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34
Court of Criminal Appeal 15 May 2017

Greenhalgh v R

[2017] NSWCCA 94

Sexual offences
CRIMINAL PROCECURE LEAVE TO APPEAL AGAINST CONVICTION CRIMINAL APPEAL RULES (NSW) R 4 DIRECTIONS TO JURY INDECENT ASSAULT MENS REA

Citation: Greenhalgh v R [2017] NSWCCA 94
Court: Court of Criminal Appeal (NSW)
Date: 15 May 2017
Judges: Basten JA; Button J; N Adams J

Background

The applicant was convicted on two counts of sexual intercourse without consent and three counts of indecent assault. The offending occurred in the early morning of 20 July 2014, when the applicant attended the complainant's apartment after exchanging messages on Facebook. The complainant had been intoxicated the night before and woke to find the applicant in her home.

The charges arose from a sequence of acts committed over approximately one hour. Each charge involved different conduct and, critically, different mental state requirements under the law.

Following conviction, the applicant sought leave to appeal against all five convictions. The proposed grounds all challenged the adequacy of the trial judge's directions to the jury. Significantly, no objection had been raised to any of these directions at the time of trial.

  • Whether leave to appeal should be granted under Criminal Appeal Rules (NSW) r 4 where no objection was taken to the jury directions at trial
  • Whether the trial judge's directions on the mental element (mens rea) for indecent assault were erroneous, specifically regarding the accused's knowledge of the absence of consent
  • Whether the trial judge failed to identify the evidential basis for the "reasonable grounds for belief in consent" element under s 61HA of the Crimes Act 1900 (NSW)
  • Whether the jury was adequately directed to consider all circumstances of the case, including prior sexual history, when evaluating reasonable grounds for belief in consent
  • Whether the trial judge failed to explain that the "reasonable grounds" assessment under s 61HA is not a wholly objective test

Decision

The central procedural hurdle was r 4 of the Criminal Appeal Rules, which requires an applicant to obtain leave before relying on a ground of appeal that was not the subject of an objection at trial. The Court examined competing formulations of the leave test drawn from earlier decisions, including the statement from McHugh J in Papakosmas v The Queen that an appeal can only succeed if the applicant demonstrates a miscarriage of justice, and the test from Picken v R that the applicant must show a lost "real chance of acquittal." Button J and Basten JA agreed that the "real chance of acquittal" test from Picken v R, endorsed in ARS v R, is the correct standard.

On the substantive grounds, the Court found no error in the trial judge's directions on the mental element for indecent assault. The directions correctly required the jury to be satisfied that the applicant knew of the complainant's lack of consent, or was indifferent to it. This accurately reflected the legal requirements as confirmed in Banditt v The Queen.

On the grounds relating to sexual intercourse without consent and the s 61HA "reasonable grounds" provisions, the Court found no identifiable error in the summing up. The trial judge had adequately directed the jury on the relevant statutory requirements, including reference to the circumstances of the case. The applicant had not demonstrated that any deficiency in the directions caused a real chance of acquittal to be lost.

Because no ground of appeal was found to have merit at the level required by r 4, and because the applicant had not demonstrated a lost real chance of acquittal, the Court refused leave on all four grounds and dismissed the appeal.

Orders Made

  • Leave refused to rely upon grounds 1 to 4 (as filed 25 October 2016), pursuant to Criminal Appeal Rules (NSW), r 4
  • Appeal dismissed

Key Takeaways

  • Under Criminal Appeal Rules (NSW) r 4, an applicant who failed to object to jury directions at trial must demonstrate a lost "real chance of acquittal" to obtain leave to appeal; the Court of Criminal Appeal confirmed this test from Picken v R and ARS v R as the correct standard.
  • For indecent assault, the prosecution must prove the accused knew the complainant did not consent, or was at least indifferent to the absence of consent; the Court confirmed this mental element accurately reflects the law as stated in Banditt v The Queen.
  • Where s 61HA of the Crimes Act 1900 (NSW) applies to sexual intercourse without consent, it is sufficient for the prosecution to establish either that the accused knew the complainant did not consent, was indifferent to consent, or had no reasonable grounds for believing she consented.
  • Failing to raise a complaint about jury directions at trial creates a significant obstacle on appeal; the absence of any objection may itself indicate that, in the context of the trial, the point lacked the significance attributed to it on appeal.
  • No miscarriage of justice was established across any of the four proposed grounds, and the appeal was dismissed in its entirety.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61R
- Criminal Appeal Rules (NSW), r 4
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- ARS v R [2011] NSWCCA 266
- Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
- Darwiche v R [2011] NSWCCA 62
- FP v R [2012] NSWCCA 182
- Jones v Dunkel (1959) 101 CLR 298
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Nudd v The Queen [2006] HCA 9
- O'Sullivan v R [2012] NSWCCA 45
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Picken v R [2007] NSWCCA 319
- R v Abusafiah (1991) 24 NSWLR 531
- R v Aziz [1982] 2 NSWLR 322
- R v Morgan [1976] AC 182
- R v Tripodina (1988) 35 A Crim R 183
- The Queen v Baden-Clay [2016] HCA 35
- Wilde v The Queen (1988) 164 CLR 365