McGrath v R [2010] NSWCCA 48

McGrath v R [2010] NSWCCA 48

Although the judge erred by directing the jury that the complainant's age meant she could not consent for the purposes of s 61J, the appellant's trial case was wholly inconsistent with consensual intercourse and there was no rational evidentiary basis on which the jury could have accepted intercourse occurred but also found consent or lack of knowledge of non-consent. Accordingly, no substantial miscarriage of justice occurred and the conviction appeal was dismissed under the proviso. The sentences were set aside because the sentencing judge had some regard to standard non-parole periods introduced after the offences, contrary to the requirement to sentence according to the law and...

Jurisdiction
Australia
Judgment Date
24 March 2010
Procedural Posture
Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From Convictions and Sentences Imposed in the District Court
Outcome
Appeal against conviction dismissed; leave to appeal against sentence granted; sentences set aside and appellant resentenced.
Legal Topics
['child Sexual Offences' 'appeal Against Conviction' 'jury Directions' 'consent and Knowledge of Absence of Consent' 'proviso to S 6(1) Criminal Appeal Act 1912' 'standard Non Parole Periods' 'sentence Appeal']
['criminal Law' 'criminal Procedure' 'sentencing'] ['child Sexual Offences' 'appeal Against Conviction' 'jury Directions' 'consent and Knowledge of Absence of Consent' 'proviso to S 6(1) Criminal Appeal Act 1912' 'standard Non Parole Periods' 'sentence Appeal']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Application for Leave to Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From Convictions and Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the trial judge misdirected the jury by directing that the complainant could not consent because she was under 16, thereby removing absence of consent and knowledge of absence of consent as elements of the s 61J offences.' 'Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 should be applied despite the misdirection.' 'Whether the sentencing judge erred by having regard to standard non-parole periods introduced after the offences were committed.' 'Whether the sentences imposed were manifestly excessive.']

Ratio Decidendi

Although the judge erred by directing the jury that the complainant's age meant she could not consent for the purposes of s 61J, the appellant's trial case was wholly inconsistent with consensual intercourse and there was no rational evidentiary basis on which the jury could have accepted intercourse occurred but also found consent or lack of knowledge of non-consent. Accordingly, no substantial miscarriage of justice occurred and the conviction appeal was dismissed under the proviso. The sentences were set aside because the sentencing judge had some regard to standard non-parole periods introduced after the offences, contrary to the requirement to sentence according to the law and...

Court Disposition

Appeal against conviction dismissed; leave to appeal against sentence granted; sentences set aside and appellant resentenced.

Orders

  • ['Dismiss the appeal against conviction on Counts 1 and 3 of the Indictment.' 'Grant leave to the appellant to appeal against sentence.' 'Set aside the sentences imposed on the appellant on 5 February 2008.' "Count 1: Six years' non-parole period to date from 15 November 2007 and to expire on 14 November 2013, with...