Citation: MR v R [2024] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 10 July 2024
Judges: Harrison CJ at CL; Garling J; McNaughton J
Background
The appellant, MR, was the stepfather of two children, TG and VL, who lived with him and their mother in NSW from around 2000. Following two jury discharges, the counts relating to each complainant were severed and proceeded as separate trials. MR was convicted in a judge-alone trial of assault occasioning actual bodily harm against his stepson TG (Count 2), relating to an incident in which he held TG's hand onto a burning hotplate after TG stole a watch from school. He was acquitted of a separate assault count (Count 1) concerning an earlier incident involving a linen cupboard.
In a separate jury trial, MR was convicted of aggravated sexual intercourse without consent against his twelve-year-old stepdaughter VL. The offence occurred on a night when VL's mother was in hospital following a miscarriage. VL had gone to MR's bedroom because she was frightened, and MR invited her into the matrimonial bed. VL awoke to an assault and fled to the bathroom.
MR brought two separate appeals against these convictions. In the first appeal, he argued the verdict on the hotplate assault was unreasonable given the evidence. In the second appeal, he argued the trial judge erred by declining to leave the defence of honest and reasonable mistake of fact to the jury.
Legal Issues
- Whether the guilty verdict on Count 2 of the assault trial (the hotplate incident) was unreasonable and unsupported by the evidence, in circumstances where MR was acquitted of a related assault count
- Whether MR had discharged the evidentiary onus to raise the defence of honest and reasonable mistake of fact, specifically a mistaken belief that VL was his wife
- Whether, if that defence should have been left to the jury, any such honest belief could objectively have been reasonably held
- Whether the failure to leave that defence to the jury caused a miscarriage of justice, and whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) applied
Decision
First appeal: assault conviction
The Court dismissed the argument that the acquittal on Count 1 necessarily undermined the guilty verdict on Count 2. The trial judge had explained his doubt about TG's account of the linen cupboard incident in a way that was limited to that count and did not impugn TG's credibility generally. Critically, the hotplate assault was corroborated by VL, whom the trial judge assessed as a credible witness. The suggestion that prior discussions between TG and VL gave rise to an inference of collusion or concoction was rejected; the mere fact of discussion between witnesses about events from years earlier was not in itself sufficient to support that inference.
Second appeal: honest and reasonable mistake of fact
Harrison CJ at CL held that even assuming the trial judge erred in not leaving the defence to the jury, the evidence taken at its highest was incapable of satisfying a jury that MR's conduct was objectively reasonable. MR knew his wife was in hospital. He had consumed alcohol on account of his grief about her miscarriage. VL had specifically asked to get into his bed and he had agreed, meaning her presence was not inadvertent. There was also a significant age and physical difference between a twelve-year-old girl and her adult mother, making any mistaken identification implausible. The Court found it simply unbelievable that MR could have failed, in the course of any physical interaction leading up to the assault, to realise that the person in the bed was not his wife.
The Court considered whether the proviso under s 6(1) of the Criminal Appeal Act 1912 applied. The Crown argued, and the Court accepted, that even if a direction had been given on honest and reasonable mistake, the compelling evidence against the defence meant no substantial miscarriage of justice occurred. Both Garling J and McNaughton J agreed with Harrison CJ at CL's reasons and proposed orders.
Orders Made
• The second appeal should be dismissed.
Key Takeaways
- An acquittal on one count does not automatically render a guilty verdict on a related count unreasonable, particularly where the trial judge provided specific and confined reasons for his doubt on the acquitted count and the guilty verdict was independently corroborated.
- Where a defendant seeks to raise honest and reasonable mistake of fact, the evidentiary onus requires that the evidence, taken at its highest, be capable of satisfying a jury that the belief was both honest and objectively reasonable; it is not sufficient to point to isolated facts without addressing the full surrounding circumstances.
- Significant physical differences between an adult spouse and a twelve-year-old child, combined with the defendant's prior knowledge that his wife was absent, rendered a claimed mistaken identity defence objectively unreasonable on the facts of this case.
- Under s 6(1) of the Criminal Appeal Act 1912, the proviso may apply even where a trial judge has misdirected a jury, provided the evidence is so compelling that no substantial miscarriage of justice resulted from the error.
- The Court of Criminal Appeal confirmed that whether the proviso applies turns on the specific facts, the disputed elements, and the evidence in each individual case, consistent with the approach in Kalabasi v Western Australia (2018) 264 CLR 62.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 61, 61J, 61M
- Criminal Appeal Act 1912 (NSW), s 6(1)
Cases
- Bazouni v R [2021] NSWCCA 256
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Elwood v R [2016] NSWCCA 18
- Ibrahim v R [2014] NSWCCA 160
- Kalabasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- WO v DPP [2009] NSWCCA 275