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Court of Criminal Appeal 8 November 2013

MJ v R

[2013] NSWCCA 250

Sexual offences
CRIMINAL LAW SEXUAL OFFENCES VALIDITY OF INDICTMENT SEXUAL OFFENCES JUDGE ALONE TRIAL CONTEXT EVIDENCE

Citation: MJ v R [2013] NSWCCA 250
Court: Court of Criminal Appeal, New South Wales
Date: 8 November 2013
Judge(s): Macfarlan JA (primary judgment), Adams J and Latham J (agreeing)

Background

The appellant was convicted in a judge alone trial before Solomon DCJ in the District Court on eleven counts of aggravated indecent assault and sexual intercourse with a child. The complainant was the appellant's natural daughter. The alleged offending spanned six separate episodes occurring between 1 December 1989 and 31 December 1995, when the complainant was aged between 11 and 17.

The trial judge carefully assessed the complainant's evidence, acknowledging certain inaccuracies and inconsistencies, but ultimately found her to be a witness of truth on the essential matters. The appellant denied all sexual conduct and was convicted on all counts except one. He was sentenced to an aggregate term of 12 years' imprisonment, with a non-parole period of 6 years.

The appellant appealed against his convictions and sought leave to appeal against his sentence. All three grounds of appeal, together with the sentence application, were dismissed by the Court of Criminal Appeal.

  • Whether the indictment was invalid because the statutory provisions under the Crimes Act 1900 (NSW) changed during the periods covered by the counts, and it was not known precisely when during those periods the offences were committed.
  • Whether the indictment was bad for duplicity (that is, whether a single count impermissibly charged more than one offence).
  • Whether the trial judge, in a judge alone trial, erred in accepting the complainant's evidence despite identified errors and inconsistencies in her account.
  • Whether the sentencing judge erred by taking into account aggravating factors (the complainant's young age and the appellant's position of authority) when those factors were already elements of the charged offences, contrary to the principle in R v Di Simoni (1981) 147 CLR 383.

Decision

Indictment validity. The Court rejected the submission that the indictment was invalid. Because the applicable provisions of the Crimes Act 1900 were in force for the entire period covered by each count, and the offence charged was known to law throughout that period, there was no defect rendering the charges bad. The Court also rejected the duplicity argument, finding the indictment did not charge more than one offence per count.

Complainant's credibility. The Court found no error in the trial judge's assessment of the complainant's evidence. Appellate courts exercise caution before overturning findings of credibility made by the tribunal of fact, and that caution applies equally in judge alone trials. The trial judge had specifically identified the inaccuracies and inconsistencies, treated them as relevant to credit, and gave considered reasons for nonetheless accepting the complainant's evidence on the essential charges. No appellate basis for disturbing those findings was established.

Di Simoni principle and sentencing. The Court accepted that the trial judge had, in sentencing on certain counts, applied the Di Simoni principle incorrectly by treating aggravating factors that formed elements of the charged offence as further aggravating the sentence. However, the Court concluded this error did not result in any excessive sentence warranting intervention. Even setting aside those factors, the indicated sentences for the relevant counts were lenient relative to the applicable maximum penalties. The aggregate sentence of 12 years was not shown to be excessive, and no lesser sentence was warranted in law.

Orders Made

  • The appellant's appeal against his convictions was dismissed.
  • The appellant's application for leave to appeal against his sentence was dismissed.

Key Takeaways

  • An indictment is not rendered invalid merely because legislative amendments occurred during the period covered by the charges, provided the offence charged was known to law throughout that entire period.
  • The Di Simoni principle prohibits a sentencing court from treating as aggravating a feature that is already an element of the offence charged. However, a breach of that principle does not automatically lead to a lesser sentence if the overall term imposed is not excessive when the error is corrected.
  • In dismissing the credibility ground, the Court of Criminal Appeal reaffirmed the high threshold for appellate intervention in findings of fact made by a trial judge. The fact that a witness gave some incorrect evidence or was inconsistent in certain respects does not compel rejection of their evidence overall.
  • Acknowledged errors in a complainant's account of peripheral matters (such as travel duration or the timing of early alleged abuse) do not automatically undermine findings of credibility on the central charges, particularly where the trial judge has identified and squarely addressed those errors.
  • An aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 is assessed on appeal as a single sentence, and the question under s 6(3) of the Criminal Appeal Act 1912 is whether any sentence less severe than that aggregate sentence was warranted in law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1A), 66C(2)
- Crimes (Amendment) Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- R v Di Simoni (1981) 147 CLR 383
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Baini v The Queen [2012] HCA 59; 246 CLR 469
- MWJ v R [2005] HCA 74; 80 ALJR 329
- Douglass v R [2012] HCA 34; 86 ALJR 1086
- Arnaout v The Queen [2008] NSWCCA 278; 191 A Crim R 149
- McMahon v R [2011] NSWCCA 147
- AB v R [2013] NSWCCA 160
- R v MAJW [2007] NSWCCA 145; 171 A Crim R 407
- Lodhi v R [2006] NSWCCA 121; 199 FLR 303
- John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; 163 CLR 508
- Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361