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Court of Criminal Appeal 25 February 2005

Mueller v R

[2005] NSWCCA 47

Also reported as 62 NSWLR 476
Sexual offencesAssault & violence
ASSAULTS WITH ACTS OF INDECENCY WHETHER VERDICT OF JURY UNREASONABLE.

Citation: R v Mueller [2005] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 25 February 2005
Judges: Hunt AJA; Studdert J; Hulme J

Background

The appellant was a care worker employed at a residential facility for people with disabilities. He faced five counts of assault with an act of indecency in circumstances of aggravation under s 61M of the Crimes Act, all alleged to have occurred on the night of 25 April 2001 involving a 22-year-old resident of the facility who had Asperger's Syndrome and schizophrenia.

The complainant alleged that the appellant touched and kissed her breasts and bit her nipples (counts one and two), touched and kissed her vulva (counts three and four), and forced her to touch his penis (count five). The appellant admitted the physical acts underlying counts three and four but said they were consensual. He denied forcing the complainant's hand in relation to count five, though he accepted she made contact with his penis.

The jury acquitted on counts one and two but convicted on counts three, four, and five. The appellant received concurrent terms of two years and six months imprisonment, served by way of periodic detention. He appealed against the convictions.

  • Whether the trial judge's directions on the absence of consent were legally erroneous, in particular as to the meaning of consent and the mental element of recklessness.
  • Whether a Shepherd-style direction was required, directing the jury that it must be satisfied the appellant knew the complainant was not consenting or was recklessly indifferent to whether she was consenting.
  • Whether the directions on consent were confusing or contradictory, particularly the simultaneous use of "freely and voluntarily given" and "reluctantly or after persuasion."
  • Whether the verdicts of guilty on counts three, four, and five were unreasonable or inconsistent with the acquittals on counts one and two.

Decision

Consent directions: Studdert J reviewed the summing up in its entirety. While the directions were lengthy and included passages drawn from numerous cases without obvious regard for their relevance to the facts at hand, the court found that, taken as a whole, the jury was correctly and sufficiently directed on the elements of consent and the requirement that the Crown prove beyond reasonable doubt the appellant knew the complainant was not consenting, or was reckless as to whether she was.

The "freely and voluntarily" problem: Hulme J noted that the phrase "freely and voluntarily given," if left without elaboration, risks misleading a jury, because consent given reluctantly or after persuasion is, as a matter of law, still consent. In this case the trial judge went beyond that bare expression and provided additional explanation sufficient to cure any ambiguity. Hunt AJA agreed, adding that where both directions (consent freely given, and consent given reluctantly) are needed, the judge should explain clearly how each direction applies to the facts to avoid confusion.

Recklessness direction: The court held that a recklessness direction was appropriate on the evidence. The appellant's own cross-examination revealed that he had not sought the complainant's consent before first touching her vulva, providing a factual basis for the jury to consider whether he was recklessly indifferent to whether she was consenting.

Unreasonable verdicts: The court found no basis for concluding the convictions were unreasonable. The acquittals on counts one and two were not inconsistent with the convictions on the remaining counts; the jury was entitled to assess the evidence differently in respect of each count.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A summing up in a sexual assault trial must be tailored to the facts of the particular case. The Court of Criminal Appeal warned against incorporating every available judicial statement on consent into a direction regardless of its relevance, observing that doing so converts a charge into a series of formulae that may confuse rather than assist the jury.
  • Consent given reluctantly or only after persuasion remains, as a matter of law, consent. The phrase "freely and voluntarily given" carries a risk of misdirection if used without further explanation, and trial judges should be cautious when deploying it.
  • Where a summing up contains apparent tension between two consent directions, the trial judge should explain how each direction relates to the specific facts in issue, so that the jury understands the practical significance of each.
  • In dismissing the appeal, the Court confirmed that the ultimate question is whether the correct directions were given when the summing up is read as a whole, not whether individual passages were imprecise or redundant.
  • Sufficient factual basis existed for a recklessness direction where the appellant admitted he first touched the complainant without having sought or received consent before doing so.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), ss 61D, 61M, 61R
- Criminal Appeal Act (NSW), s 6

Cases:
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Question of Law (No. 1 of 1993) (1993) 59 SASR 214
- R v Beserick (1993) 30 NSWLR 510
- R v Blayney & Anor [2003] SASC 405
- R v Clark (unreported, NSWCCA, 17 April 1998)
- R v Henning (unreported, NSWCCA, 11 May 1990)
- R v Kitchener (1993) 29 NSWLR 696
- R v Morgan (1970) VR 337
- R v Shepherd (No. 5) (1990) 170 CLR 573
- R v Tillott (1991) 53 A Crim R 46
- R v Tolmie (1995) 37 NSWLR 660