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Court of Criminal Appeal 24 May 2017

PM v R

[2017] NSWCCA 108

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL WHETHER REVERSAL OF ONUS OF PROOF WHETHER MURRAY DIRECTION WAS ADEQUATE

Citation: PM v R [2017] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 24 May 2017
Judge(s): Hoeben CJ at CL, Price J, Fullerton J

Background

The appellant was tried before a judge sitting alone in the District Court on seven counts of historical sexual and physical offending against two complainants: his niece (MP) and his great-niece (KM). The offences against MP were alleged to have occurred between 1979 and 1983, when she was a child. The offences against KM were alleged to have occurred in 1998 to 1999, when she was 11 years old.

The Crown's case rested primarily on the evidence of the two complainants, supported by complaint evidence from several witnesses. The appellant denied all allegations and contended that MP's claims were fabricated and motivated by long-standing hostility toward him. On 1 August 2013, the trial judge found the appellant guilty on all seven counts.

The appellant initially appealed both conviction and sentence, but later abandoned the sentence appeal. Four grounds of appeal against conviction were pursued before the Court of Criminal Appeal.

  • Whether the trial judge gave an adequate direction to himself regarding forensic disadvantage arising from missing school records and the deaths of key witnesses (MP's mother and grandmother)
  • Whether the trial judge erred in his self-direction on the onus of proof when assessing the first complainant's evidence
  • Whether the trial judge gave an adequate direction to himself in accordance with R v Murray (concerning the reliability of a complainant's evidence where early complaint is absent or explained)
  • Whether the trial judge erred in admitting evidence that the appellant had been charged (but not convicted) of sexual assaults, or in failing to properly direct himself on the limited use of that evidence, including whether a limited good character direction should have been given

Decision

Ground 1 (forensic disadvantage): The Court found that the trial judge's direction on forensic disadvantage was adequate in the circumstances. While key witnesses were deceased and certain records were unavailable, the judge addressed the disadvantage suffered by the appellant and its relevance to the reliability of the evidence. No error was established on this ground.

Ground 2 (onus of proof): The Court rejected the submission that the trial judge had reversed or misapplied the onus of proof. Assessed in context, the judge's reasons disclosed a proper understanding that the Crown bore the burden of proving guilt beyond reasonable doubt. No misdirection was found.

Ground 3 (Murray direction): The Court found the trial judge's self-direction regarding the reliability of the first complainant's evidence, including consideration of the circumstances surrounding complaint, was adequate. The Murray direction requires a judge or jury to consider the full circumstances explaining why a complaint was not made earlier; the Court was satisfied the trial judge had done so.

Ground 4 (prior charges and good character direction): The trial judge had declined to give a limited good character direction confined to the appellant's lack of convictions for sexual assault. The Court confirmed that a trial judge retains a discretion whether to give such a direction, consistent with Melbourne v The Queen and Braysich v The Queen. The judge had noted that the appellant's character had been called into question on two occasions and had not been tested, and was not persuaded the absence of sexual assault convictions had real probative force in the circumstances. The Court found no error in the exercise of that discretion, observing it would make little sense to direct on that matter when the judge would plainly give it no weight.

Orders Made

  • Extension of time in which to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A trial judge sitting alone retains a discretion whether to give a good character direction, even a limited one confined to absence of prior convictions for the offence type charged. The discretion is reviewed only on the House v The King error-of-principle standard.
  • Where a trial judge declines a good character direction because the character evidence lacks probative force in the particular circumstances, that exercise of discretion will not be disturbed merely because technically the accused had no relevant prior convictions.
  • The adequacy of a forensic disadvantage direction, a Murray direction, and a self-direction on onus of proof are each assessed in context: a reviewing court looks at the totality of the judge's reasons, not isolated passages.
  • In judge-alone trials, the same substantive obligations that apply to jury directions apply to a judge's self-directions, and the Court of Criminal Appeal will examine the trial judge's written reasons to assess whether those obligations were met.
  • Granting an extension of time to seek leave to appeal does not predetermine the outcome; the Court of Criminal Appeal here granted both the extension and leave, but nonetheless dismissed the appeal on all grounds.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61J, 61M(1), 67, 76
- Evidence Act 1995 (NSW), ss 55, 165(1)(c), 165(4), 165B, 165B(2)

Cases
- R v Murray (1987) 11 NSWLR 12
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Kaifoto v R [2006] NSWCCA 186