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Court of Criminal Appeal 13 July 2007

Shepherd v Regina

[2007] NSWCCA 203

Sexual offences
CRIMINAL LAW AGGRAVATED INDECENT ASSAULT OFFENCE COMMITTED IN COMPANY PLEA OF NOT GUILTY DIRECTIONS GIVEN BY TRIAL JUDGE SUCCESSFUL APPEAL BY ALLEGED CO

Citation: Shepherd v Regina [2007] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 13 July 2007
Judges: Beazley JA, Grove J, Simpson J

Background

The appellant was tried in the District Court between November and December 2004, alongside a co-accused named Scott South. Both men were convicted of aggravated sexual intercourse without consent, with the circumstance of aggravation being that the offences were committed in company. The appellant was also convicted of aggravated indecent assault on the same basis.

The offences arose from events in the early hours of 5 May 2003 at a residential property in Ruse. The complainant, then 18 years old, had been brought to a gathering where she was given alcohol and an amphetamine-based powder. After becoming unwell, she was carried to a bedroom, where the Crown alleged that multiple men, including the appellant, sexually assaulted her.

Following his convictions, the appellant received a total sentence of imprisonment with a non-parole period of six and a half years. Scott South had separately appealed his own conviction, and the Court of Criminal Appeal upheld that appeal in South v Regina [2007] NSWCCA 117. The appellant then brought his own appeal, raising largely parallel grounds.

  • Whether the ground of appeal that succeeded in the co-offender South's appeal was equally available to this appellant
  • Whether the trial judge's directions to the jury were infected by the same error identified in South's case
  • Whether additional grounds of appeal not raised in South's case, including arguments about consent and intoxication directions, provided further basis for appeal
  • Whether the "why would the complainant lie?" direction by the trial judge was appropriate given the specific defences raised by the appellant

Decision

The Crown conceded, appropriately according to the Court, that the ground of appeal upheld in South v Regina applied with equal force to this appellant. The Court accepted that concession without detailed elaboration from the bench, finding it inevitable that the appeal must succeed on the same basis.

Simpson J, who wrote the principal reasons, considered additional grounds raised by the appellant's counsel that had not featured in South's case. One concerned whether directions on intoxication and consent were appropriate given the appellant's actual defence. At trial, the appellant had denied that penile-vaginal intercourse took place at all, rather than arguing that the complainant consented. Because consent was therefore not genuinely in issue in respect of the first count, the utility of intoxication evidence to the defence was, at best, limited and potentially confusing.

Simpson J noted that the trial judge's directions had to be assessed against the issues actually live at trial. The appellant's own counsel had introduced some confusion in his jury address, at points suggesting the complainant had been disinhibited by drugs while also maintaining the appellant's denial of intercourse. This inconsistency was acknowledged.

Because a new trial was ordered, Simpson J considered it unnecessary to resolve the consent and intoxication grounds definitively, leaving those matters to be argued before the trial judge at the retrial. The sentence appeal was also set aside on the same basis.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Where a successful ground of appeal is identified in one co-offender's case, the same ground is ordinarily available to other co-offenders tried on the same indictment, and the Crown's concession to that effect will generally be accepted as appropriate.
  • A "why would the complainant lie?" direction may be problematic where it does not align with the issues actually raised by the defence at trial.
  • Directions concerning a complainant's intoxication and its relevance to consent must be assessed against the defence actually run: where an accused denies the sexual act occurred at all, consent is not in issue and intoxication directions may have limited or confused relevance.
  • The Court of Criminal Appeal declined to resolve the consent and intoxication grounds conclusively, treating them as matters properly left for the retrial judge.
  • Sentence appeals become redundant where a conviction is quashed and a new trial ordered; any sentencing issues remain available for argument if the appellant is convicted again.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3

Cases:
- South v Regina [2007] NSWCCA 117
- The Queen v Wilson, Tchorz and Young (1986) 42 SASR 203