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Court of Criminal Appeal 20 March 2019

Holt v R

[2019] NSWCCA 50

Sexual offences
CRIMINAL LAW CONVICTION APPEAL ERROR IN JUDGE’S DIRECTIONS ESTABLISHED

Citation: Holt v R [2019] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 20 March 2019
Judges: Hoeben CJ at CL; Schmidt J; Adamson J

Background

Three accused were tried jointly in the District Court on an indictment arising from events at a marina in Nelson Bay on 5 January 2013. The complainant, aged 19 at the time, had met the accused at a local RSL club and subsequently boarded a recreational boat in the early hours of the morning. She alleged that a series of sexual and indecent acts occurred without her consent.

The applicant did not dispute that the physical acts underlying the charges against him had occurred. His case at trial was that the complainant had consented. The jury acquitted all three accused of every sexual assault count but convicted the applicant alone on two counts of aggravated indecent assault (counts 4 and 5) under s 61M(1) of the Crimes Act 1900 (NSW), which concerned the applicant touching the complainant while in the company of a co-accused. He was sentenced to a three-year good behaviour bond.

The applicant appealed his conviction on two grounds: that the trial judge's directions on the mental element and other aspects of the offence were incorrect or inadequate, and that the guilty verdicts were unreasonable or inconsistent with the acquittals on all other counts.

  • Whether the trial judge's written and oral directions correctly stated the mental element required for aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW)
  • Whether the evidence was sufficient to establish the "in company" element of counts 4 and 5
  • Whether the guilty verdicts on counts 4 and 5 were unreasonable or inconsistent with the acquittals on all sexual assault counts
  • If error was established, whether acquittals should be entered or a retrial ordered

Decision

The Court of Criminal Appeal found that the trial judge's directions on the mental element of the aggravated indecent assault offence were in error. The directions did not correctly or clearly identify what the Crown had to prove regarding the applicant's state of mind in relation to the complainant's lack of consent. This ground of appeal was upheld.

On the "in company" element, the Court considered whether the evidence was sufficient to establish that the applicant committed the indecent assaults while in the company of Miletic as required by the charge. This raised questions about the degree to which a co-accused must be present and participating for the aggravating element to be made out.

On the question of inconsistency, the Court examined whether the guilty verdicts on counts 4 and 5 could rationally stand alongside the acquittals on all counts of sexual assault, including the acquittal of the applicant on count 6 (which arose from the same occasion and involved the same complainant). The Court found that the verdict inconsistency argument, combined with the misdirection on the mental element, warranted quashing the convictions.

The judges were divided on remedy. Hoeben CJ at CL considered that acquittals should be entered, while Schmidt J and Adamson J took the view that the evidence was sufficiently cogent to support a conviction and that a retrial should be ordered rather than acquittals entered. The majority therefore ordered a retrial, leaving the decision whether to proceed to prosecuting authorities.

Orders Made

  • Conviction on counts 4 and 5 quashed
  • Leave to appeal granted
  • Appeal allowed
  • Retrial ordered in respect of counts 4 and 5 (per majority: Schmidt J and Adamson J; Hoeben CJ at CL would have entered acquittals)

Key Takeaways

  • A conviction for aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW) requires the jury to be correctly directed on the mental element of the offence, including what the accused must have known or believed about the complainant's consent. A failure to do so constitutes a material error warranting intervention.
  • Where a trial judge's directions mistate the mental element of an offence, the Court of Criminal Appeal will assess whether the error was material to the verdict rather than treating all misdirections as automatically fatal.
  • The Court of Criminal Appeal confirmed that where a conviction is quashed but sufficient evidence exists to support the charge, a retrial is ordinarily the appropriate remedy rather than the entry of acquittals, unless the interests of justice require otherwise.
  • Sufficient evidence to support a conviction does not, of itself, resolve the question of inconsistency between verdicts; the court must examine whether the guilty verdicts can rationally coexist with acquittals arising from the same factual circumstances.
  • In ordering a retrial, the Court noted the practical constraints a fresh prosecution would face, including the passage of approximately six years since the events and the need to modify the Crown case in light of the acquittals on the sexual assault counts involving the same complainant and co-accused.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA, 61I, 61J(1), 61M(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1)
- Criminal Appeal Rules (NSW), r 4

Cases:
- Gilham v R [2012] NSWCCA 131
- Greenhalgh v R [2017] NSWCCA 94
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Anderson (1991) 53 A Crim R 421
- R v Bonora (1994) 35 NSWLR 74
- R v Button; R v Griffen [2002] NSWCCA 159
- R v Kuckailis [2001] NSWCCA 333
- R v Markuleski (2001) 52 NSWLR 82
- Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43