MM v R [2023] NSWCCA 236

MM v R [2023] NSWCCA 236

Although the prosecutor's closing submission improperly invited consciousness of guilt reasoning from the applicant's calm reaction to the allegation, the applicant's denial was consistent with his case and his departure occurred because KM told him to leave. The only possible basis for consciousness of guilt reasoning was his calm demeanour, which was equivocal and not a significant matter in the trial. The trial judge addressed the risk by reminding the jury of the denial and departure at KM's request and directing that people do not always act predictably when faced with such allegations. A full Zoneff warning would have risked prejudicing the applicant by elevating his calm demeanour...

Jurisdiction
Australia
Judgment Date
29 September 2023
Procedural Posture
Criminal Appeal Against Conviction for Sexual Offences / Application for Leave Pursuant to R 4.15 of the Supreme Court (criminal Appeal) Rules 2021 (nsw) and Leave to Appeal Against Conviction
Outcome
Leave pursuant to r 4.15 and leave to appeal granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'indecent Assault of a Person Under 16' 'aggravated Sexual Intercourse' 'consciousness of Guilt Reasoning' 'implied Admissions' 'jury Directions' 'edwards Directions' 'zoneff Directions' 'miscarriage of Justice']
['criminal Law' 'criminal Procedure' 'evidence' 'appeals'] ['appeal Against Conviction' 'indecent Assault of a Person Under 16' 'aggravated Sexual Intercourse' 'consciousness of Guilt Reasoning' 'implied Admissions' 'jury Directions' 'edwards Directions' 'zoneff Directions' 'miscarriage of Justice']

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Procedural Posture

Criminal Appeal Against Conviction for Sexual Offences / Application for Leave Pursuant to R 4.15 of the Supreme Court (criminal Appeal) Rules 2021 (nsw) and Leave to Appeal Against Conviction

Legal Issues

  1. 1 ["Whether the Crown Prosecutor's closing address invited impermissible consciousness of guilt reasoning from the applicant's reaction to allegations made by his daughter." 'Whether the trial judge failed to direct the jury adequately about consciousness of guilt reasoning.' 'Whether any failure to give a full Zoneff direction occasioned a miscarriage of justice.' 'Whether leave should be granted under r 4.15 where trial counsel did not seek the direction later contended for on appeal.']

Ratio Decidendi

Although the prosecutor's closing submission improperly invited consciousness of guilt reasoning from the applicant's calm reaction to the allegation, the applicant's denial was consistent with his case and his departure occurred because KM told him to leave. The only possible basis for consciousness of guilt reasoning was his calm demeanour, which was equivocal and not a significant matter in the trial. The trial judge addressed the risk by reminding the jury of the denial and departure at KM's request and directing that people do not always act predictably when faced with such allegations. A full Zoneff warning would have risked prejudicing the applicant by elevating his calm demeanour...

Court Disposition

Leave pursuant to r 4.15 and leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).' 'Grant leave to appeal.' 'Dismiss the appeal.']