occurred between 31 July 2002 and 1 January 2003. In addition, it was submitted that the complainant’s evidence in support of Count 3 was incapable of supporting a verdict of guilty.The Offences and the Evidence at Trial Count 1 alleged an aggravated indecent assault between 31 December 1998 and 1 January 2000. The complainant gave evidence that, on an occasion in mid 1999, when she and the appellant were alone in the lounge room of the Baulkham Hills home watching television, the appellant pushed her down into a lying position on the lounge, placed his hand underneath her sports uniform and rubbed her breasts. The complainant was about 11 or 12 years of age. The appellant told the complainant not to tell her mother, that it was “our little secret”. Count 2 alleged an aggravated indecent assault between 31 December 1998 and 30 April 2000. According to the complainant, on an occasion when she and the appellant were alone in the lounge room watching television and she was about 12 years of age, the appellant kissed the complainant and placed his hand under her shirt and rubbed her breasts. The appellant removed his hand as LG came into the room. He then said “Promise me you won’t tell anybody”. The complainant promised to say nothing to anyone about these incidents at this time. Count 3 alleged an aggravated indecent assault between 31 July 2002 and 1 January 2003. The complainant said that on an occasion when she believed she was in Year 8 at school (2001), she was lying on her bed late one night at about 11:30pm sending SMS messages on her mobile phone. The appellant came in and lay across the bed, lifted her shirt and kissed and touched her breasts. He then squeezed her breasts, before exposing his penis and placing her hand around it. Shortly thereafter, the appellant stopped and sat up on the complainant’s bed. As he was sitting up, LG came in and said, “What the hell is going on?” The appellant replied that nothing was going on, then followed LG out of the room. The complainant stood at the door, adjacent to her mother’s room and heard the appellant tell her mother that the complainant was planning to run away from home. The complainant did not have any such conversation with the appellant. LG gave evidence of an occasion in early December 2002 when she awoke to find the door to the complainant’s bedroom almost closed. On pushing the door open and turning on the light, she saw the appellant and the complainant lying across the bed. The appellant’s arm was across the complainant’s stomach. LG said, “What the hell’s going on here?” to which the appellant replied “Nothing, we’re just talking.” LG returned to her room and was followed by the appellant. The appellant told LG that the complainant had spoken to him of running away from home and that he was attempting to dissuade her when LG entered. LG accepted this account at the time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v RNM [2005] NSWCCA 396

Most Recent Citation

JLS v The Queen [2010] VSCA 209

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R v AH
[2018] NSWSC 973 Para 12

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R v Pfitzner
[2009] NSWSC 1267 Para 2

…This case fell within the circumstances described by Bray CJ in R v Pfitzner (1976) 15 SASR 171 at 185:- Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the d…
R v El-Kheir
[2004] NSWCCA 461 Para 8

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R v Selsby
[2004] NSWCCA 381 Para 9

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R v LTP
[2004] NSWCCA 109 Para 2

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R v GS
[2003] NSWCCA 73 Para 6

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R v TAB
[2002] NSWCCA 274 Para 1

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R v Reardon
[2002] NSWCCA 203 Para 9

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[2000] NSWCCA 475 Para 14

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R v AN
[2000] NSWCCA 372 Para 12

…l activity with the complainant and therefore towards proof of the counts in the indictment : Gipp v The Queen at 132 per McHugh J ; R v AN [2000] NSWCCA 372; R v MM [2000] NSWCCA 78; 112 A Crim R 519.…
R v Stringer
[2000] NSWCCA 293 Para 2

…have directed their cases towards it .” (Emphasis added). See also R v LTP [2004] NSWCCA 109. None of the four categories identified by Grove J in R v Stringer (2000) 116 A Crim R 198 at 202 apply in this case, so as to render the dates of the essence of the offence. No alibi or lack of opportunity was raised by the…
R v MM
[2000] NSWCCA 78 Para 12

…inant and therefore towards proof of the counts in the indictment : Gipp v The Queen at 132 per McHugh J ; R v AN [2000] NSWCCA 372; R v MM [2000] NSWCCA 78; 112 A Crim R 519.…
R v Gust
[1999] NSWCCA 265 Para 14

…hose where evidence supportive of the complainant is available to a jury has been recognised: R v Zafiris CCA (unrep) 14.9.98; R v Gust [1999] NSWCCA 265. In the latter circumstances, a direction of the type referred to in Murray is not required, although there may be cases where such a direction should be given, fo…
R v Whitmore
[1999] NSWCCA 247 Para 7

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R v RNS
[1999] NSWCCA 122 Para 14

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R v Greenham
[1999] NSWCCA 8 Para 12

…ons to the jury as to the permitted use of such evidence varies in a critical respect according to the basis of its introduction. In R v Greenham [1999] NSWCCA 8, the direction given by Wood J in Wickham was recommended where evidence was admissible on both contextual and tendency grounds. The last paragraph of th…
BRS v The Queen
[1997] HCA 47 Para 11

…The High Court in BRS (1997) 191 CLR 275 ; (1997) 95 A Crim R 400 was also concerned with the admissibility of evidence of uncharged acts in a pre Evidence Act trial. In BRS , evidence of a similar fact or propensity nature had been led, without objection, from a witness other than the complainant, in rebuttal of evi…
Harriman v the Queen
[1989] HCA 50 Para 9

…akes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen (at 2, 9, 10, 19 ). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true a…
Martin v Osborne
[1936] HCA 23 Para 9

…which is the subject of the charge . In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J); B v The Queen (at 2, 9, 10, 19 ). Secondly, the evidence is admissible in order…
R v Abusafiah
[1991] NSWCCA 542 Para 15

…any reasonable ground for concern regarding the adequacy and fairness of the summing up” : R v Haeney CCA (unrep) 13.6.98. See also R v Abusafiah (1991) 24 NSWLR 531 and R v Aziz [1982] 2 NSWLR 322. Slavish adherence to a direction including “scrutinise with great care” was not required in the circumstances of the cas…
[1979] AC 374
[1979] AC 374 Para 15

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Legislation cited in this decision · 1

Evidence Act 1995 (Cth)
1 mention (from Para 5)