MM v R [2018] NSWCCA 158

MM v R [2018] NSWCCA 158

The conviction for aggravated sexual assault could not stand because the indictment alleged that the applicant did occasion actual bodily harm rather than that he intentionally or recklessly inflicted actual bodily harm as required by s 61J(2)(a), and the trial judge directed the jury in the terms of the defective indictment, including that the harm need not be occasioned intentionally. The misdirection was an error of law. The proviso was not applied because the evidence did not prove beyond reasonable doubt that the applicant punched the complainant or caused the relevant bruise so as to establish the aggravating element, and because the misdirection was apt to prevent the jury from...

Jurisdiction
Australia
Judgment Date
01 August 2018
Procedural Posture
Conviction Appeal in Criminal Proceedings / Application for Extension of Time and Leave to Appeal Against Conviction; Appeal Against Conviction With Substituted Verdict and Resentencing
Outcome
Extension of time and leave to appeal granted; appeal upheld; conviction for aggravated sexual assault substituted with conviction for sexual assault; applicant resentenced; commencement date of subsequent sentence varied.
Legal Topics
['aggravated Sexual Assault' 'sexual Assault' 'defective Indictment' 'jury Misdirection' 'circumstances of Aggravation' 'criminal Appeal Proviso' 'substituted Verdict' 'resentencing' 'variation of Commencement Date of Subsequent Sentence']
['criminal Law' 'criminal Procedure' 'sentencing'] ['aggravated Sexual Assault' 'sexual Assault' 'defective Indictment' 'jury Misdirection' 'circumstances of Aggravation' 'criminal Appeal Proviso' 'substituted Verdict' 'resentencing' 'variation of Commencement Date of Subsequent Sentence']

Case Brief

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Procedural Posture

Conviction Appeal in Criminal Proceedings / Application for Extension of Time and Leave to Appeal Against Conviction; Appeal Against Conviction With Substituted Verdict and Resentencing

Legal Issues

  1. 1 ['Whether a defect in the indictment caused the trial judge to misdirect the jury about an element of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW).' 'Whether leave to appeal under r 4 of the Criminal Appeal Rules (NSW) and an extension of time should be granted.' 'Whether the appeal should be dismissed under the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) on the basis that no substantial miscarriage of justice occurred.' 'Whether the evidence proved beyond reasonable doubt that the applicant intentionally or recklessly inflicted actual bodily harm on the complainant.' 'Whether a verdict of guilty to sexual assault under s 61I of the Crimes Act 1900 (NSW) should be substituted for the verdict of guilty to aggravated sexual assault under s 61J.' 'What sentence should be imposed for the substituted s 61I offence and whether the commencement date of a subsequent sentence should be varied under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW).']

Ratio Decidendi

The conviction for aggravated sexual assault could not stand because the indictment alleged that the applicant did occasion actual bodily harm rather than that he intentionally or recklessly inflicted actual bodily harm as required by s 61J(2)(a), and the trial judge directed the jury in the terms of the defective indictment, including that the harm need not be occasioned intentionally. The misdirection was an error of law. The proviso was not applied because the evidence did not prove beyond reasonable doubt that the applicant punched the complainant or caused the relevant bruise so as to establish the aggravating element, and because the misdirection was apt to prevent the jury from...

Court Disposition

Extension of time and leave to appeal granted; appeal upheld; conviction for aggravated sexual assault substituted with conviction for sexual assault; applicant resentenced; commencement date of subsequent sentence varied.

Orders

  • ['Extension of time to appeal to 7 February 2018 is granted.' 'Leave to appeal against conviction pursuant to r 4 of the Criminal Appeal Rules is granted.' 'The appeal is upheld.' 'Pursuant to s 7(2) of the Criminal Appeal Act 1912, instead of allowing the appeal, the verdict of the jury in District Court...