Regina v MMK - [2005] NSWCCA 273

CITATION:
REGINA v MMK [2005] NSWCCA 273
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 30 June 2005

JUDGMENT DATE:

4 August 2005

JUDGMENT OF:
Spigelman CJ at 1; Grove J at 2; Hall J at 53

DECISION:
Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Whether verdict unreasonable - Identification Evidence - Alibi Evidence - Whether jury properly instructed

LEGISLATION CITED:

Crimes Act 1900: s61JA
Criminal Appeal Act 1912: s6

CASES CITED:
Domican v The Queen (1992) 173 CLR 555
Dyers v The Queen (2002) 210 CLR 285
Festa v The Queen (2001) 208 CLR 593
Jones v Dunkel (1959) 101 CLR 298
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
R v Marshall (2000) 113 A Crim R 190

PARTIES:
MMK (Appellant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2005/3

COUNSEL:
A Haesler SC (Appellant)
R Cogswell SC, A Michelmore, C Morris (Respondent)

SOLICITORS:
A L Wunderlich & Co (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70203/03

LOWER COURT JUDICIAL OFFICER:
Sully J

2005/3

SPIGELMAN CJ
GROVE J
HALL J
Thursday 4 August 2005

REGINA v MMK

Judgment

1 SPIGELMAN CJ: I agree with Grove J.

2 GROVE J: This is an appeal against conviction following trial before Sully J and a jury. An alternative application for leave to appeal against sentence has been adjourned to be listed, if necessary, with similar applications by co-offenders.

3 The appellant was convicted on nine counts of sexual intercourse in company without consent, including charges in the category of special aggravation contrary to the provisions of s 61JA (1) of the Crimes Act 1900. Two victims were involved whom I will refer to as LS and HG.

4 Having regard to the issues at trial and on appeal, a brief statement of background facts as asserted in the Crown case should be sketched.

5 On 13 July 2002, LS and HG were in George Street, Sydney when they encountered the appellant who was in the company of his brothers MRK and MAK. At the time, LS and HG were aged about seventeen and sixteen years respectively. It was about 2 am and they had missed railway transport which would have taken them home. They accepted a ride in the car with these men. A stop was made in a journey to collect a fourth brother (MSK), a further stop to buy food at a McDonalds outlet and ultimately they arrived at the men’s home in Thomas Street, Ashfield.

6 The group of six people conversed, listened to music and watched video and DVD displays. Eventually they slept. Three of the brothers retired to their rooms and LS and HG slept on the lounge room floor…

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 Regina v MMK

Details

AGLC: Regina v MMK [2005] NSWCCA 273
Case: [2005] NSWCCA 273
Decision Date: 4 August 2005

CaseChat Overview and Summary

Regina v MMK involved an appeal against a conviction for aggravated sexual assault in company. The case was heard by the Court of Criminal Appeal, which reviewed the original decision made by a jury in the District Court. The central issues before the court were whether the jury's verdict was unreasonable, particularly in light of the identification evidence and the defendant's alibi. The court had to consider whether the jury was correctly instructed on the law and whether they properly assessed the credibility and weight of the evidence presented.

The court found that the jury had been properly instructed on the relevant legal principles, including the evaluation of identification evidence and the burden of proof. However, the court noted that the jury might not have fully considered the alibi evidence in its assessment of the defendant's guilt. The court emphasised that when evaluating identification evidence, the jury must consider factors such as the opportunity to view the perpetrator, the circumstances under which the identification was made, and the degree of certainty expressed by the witness. The court also highlighted the importance of considering all evidence, including alibi evidence, when determining the reliability of identification testimony.

Ultimately, the court concluded that the jury's verdict was not unreasonable. The evidence, including the identification testimony, was deemed to be sufficient for a reasonable jury to find the defendant guilty beyond reasonable doubt. The court found no error in the jury's instructions or in their consideration of the evidence. Therefore, the appeal was dismissed, and the original conviction was upheld.

Orders