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Court of Criminal Appeal 9 December 2011

MM v R

[2011] NSWCCA 262

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITH A CHILD INDECENT ASSAULT OF A CHILD WHETHER VERDICT UNREASONABLE

Citation: MM v R [2011] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 9 December 2011
Judge(s): Beazley JA, James J, Fullerton J (judgment by Fullerton J, with whom Beazley JA and James J agreed)

Background

The appellant was convicted after trial in December 2009 on four counts of sexual intercourse with a child under the age of ten years and three counts of indecent assault of the same child. The offences related to two discrete incidents occurring at a childcare facility operated from a private home in Moree, where the complainant had been cared for from infancy. The appellant was sentenced to eight years' imprisonment with a non-parole period of five years and six months.

The complainant was seventeen at the time of trial and gave her evidence-in-chief via an ERISP recorded when she was nearly sixteen. She described two incidents involving penile penetration and other sexual acts, which she said occurred on separate afternoons when she was aged approximately three to six years old. Additional uncharged acts of a similar nature were admitted as context evidence without objection.

The appellant required and was granted an extension of time to bring the appeal. Of the seven grounds initially filed, only two were pressed at the hearing: that the verdicts were unreasonable and could not be supported by the evidence, and that the trial judge erred in granting the Crown leave to amend the timeframe particularised in counts 1 to 4.

  • Whether the verdicts on all counts were unreasonable or could not be supported by the evidence under s 6(1) of the Criminal Appeal Act 1912
  • Whether the trial judge erred in granting the Crown leave to amend the timeframe within which counts 1 to 4 were alleged to have been committed, enlarging the window from one ending in early 1996 to one extending to December 1997

Decision

On the amendment ground: The Court rejected the argument that enlarging the timeframe of counts 1 to 4 caused any unfairness to the appellant. The amendment brought the particulars of those counts into line with the complainant's evidence, which had always described the first incident as occurring when she was between three and five years old. The Court, applying the principles in House v R [1936] HCA 40, found no error in the trial judge's exercise of discretion to allow the amendment.

On the unreasonable verdict ground: The appellant challenged several aspects of the complainant's evidence, including the reliability of her account of penetration given her age at the time of the alleged offences and medical evidence about the anatomy involved. The Court considered the evidence of a medical expert (Dr Kirkwood) alongside the complainant's descriptions and found it was open to the jury to accept that some degree of penetration had occurred as a matter of law, even if it fell well short of complete penetration.

The Court acknowledged that there were legitimate questions about the timing of the complaint, the circumstances in which the complainant's memory was triggered, and some discrepancies between her account and other evidence. However, the Court was not persuaded that these matters, individually or cumulatively, rendered the verdicts unreasonable. The jury had the advantage of observing both the complainant and the appellant give evidence, an advantage not available to the appellate court.

Applying the test in M v R (1994) 181 CLR 487 and SKA v R [2011] HCA 13, the Court concluded that the jury acting reasonably could have been satisfied beyond reasonable doubt on each count, and dismissed this ground accordingly.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not substitute its own assessment of witness credibility for that of the jury, particularly where the jury had the benefit of observing witnesses give evidence in person.
  • A Crown amendment enlarging the timeframe of alleged offences will not be treated as erroneous where the amendment brings the particulars into conformity with the complainant's evidence as it always stood and causes no demonstrated unfairness to the accused.
  • Under s 6(1) of the Criminal Appeal Act 1912, verdicts will only be set aside as unreasonable where a jury acting rationally could not have been satisfied beyond reasonable doubt; discrepancies in a complainant's evidence and questions about the timing of complaint do not automatically meet that threshold.
  • Medical evidence about the anatomical plausibility of penetration, considered alongside the complainant's lay description of events, can together provide a sufficient evidentiary basis for a jury to find penetration as a matter of law, even where the degree of penetration is limited.
  • Inconsistencies in a complainant's account are properly assessed in the context of the whole of the evidence, and their weight is a matter for the jury rather than the appellate court, absent a finding that no reasonable jury could have reached the verdicts returned.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Borodin v R [2006] NSWCCA 83
- House v R [1936] HCA 40; 55 CLR 499
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Raumakita v R [2011] NSWCCA 126
- SKA v R [2011] HCA 13