Citation: Gary Thomas Mitchell v R [2000] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 26 May 2000
Judge(s): Spigelman CJ, James J, Sperling J
Background
The appellant was convicted in the District Court on a single charge of sexual intercourse without consent following a trial before Bellear DCJ. It was not in dispute that sexual intercourse had occurred between the appellant and the complainant at the appellant's home in the early hours of 31 August 1998. The sole issue at trial was consent.
The complainant gave evidence that she had felt severely disoriented throughout the evening, had fragmented memories of events, and woke in the appellant's bed to find him initiating intercourse. She said she said "No", elbowed him, and he responded by physically restraining her and proceeding. The appellant gave evidence that the complainant had consented. The jury preferred the complainant's account.
The appellant appealed the conviction on two grounds: that the verdict was unreasonable given the evidence, and that the trial judge's directions to the jury on evidence of other alleged sexual conduct were erroneous and inadequate.
Legal Issues
- Whether the jury's verdict of guilty was unreasonable, in that no jury acting on the evidence could have been satisfied beyond reasonable doubt that the complainant did not consent
- Whether the trial judge's directions on evidence of prior alleged sexual conduct (admitted as evidence of "relationship" and "guilty passion") were erroneous and inadequate, and whether any error caused a miscarriage of justice
Decision
Unreasonable verdict ground: The Court applied the test from M (1994) 181 CLR 487, as explained in Jones (1997) 191 CLR 439, asking whether it was open to the jury to be satisfied beyond reasonable doubt of the necessary elements, with appropriate allowance for the jury's advantage in seeing and hearing the witnesses. The Court found the jury was entitled to accept the complainant's account and reject the appellant's evidence entirely. Having reviewed the complainant's detailed evidence, the Court was satisfied the verdict was reasonably open.
Misdirection ground: The trial judge had directed the jury that evidence of prior alleged sexual conduct was relevant to show "guilty passion" on the part of the appellant. Sperling J observed that the expression "guilty passion" ought to disappear from legal vocabulary, noting that a phrase such as "sexual interest" was more appropriate. More substantively, the concept was inapt in this case: because intercourse was not in dispute, the appellant's sexual interest in the complainant had no bearing on whether consent was given.
However, no objection had been taken to the direction at trial, so Rule 4 of the court's rules applied and leave to argue the ground was not granted. Even if leave had been granted, Sperling J would have applied the proviso under section 6 of the Criminal Appeal Act 1912. The passage was described as "innocuous" in the overall context and made no material difference to the appellant's prospects of acquittal.
Orders Made
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed the applicable test for an unreasonable verdict ground: whether it was open to the jury to be satisfied beyond reasonable doubt, making due allowance for the jury's advantage in observing witnesses firsthand.
- Where a jury is entitled to reject an accused's sworn testimony entirely, the appeal court will not treat the accused's account as a counterweight when assessing whether the verdict was open.
- Sperling J expressly criticised the expression "guilty passion" as outdated, stating it should disappear from legal vocabulary and that neutral phrases such as "sexual interest" serve the same purpose more appropriately.
- No error was established as causing a miscarriage of justice: even where a direction contained an inapt concept, the proviso under section 6 of the Criminal Appeal Act 1912 applied because the error made no material difference to the outcome.
- Failing to object to a direction at trial will ordinarily preclude an appellant from raising that direction as a ground of appeal without leave, and leave will not readily be granted where the error was immaterial.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), section 6 (proviso)
Cases:
- M (1994) 181 CLR 487
- Jones (1997) 191 CLR 439