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6
Court of Criminal Appeal 23 November 2012

Regina v XHR

[2012] NSWCCA 247

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST DIRECTED ACQUITTAL SEXUAL ASSAULT OFFENCE NO CASE TO ANSWER APPLICATION "QUESTION OF LAW ALONE"

Citation: Regina v XHR [2012] NSWCCA 247
Court: Court of Criminal Appeal
Date: 23 November 2012
Judges: Beazley JA (principal judgment), Hall J, SG Campbell J (both agreeing)

Background

The respondent was a massage therapist charged under s 61I of the Crimes Act 1900 with sexually assaulting a client. The Crown alleged he digitally penetrated the complainant's genitalia during a massage session without her consent. In a police interview, the respondent denied any sexual touching occurred.

The Crown ran a purely circumstantial case. It relied on the nature of the service-provider/client relationship, the absence of any express permission for sexual touching, and the respondent's failure to take any steps to ascertain whether the complainant was consenting. The Crown also pointed to features of the conduct suggesting it was intentional rather than accidental.

At the close of the Crown case, the respondent made a "no case to answer" application. The trial judge upheld it, finding the evidence was not capable of proving the necessary "guilty knowledge" element of the offence. The Director of Public Prosecutions appealed that directed acquittal to the Court of Criminal Appeal under s 107 of the Crimes (Appeal and Review) Act 2001.

  • Whether the trial judge applied the correct legal test on a "no case to answer" application in a circumstantial evidence case
  • Whether the trial judge erred in law by requiring the Crown to prove that the complainant had communicated her lack of consent to the respondent prior to the acts of penetration occurring
  • Whether the trial judge failed to have proper regard to s 61HA(3)(d) of the Crimes Act, which requires consideration of steps taken by the accused to ascertain consent
  • Whether the trial judge wrongly excluded the respondent's ERISP answers from the Crown's circumstantial case
  • Whether the errors involved questions of law alone, so as to fall within the Court's appellate jurisdiction under s 107
  • Whether the Court should exercise its discretion to affirm the acquittal rather than order a retrial

Decision

The Court of Criminal Appeal, in a judgment delivered by Beazley JA, held that the trial judge made multiple errors of law in upholding the no-case application. The correct test, drawn from Doney v R and R v Bilick and Starke, requires a trial judge to ask whether the evidence, taken at its highest for the prosecution, is capable of sustaining a guilty verdict. A directed acquittal is only appropriate where there is a defect in the evidence such that, even at its strongest, it cannot support a conviction.

The trial judge erred by effectively requiring the Crown to prove that the complainant had communicated her lack of consent to the respondent before the acts occurred. This imposed a condition not found in s 61I or s 61HA. Under s 61HA(3), knowledge of non-consent can be established by proof that the accused knew, was reckless, or had no reasonable grounds for believing the complainant consented. Crucially, s 61HA(3)(d) requires the trier of fact to consider steps taken by the accused to ascertain consent, a consideration the trial judge failed to properly apply.

The trial judge also erred in preventing the Crown from relying on the respondent's ERISP denials as part of its circumstantial case. Those denials were capable of supporting the inference that the respondent never sought or ascertained consent. The complainant's own evidence, including evidence of two incidents of touching, the deliberate manipulation involved, the removal of her underwear, and the respondent's movement towards her groin, was capable of sustaining a guilty verdict and should have been left to the jury.

On the discretion to affirm the acquittal under s 107(5), the Court declined to exercise it. Beazley JA described the Crown case as a strong circumstantial one and concluded there was no basis for withholding the matter from a jury.

Orders Made

  • Verdict of acquittal quashed
  • Matter remitted to the District Court for trial

Key Takeaways

  • A "no case to answer" application in a circumstantial case requires the trial judge to ask whether the evidence, taken at its highest for the prosecution, is capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the accused's guilt. The trial judge has no broader power to weigh competing inferences or substitute the court's own view of the facts.

  • Under s 61HA(3) of the Crimes Act 1900, knowledge of non-consent for the purposes of s 61I can be established through actual knowledge, recklessness, or an absence of reasonable grounds for belief in consent. There is no additional requirement that the complainant must have communicated non-consent to the accused before the relevant acts occurred.

  • Section 61HA(3)(d) expressly requires the trier of fact to have regard to any steps taken by the accused to ascertain whether the complainant was consenting. A trial judge conducting a no-case analysis must take this provision into account.

  • An accused's denials in a police interview (ERISP) can form part of the Crown's circumstantial case, including as evidence that the accused never sought or ascertained consent. The Court of Criminal Appeal found the trial judge erred by prohibiting the Crown from relying on such material at the no-case stage.

  • Errors in the application of a statutory test for an element of a criminal offence, and errors in determining what evidence may be relied upon in a no-case application, constitute questions of law alone and are therefore amenable to Crown appeal under s 107 of the Crimes (Appeal and Review) Act 2001.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61HA, 61I
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107, 111
- Evidence Act 1995 (NSW)

Cases
- Doney v R [1990] HCA 51; 171 CLR 207
- R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452
- R v LK [2010] HCA 17; 241 CLR 177
- M v R [1994] HCA 63; 181 CLR 487
- R v R (1989) 18 NSWLR 74
- Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- R v Porteous [2003] NSWCCA 18
- Salmond v R [2010] NSWCCA 141
- R v JS [2007] NSWCCA 272; 175 A Crim R 108
- R v PL [2009] NSWCCA 256; 199 A Crim R 199
- Williams v R [1986] HCA 88; 161 CLR 278
- Mule v R [2005] HCA 49; 221 ALR 85
- JMR (1991) 57 A Crim R 39
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704