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Court of Criminal Appeal 8 December 2004

Regina v HAWAT

[2004] NSWCCA 393

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Regina v HAWAT [2004] NSWCCA 393
Court: NSW Court of Criminal Appeal
Date: 8 December 2004
Judge(s): Grove J, James J, Hoeben J

Background

The appellant was convicted in the District Court before Patten DCJ and a jury on two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act, arising from events on 3 December 2001. The original indictment charged the aggravated form of the offence under s 61J, with circumstances of aggravation being the infliction of actual bodily harm, but the trial judge withdrew that element from the jury on the basis that the evidence was insufficient to support it.

The appellant did not deny that sexual intercourse had occurred. His defence was that intercourse had taken place only once and that it was consensual. The complainant's account was that she had been subjected to two non-consensual acts at Silverwater Bridge, after being effectively coerced into attending a meeting at a McDonald's in Auburn following threatening phone calls and SMS messages.

The Crown case included the complainant's own evidence, the evidence of two friends who were present at McDonald's and at Silverwater Bridge, observations about the complainant's physical and emotional state after the events, and a medical examination conducted on the morning of 3 December 2001 that found bruising, swelling, and bleeding consistent with the complainant's account.

The appeal raised five grounds, asking the Court of Criminal Appeal to determine:

  • Whether the trial judge erred by refusing to discharge the jury following allegedly prejudicial media publicity published during the trial
  • Whether the trial judge failed to direct the jury adequately on inconsistencies in the evidence of the complainant and Crown witnesses
  • Whether the trial judge misdirected the jury on hearsay evidence
  • Whether the trial judge erred in failing to give warnings in relation to identification evidence
  • Whether the guilty verdicts constituted a miscarriage of justice

Decision

The Court rejected all five grounds of appeal and dismissed the conviction appeal, with Grove J and Hoeben J each agreeing with the reasons of James J.

On the media publicity ground, the Court found that the trial judge had not erred in declining to discharge the jury. The judge had addressed the jury on the need to disregard extraneous material, and the Court found no basis to conclude that the publicity had caused a miscarriage.

On the directions concerning inconsistencies, the Court found that the summing-up adequately drew the jury's attention to the relevant conflicts in the evidence. The Court noted that the jury had the significant advantage of seeing and hearing all witnesses give their evidence firsthand, an advantage the appellate court did not share.

The Court also found no error in the trial judge's directions on hearsay, no obligation to give identification warnings in the circumstances of this case, and no basis to conclude that the verdicts were unreasonable or unsupported by the evidence. The medical findings, the observations of witnesses about the complainant's distressed physical state, and the jury's entitlement to take an unfavourable view of the appellant's credibility all supported the convictions.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge's decision not to discharge a jury following mid-trial media publicity will not constitute error where appropriate directions are given and no actual miscarriage is demonstrated.
  • No obligation arose to give identification warnings in this case, as the circumstances did not engage the concerns that such warnings are designed to address.
  • The court noted that juries hold a material advantage over appellate courts in assessing witness credibility, having observed all witnesses give their evidence at trial.
  • Sufficient evidence existed to support both guilty verdicts, including medical findings consistent with the complainant's account, witness observations of her physical and emotional state, and grounds to doubt the appellant's own credibility.
  • Where a trial judge summarises relevant evidentiary inconsistencies in a summing-up, the failure to address every inconsistency will not necessarily constitute a misdirection giving rise to appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 61I and 61J
- Evidence Act (NSW)

Cases:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- R v Crowther-Wilkinson [2004] NSWCCA 249