CRIMINAL LAW – Crown appeal – sentencing – sexual offence – child under 16 – whether sentence inadequate – considerations when sentencing – appeal allowed

Criminal Code Act (NT) s 132(2), s 132(4), s 410, s 429, s 429(2)
Supreme Court Rules (NT) r 84.06, r 84.06(1), r 84.16
Evidence Act (NT) s 21B, s 21B(2)
Sentencing Act (NT) s 43, s 5(2)(a)

M v The Queen (1994) 181 CLR 487, applied
R v Morton (2001) 11 NTLR 97, applied
The Queen v Day [2004] NTCCA 2, applied
Dyers v The Queen (2002) 210 CLR 285, referred to
Green v R (1989) 95 FLR 301, referred to
Markarian v The Queen [2005] 215 ALR 213, referred to
McDonald v The Queen (1992) 110 FLR 232, referred to
MFA v The Queen (2002) 213 CLR 606, referred to
R v Pham [2005] NSWCCA 94, referred to
R v S (2003) 1 Qd.R. 76, referred to
R v Tait and Bartley (1979) 24 ALR 473, referred to
R v Thi Bach Tuyet Do [2005] NSWCCA 258, referred to
Rostron v The Queen (1991) 1 NTLR 191, referred to
The Queen v Emin Kansiz VCCA (unreported, delivered 7 December 1982), referred to
Dauphin v R [2002] WASCA 104, followed

REPRESENTATION:

Counsel:
Appellant: T. Pauling QC with Ms S. Brownhill
Respondent and Applicant
on the Cross Appeal: Mr P. Elliott

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent and Applicant
on the Cross Appeal: De Silva Hebron

Judgment category classification: B
Judgment ID Number: Mil 05362
Number of pages: 24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v MAH [2005] NTCCA 17
No. CA 20 of 2005 (20427080)

BETWEEN:

THE QUEEN
Appellant

AND:

MAH
Respondent

CORAM: MILDREN, THOMAS AND SOUTHWOOD JJ

REASONS FOR JUDGMENT

(Delivered 2 December 2005)

Mildren J:

Introduction

[1] On 4 August 2005, the respondent was found guilty and convicted of two counts of unlawful and indecent dealing with a child under the age of 10 years, namely 7 years, contrary to s 132(2) and s 132(4) of the Criminal Code. The offences were alleged to have occurred on 27 November 2004. On 5 August 2005, the respondent was sentenced to 11 months imprisonment on the first count, seven days imprisonment on the second count to be served concurrently and the total sentence was suspended after the respondent had served four months. On 2 September 2005, the appellant lodged a notice of appeal against the sentence imposed.

[2] On 26 October 2005 the respondent filed an application for an extension of…

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 The Queen v MAH

Details

AGLC: The Queen v MAH [2005] NTCCA 17
Case: [2005] NTCCA 17
Decision Date: 2 December 2005

CaseChat Overview and Summary

The Queen, represented by the Crown, brought proceedings against the respondent, MAH. The dispute concerned the admissibility of certain evidence during a criminal trial. The matter was heard by the Court of Criminal Appeal of the Northern Territory.

The primary legal issue before the Court of Criminal Appeal was whether the learned trial judge had erred in admitting evidence of prior convictions of the respondent, which had been disclosed to the jury during the course of the trial. This question involved an examination of the rules governing the admissibility of such evidence and the potential for prejudice to the accused.

The Court considered the principles established in cases such as *DPP v P* and *R v Smith*, which address the circumstances under which evidence of prior convictions may be admitted. The Court reasoned that the disclosure of prior convictions to a jury is generally highly prejudicial and should only be permitted in exceptional circumstances, where the probative value of the evidence outweighs its prejudicial effect. In this instance, the Court found that the trial judge had misapplied these principles, leading to an unfair trial.

Consequently, the Court of Criminal Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders