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Court of Criminal Appeal 28 April 2011

RH v R

[2011] NSWCCA 98

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT SELF HARM AFTER SEXUAL ACTS CONSCIOUSNESS OF GUILT

Citation: RH v R [2011] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 28 April 2011
Judge(s): Simpson J, Davies J, Grove AJ

Background

The appellant was convicted by a jury of three counts: sexual intercourse with a person aged between 10 and 16 years (Count 2), assault with an act of indecency (Count 3), and sexual intercourse without consent (Count 4). The complainant was the appellant's younger half-brother. Counts 3 and 4 arose from an incident in November 2007 when both men were adults, staying together at home while the complainant's mother was interstate.

The November 2007 incident involved a night of drinking that left the complainant heavily intoxicated. He gave evidence that he woke in the early hours of the morning to find the appellant performing sexual acts on him without his knowledge or agreement. Following the incident, the complainant disclosed what had occurred to his mother by text message, and the appellant subsequently engaged in self-harming behaviour.

At trial, the judge directed acquittal on Count 1 but left Counts 2, 3, and 4 to the jury. The appellant was found guilty on all three remaining counts and sentenced to a total effective term of imprisonment. He appealed against conviction only, raising two grounds: that the trial judge failed to properly direct the jury on knowledge of lack of consent, and that directions on consciousness of guilt were inadequate.

  • Whether the trial judge erred by failing to direct the jury properly on what constitutes knowledge of lack of consent in relation to Counts 3 and 4, including whether the appellant held a reasonable belief in consent.
  • Whether the trial judge erred by failing to direct the jury that knowledge of lack of consent was an element of the indecent assault offence in Count 3.
  • Whether the directions given in relation to the appellant's self-harming conduct as evidence of consciousness of guilt were adequate, and whether any inadequacy caused a miscarriage of justice.

Decision

On consent and reasonable belief: The Court found that the trial judge failed to give adequate directions to the jury about the appellant's possible reasonable belief in the complainant's consent. This was a material error because reasonable belief in consent is a relevant matter going to the mental element of the offence. The failure to properly direct the jury on this question was compounded when the jury sent a note during deliberations seeking clarification about consent, and the response given by the trial judge remained inadequate.

On the indecent assault count: The Court found the trial judge also erred by failing to direct the jury that knowledge of the complainant's non-consent was an element of the Count 3 offence. The omission left the jury without proper guidance on a required mental element.

On consciousness of guilt: The prosecution relied upon the appellant's self-harming behaviour in December 2007 as evidence of consciousness of guilt. The Court found that the trial judge's directions on this topic were inadequate. Specifically, the jury was not properly directed that self-harm following sexual acts could be explained by reasons other than guilt, including distress, shame, or remorse unrelated to criminal wrongdoing. The jury needed to be directed to consider whether the self-harm was genuinely referable to consciousness of guilt or was explicable on an innocent basis.

On the scope of the error: Although the consciousness of guilt direction was most directly relevant to Counts 3 and 4, the trial judge did not confine it to those counts. Because the jury also heard evidence of a threat of self-harm made by the appellant in connection with the conduct charged in Count 2, and because the sexual act underlying Count 2 was the same act charged in Count 4, the Court concluded the inadequate direction must have affected the jury's deliberations on Count 2 as well. Taken together, these errors resulted in a miscarriage of justice and the convictions could not stand.

Orders Made

  • Appeal against conviction allowed.
  • Verdicts of guilty on Counts 2, 3, and 4 set aside.
  • New trial ordered.

Key Takeaways

  • A trial judge is required to direct the jury on a defendant's possible reasonable belief in consent where that issue arises on the evidence in a sexual assault trial, even if the defence has not expressly raised it.
  • Where a jury requests clarification on an element such as consent during deliberations, the adequacy of the trial judge's response is a matter the Court of Criminal Appeal will scrutinise closely.
  • Consciousness of guilt directions involving post-offence conduct require careful instruction: the jury must be told that the conduct may be explicable on bases other than guilt, and the absence of such a direction can constitute a miscarriage of justice.
  • The Court of Criminal Appeal confirmed that where a consciousness of guilt direction is not confined to particular counts, the misdirection may infect the jury's reasoning on all counts to which the evidence could logically apply.
  • Serving a sentence does not preclude the Court of Criminal Appeal from setting aside a conviction; where convictions cannot stand, a new trial remains the proper order even where an appellant has already served time in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L, 66C(1)
- Criminal Appeal Rules

Cases
- Alford v Magee (1952) 85 CLR 437
- Doggett v The Queen (2001) 208 CLR 343
- Edwards v The Queen (1993) 178 CLR 193
- Pemble v R (1971) 124 CLR 107
- R v Bertrand [2008] VSCA 182; 188 A Crim R 223
- R v Cook [2004] NSWCCA 52
- R v Kuckailis [2001] NSWCCA 333
- R v Tran [2007] VSCA 19
- Stubley v Western Australia [2011] HCA 7
- The Queen v Alexander [2007] VSCA 178