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Court of Criminal Appeal 4 July 2012

MJ v R

[2012] NSWCCA 146

Sexual offences
CRIMINAL LAW CONVICTION APPEAL EXTENSION OF TIME GRANTED SEXUAL OFFENCE "CORROBORATION" ACCUSED GAVE EVIDENCE AT TRIAL

Citation: MJ v R [2012] NSWCCA 146
Court: Court of Criminal Appeal
Date: 4 July 2012
Judge(s): Beazley JA, Hidden J, Rothman J (unanimous)

Background

The appellant, MJ, was convicted by a jury in March 2008 of sexual intercourse with a child under ten years of age. The alleged offence occurred in February 2007, when the complainant was seven years old. The appellant was a family friend of the complainant's mother, who had a casual relationship with him at the time.

The complainant alleged she was woken one night to find the appellant touching her in her bedroom. She disclosed the incident to her mother approximately 24 hours later. The appellant's account was that he had only looked into the room from the doorway to check for mosquitoes.

The appellant filed a notice of appeal in February 2011, more than two years after his initial notice of intention to appeal had expired. He appeared unrepresented before the Court of Criminal Appeal, having drafted his own appeal documents.

  • Whether an extension of time should be granted to allow the late appeal to proceed
  • Whether the jury's verdict was unreasonable and unsupported by the evidence
  • Whether the absence of corroborating evidence, including the fact that the case turned on the complainant's word against the appellant's, rendered the verdict unreasonable
  • Whether the Crown's failure to adduce evidence about weather conditions and optimal painting conditions caused a miscarriage of justice

Decision

Extension of time: The Court granted the extension of time, noting that the Crown could point to no particular prejudice from the delay. The appellant was unrepresented, and his appeal documents bore the hallmarks of being prepared without legal assistance. Given that the appeal involved a conviction and the liberty of the appellant, the Court considered it appropriate to allow the matter to proceed.

Unreasonable verdict: Rothman J applied the established principle that an appellate court must determine not merely whether there was evidence upon which a jury could convict, but whether the jury ought to have experienced a reasonable doubt. Having reviewed the complainant's evidence, together with the evidence of the complainant's mother and the appellant, Rothman J found no reasonable doubt as to the correctness of the verdict. The portions of transcript relied upon by the appellant disclosed imprecision in wording at most, not any genuine doubt about the events described.

Corroboration and word-against-word cases: The Court rejected the argument that the verdict was unreasonable simply because it depended on the jury accepting the complainant's account over the appellant's. Rothman J confirmed that a jury's choice to believe one witness and disbelieve another, without more, does not necessarily render a verdict unreasonable. The complainant's prompt disclosure to her mother was also noted as part of the overall evidentiary picture.

Weather and painting evidence: The Court rejected the submission that the Crown's failure to lead evidence about weather conditions and painting work gave rise to a miscarriage of justice. This ground did not succeed.

Orders Made

  • Extension of time granted to allow filing of the notice of appeal
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a conviction is not rendered unreasonable merely because it rests on the jury's choice to accept one witness's account over another's, absent independent evidence or some other factor affecting that assessment.
  • The applicable appellate standard requires the court to assess whether the jury ought to have experienced a reasonable doubt, not simply whether some evidence existed to support conviction.
  • Prompt complaint by a child complainant to a parent forms part of the overall evidentiary context a jury may consider, even where formal corroboration requirements no longer apply.
  • An unrepresented appellant's significant delay in filing a conviction appeal does not automatically defeat an application for an extension of time, particularly where the Crown cannot demonstrate concrete prejudice.
  • Minor imprecision or inconsistency in a complainant's evidence does not, of itself, establish that the jury should have entertained a reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- Longman v The Queen (1989) 168 CLR 79
- M v R [1994] HCA 63; (1994) 181 CLR 487
- MFA v R
- SKA v R
- The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8