RM v R [2024] NSWCCA 148

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RM v R [2024] NSWCCA 148 Hearing dates: 17 July 2024 Decision date: 07 August 2024 Before: Adamson JA at [1]; Dhanji J at [278]; Sweeney J at [295] Decision: (1) Grant leave to appeal and allow the appeal against the conviction in respect of count 5. (2) Set aside the conviction in respect of count 5 and, instead, convict the applicant of the statutory alternative to count 5 namely an offence contrary to s 66C(4) of the Crimes Act 1900 (NSW) of unlawful sexual intercourse with a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that the complainant was under the applicant's authority. (3) Otherwise dismiss the appeal. (4) Remit the matter to the District Court arraignment list at 9.30am on 16 August 2024 for the applicant to be sentenced in accordance with law. Catchwords: CRIME — appeals — appeal against conviction — unreasonable verdict — 11 counts of sexual offending by applicant against biological daughter — whether verdicts unable to be supported by the evidence — whether complainant lacked credibility — where complainant did not make contemporaneous complaint — whether complainant had motive to lie — where there were minor inconsistencies in complainant's evidence as to tangential details — whether complainant's version implausible CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of offence under s 66C(2) of the Crimes Act 1900 (NSW) — where s 66C(2) requires proof that complainant was under 14 years of age at time of offending — where there was reasonable doubt as to complainant's age — where alternative charge under s 66C(4) was left to jury — whether Court of Criminal Appeal could find the applicant guilty of the alternative count Legislation Cited: Crimes Act 1900 (NSW), ss 61H, 61J, 61KC, 61KE, 61M, 66A, 66B, 66C, 78H, 78J, 78K, 80AB, 80AF Criminal Appeal Act 1912 (NSW), ss 5, 7, 12 Cases Cited: Decision Restricted [2024] NSWCCA 81 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 Gilson v The Queen (1991) 172 CLR 353; [1991] HCA 24 Kilby v The Queen (1973) 129 CLR 460; [1973] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Maughan v R [2020] NSWCCA 51 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Bruce [1988] VR 579 R v JGW [1999] NSWCCA 116 R v Johnston (1998) 45 NSWLR 362 R v Marijacevic (2001) 3 VR 611; [2001] VSCA 188 Reed v R [2006] NSWCCA 314 Sivaraja v R; Sivathas v R [2017] NSWCCA 236 Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31 The Queen v A2; Magennis, Vaziri (2019) 269 CLR 507; [2019] HCA 35 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Xerri v R (2021) 292 A Crim R 355; [2021] NSWCCA 268 Z (a pseudonym) v R [2022] NSWCCA 8 Category: Principal judgment Parties: RM (Applicant) Rex (Respondent) Representation: Counsel: K Hogan (Applicant) E Jones (Respondent)