Citation: HORTON, Garry Edward v R [2008] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 27 March 2008
Judge(s): Simpson J; McClellan CJ at CL; Price J
Background
The appellant had been charged with multiple offences arising from an incident on 10 March 2005 involving a 22-year-old man with cerebral palsy, who had both physical and intellectual impairments. The two had become acquainted through a church in the Blue Mountains. According to an agreed statement of facts, the appellant invited the complainant to his home and engaged in sexual conduct with him without his consent.
Following negotiations, the Crown accepted the appellant's guilty plea to one alternative count of aggravated indecent assault in full satisfaction of the indictment. Knight DCJ formally recorded the conviction on 25 September 2006. Sentencing was handled separately before English DCJ approximately a year later.
Before English DCJ imposed sentence, the complainant contacted police to retract the non-consent aspect of his allegation. He attended a conference with two solicitors from the Office of the Director of Public Prosecutions and confirmed that sexual activity had occurred, but now stated it had been consensual. English DCJ was informed of this development but took the view that, since a conviction had already been entered, she had no power to do anything other than proceed to sentence. A term of imprisonment of 2 years and 9 months was imposed on 25 September 2007.
Legal Issues
- Whether a conviction entered on the basis of a guilty plea ought to be quashed where the complainant retracts the allegation of non-consent prior to sentencing.
- Whether the retraction, occurring after conviction but before sentence, constituted circumstances sufficient to justify the Court of Criminal Appeal allowing the appeal.
Decision
The Court of Criminal Appeal allowed the appeal unanimously. Simpson J, with whom McClellan CJ at CL and Price J agreed, noted that the Crown itself conceded the appeal should be allowed and the conviction quashed. The court was satisfied that concession was correctly made.
Simpson J acknowledged that a guilty plea is a relevant consideration. However, the plea had been entered following negotiations and only after the original indictment contained three charges. In the context of the complainant's subsequent retraction of the non-consent element, the court found it beyond question that the conviction could not stand.
The court did not resolve whether English DCJ had been correct in concluding she was powerless to act on the retraction before sentencing, treating that question as unnecessary to decide. The formal order for a new trial was made, though the court noted that whether any further trial actually proceeds is a matter entirely for the Director of Public Prosecutions.
Orders Made
- Appeal allowed.
- Conviction and sentence quashed.
- New trial ordered.
Key Takeaways
- Where a complainant retracts the allegation underpinning a conviction before sentencing, a court may quash that conviction on appeal even where it was founded on a guilty plea.
- A guilty plea entered following charge negotiations does not automatically foreclose an appeal against conviction when significant new circumstances arise.
- The Court of Criminal Appeal confirmed that an order for a new trial is the appropriate formal order in these circumstances, but the decision whether to actually prosecute again rests with the Director of Public Prosecutions.
- English DCJ's view that she was powerless to act on the retraction once conviction had been entered was left unresolved; the Court of Criminal Appeal expressly declined to rule on its correctness.
- Retraction of a complaint by a complainant after conviction but before sentencing can constitute circumstances sufficient to ground a successful appeal, at least where the Crown concedes the point.
Legislation and Cases Referenced
No specific legislation or cases were cited in the text of the judgment or in the decision metadata.