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Court of Criminal Appeal 16 November 2009

W O v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

[2009] NSWCCA 275

Sexual offences
APPEAL CRIMINAL INTERLOCUTORY APPEAL NATURE OF APPEAL ACCUSED INTOXICATED AT TIME OF INCIDENT JUDGMENT DELIVERED BY TRIAL JUDGE

Citation: W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 16 November 2009
Judges: Basten JA; Fullerton J; McCallum J

Background

The appellant was charged under s 61P of the Crimes Act 1900 (NSW) with attempting to have sexual intercourse with a woman without her consent and knowing she was not consenting. The incident occurred at his home following a party, during which the complainant had become intoxicated and been placed on a bed to sleep. The appellant, also highly intoxicated, later entered the room and was found lying on top of the complainant, who was still asleep. He told the complainant's friend he had believed the complainant was his wife.

Before the jury was empanelled, the trial judge (English DCJ in the District Court) heard pre-trial submissions on two legal questions: whether s 61HA of the Crimes Act, which governs how knowledge about consent is assessed, applied to an attempt offence; and whether the attempt charge was an "offence of specific intent" under s 428B, which would have affected how the appellant's intoxication could be used in his defence.

The trial judge ruled that the offence was not one of specific intent and that s 61HA did apply. The appellant sought and obtained an adjournment and a certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 (NSW) to bring an interlocutory appeal to the Court of Criminal Appeal.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act 1912 to hear an appeal from the trial judge's pre-trial ruling.
  • Whether s 61HA of the Crimes Act (which modifies how a jury assesses an accused's knowledge of consent) applied to an attempt offence under s 61P.
  • Whether the offence of attempt to have sexual intercourse without consent was an "offence of specific intent" within the meaning of s 428B of the Crimes Act, thereby engaging the intoxication provisions.

Decision

Jurisdiction under s 5F: The Court held that its jurisdiction under s 5F was not engaged, and this conclusion alone was sufficient to dismiss the appeal. The trial judge's ruling was a preliminary determination of legal questions anticipated to arise during the trial, not an order or judgment that finally determined rights or admissibility of specific evidence. The Court reasoned that pre-trial mechanisms for resolving legal questions (including s 192A of the Evidence Act 1995 and s 130A of the Criminal Procedure Act 1986) do not expand the scope of s 5F. The phrase "interlocutory judgment or order" in s 5F does not extend to advance rulings on questions of law, even where those rulings may influence the trial's outcome.

The Court noted that accepting such a broad interpretation of s 5F would open the door to interlocutory appeals on a wide range of evidence rulings and disputed jury directions, which would be contrary to the purpose of the provision.

Application of s 61HA to attempt offences: Although the Court's jurisdictional finding was determinative, Basten JA addressed the substantive issues. On s 61HA, his Honour found the provision to be ambiguous: it does not in its terms apply to attempts. While one construction would hold that the prosecution must prove the elements of the substantive offence (which would engage s 61HA), the provision curtails an accused's rights under the general law. Applying the principle from Coco v The Queen, such a curtailment requires clear statutory language. That level of clarity was absent. The Court therefore concluded that s 61HA does not apply to the offence of attempt to have sexual intercourse without consent.

Whether the offence was one of specific intent: The Court declined to resolve this question definitively. The significance of the specific intent classification depended on how the evidence of intoxication would emerge at trial, and it was neither necessary nor appropriate to determine the issue in the abstract at an interlocutory stage.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a trial judge's pre-trial determination of anticipated legal questions does not constitute an "interlocutory judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912, even where that ruling may significantly affect the trial's conduct or outcome.
  • Extending s 5F to cover advance rulings on questions of law would, in the Court's view, potentially subject many evidentiary rulings and jury direction disputes to interlocutory appeals, a result inconsistent with the provision's scope.
  • Under the principle in Coco v The Queen, a statutory provision that curtails an accused's rights under the general law requires clear and unambiguous language before it will be construed to apply. Section 61HA's silence on attempt offences was found insufficient to overcome that threshold.
  • In dismissing the appeal, the Court left open the question of whether an attempt to have sexual intercourse without consent is an "offence of specific intent" under s 428B, noting the answer would depend heavily on the facts and evidence as they emerged at trial.
  • A certificate issued by a trial judge under s 5F(3)(b) of the Criminal Appeal Act does not itself create or expand the appellate jurisdiction of the Court of Criminal Appeal; jurisdiction must exist independently of the certificate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61I, 61P, 344A, 428B, 428C, 428D
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 130A, 291, 291A, 302, 306W, 306Y, 306Z, 306ZM
- Evidence Act 1995 (NSW), s 192A
- District Court Rules 1973 (NSW), Pt 53, rr 10, 11, 12

Key Cases:
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Coco v The Queen [1994] HCA 15; 179 CLR 427
- Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380
- R v Adamson [2005] NSWCCA 7
- Regina v Piper [2005] NSWCCA 134
- R v Steffan (1993) 30 NSWLR 633
- R v Zorad [1979] 2 NSWLR 764
- Knight v The Queen [1992] HCA 56; 175 CLR 495
- Lethlean (1995) 83 A Crim R 197
- Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14
- Rich v Australian Securities and Investments Commission [2005] NSWCA 233; 54 ACSR 365
- CTM v The Queen [2008] HCA 25; 236 CLR 440
- R v L [2006] NZSC 18; [2006] 3 NZLR 306