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Court of Criminal Appeal 12 April 2016

Lazarus v R

[2016] NSWCCA 52

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: Lazarus v R [2016] NSWCCA 52
Court: NSW Court of Criminal Appeal
Date: 12 April 2016
Judges: Hoeben CJ at CL, Adams J, Fullerton J

Background

The appellant had been convicted at trial of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offence involved penile/anal intercourse, the occurrence of which was not disputed. The central contest at trial was whether the complainant had consented and whether the appellant had the requisite state of mind regarding consent.

Following conviction, the appellant brought two grounds of appeal to the Court of Criminal Appeal. The first challenged the reasonableness of the jury's verdict. The second challenged the adequacy of the trial judge's directions to the jury on the statutory test for the mental element of the offence, specifically the provisions in s 61HA(3)(c) of the Crimes Act.

  • Whether the jury's verdict was unreasonable or could not be supported having regard to the evidence (s 6(1) of the Criminal Appeal Act 1912 (NSW))
  • Whether the trial judge's directions to the jury correctly stated the legal test under s 61HA(3)(c) of the Crimes Act, concerning the mental element of consent in a sexual assault offence
  • What the appropriate remedy was if Ground 2 succeeded

Decision

Ground 1: Unreasonable verdict

All three judges agreed that Ground 1 was not made out. The evidence was such that it was open to the jury to be satisfied beyond reasonable doubt that the complainant had not consented, and that it was not reasonably possible that the appellant lacked awareness of her non-consent. Adams J and Fullerton J approached this question by different routes: Adams J assessed the evidence on the assumption that the trial judge's direction was correct (since the jury's verdict must have been based on that direction), while Fullerton J assessed it against the correct statutory test. Both routes led to the same result. Hoeben CJ at CL reserved his final view on which approach was correct in principle, noting the case was not an ideal vehicle for resolving that question.

Ground 2: Inadequate directions on the consent belief test

The Court unanimously upheld Ground 2. Under s 61HA(3)(c), if there was a reasonable possibility that the appellant believed the complainant was consenting, the Crown was required to prove that the appellant had no reasonable grounds for that belief. The trial judge had instead directed the jury to ask whether the complainant's actions caused a belief in the appellant's mind that she was consenting, and whether "such a belief was a reasonable one." This formulation was a significant departure from the statutory test.

Fullerton J explained the distinction clearly. The statutory test asks whether the accused himself may have held a belief, and then whether there were reasonable grounds for that specific belief. The direction given asked, in effect, what a reasonable person would have concluded in the circumstances. These are materially different inquiries. The misdirection meant the jury was not properly guided on a key element of the Crown's case.

Remedy

The appellant accepted that if Ground 1 failed, a new trial was the appropriate remedy under s 8(1) of the Criminal Appeal Act. The Court ordered accordingly: the conviction was quashed and a new trial directed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Under s 61HA(3)(c) of the Crimes Act 1900 (NSW), where there is a reasonable possibility that an accused believed the complainant consented, the Crown must prove that the accused had no reasonable grounds for that belief. Directing the jury to ask whether a "reasonable person" would have believed the complainant consented is not an accurate statement of this test.

  • A trial judge's direction that focuses on whether the complainant's actions caused a reasonable belief in consent conflates two distinct inquiries: what the accused actually believed, and whether there were objectively reasonable grounds for that belief.

  • The Court of Criminal Appeal confirmed that in assessing a Ground 1 (unreasonable verdict) appeal, an independent assessment of the evidence is required, examining both its sufficiency and its quality, not merely whether, as a matter of law, there was some evidence capable of supporting the verdict.

  • Where jury directions have been found to misstate the law, a conviction will not necessarily be quashed solely on that basis if the evidence independently could not have supported a verdict of not guilty. Both grounds must be considered separately.

  • Hoeben CJ at CL declined to resolve whether, when assessing unreasonableness under s 6(1) of the Criminal Appeal Act, the Court should evaluate evidence against the direction actually given (even if erroneous) or against the correct legal test. The judgment leaves this methodological question open for a more suitable case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61HA(3)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 8(1)

Cases
- SKA v R [2011] HCA 13; 243 CLR 400
- M v R [1994] HCA 63; 181 CLR 487
- Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
- Kurdi v R [2011] NSWCCA 179
- O'Sullivan v R; Flanders v R; Tohu v R & NRH v R [2012] NSWCCA 45
- Viro v R [1978] HCA 9; 141 CLR 88