R v AMN [2005] NSWCCA 124

New South Wales Court of Criminal Appeal

CITATION: R v AMN [2005] NSWCCA 124

HEARING DATE(S): 5 April 2005

JUDGMENT DATE: 5 April 2005

JUDGMENT OF: Spigelman CJ at 59; Studdert J at 1; Howie J at 61

DECISION: Appeal dismissed.

Crimes Act, s 61M LEGISLATION CITED: Evidence (Children) Act, s 9

M v The Queen (1994) 181 CLR 487 CASES CITED: MFA v The Queen (2002) 213 CLR 606 Papakosmos v The Queen (1999) 196 CLR 297

PARTIES: Regina v AMN

FILE NUMBER(S): CCA 2004/3300

E. Wilkins (Crown) COUNSEL: J. Young (Appellant)

S. Kavanagh (Crown) SOLICITORS: Staunton & Thompson Solicitors (Appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0084

LOWER COURT JUDICIAL OFFICER: Black DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3300

SPIGELMAN CJ STUDDERT J HOWIE J

Tuesday 5 April 2005 REGINA v A M N Judgment 1 STUDDERT J: The appellant, AMN, is appealing against his conviction on a count of assault with act of indecency on a child under the age of ten years. The offence charged is an offence under s 61M(2) of the Crimes Act, and the victim of the offence is the stepdaughter of the appellant. This child was born on 16 February 1993. 2 The appellant stood trial charged with five counts of assaults with acts of indecency on his stepdaughter but he was acquitted on four of those counts. The offences charged on those four counts upon which the jury found the appellant not guilty concerned offences allegedly committed between 25 May and 11 June 2001. The fifth count on which the jury found the appellant guilty was allegedly committed between 1 August and 31 August 2001. 3 The complainant's mother and the complainant's father separated in 1995. Later, the complainant's mother formed an association with the appellant and they married in March 1997. There was a child of that union born on 5 June 1998. Prior to August 2001 the family resided in a unit at Caringbah but then moved into a house at Kurnell. The offences charged in the first four counts of the indictment were allegedly committed at a time when the complainant and her stepsister slept in double bunks. Once the family moved to Kurnell the complainant slept in a white single bed. These sleeping arrangements have some significance when considering grounds 5 and 13 of the grounds of appeal. 4 No challenge is made to the sentence imposed, which sentence has now been served. The appeal is against conviction only.