Citation: BOCHKOV, Vladimir v Regina [2009] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 8 July 2009
Judge(s): Giles JA; Buddin J; Harrison J
Background
The appellant was convicted in the District Court on three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), following a trial before Solomon DCJ and a jury. The offences arose from an incident in which the complainant, who had fallen asleep in her apartment alongside her boyfriend and the appellant, was subjected to sexual touching and intercourse. At the time, she believed the person was her boyfriend. She realised only later that it was the appellant.
The Crown presented its case on two alternative bases: first, that the complainant did not consent in fact; and second, that any apparent consent was vitiated because it was given under a mistaken belief as to the identity of the person. The trial judge also directed the jury on recklessness as a pathway to establishing the accused's knowledge of the absence of consent.
The appellant challenged his convictions on appeal, arguing that the way the Crown framed its case was improper, that various jury directions were defective, and that the late introduction of recklessness caused a miscarriage of justice.
Legal Issues
- Whether the Crown could legitimately present its case on the alternative bases of absence of consent in fact and consent vitiated by mistaken identity, without separately framed counts in the indictment
- Whether recklessness formed a proper part of the Crown case and, if so, whether it was introduced too late
- Whether the trial judge's directions on consent, vitiation of consent, honest and reasonable mistake, and recklessness were correct
- Whether directions concerning s 61R(1) and s 61R(2) of the Crimes Act 1900 were adequate
- Whether evidence about the appellant's capacity to understand and speak English was wrongly admitted or improperly addressed
- Whether the cumulative conduct of the trial gave rise to a miscarriage of justice
Decision
The Court of Criminal Appeal dismissed the appeal, with Buddin J and Harrison J agreeing with the reasons of Giles JA. The court found no miscarriage of justice arising from the Crown's alternative presentation of its case. Presenting alternative factual bases for absence of consent within a single count did not require separately framed counts in the indictment, and the approach taken was consistent with established principle.
On the recklessness issue, the court confirmed that the accused's knowledge of the absence of consent is an element of the offence. An honest belief in consent negatives that knowledge. However, recklessness represents another recognised pathway to establishing knowledge as that element, and the court found that the directions on recklessness, while scrutinised carefully, did not produce a wrong verdict or substantial miscarriage.
The court also examined the directions on vitiation of consent under s 61R(2) and on honest and reasonable mistake. No error of sufficient gravity was identified. The complaint about the late reliance on recklessness did not succeed because the court was satisfied the issue had been adequately dealt with at trial.
Regarding the application to admit fresh evidence about the appellant's English language capacity, the court rejected the affidavit material. The evidence was either not truly fresh, or was of too general a character to warrant admission. The court noted that any evidence on this point should properly have been addressed at trial.
Orders Made
- The appeal was dismissed.
Key Takeaways
- A Crown case on sexual intercourse without consent may be presented on alternative factual bases (absence of consent in fact, and consent vitiated by mistaken identity) within a single count, without requiring separately framed counts in the indictment.
- Under the NSW offence of sexual intercourse without consent, the accused's knowledge of the absence of consent is a required element. An honest belief in consent negatives that knowledge.
- Recklessness is a recognised pathway to establishing the knowledge element, and directions on recklessness are permissible where the evidence supports that course.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that not every imperfection in trial directions will constitute a miscarriage of justice; the court examines whether any error produced a wrong verdict.
- Fresh evidence of an appellant's general language capacity will not readily be admitted on appeal where the issue was available to be addressed at trial and the proposed evidence lacks the specificity needed to affect the outcome.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61R(1), 61R(2)
Cases Cited:
- Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
- Director of Public Prosecutions v Morgan [1976] AC 182
- R v Henning (CCA, 11 May 1990, unreported)
- R v Isaacs (1997) 47 NSWLR 374
- R v Kitchener (1993) 29 NSWLR 696
- R v Tolmie (1995) 37 NSWLR 660