MM v R [2011] NSWCCA 262

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MM v R [2011] NSWCCA 262 Hearing dates: 28/10/2011 Decision date: 09 December 2011 Before: Beazley JA at [1] James J at [2] Fullerton J at [3] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal against conviction - sexual intercourse with a child - indecent assault of a child - whether verdict unreasonable - whether trial judge erroneously granted leave to amend timeframe within which offences were allegedly committed - whether evidence of complainant unreliable Legislation Cited: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Borodin v R [2006] NSWCCA 83 House v R [1936] HCA 40; 55 CLR 499 M v R [1994] HCA 63; 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Raumakita v R [2011] NSWCCA 126 SKA v R [2011] HCA 13 Category: Principal judgment Parties: MM (Appellant) The Crown Representation: M Thangaraj SC (Appellant) M Cinque (Crown) Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2009/6576 Decision under appeal Date of Decision: 2009-12-11 00:00:00 Before: Bennett DCJ File Number(s): 2009/11/0989

Judgment 1BEAZLEY JA: I agree with Fullerton J. 2JAMES J: I agree with Fullerton J. 3FULLERTON J: On 11 December 2009 the appellant was convicted after trial of four counts of sexual intercourse with a child (LP) under the age of 10 years and three counts of indecent assault of the same child. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. He appeals his conviction on all counts. There is no application for leave to appeal against sentence. 4The appellant required an extension of time within which to bring the appeal. In light of the matters outlined in the affidavit of Brian Peter Dowe, sworn 2 May 2011, the Crown did not oppose leave being granted. 5The charges relate to two discrete occasions whilst the complainant was being cared for at a childcare facility operated by the appellant's mother from her home in Moree. As originally particularised, counts 1 to 4 (two counts of sexual intercourse and two counts of indecent assault) were committed on one afternoon between 25 December 1995 and 16 March 1996 when the complainant was 3 years of age and counts 4 to 7 (two counts of sexual intercourse and one count of indecent assault) were committed on another afternoon between 1 June 1997 and 31 December 1998 when she was between 5 and 6 years of age. After amendment the timeframe within which counts 1 to 4 were committed was extended to between 16 March 1996 and 1 December 1997 when the complainant was aged 3 and 5 years. 6The appellant filed seven grounds of appeal. At the hearing of the appeal he relied only on the first and sixth grounds. The first ground contended that each of the verdicts is unreasonable and cannot be supported on the evidence as provided for in s 6(1) of the Criminal Appeal Act 1912. The sixth ground contended that the trial judge erroneously granted leave to the Crown to amend counts 1, 2, 3 and 4 to enlarge the timeframe within which the offences were allegedly committed.