JWM v R [2014] NSWCCA 248

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JWM v R [2014] NSWCCA 248 Hearing dates: 29 April 2014 Decision date: 31 October 2014 Before: Hall J at [1]; R A Hulme J at [184]; Davies J at [185] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal against conviction - appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years - complainant made a statement after the offences took place to the effect that she was a virgin - defence counsel intended to use that statement to demonstrate a prior inconsistent statement - whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 - whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations - whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence - whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence - whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence - whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences - application of rule 4 of the Criminal Appeal Rules - appeal dismissed Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: BG v R [2010] NSWCCA 301 Bin Sulaeman v R [2013] NSWCCA 283 Christian v R [2012] NSWCCA 34 Clark v R [2008] NSWCCA 122 Doyle v R [2014] NSWCCA 4 Edwards v R (1993) 178 CLR 193 GEH v R [2012] NSWCCA 150 Gregory v R (1983) 151 CLR 566 NAR v PPC1 [2013] NSWCCA 25 R v GEH [2012] NSWCCA 150 R v ITA [2003] NSWCCA 174 R v M (1993) 67 A Crim R 549 R v Morgan (1993) 30 NSWLR 543 R v Picken [2007] NSWCCA 319 R v Poniris [2014] NSWCCA 100 R v White (1989) 18 NSWLR 332 Rolfe v R [2007] NSWCCA 155 Spratt v DPP [2010] NSWSC 355 Taylor v R [2009] NSWCCA 180 Toalepai v R [2009] NSWCCA 270 Wong v R [2009] NSWCCA 101 Zoneff v R (2000) 200 CLR 234 Category: Principal judgment Parties: JWM (Appellant) Regina (Respondent) Representation: Counsel: J Nicholson (Appellant) S Dowling (Respondent) Solicitors: Legal Aid NSW (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/312038 Decision under appeal Date of Decision: 2013-03-06 00:00:00 Before: Ellis DCJ File Number(s): 2011/312038