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Court of Criminal Appeal 18 September 2012

O'Sullivan v R; Flanders v R; Tohu v R & NRH v R

[2012] NSWCCA 45

Also reported as (2012) 233 A Crim R 449
Sexual offences
CRIMINAL LAW APPEALS AGAINST CONVICTION FRESH EVIDENCE WHETHER CREDIBLE ADMISSIONS BY ONE APPELLANT DISTINCTION WITH SEXUAL DISPOSITION

Citation: O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 18 September 2012
Judges: McClellan CJ at CL; Davies and Garling JJ

Background

Four appellants were convicted at trial of aggravated sexual intercourse without consent following events that allegedly occurred in a cabin bedroom. The complainant's account and the appellants' accounts diverged sharply on the central question of consent. The charges arose from sexual activity involving multiple participants, and the appellants were tried together.

On appeal, each appellant raised a number of grounds challenging their convictions, including that fresh evidence had emerged, that certain evidence had been wrongly excluded at trial, that directions to the jury about consent were defective, and that the verdicts were unreasonable and unsupported by the evidence.

The four appeals were heard together by the Court of Criminal Appeal, with McClellan CJ at CL agreeing with the orders proposed by Davies and Garling JJ, while writing separately on the section 293 ground.

  • Whether evidence of a verbal exchange between one appellant and the complainant during the alleged offences was wrongly excluded under s 293 of the Criminal Procedure Act 1986 as relating to the complainant's "sexual reputation"
  • Whether that exchange related instead to the complainant's sexual "disposition," which would place it under s 293(3) and potentially within the exception in s 293(4)(a)
  • Whether admissions made by one appellant during the events were adequately dealt with in the trial judge's directions to the jury
  • Whether the jury directions on consent correctly distinguished between the statutory framework under s 61HA of the Crimes Act 1900 and the common law, given that not all charges attracted the statutory provisions
  • Whether fresh evidence met the threshold for admission and, if admitted, would have affected the verdict
  • Whether the verdicts against each appellant were unreasonable or unsupported by the evidence

Decision

The s 293 evidence exclusion issue

The trial judge had excluded evidence of a verbal exchange where the appellant O'Sullivan said to the complainant "I didn't know you were like this" and the complainant replied "I'm full of surprises." The judge had categorised this as evidence relating to the complainant's "sexual reputation," which is inadmissible under s 293(2) without exception. The Court of Criminal Appeal disagreed with that categorisation.

Davies and Garling JJ drew a distinction between "sexual reputation," meaning the general opinion that others hold of a person, and "sexual disposition," meaning tendencies or propensities intrinsic to the individual. The complainant's own response could not be said to relate to her reputation at all, and O'Sullivan's statement was concerned with something intrinsic to the complainant rather than with public estimation of her. The Court held that the evidence went to the complainant's disposition, not her reputation, and therefore fell under s 293(3). It also fell within the exception in s 293(4)(a) as relating to sexual activity at or about the time of the alleged offence and forming part of a connected set of circumstances. The evidence should have been admitted, and its exclusion was an error. It was a significant piece of evidence bearing on both consent and the appellants' belief in consent.

Admissions by O'Sullivan and jury directions

Evidence was placed before the jury that O'Sullivan, after the other appellants had left the bedroom, said words to the effect of "What the fuck have I done" and apologised to the complainant. The Court found that the trial judge's directions on how the jury could use those admissions were inadequate, constituting a further error in the conduct of the trial.

Consent directions under s 61HA and common law

The trial directions failed to distinguish clearly between offences to which s 61HA of the Crimes Act applied and those to which it did not, leaving the jury without proper guidance on the applicable legal framework for each charge. This was identified as an additional error contributing to the need for a retrial.

Fresh evidence

The Court accepted the fresh evidence grounds raised by the appellants. The fresh evidence satisfied the relevant threshold and, in combination with the other errors identified, warranted orders for a new trial in respect of O'Sullivan, Flanders and Tohu.

Unreasonable verdicts

The Court upheld NRH's appeal on the ground that the verdict against him was unreasonable and unsupported by the evidence. For the remaining three appellants, the Court was not persuaded that the verdicts were unreasonable, noting that the jury had a decisive advantage in assessing the credibility of the complainant and the appellants from having observed them give evidence.

Orders Made

  • Appeals of each appellant allowed
  • Convictions of all appellants quashed
  • In respect of NRH: verdict of acquittal entered
  • In respect of O'Sullivan, Flanders and Tohu: new trial ordered on the relevant counts

Key Takeaways

  • The Court of Criminal Appeal confirmed a meaningful legal distinction between "sexual reputation" under s 293(2) of the Criminal Procedure Act 1986 (inadmissible without exception) and "sexual disposition" under s 293(3) (inadmissible but subject to exceptions). Evidence going to characteristics intrinsic to a complainant, including the complainant's own words, does not necessarily fall within the reputation prohibition.

  • Under s 293(4)(a), evidence of sexual activity at or about the time of the alleged offence, forming part of a connected set of circumstances, may be admitted even where it discloses or implies sexual experience or activity by the complainant.

  • Where not all charges in a trial are governed by s 61HA of the Crimes Act 1900, jury directions on consent must distinguish between the statutory provisions and the applicable common law framework. A failure to make that distinction constitutes a misdirection.

  • In assessing whether a verdict is unreasonable under the Criminal Appeal Act 1912, the Court of Criminal Appeal will give significant weight to the jury's advantage in observing and assessing the credibility of witnesses, and will not substitute its own reading of the evidence unless that advantage cannot account for the verdict.

  • A combination of individually significant errors at trial, including wrongful exclusion of evidence, inadequate directions on admissions, and misdirections on consent, may cumulatively warrant a new trial even where no single error would necessarily have been fatal to the convictions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including s 61HA
- Crimes (Sexual Assault) Amendment Act 1981 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1906 (WA)

Cases
- Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
- Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
- Ka Chung Fung v R [2007] NSWCCA 250; (2007) 174 A Crim R 169
- M v The Queen [1994] HCA 63; 181 CLR 487
- Melbourne v R [1999] HCA 32; (1999) 198 CLR 1
- Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Condon (1995) 83 A Crim R 335
- R v Pemble [1971] HCA 20; (1971) 124 CLR 107
- R v Tangye (1997) 92 A Crim R 545
- Ratten v The Queen (1974) 131 CLR 510
- RH v R [2011] NSWCCA 98
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Taylor v R [2009] NSWCCA 180
- Tooheys Ltd v Commissioner of Stamp Duties (1961) 105 CLR 602
- WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275
- *Zec