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Court of Criminal Appeal 4 July 2012

Cha v R

[2012] NSWCCA 142

Sexual offences
CRIMINAL LAW APPEAL CONVICTION LEAVE TO APPEAL GRANTED APPEAL DISMISSED.

Citation: Cha v R [2012] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 4 July 2012
Judge(s): McClellan CJ at CL (principal judgment), Price J, Button J

Background

The appellant was convicted of one count of sexual intercourse without consent under s 61I of the Crimes Act 1900, arising from conduct during what was presented as an acupuncture and massage treatment session. The complainant, a young Korean woman studying in Australia, had attended the appellant's premises on four occasions seeking treatment for medical complaints after being recommended to him as a Buddhist monk with training in Chinese medicine.

During the fourth visit on 30 August 2010, the appellant removed the complainant's underpants, inserted an acupuncture needle between her vagina and anus, and used a medical applicator inside her vagina. He then performed a full body massage, which included massaging the complainant's breasts (the subject of a separate indecent assault charge), before massaging the area around her vagina and clitoris and inserting two fingers into her vagina for an extended period.

The appellant gave evidence at trial and had previously participated in a police ERISP interview in which he admitted touching the complainant's clitoris and inserting an applicator into her vagina. He was convicted on one count of sexual intercourse without consent and sentenced to a non-parole period of two years and six months.

  • Whether the trial judge erred in ruling that evidence of both clitoral touching and digital penetration of the vagina could each, or together, satisfy the definition of "sexual intercourse" for the purposes of the single count charged
  • Whether the trial judge's directions to the jury were consistent with and adequate given that ruling
  • Whether allowing the Crown to rely on both forms of conduct within a single charge rendered that charge duplicitous (that is, charging two or more distinct offences in a single count)
  • Whether those rulings and directions caused a miscarriage of justice or an unfair trial

A fifth ground concerning directions on recent complaint evidence was abandoned before the hearing.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with McClellan CJ at CL delivering the principal judgment. The court granted leave to appeal but found no error in the trial judge's approach.

On the definition of sexual intercourse, the court confirmed that s 61H of the Crimes Act 1900 defines sexual intercourse to include penetration "to any extent" of the genitalia of a female person by any part of another person's body. This definition is broad enough to encompass both digital penetration of the vaginal canal and deliberate touching of the clitoris, as the clitoris forms part of the external female genitalia.

On duplicity, the court applied the principle that a charge is not rendered duplicitous where it alleges a single criminal act, even if that act involves multiple physical movements or contacts forming part of a single continuous course of conduct. McClellan CJ at CL found that the relevant factors (temporal connection, similarity of acts, physical proximity of location, and the appellant's consistent intention throughout) all supported treating the conduct as a single, continuous event properly captured in one count.

The court also rejected the submission that the appellant suffered any unfairness from the Crown's clarification of its case late in the trial. The trial judge gave appropriate directions to the jury, and defence counsel had the opportunity to recall the complainant for further cross-examination but did not do so. Given the appellant's own admissions in the ERISP, the court found this unsurprising.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 61H of the Crimes Act 1900, "sexual intercourse" is defined broadly to include penetration to any extent of the female genitalia, which encompasses deliberate touching of the clitoris as well as digital penetration of the vaginal canal.
  • A single charge of sexual intercourse without consent is not duplicitous merely because it encompasses multiple distinct physical acts, provided those acts form part of a single, continuous course of conduct assessed by reference to temporal connection, similarity of acts, physical proximity, and the accused's consistent intention.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a late clarification by the Crown of its case theory does not automatically result in a miscarriage of justice, particularly where the defence had opportunity to respond and the accused's own admissions substantially covered the conduct in question.
  • No procedural unfairness arises from a trial judge directing the jury on an alternative factual basis for an element of an offence, where that basis falls within the charge as particularised and the accused has the opportunity to address it.
  • Sufficient grounds for rejecting a duplicity argument exist where the conduct alleged, taken as a whole, reflects one transaction rather than a series of separate criminal episodes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61H, 61I, 61L
- Criminal Procedure Act 1986 (NSW), s 137

Cases:
- Johnson v Miller (1937) 59 CLR 576
- R v Khouzame & Saliba [1999] NSWCCA 173
- R v S [2000] 1 Qd R 445
- Walsh v Tattersall (1986) 188 CLR 77