Citation: Jeffreys v R [2015] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 4 June 2015
Judge(s): Hoeben CJ at CL, R A Hulme J, Davies J
Background
The appellant was a 53-year-old man who was convicted by a jury of having sexual intercourse with his 29-year-old niece without her consent, knowing she had not consented. The offence occurred in February 2012 at the appellant's unit in Ballina after the complainant had consumed approximately two and a half bottles of wine over the course of the evening following a relationship breakdown. The complainant had no memory of the sexual intercourse occurring.
The complainant gave evidence that she woke in the early hours of the morning with a physical sense that something had happened to her, confronted the appellant immediately as he returned from the shower, and made contemporaneous complaints to her mother and others within hours. The appellant did not deny that intercourse occurred but maintained throughout that the complainant had consented.
Following conviction, the appellant was sentenced to a non-parole period of 20 months commencing February 2014. He was released to bail pending appeal in December 2014, having served approximately 10 months and 7 days of his sentence.
Legal Issues
- Whether the jury's guilty verdict was unreasonable and unsupported by the evidence
- Whether the trial judge's summing-up was unfair, in particular by repeatedly referencing the complainant being asleep or unconscious without adequately presenting the appellant's version of events
- Whether leave was required to raise the summing-up ground, given defence counsel had not objected at trial
Decision
On the summing-up ground: The court accepted that leave was required under rule 4 of the Criminal Appeal Rules because no complaint had been made at trial. Davies J acknowledged that some passages of the summing-up did not accurately reflect the appellant's case, which was not simply that the complainant was always asleep but rather that she had woken before the intercourse occurred. However, the court found that when the summing-up was read as a whole, including the trial judge's later references to the appellant's account, the jury would have understood the defence position. No unfairness resulting in a miscarriage of justice was established.
On the unreasonable verdict ground: The court found the verdict was well open to the jury on the evidence. The consistency between the complainant's account of confronting the appellant immediately upon waking and her contemporaneous complaints to multiple witnesses, including her mother, another family friend, and a doctor, strongly supported the inference that she had not been aware of the intercourse as it occurred. This, in turn, strongly supported the conclusion that the appellant either knew she was not consenting or was reckless as to consent.
Davies J also noted that the appellant's own credibility was significantly undermined. When arrested that morning, the appellant told police that the complainant had "put her hands in my underpants" and that this "should prove she was awake, that it was consensual." At that point, no one had suggested to the appellant that the complainant was claiming she had been asleep. Hulme J considered this statement particularly damaging, as it indicated consciousness on the appellant's part of the need to establish she was awake, before that element of her account had been put to him.
The court rejected the submission that the jury could only have reached a guilty verdict by reversing the onus of proof. The circumstantial evidence, including the immediate and consistent complaints and the complainant's unequivocal evidence that she would never have consented to intercourse with her uncle, was sufficient for the jury to be satisfied beyond reasonable doubt of both the absence of consent and the appellant's knowledge or recklessness regarding that absence.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Appellant directed to return to custody to serve the balance of his non-parole period of 9 months and 24 days, commencing 4 June 2015 and expiring 27 March 2016, with an additional term expiring 27 March 2018
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a summing-up is assessed as a whole: isolated passages that do not perfectly reflect the defence case will not constitute an unfair summing-up if the overall charge adequately conveys the issues to the jury.
- Where a complainant has no memory of the relevant events due to intoxication, a guilty verdict is not automatically unreasonable. Sufficient circumstantial evidence, including prompt and consistent complaints, can support a jury's conclusion that consent was absent and the accused was aware of that absence.
- A conviction for sexual intercourse without consent does not require direct evidence of the act itself. The court affirmed that strong, consistent circumstantial evidence can satisfy the jury's task beyond reasonable doubt.
- Contemporaneous conduct by an accused can significantly affect credibility assessments. The appellant's unprompted reference to the complainant being awake, made before any suggestion of that issue had been raised with him, was treated as particularly damaging to his case.
- Raising grounds on appeal that were not the subject of objection at trial requires leave under rule 4 of the Criminal Appeal Rules. Leave will ordinarily follow where a miscarriage of justice is demonstrated, but establishing that threshold requires more than isolated imprecision in the summing-up.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Rules, rule 4
Cases:
- Bin Radimin v R; Bin Zakhria v R [2013] NSWCCA 220; (2013) 235 A Crim R 244
- Doyle v R; R v Doyle [2014] NSWCCA 4
- R v Sukkar [2005] NSWCCA 54
- R v Meher [2004] NSWCCA 355
- W v R [2014] NSWCCA 110