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Court of Criminal Appeal 25 May 2015

KA v R

[2015] NSWCCA 111

Sexual offences
APPEAL CONVICTION R V TANGYE (1997) 92 A CRIM R 545 HUYNH V THE QUEEN [2013] HCA 6 295 ALR 624 APPEAL CONVICTION

Citation: KA v R [2015] NSWCCA 111
Court: Court of Criminal Appeal, NSW
Date: 25 May 2015
Judges: Meagher JA, Simpson J, Wilson J

Background

The appellant was convicted at trial of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). The offence occurred on 5 May 2012 and involved two accused acting together. The act of forced fellatio was committed by a co-offender (EZ), but the Crown alleged the appellant was equally guilty because the two acted in concert pursuant to a common criminal purpose.

The appellant was tried alongside EZ and convicted. On appeal, he challenged both his conviction and the sentence imposed, arguing the trial judge's directions were deficient and that his sentence was disproportionate compared to that of his co-offender.

  • Whether the trial judge failed to properly direct the jury on the elements of joint criminal enterprise, specifically whether the appellant was required to share EZ's knowledge that the complainant was not consenting
  • Whether the trial judge erred by failing to give a separate direction on circumstantial evidence in accordance with Shepherd v The Queen
  • Whether the verdicts were unreasonable and unsupported by the evidence
  • Whether the appellant's sentence gave rise to a justifiable sense of grievance when compared to the co-offender's sentence (the parity ground), given the co-offender's younger age

Decision

Joint criminal enterprise directions (Ground 2): The Court considered the well-established doctrine of joint criminal enterprise as explained in McAuliffe v The Queen (1995) and endorsed by the High Court in Huynh v The Queen (2013). Under this doctrine, all parties to a common understanding are equally liable for the acts constituting the agreed crime, provided each participated in some way in its commission. The Court held that the trial judge's summing-up, read as a whole, adequately conveyed to the jury that the appellant had to be proved to have known the complainant was not consenting, or to have been reckless about that, at the time the principal act was committed. The specific direction complained of did not contradict the earlier, adequate directions. This ground was rejected.

Circumstantial evidence direction (Ground 1): The Court dismissed the contention that a separate Shepherd direction was required. In the circumstances of this trial, such a direction would have been unnecessary and potentially confusing. This ground was entirely without merit.

Unreasonable verdict (Ground 3): Applying the established test, the Court independently assessed the sufficiency and quality of the evidence and concluded the jury's verdicts were well open to it. The jury had the significant advantage of seeing and assessing witnesses, including the appellant and the complainant, on live credibility issues. Implicit in the verdicts was an acceptance of the complainant's evidence to the required standard. This ground was rejected.

Parity of sentence (Ground 4): The Court held that any difference in sentence between the appellant and EZ was adequately explained by EZ's younger age. No justifiable sense of grievance arose from the comparison. Leave to appeal against sentence was refused.

Notably, the Court also observed that grounds 2 and 4 had not been raised before the trial judge, and no objection had been taken to the directions at trial, which was itself a significant consideration under Criminal Appeal Rules r 4.

Orders Made

• Grant leave to appeal against the sentences
• Dismiss the appeal

Key Takeaways

  • Under the joint criminal enterprise doctrine, a party to a common understanding is equally liable for the agreed crime even where another party performs the physical act, provided the first party participated in some way, including by being present during commission of the offence.
  • For a conviction under s 61J as a party to a joint criminal enterprise, the Crown must prove that the non-perpetrating accused personally knew the complainant was not consenting, or was reckless as to that fact, at the time the principal act was committed.
  • A trial judge's summing-up must be read as a whole: a specific direction that is arguably incomplete does not constitute a misdirection if it does not contradict or qualify adequate directions given elsewhere in the charge.
  • Failure to raise an objection to jury directions at trial is a material consideration on appeal; the absence of any complaint by trial counsel tends to indicate the directions were adequate in context, and leave requirements under Criminal Appeal Rules r 4 apply.
  • On a parity of sentence ground, a sentencing disparity attributable to a co-offender's younger age does not give rise to a justifiable sense of grievance sufficient to warrant appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), ss 5, 6(1)
- Criminal Appeal Rules, r 4
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Evidence Act 1995 (NSW), s 66(2)

Key Cases:
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- Huynh v The Queen [2013] HCA 6; 295 ALR 624
- R v Tangye (1997) 92 A Crim R 545
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
- Gillard v The Queen [2014] HCA 16; 88 ALJR 606
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
- R v Tyrone Chishimba [2010] NSWCCA 228
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571