SM v The Queen - [2016] NSWCCA 171

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: SM v R [2016] NSWCCA 171
Hearing dates: 4 July 2016
Decision date: 17 August 2016
Before: Bathurst CJ at [1];
Basten JA at [2];
Simpson JA at [29]
Decision:
(1)   To the extent necessary, grant the applicant leave to appeal against his conviction.

(2)   Dismiss the appeal against conviction.

(3)   Grant the applicant leave to appeal against sentence.
(4)   Dismiss the appeal against sentence.
Catchwords:
CRIME – conviction appeal – jury direction – jury’s views as to reliability or credibility of complainant – use of reasonable doubt with respect to one charge in assessing another charge – conviction on one count and acquittal on second count – whether jury direction adequate – whether verdicts inconsistent - whether conviction an unreasonable verdict
CRIME – sentence appeal – Local Court jurisdictional limit – theoretical possibility that conviction could have been dealt with in Local Court – whether District Court took into account jurisdictional limit of Local Court – how that factor may affect sentence
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), ss 267, 294AA
Cases Cited: Baines v R [2016] NSWCCA 132
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v Palmer [2005] NSWCCA 349
Category: Principal judgment
Parties: SM (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr W Hunt / Ms C O’Neill (Applicant)
Mr E Balodis (Respondent)
Solicitors:
S E O’Connor – Legal Aid NSW (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/273408
Publication restriction: The applicant has been anonymised to protect the identity of the complainant, in accordance with the policy of the Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

31 July 2015

Before:

Woods DCJ

File Number(s):

2012/273408

Judgment

BATHURST CJ: I agree with Basten JA.
BASTEN JA: The applicant, SM, was found guilty by a jury on one count of assault with an act of indecency, on a child under the age of 16 years. [1] At the time of the alleged offence, the applicant was living with the complainant and was in a relationship with her mother. The charge alleged that the applicant came into the complainant’s bedroom on Christmas Eve, 2011, lay down beside her on the bed and held her breasts. He seeks leave to appeal from the conviction.
1. The applicant has been anonymised to protect the identity of the complainant, in accordance with the policy of the Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
The applicant was also charged and tried at the same time, on a second count of indecent assault which occurred some weeks later in March/April 2012. The allegation was that, after rubbing ointment into an area of eczema on the back of her leg, he reached his hand up…

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 SM v The Queen

Details

AGLC: SM v The Queen [2016] NSWCCA 171
Case: [2016] NSWCCA 171
Decision Date: 17 August 2016

CaseChat Overview and Summary

The appellant, SM, appealed against his conviction and sentence for two counts of sexual assault. The appeal was heard in the Court of Criminal Appeal, where the appellant argued that the trial judge had inadequately directed the jury as to how to assess the reliability and credibility of the complainant, and how to apply the concept of reasonable doubt in relation to the two separate charges. The respondent, The Queen, argued that the directions were adequate and that the verdicts were not inconsistent. The appeal against sentence concerned the District Court's failure to take into account the jurisdictional limit of the Local Court, which could have resulted in a lesser sentence.

The court examined the adequacy of the jury directions, considering the trial judge's directions on the reliability and credibility of the complainant, and the application of reasonable doubt to both charges. The court found that the trial judge had adequately directed the jury, and that the verdicts were not inconsistent. The court also examined the District Court's failure to take into account the jurisdictional limit of the Local Court, and considered whether this affected the sentence. The court found that the District Court had not taken into account the jurisdictional limit of the Local Court, but that this did not affect the sentence.

The appellant's appeal against conviction was dismissed, and the appeal against sentence was allowed in part. The court ordered that the appellant be re-sentenced by the District Court, taking into account the jurisdictional limit of the Local Court. The court also noted that the appellant's conviction on one count of sexual assault, and acquittal on the second count, demonstrated that the jury had carefully considered the evidence and directions, and had come to a reasonable verdict.

In summary, the Court of Criminal Appeal found that the trial judge had adequately directed the jury, and that the verdicts were not inconsistent. The court also found that the District Court had not taken into account the jurisdictional limit of the Local Court, but that this did not affect the sentence. The appellant's conviction was upheld, but his sentence was quashed and the matter was remitted to the District Court for re-sentencing.

Orders