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Court of Criminal Appeal 15 February 2006

McKECHNIE v. REGINA

[2006] NSWCCA 13

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE SEXUAL ASSAULT DOCTOR NOT CROSS EXAMINED MURRAY DIRECTION

Citation: McKechnie v Regina [2006] NSWCCA 13
Court: New South Wales Court of Criminal Appeal
Date: 15 February 2006
Judge(s): Mason P, Barr J, Hall J

Background

The appellant was convicted in the District Court by a jury on two counts: attempting to choke with intent to have sexual intercourse without consent (s 37 Crimes Act 1900) and aggravated sexual assault occasioning actual bodily harm (s 61J(2) Crimes Act 1900). The offences arose from an incident on a beach at Sawtell on 2 October 2002, in which the complainant alleged she was physically overpowered, choked, and sexually assaulted.

The appellant did not contest that sexual intercourse occurred. His defence was that the encounter was consensual and that injuries the complainant sustained were inflicted by him only in self-defence after she attacked him following consensual intercourse. The Crown case depended primarily on the jury accepting the complainant's account.

The jury found the appellant guilty on both counts. The sentencing judge imposed 15 years imprisonment on each count, to be served concurrently, with a non-parole period of 11 years. The appellant challenged both the conviction and the sentence on appeal.

  • Whether the trial judge's directions on the use of expert medical evidence (from Dr Good, who was not cross-examined) were adequate and correct
  • Whether the trial judge erred in directing the jury on how to approach and weigh the evidence of the complainant against that of the accused
  • Whether the trial judge erred in failing to warn the jury to scrutinise the complainant's evidence with great care (a Longman-style warning or Murray direction)
  • Whether the trial judge's directions on self-defence were adequate
  • Whether the sentences imposed were manifestly excessive

Decision

Medical evidence directions: The Court examined the directions given in relation to Dr Good's evidence. Because the doctor was not cross-examined, the question arose as to whether the jury received sufficient guidance on the proper use of that evidence. The Court found no error warranting appellate intervention on this ground.

Directions on complainant and accused: The appellant contended that the trial judge's directions, including the use of rhetorical questions and remarks that may have framed the task as a choice between the two accounts, diverted the jury from its proper fact-finding role. The Court considered these complaints carefully but concluded they did not disclose error that would justify disturbing the conviction.

Scrutiny warning and Murray direction: The appellant argued the trial judge failed to warn the jury to scrutinise the complainant's evidence with great care, as required where a conviction may rest substantially on uncorroborated evidence. The Court assessed the directions given and found they were not inadequate in the relevant respects. No error was established on this ground.

Self-defence and sentence: The Court found no error in the directions relating to self-defence. On sentence, the Court accepted the sentencing judge's finding that the offences fell above the mid-range of seriousness. The objective gravity of the offences, together with the need for general deterrence, fully supported the terms imposed. Leave to appeal against sentence was granted but the appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that directions which frame the jury's task as a choice between two competing accounts do not automatically constitute misdirection, provided the directions as a whole do not improperly divert the jury from independent fact-finding.
  • A failure to cross-examine a witness, including a medical expert, does not automatically require a specific limiting direction, though the adequacy of any direction given remains open to appellate scrutiny.
  • Where a Murray direction (a warning about acting on uncorroborated evidence) is contended to be necessary, the question is whether the directions as a whole sufficiently drew the jury's attention to the need for care in evaluating the complainant's evidence.
  • Rhetorical questions used in jury addresses can attract scrutiny on appeal, but the Court assessed them in the context of the charge as a whole rather than in isolation.
  • Offences of this nature, involving choking, sustained physical force, and sexual assault on a stranger, were found to fall plainly above the mid-range of objective seriousness, supporting a total sentence of 15 years with an 11-year non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37, 61J(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- RTB [2002] NSWCCA 104
- Kelleher (1971) 131 CLR 534
- Coles (CCA, unreported, 16 September 1993)
- Gallagher (1946) 41 SASR 73
- Murray (1987) 11 NSWLR 12
- Longman (1989) 168 CLR 79
- Burt (2003) 140 A Crim R 555
- BRS (1997) 191 CLR 275
- Dziduch (1990) 47 A Crim R 378
- Veen (No 2) (1988) 164 CLR 645
- Berg (2004) 41 MVR 399
- Hayes [2001] NSWCCA 358
- Rushby (1977) 1 NSWLR 594
- Simpson (2001) 53 NSWLR 504
- Pearce (1998) 194 CLR 610