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Court of Criminal Appeal 3 August 2016

Castle v R

[2016] NSWCCA 148

Also reported as (2016) 92 NSWLR 17
Assault & violence
CRIMINAL LAW APPEAL CONVICTION

Citation: Castle v R [2016] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 3 August 2016
Judge(s): Bathurst CJ; Hall J; R A Hulme J (each writing separately)

Background

The appellant was convicted of detaining a person without consent with intent to obtain an advantage, in company, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). The offence arose from an incident in which the appellant and a co-offender, both allegedly intoxicated, forced a 17-year-old driver to transport them from the Kyogle area to Nimbin. The Crown case was that the men stopped the complainant's car, displayed cannabis and a steak knife, and effectively compelled the complainant to drive them against his will.

The complainant's visible distress was corroborated by his uncle, who encountered them during the journey and observed the young driver sobbing and extremely upset. Despite the uncle's intervention, the co-offender grabbed the steering wheel when the complainant attempted to take an alternative route, steering the car toward Nimbin. The appellant denied all of this, claiming the complainant had willingly picked them up as hitchhikers.

At trial, the judge directed the jury that the element of knowledge of the complainant's lack of consent could be satisfied not only by actual knowledge, but also by recklessness. One formulation of recklessness given to the jury described a scenario where the accused simply failed to consider whether the complainant was consenting, in circumstances where non-consent would have been obvious to a person of the accused's mental capacity had they turned their mind to it. The appellant challenged that direction on appeal.

  • Whether the element of knowledge of lack of consent in a kidnapping charge under s 86 of the Crimes Act can be satisfied by recklessness.
  • Whether recklessness for this offence requires the accused to have actually adverted to the risk of non-consent (advertent recklessness), or whether it can also be satisfied where the accused simply failed to consider the risk (inadvertent recklessness).
  • Whether the trial judge's direction to the jury regarding inadvertent recklessness was an error of law.
  • Whether any such error gave rise to a miscarriage of justice warranting a new trial.

Decision

Recklessness can satisfy the knowledge element. All three judges agreed that the element of knowledge of lack of consent under s 86 can be satisfied by recklessness. That proposition was well established by prior authority, including R v DMC [2002] NSWCCA 513.

The majority rejected inadvertent recklessness. Bathurst CJ and Hall J held that recklessness for the purposes of this offence requires a subjective state of mind: either conscious disregard of an appreciated risk that the complainant was not consenting, or indifference to whether the complainant consented at all (sometimes described as acting "willy-nilly"). A direction that recklessness can be satisfied merely by a failure to consider consent, even where non-consent would have been obvious to a reasonable person of the accused's capacity, imports an impermissible objective standard. That formulation, drawn from the discredited approach in R v Caldwell [1982] AC 341, was rejected. The majority drew support from Banditt v The Queen [2005] HCA 80, R v G [2003] UKHL 50, and R v DMC.

R A Hulme J dissented on this point. His Honour took the view that inadvertent recklessness, properly understood, involves a subjective standard with an objective rider rather than a purely objective test. Relying on the approach taken to sexual assault offences in R v Kitchener (1993) 29 NSWLR 696 and R v Tolmie (1995) 37 NSWLR 660, his Honour concluded that both advertent and inadvertent recklessness can satisfy the mental element for s 86.

No miscarriage of justice. Despite the majority finding that the second day's direction on inadvertent recklessness was erroneous, the court unanimously dismissed the appeal. The evidence was overwhelming: the jury had plainly been satisfied that the complainant was detained. In those circumstances, it was not realistically conceivable that any juror harboured a doubt about actual knowledge of non-consent, or that the erroneous direction affected the verdict. The direction given on the first day of summing-up was, taken as a whole, not in error.

Orders Made

• The appeal should be dismissed.

Key Takeaways

  • Recklessness can satisfy the knowledge-of-non-consent element in a kidnapping charge under s 86 of the Crimes Act 1900 (NSW), as confirmed by all three judges applying R v DMC.
  • Under the majority's analysis, that recklessness must be subjective: the accused must have actually adverted to the possibility that the complainant was not consenting, or have been indifferent to the question of consent altogether.
  • A direction that recklessness is established merely because non-consent would have been obvious to a person of the accused's mental capacity, had they turned their mind to it, imports an objective standard and is an error of law according to the majority.
  • R A Hulme J dissented, concluding that inadvertent recklessness, properly understood, applies a subjective standard with an objective rider and should be available for s 86 offences, consistent with the approach to sexual assault.
  • In dismissing the appeal, the court applied the principle that a misdirection does not automatically warrant a new trial; where the evidence made the impugned direction immaterial to the verdict, no substantial miscarriage of justice arises.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61A, 61D, 61L, 61R, 86, 90A
- Criminal Damage Act 1971 (UK), ss 1, 2
- Malicious Damage Act 1861 (UK)

Cases:
- Banditt v The Queen [2005] HCA 80; 224 CLR 262
- R v DMC [2002] NSWCCA 513; 137 A Crim R 246
- R v G [2003] UKHL 50; [2004] 1 AC 1034
- R v Caldwell [1982] AC 341
- R v Morgan [1976] AC 182
- R v Kitchener (1993) 29 NSWLR 696
- R v Tolmie (1995) 37 NSWLR 660
- R v Lawrence [1982] AC 510
- R v O'Meagher (1997) 101 A Crim R 196
- R v Hemsley (1988) 36 A Crim R 334
- R v Cunningham [1957] 2 QB 396
- R v Crabbe [1985] HCA 22; 156 CLR 464
- AM v R [2011] NSWCCA 237
- O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45; 233 A Crim R 449
- DJB v R; R v DJB [2007] NSWCCA 209
- Jackson v R [2005] NSWCCA 411
- R v Mueller [2005] NSWCCA 47; 62 NSWLR 476
- R v Mitton [2002] NSWCCA 124; 132 A Crim R 123
- R v Daly [1968] VR 257
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- R v Henning (Court of Criminal Appeal (NSW), 11 May 1990, unrep)