Regina v MRK - [2005] NSWCCA 271

CITATION:
REGINA v MRK [2005] NSWCCA 271
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 52; Hall J at 53

DECISION:
Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Joint criminal enterprise - Where aggravating factor was use of offensive weapon, a knife - Whether sufficient evidence that Appellant was party to agreement to use knife - Whether open to jury to find element of aggravation - CRIMINAL LAW - Appeal - Against Conviction - s61JA of the Crimes Act 1900 - Aggravated Sexual Assault in Company - Joint criminal enterprise - Directions to Jury - Whether erroneous - Whether adequate - Whether onus of proof properly stated - Whether verdicts reasonable

LEGISLATION CITED:

Crimes Act 1900: s 61J, s61JA
Criminal Appeal Act 1912: s7

CASES CITED:
R v Duong (1992) 61 A Crim R 140.
Varley v The Queen (1977) 51 LJR 243

PARTIES:
MRK (Appellant)
Regina (Respondent)

FILE NUMBER(S):
CCA 2005/885

COUNSEL:
P Byrne SC, D Yehia (Appellant)
R Cogswell SC, A Michelmore, C Morris (Respondent)

SOLICITORS:
S E O'Conner (Legal Aid Commission) (Appellant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70202/03

LOWER COURT JUDICIAL OFFICER:
Sully J

2005/885

SPIGELMAN CJ
GROVE J
HALL J
Thursday 4 August 2005

REGINA v MRK

Judgment

1 SPIGELMAN CJ: The Appellant was convicted on nine sexual assault charges involving a series of assaults on two complainants committed on the night of 27/28 July 2002. The Crown did not allege that the Appellant committed an assault himself. The case against him was that he participated in a joint criminal enterprise with four other offenders, three of whom were his brothers. Two other charges were the subject of a verdict by direction and do not concern this appeal.

2 Each of the charges of which the Appellant was convicted was laid under s61JA of the Crimes Act 1900 which provides:

“61JA(1) A person:

(a) who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse, and

(b) who is in the company of another person or persons, and

(i) at the time of, or immediately before or after, the commission of the offence, maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(ii) at the time of, or immediately before or after, the commission of the offence, threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(iii) deprives the alleged victim of his or her liberty for a period before…

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 MRK

Details

AGLC: Regina v MRK [2005] NSWCCA 271
Case: [2005] NSWCCA 271
Decision Date: 4 August 2005

CaseChat Overview and Summary

The appellant, MRK, appealed against his conviction for aggravated sexual assault in company, where the aggravating factor was the use of an offensive weapon, a knife. The case was heard in the Court of Criminal Appeal. The appellant argued that the trial judge's directions to the jury regarding the joint criminal enterprise were erroneous, inadequate, and did not properly state the onus of proof. The appellant also argued that the verdicts were unreasonable.

The court considered whether there was sufficient evidence that the appellant was a party to an agreement to use a knife during the assault, and whether it was open to the jury to find the element of aggravation. The court also examined whether the trial judge's directions to the jury were adequate, whether the onus of proof was properly stated, and whether the verdicts were reasonable.

The court found that there was sufficient evidence to support the jury's conclusion that the appellant was a party to an agreement to use a knife during the assault. The court held that it was open to the jury to find the element of aggravation, and that the trial judge's directions to the jury were adequate. The court also found that the onus of proof was properly stated, and that the verdicts were reasonable.

The appeal was dismissed. The conviction and sentence of the appellant were upheld.

Orders