AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 1 October 2014

Budrodeen v R

[2014] NSWCCA 332

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL OFFENCES AGAINST 15 YEAR OLD COMPLAINANT

Citation: Budrodeen v R [2014] NSWCCA 332
Court: NSW Court of Criminal Appeal
Date: 1 October 2014
Judge(s): Hoeben CJ at CL; Rothman J; R A Hulme J

Background

The appellant was a taxi driver convicted in the District Court at Newcastle of two counts of aggravated indecent assault and one count of sexual intercourse with a person aged between 14 and 16 years. The complainant was a 15-year-old male who entered the appellant's taxi after being separated from his family at a hotel. The alleged offences occurred during the taxi journey.

Following a jury trial before Judge Hock in February 2013, the appellant was found guilty on all counts and sentenced to six years' imprisonment with a four-year non-parole period. He sought leave to appeal against both conviction and sentence.

The appellant filed 19 grounds of appeal, mostly directed at the evidence and conduct of the trial. However, it was Crown counsel who identified a more fundamental problem with the trial directions, raising it in the interests of the administration of justice.

  • Whether the trial judge's jury directions, delivered in the form of a question trail, correctly identified the essential elements of the charged offences
  • Whether the question trail permitted the jury to convict without determining the critical issue of whether the appellant held an honest and reasonable belief that the complainant was aged 16 or over
  • Whether any misdirection was so fundamental that it precluded application of the proviso under the Criminal Appeal Act 1912 (NSW) (that there was no substantial miscarriage of justice)

Decision

The Court identified a fundamental error in the trial judge's direction to the jury. The question trail directed the jury first to determine whether the complainant was under 16, and then to ask whether the sexual intercourse occurred without the complainant's consent. If the jury answered "yes" to the consent question, the trail directed a guilty verdict, bypassing entirely the question of whether the appellant honestly and reasonably believed the complainant was 16 or older.

The problem was that the consent question was legally irrelevant to the offence charged under s 66C(3) of the Crimes Act 1900 (NSW), which applies regardless of consent where the complainant is aged between 14 and 16. The structure of the question trail allowed the jury to convict on the basis of a finding about an irrelevant fact, without ever addressing the one matter that could have exonerated the appellant: the honest and reasonable mistake defence as to the complainant's age.

Rothman J added that the error ran deeper still. Even if the jury had taken the non-consent path to conviction, a further question would arise: whether the appellant held an honest and reasonable belief that the complainant was consenting. That question also was not put to the jury. In either pathway through the question trail, the honest and reasonable mistake issue remained unresolved.

The Crown conceded that the misdirection was so fundamental that the proviso could not be applied to save the conviction. All three judges agreed that the convictions must be quashed and the matter remitted for retrial.

Orders Made

  • Appeal allowed
  • Convictions quashed
  • Matter remitted for retrial

Key Takeaways

  • A conviction under s 66C(3) of the Crimes Act 1900 (NSW) for sexual intercourse with a person aged 14 to 16 does not require the Crown to prove absence of consent; consent is irrelevant to that offence, and directing the jury otherwise is a fundamental error.
  • Where a trial judge uses a question trail to direct a jury, the sequential structure must cover every element necessary to establish guilt and must not permit the jury to reach a verdict by bypassing a critical legal issue.
  • The honest and reasonable mistake of fact principle, derived from Proudman v Dayman, is not a true defence in the traditional sense: it is a matter the Crown must disprove once an evidentiary basis for it has been raised by the accused.
  • For the honest and reasonable mistake defence to apply, the mistaken belief must be one that, if true, would render the conduct entirely innocent. A belief that merely shifts the accused's conduct into a different category of criminal offence is insufficient.
  • A misdirection that removes the central issue at trial from the jury's consideration is so fundamental that the proviso (no substantial miscarriage of justice) cannot be applied to preserve the conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(3), 77
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules

Cases
- CTM v The Queen [2008] HCA 25; 236 CLR 440
- He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523
- Proudman v Dayman [1941] HCA 28; 67 CLR 536
- R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381