Citation: R v M [2002] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 12 March 2002
Judge(s): Heydon JA, Dunford J, Buddin J
Background
The appellant was convicted after a four-day District Court trial on three counts arising from a single incident on 20 December 1998. The complainant, a six-year-old girl who lived next door, had visited the appellant's home while his wife was at work. The two counts under s 61M(1) of the Crimes Act 1900 (NSW) alleged indecent assault on a child under ten years; the third count under s 66A alleged sexual intercourse with a child under ten years.
The appellant was sentenced to six years imprisonment on the most serious count, with a non-parole period of three years and four months. Concurrent fixed terms of two years and six months were imposed on the remaining counts. The appellant denied being the offender and did not give evidence at trial.
On appeal, the appellant challenged his convictions and sought leave to appeal against the severity of his sentence. He was represented by different counsel on appeal than at trial.
Legal Issues
- Whether the convictions were unsafe on the facts, having regard to alleged weaknesses in the Crown case
- Whether fresh evidence from a medical expert (Dr McDonald) should be admitted on appeal, and whether it would have affected the result
- Whether the sentence of six years imprisonment was manifestly excessive
Decision
The Court of Criminal Appeal, in reasons delivered by Heydon JA (with Dunford J and Buddin J agreeing), dismissed the appeals against conviction. The court examined the factual grounds raised, including inconsistencies in the complainant's evidence between her police statement and her trial testimony. The court found these inconsistencies did not undermine the convictions and that the jury was entitled to reach the verdicts it did.
On the question of fresh evidence, the appellant sought to tender expert medical evidence from Dr McDonald. The court applied the established test for the admission of fresh evidence on appeal, which requires that the evidence could not with reasonable diligence have been obtained for the trial and that it would likely have affected the result. The court found that the evidence did not satisfy these requirements. In particular, the court held it was not possible to infer that defence counsel at trial had any explanation, consistent with the client's interests, for not pursuing forensic evidence of this kind, and accordingly the fresh evidence was rejected.
On sentence, the court noted the seriousness of the offences and concluded there was no identifiable error in the sentencing process. The sentencing judge had taken into account the appellant's absence of prior sexual offence convictions, his personal circumstances including his recent marriage and young child, and his ill health. The Court of Criminal Appeal was unable to characterise the sentence as manifestly excessive. The court also observed that various tactical decisions made by trial counsel, while noted, did not indicate conduct outside the range of sound professional discretion.
Orders Made
- The appeals against conviction are dismissed.
- The applications for leave to appeal on sentence are refused.
Key Takeaways
- Fresh evidence will not be admitted on a criminal appeal unless the applicant establishes both that it could not have been obtained with reasonable diligence for the trial, and that it would likely have affected the result.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that the absence of prior sexual offence convictions and favourable personal circumstances are relevant but not determinative in mitigation for serious child sexual assault offences.
- No error was established simply because defence counsel at trial made different tactical choices from those a different advocate might have made; the court will not characterise such choices as incompetent where they fall within the range of sound professional discretion.
- Inconsistencies between a complainant's police statement and trial evidence do not automatically render a conviction unsafe; the question is whether, viewed as a whole, the evidence supports the jury's verdicts.
- Under ss 61M(1) and 66A of the Crimes Act 1900 (NSW), serious sentences are available and may be upheld even where the offender has no prior custodial history, if the gravity of the offending warrants it.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 66A
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Azzopardi v R (2001) 75 ALJR 931
- R v Birks (1990) 19 NSWLR 677
- Gallagher v R (1986) 160 CLR 392
- Jones v R (1997) 191 CLR 439
- Lawless v R (1979) 142 CLR 659
- M v R (1994) 181 CLR 487
- Ratten v R (1974) 131 CLR 510