Martin v R [2020] NSWCCA 192

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v R [2020] NSWCCA 192 Hearing dates: 25 May 2020 Date of orders: 5 August 2020 Decision date: 05 August 2020 Before: Hoeben CJ at CL at [1] Harrison J at [2] Beech-Jones J at [3] Decision: (1) Grant leave to the applicant to raise grounds 1 and 2 of his notice of appeal. (2) Allow the appeal. (3) Quash the convictions. (4) Enter a verdict of not guilty in relation to Count 1. (5) Order a new trial in relation to Count 6. (6) List the matter in the District Court Arraignments List at Newcastle on 24 September 2020. Catchwords: APPEAL – CONVICTION – applicant charged with historic sexual offences in relation to two sibling complainants – applicant formerly in relationship with mother of complainants – for each complainant one count of aggravated indecent assault and other counts of having sexual intercourse with a person under the age of ten years – applicant acquitted of sexual assault charges – applicant convicted of two aggravated indecent assault charges – whether verdicts inconsistent with acquittals – rejected – jury's verdicts consistent with acceptance of complainants as witnesses of truth but requiring "something additional" before convicting – with one complainant additional factor was series of complaints consistent with charge – with other complainant additional factor was tendency evidence from sibling – whether verdict unreasonable or unsafe – one complainant's evidence and history of complaints cogent – no reason to doubt conviction – other complainant had poor memory and series of inconsistent complaints – ground upheld in relation to one count – relief – as tendency evidence relied on to support convictions then conviction on remaining count set aside – acquittal on one count – new trial on the other Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 2005 Cases Cited: AH v R [2019] NSWCCA 152 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Curran v R [2020] NSWCCA 171 Jafary v R [2018] NSWCCA 243 Jiminez v The Queen (1992) 173 CLR 572; [1992] HCA 14 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 Longman v R (1989) 168 CLR 79; [1989] HCA 60 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Pell v The Queen [2020] HCA 12 R v Markuleski (2001) 52 NSWLR 82 R v Stone (UK Court of Criminal Appeal, Devlin J, 13 December 1954, unrep) R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151; 74 NSWLR 299 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Walker v R [2019] NSWCCA 4 Category: Principal judgment Parties: Darren Martin (Applicant) Regina (Crown) Representation: Counsel: A Moutasallem (Applicant) M Millward (Crown)