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3
Court of Criminal Appeal 1 August 2018

MM v R

[2018] NSWCCA 158

Sexual offences
CONVICTION APPEAL ELEMENT OF AGGRAVATION ERROR IN INDICTMENT MISDIRECTION OF JURY ABOUT AGGRAVATION ERROR OF LAW EXTENSION OF TIME TO APPEAL

Citation: MM v R [2018] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 1 August 2018
Judge(s): Hoeben CJ at CL, Walton J, R A Hulme J

Background

The applicant was convicted by a jury in the District Court in August 2013 of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). He had also pleaded guilty to stealing the complainant's property. The trial judge sentenced him to seven years imprisonment with a non-parole period of three and a half years, commencing 28 August 2013.

The circumstances of aggravation relied upon by the Crown were that the applicant had inflicted actual bodily harm on the complainant at the time of the offence. This corresponds to s 61J(2)(a) of the Crimes Act, which requires proof that the offender "intentionally or recklessly" inflicted actual bodily harm.

The indictment, however, used the word "occasion" rather than "intentionally or recklessly inflicts." The trial judge directed the jury by reference to the indictment's language rather than the statute, and specifically told the jury that harm need not have been inflicted intentionally. The applicant brought his conviction appeal substantially out of time.

  • Whether the defect in the indictment, and the resulting jury misdirection, constituted an error of law warranting appellate intervention
  • Whether leave to appeal and an extension of time should be granted notwithstanding that neither the indictment defect nor the directions had been raised at trial
  • Whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied to dismiss the appeal despite the misdirection
  • Whether a verdict of guilty to the lesser offence of sexual assault under s 61I should be substituted
  • How resentencing should proceed in light of the lower maximum penalty applicable to the s 61I offence
  • Whether the commencement date of a subsequent sentence should be varied under s 59 of the Crimes (Sentencing Procedure) Act 1999

Decision

Misdirection and indictment defect

The Court of Criminal Appeal held, with the Crown's concession, that the trial judge misdirected the jury as to the element of aggravation. By using the language of the defective indictment rather than the statute, the jury was never directed that it had to be satisfied the applicant acted intentionally or recklessly in inflicting harm. That misdirection constituted an error of law. The Court confirmed, following Tonari, that the indictment still disclosed an offence known to law (the non-aggravated s 61I offence), so the trial was not a nullity, but the defect was sufficient to undermine the aggravated conviction.

Leave and extension of time

Although counsel at trial had not raised the indictment defect or challenged the directions, the Court granted leave to appeal under r 4 of the Criminal Appeal Rules and extended the time for appeal. The Court noted that no retrial was sought, which supported the exercise of discretion to extend time.

The proviso

The Crown argued the appeal should be dismissed under the proviso in s 6(1) of the Criminal Appeal Act, which allows a conviction to stand despite an error if no substantial miscarriage of justice has occurred. The Court refused to apply the proviso. It could not conclude, on the evidence at trial, that the element of aggravation had been proved beyond reasonable doubt in accordance with s 61J(2)(a). Because the evidence did not establish that precondition, the proviso was unavailable.

Substituted verdict and resentencing

The Court substituted a verdict of guilty to sexual assault contrary to s 61I. On resentencing, it took into account the lower maximum penalty of 14 years (as opposed to the 20-year maximum applicable to the s 61J offence at trial). The Court adopted the trial judge's factual findings for sentencing purposes, subject to the De Simoni principle (that a sentencing court cannot take into account conduct which would constitute a more serious offence than the one for which the offender is being sentenced). A total sentence of six years was imposed: a non-parole period of three years commencing 28 August 2013 and a balance of term of three years. The commencement date of the applicant's subsequent sentence was also varied under s 59 of the Sentencing Act.

Orders Made

  • Extension of time to appeal to 7 February 2018 granted
  • Leave to appeal against conviction under r 4 of the Criminal Appeal Rules granted
  • Appeal upheld
  • Verdict of guilty to the s 61J offence substituted with a verdict of guilty to an offence contrary to s 61I of the Crimes Act 1900
  • Applicant resentenced to a non-parole period of 3 years commencing 28 August 2013 and a balance of term of 3 years (total sentence: 6 years)
  • Commencement date of the sentence imposed on 18 December 2014 varied to 28 August 2016, pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • An indictment that uses language different from the relevant statutory provision can be defective even when it discloses an offence known to law. The District Court retains jurisdiction in such circumstances, but a conviction for the more serious statutory offence will not be sustainable if the jury was directed on the indictment's language rather than the statute's terms.
  • Under s 61J(2)(a) of the Crimes Act 1900, the aggravating circumstance of inflicting actual bodily harm requires proof that the offender acted intentionally or recklessly. A direction that harm "need not be occasioned intentionally" is a misdirection as to an essential element of the offence.
  • The proviso in s 6(1) of the Criminal Appeal Act 1912 cannot be applied where the evidence at trial would not have established the relevant element beyond reasonable doubt. The Court of Criminal Appeal confirmed this, following the High Court's approach in Lane v The Queen [2018] HCA 28.
  • Where a substituted verdict for a lesser offence is entered on appeal, resentencing must reflect the lower maximum penalty for that offence. The sentencing court may adopt factual findings made at trial, subject to the De Simoni principle.
  • R A Hulme J's additional remarks emphasised that counsel on both sides of a criminal trial should always verify the terms of the applicable statutory provision directly, regardless of experience level.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J, 94
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 7(2)
- Criminal Appeal Rules (NSW), r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 59

Cases
- Kalbasi v R (2018) 352 ALR 1; [2018] HCA 7
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Krakouer v R (1998) 194 CLR 202; [1998] HCA 43
- Lane v The Queen [2018] HCA 28
- Obeid v R [2017] NSWCCA 221
- R v De Simoni (1981) 147 CLR 383
- R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338
- Reeves v R (2013) 304 ALR 251; [2013] HCA 57
- Sio v R (2016) 259 CLR 47; [2016] HCA 32
- Spies v R (2000) 201 CLR 603; [2000] HCA 43
- Tonari v The Queen (2013) 237 A Crim R 490; [2013] NSWCCA 232