AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 3 November 2011

AM v R

[2011] NSWCCA 237

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT CRIMES ACT 1900 SS 61I AND 61L WHETHER MISCARRIAGE OF JUSTICE CRIMINAL APPEAL ACT 1912 S 6(1)

Citation: AM v R [2011] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 3 November 2011
Judge(s): McClellan CJ at CL, Latham J, Harrison J

Background

The appellant was convicted in the District Court following a jury trial on one count of sexual intercourse without consent (s 61I, Crimes Act 1900) and one count of indecent assault (s 61L, Crimes Act 1900). The offences arose from an incident on 28 February 2008 at a rural property, where the appellant arrived uninvited and subsequently sexually assaulted the complainant inside the home while her son was asleep nearby.

The Crown case relied on the complainant's evidence, which described a sustained and unwanted physical encounter. Key supporting evidence included a recorded telephone conversation between the appellant and the complainant, organised by police, which the trial judge and the Court of Criminal Appeal both regarded as strongly probative of guilt.

The appellant was sentenced following conviction, but the sentence was not the subject of any complaint on appeal. Of the original seven grounds of appeal, only three were ultimately pressed.

  • Whether the trial judge erred in directing the jury that there was evidence capable of supporting a finding that the appellant was reckless as to the complainant's consent to sexual intercourse (Ground 4)
  • Whether the trial judge erred in directing the jury that a guilty verdict could be based on recklessness as to the appellant's belief in consent (Ground 5)
  • Whether the jury's verdict was unreasonable, or cannot be supported having regard to the evidence, in light of particular factual matters including how the parties moved through the house, who locked the door, how the complainant's clothing was removed, the appellant's conduct after the assault, and the content of a subsequent conversation (Ground 7)

Decision

Grounds 4 and 5: The recklessness direction

Harrison J (with whom McClellan CJ at CL and Latham J agreed) examined whether the trial judge's directions on recklessness were open on the evidence. The Court found that the direction was appropriate given the evidence before the jury and that no error was established. The Court's reasons on this point relied on an analysis of the relevant authorities, including Banditt v The Queen and R v Kitchener, concerning the mental element of recklessness in sexual assault offences.

Ground 7: Unreasonable verdict

The Court applied the test from the High Court's decision in SKA v The Queen (2011) HCA 13, which requires the appellate court to review the whole of the evidence and determine whether it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt. Harrison J reviewed each of the specific factual matters raised by the appellant, including the sequence of movement through the house, the locking of one door, the removal of the complainant's clothing, the appellant's post-assault conduct in drinking beer at the breakfast bar, and the recorded telephone conversation.

On each point, Harrison J concluded that the evidence was open to the jury to accept or reject, and that none of the matters identified revealed discrepancies, inadequacies, or a lack of probative force sufficient to give rise to a significant possibility that an innocent person had been convicted. The recorded conversation, in particular, was regarded as strongly probative of the appellant's awareness that he did not have the complainant's consent.

The Court was satisfied that upon the whole of the evidence, a properly directed jury was entitled to be satisfied beyond reasonable doubt of the appellant's guilt. All three grounds failed.

Orders Made

• The appeal should be dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the applicable test for an unreasonable verdict ground is that stated by the High Court majority in SKA v The Queen (2011) HCA 13: whether it was open to the jury, properly directed, to be satisfied beyond reasonable doubt that the accused was guilty.
  • A recorded post-offence conversation, in which a defendant's comments were consistent with knowledge that consent was absent, may constitute strongly probative evidence capable of supporting a conviction for sexual assault without consent.
  • No error was established in a trial judge's direction that recklessness as to consent was open on the evidence, where the facts before the jury were capable of supporting such an inference.
  • Factual matters raised on an unreasonable verdict ground, such as who locked a door or how clothing was removed, will not individually or collectively undermine a verdict where each was a matter the jury was entitled to weigh and resolve.
  • In dismissing all three grounds, the Court reaffirmed that appellate intervention on a verdict ground requires more than a competing interpretation of the facts: there must be a significant possibility that an innocent person was convicted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- SKA v The Queen (2011) HCA 13
- Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- R v Kitchener (1993) 29 NSWLR 696
- Kurdi v R [2011] NSWCCA 179
- R v Henning (NSWCCA, 11 May 1990, unreported)