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Court of Criminal Appeal 7 July 2010

Salmond v R

[2010] NSWCCA 141

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES INDECENT ASSAULT SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Salmond v R [2010] NSWCCA 141
Court: New South Wales Court of Criminal Appeal
Date: 7 July 2010
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J

Background

The appellant was a massage therapist who operated a clinic at a North Ryde gymnasium. The complainant, a medical practitioner, attended for two massage appointments in April 2007. During the second appointment, the appellant digitally penetrated the complainant without her consent.

The appellant faced two charges arising from that appointment: indecent assault and sexual intercourse without consent. At the first trial, the jury convicted him of indecent assault but could not reach a verdict on the sexual intercourse count. A retrial on the sexual intercourse count proceeded before Bennett DCJ in the District Court, where a majority verdict of guilty was returned on 20 April 2009.

On 1 June 2009, the appellant was sentenced to 4.5 years imprisonment (with a two-year non-parole period) for the sexual intercourse offence, to be served concurrently with a two-year fixed term for the indecent assault. He appealed against his conviction for sexual intercourse without consent and sought leave to appeal against the sentence for that offence.

  • Whether the trial judge erred by directing the jury on recklessness as to consent, given that the defence did not put consent in issue
  • Whether, where cross-examination was capable of suggesting the complainant had consented, the trial judge was required to give a specific direction in accordance with the principle in R v Murray (1987) 11 NSWLR 12, and whether any such direction given was adequate
  • Whether the sentence of 4.5 years imprisonment (non-parole period of two years) was manifestly excessive, having regard to the standard non-parole period and comparable cases

Decision

Conviction appeal: recklessness direction

The appellant argued that, because consent was not formally in issue at trial, giving the jury a direction on recklessness as to consent was an error that may have confused the jury. Simpson J rejected this ground. A direction on recklessness is required only where consent is genuinely in issue; where it is not, giving such a direction does not of itself constitute a reversible error, particularly where the jury's verdict makes clear they accepted the complainant's account.

Conviction appeal: the Murray direction

The cross-examination of the complainant was capable of raising, at least implicitly, a suggestion that she had consented or had not adequately communicated non-consent. Under R v Murray, where that possibility arises, the trial judge must direct the jury with adequate clarity on the distinction between actual consent and the absence of a communicated objection. The Court found that, while no particular form of words is required, the directions actually given by Bennett DCJ were adequate to meet that obligation. This ground also failed.

Sentence appeal

The Court accepted that the offence fell below the mid-range of objective gravity for sexual intercourse without consent, a finding reflected in the non-parole period imposed, which was less than one-third of the standard non-parole period under the Crimes (Sentencing Procedure) Act 1999. Comparable cases, including R v Qin, were considered but found to offer limited assistance in establishing manifest excess. Simpson J concluded that the sentence was within the range legitimately available to the sentencing judge and was not manifestly excessive.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed

Key Takeaways

  • A direction on recklessness as to consent is required where consent is genuinely in issue at trial; giving such a direction where consent is not formally in dispute does not automatically constitute reversible error.
  • Under the principle established in R v Murray, where cross-examination is capable of suggesting consent, the trial judge must give the jury adequate directions on that issue, though no particular form of words is mandated.
  • In dismissing both appeals, the Court of Criminal Appeal confirmed that adequacy of a jury direction is assessed by reference to the overall charge, not by whether any specific formula was used.
  • A non-parole period of less than one-third of the standard non-parole period can properly reflect a finding that the offence falls below the mid-range of objective gravity.
  • Sentencing decisions from other Australian jurisdictions were treated as of limited assistance when assessing whether a NSW sentence fell outside the available range.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Jury Act 1977 (NSW), s 55F

Cases
- R v Murray (1987) 11 NSWLR 12
- R v Qin; Qin v R [2008] NSWCCA 189
- R v Porteus [2003] NSWCCA 18
- R v Henning (NSWCCA, 11 May 1990, unreported)
- Baldwin v Ridge [2003] TASSC 67