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36
Court of Criminal Appeal 9 May 2002

R v Button R v Griffen

[2002] NSWCCA 159

Also reported as (2002) 54 NSWLR 455 (2002) 129 A Crim R 242
Sexual offences
CRIMINAL LAW AGGRAVATED SEXUAL ASSAULT CRIMES ACT 1900 S 61J MEANING OF "IN COMPANY" WHETHER MISDIRECTION OF JURY RESULTED

Citation: R v Button; R v Griffen [2002] NSWCCA 159
Court: Court of Criminal Appeal, New South Wales
Date: 9 May 2002
Judge(s): Heydon JA; Greg James J; Kirby J

Background

The two appellants were convicted in the District Court following a joint trial of five co-accused arising from events in the early hours of New Year's Day 1999. The complainant, aged 19, accepted a lift home from Crescent Head to Kempsey in the early morning hours and was subjected to a series of sexual assaults by multiple men during the journey, at various locations across a remote area near Kempsey.

Both appellants were convicted on charges of aggravated sexual assault under s 61J of the Crimes Act 1900 (NSW), which carries a maximum sentence of 20 years imprisonment. The aggravating circumstance charged in the relevant counts was that the offences were committed "in the company of another person or persons" under s 61J(2)(c). One appellant's assault on the complainant occurred approximately 50 metres away from the remaining members of the group.

The central dispute on appeal was whether that physical separation meant the assault was not committed "in company," and whether the trial judge had misdirected the jury on the meaning of that phrase.

  • What is the correct meaning of "in the company of another person or persons" under s 61J(2)(c) of the Crimes Act 1900?
  • Does physical presence of others remain a requirement for an offence to be committed "in company"?
  • What degree of proximity is necessary to satisfy the "in company" element?
  • Did the trial judge err in directing the jury on this question, and if so, did any error result in a miscarriage of justice?

Decision

The Court of Criminal Appeal dismissed both appeals. Kirby J delivered the principal judgment on the "in company" issue, with Heydon JA and Greg James J agreeing.

The Court confirmed that physical presence of another person is required before an offence can be said to have been committed "in company." A merely notional or constructive association is not sufficient. The phrase carries a territorial or spatial dimension.

However, physical presence does not require the other persons to be standing immediately alongside the offender. The correct test is whether there is sufficient proximity between the offender and others to permit the inference that the coercive effect of the group was operating: either emboldening or reassuring the offender in committing the offence, or intimidating the victim into submission. The Court drew on a line of New Zealand and South Australian authority in formulating this test.

Applying that test, the trial judge's directions were found to be correct. The assault occurred in a remote and isolated area, the other members of the group were approximately 50 metres away, and the group shared a common purpose of sexually assaulting the complainant. Those circumstances were sufficient to support the finding that the offence was committed "in company." On the separate ground raised by one appellant regarding jury directions on consent and intoxication, the Court declined to grant leave to raise a point not taken at trial, finding no risk of miscarriage of justice in the circumstances.

Orders Made

  • Both appeals dismissed.

Key Takeaways

  • Under s 61J(2)(c) of the Crimes Act 1900, a charge of aggravated sexual assault "in company" requires actual physical presence of another person; a purely constructive or notional association does not satisfy the element.
  • The Court of Criminal Appeal confirmed that the relevant test for physical presence is whether the proximity between the offender and others was sufficient to allow an inference that the group's coercive effect was operating, by emboldening the offender, reassuring the offender, or intimidating the victim.
  • A separation of approximately 50 metres did not take an assault outside the "in company" requirement where the location was remote and the group shared a common criminal purpose toward the victim.
  • No error was established in the trial judge's directions to the jury on the meaning of "in company," and the appeals were dismissed on that ground.
  • Where a ground of appeal had not been raised at trial, the Court required leave and declined to grant it upon finding no real risk that the unraised direction had produced a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Evidence Act 1995 (NSW)

Cases:
- R v Joyce [1968] NZLR 1070
- R v Cooper (1978) 17 SASR 472
- R v Galey [1985] 1 NZLR 230
- R v Brougham (1986) 43 SASR 187
- R v Birks (1990) 19 NSWLR 677
- R v Heyde (1990) 20 NSWLR 234
- R v Abusafiah (1991) 24 NSWLR 531
- R v Crozier (unreported, NSWCCA, 8 March 1996)
- R v O'Meagher (1997) 101 A Crim R 196
- R v Leoni [1999] NSWCCA 14
- R v DH [2000] NSWCCA 360
- R v Fuge [2001] NSWCCA 208
- Edwards v R (1993) 178 CLR 193
- Palmer v R (1998) 196 CLR 1
- Papakosmas v R (1999) 196 CLR 297
- Zoneff v R (2000) 200 CLR 234
- R v Jones (1978) 1 NSWLR 282
- R v Jeffrey (unreported, CCA, 16 December 1993)
- R v Sanderson (unreported, CCA, 18 July 1994)