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Court of Criminal Appeal 17 July 2015

BA v R

[2015] NSWCCA 189

Sexual offences
CRIMINAL LAW CONVICTION APPEAL COMPLAINANT AGED 6 NO ERROR IN TRIAL JUDGE’S DIRECTIONS APPEAL SHOULD BE ALLOWED APPLICANT SHOULD BE RELEASED.

Citation: BA v R [2015] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 17 July 2015
Judge(s): Hoeben CJ at CL; R A Hulme J; Campbell J

Background

The applicant was the de facto partner of a six-year-old complainant's mother and resided with the family. Following a jury trial in the Lismore District Court in October 2013, he was convicted on seven counts of sexual offences against the complainant. The most serious conviction, on Count 5, was for aggravated sexual intercourse with a child under 10 years, contrary to s 66A(2) of the Crimes Act 1900 (NSW). The aggravating circumstance was that the complainant was under the applicant's authority.

The Crown's case on Count 5 was that the applicant had committed an act of cunnilingus on the complainant. The sentence for Count 5 had already been increased on a Crown appeal in 2014 to a total term of six years, with a non-parole period of four years. The sentences for the remaining counts had all been served; the applicant's continuing imprisonment rested entirely on the Count 5 conviction.

The applicant then sought leave to appeal against his conviction on Count 5. The central question was whether the evidence was capable of supporting the jury's finding, beyond reasonable doubt, that an act of cunnilingus had taken place.

  • Whether the jury's verdict on Count 5 was unreasonable and could not be supported having regard to the evidence, specifically whether the evidence was capable of establishing that sexual intercourse (by way of cunnilingus) had occurred.
  • Whether the trial judge erred in her directions to the jury on the elements of the offence of "sexual intercourse," and in particular on what was required to establish cunnilingus under s 61H(1)(c) of the Crimes Act 1900.

Decision

The Court accepted the definition of cunnilingus applied in the earlier Crown appeal by McCallum J: cunnilingus refers to oral stimulation of the female genitalia with the mouth or tongue, and does not require penetration as an element. That interpretation was also consistent with the approach of Mildren J in the Northern Territory case of R v NLR, which drew on multiple dictionary definitions.

On the unreasonable verdict ground, the Court found that the complainant's own evidence was consistent with sexual intercourse not having taken place. Given the complainant's age of six and the nature of her evidence, the Court held it was not open to the jury to be satisfied beyond reasonable doubt that an act of cunnilingus had occurred. Ground 1 therefore succeeded.

On the directions grounds (Grounds 2 and 3), the Court declined to find error. The trial judge had correctly directed the jury that the Crown needed to prove beyond reasonable doubt that the applicant had kissed the complainant on her genitalia. The Court observed that the real issue before the jury was whether the relevant events had occurred at all, not whether any particular conduct met the legal definition of sexual intercourse. The directions were adequate in that context, and the defence had not sought additional directions after the summing up.

Because the conviction on Count 5 could not stand and the Crown had expressly abandoned any reliance on a lesser alternative offence, a verdict of acquittal was entered. The Court ordered the applicant's immediate release, as his remaining imprisonment was wholly attributable to Count 5.

Orders Made

  • Leave granted to the applicant to appeal against conviction on Count 5.
  • Appeal against conviction on Count 5 allowed.
  • Conviction on Count 5 quashed and a verdict of acquittal entered.
  • Applicant to be immediately released from custody.

Key Takeaways

  • A conviction will be set aside as unreasonable under s 6(1) of the Criminal Appeal Act 1912 where the evidence, viewed as a whole, was not capable of satisfying a jury beyond reasonable doubt of an essential element of the offence.
  • Cunnilingus, as defined in s 61H(1)(c) of the Crimes Act 1900, constitutes a separate and distinct form of sexual intercourse that does not require penetration as an element; it refers to oral stimulation of the female genitalia with the mouth or tongue.
  • No error was established in the trial judge's directions where those directions correctly stated what the Crown had to prove and the genuine dispute at trial was whether the conduct had occurred at all, rather than whether it met the legal definition.
  • Where a conviction on the most serious count cannot stand and the Crown has eschewed any lesser alternative, the Court of Criminal Appeal will enter a verdict of acquittal rather than order a retrial.
  • The Court's reasoning on the unreasonable verdict ground, and its refusal to find error in directions, were reached unanimously by all three judges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61H, 61M(2), 61O(2), 66A(2)
- Criminal Appeal Act 1912 (NSW): s 6(1)

Cases
- M v R [1994] HCA 63; 181 CLR 487
- MFA v R [2002] HCA 53; 213 CLR 606
- Picken v R [2007] NSWCCA 319
- R v Abusafiah (1991) 24 NSWLR 531
- R v BA [2014] NSWCCA 148
- R v Kanaan [2005] NSWCCA 385; 64 NSWLR 527
- R v NLR [2008] NTSC 10; 181 A Crim R 146
- R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
- SKA v R [2011] HCA 13; 243 CLR 400