Citation: R v Kertz [2019] NSWDC 387
Court: District Court of New South Wales
Date: 27 March 2019
Judge: Buscombe DCJ
Background
The accused was tried before a judge sitting alone on two counts arising from events on the night of 19 May 2018. The complainant and the accused were acquaintances of more than a year, having met through his work at a local garbage tip. The complainant lived in a remote location and had previously regarded the accused as a friend; he had visited her property on prior occasions to help chop wood.
On the afternoon of 19 May 2018, the accused attended the complainant's property again to assist with wood chopping. He left in the early evening, but returned later that night. The events that followed gave rise to two charges: entering a dwelling house with intent to commit indecent assault in circumstances of aggravation (under s 111(2) of the Crimes Act 1900 (NSW)), and detaining the complainant without consent with the intention of obtaining sexual gratification while actual bodily harm was occasioned (under s 86(2)(b) of the same Act).
Legal Issues
- Whether the Crown proved beyond reasonable doubt that, at the time of entering the complainant's dwelling, the accused had an intention to commit an indecent assault.
- Whether the Crown proved the accused used corporeal violence on the complainant during that entry, satisfying the circumstances of aggravation for Count 1.
- Whether the accused detained the complainant without her consent, with the intention of obtaining sexual gratification, and whether he knew or was reckless as to her lack of consent.
- Whether actual bodily harm was occasioned to the complainant during the period of detention, satisfying the aggravated element of Count 2.
- Whether alternative verdicts under ss 115A and 86(4) of the Crimes Act were available where the aggravated elements were not proved beyond reasonable doubt.
Decision
Count 1: Entering dwelling with intent (aggravated form)
Buscombe DCJ was not satisfied beyond reasonable doubt that the accused entered the complainant's premises with the intention of committing an indecent assault. The accused was acquitted of Count 1 in full. The judgment does not elaborate extensively on this reasoning in the portions available, but the finding turned on the lack of proved intent at the time of entry, including the aggravated element of corporeal violence.
Count 2: Detention for advantage (aggravated form)
The court was satisfied beyond reasonable doubt that the accused physically took hold of the complainant's arm and forced her to accompany him to a shed to retrieve hard drives containing what the accused understood to be recordings of her engaging in bondage activities. The accused sought to obtain sexual gratification by watching those recordings. From the point of that physical restraint until he left the property, the accused detained the complainant within the meaning of s 86 of the Crimes Act, interfering with her liberty and preventing her from leaving freely.
The court was satisfied beyond reasonable doubt that the complainant did not consent to the detention and that the accused knew she did not consent. The turning point in the court's reasoning was the accused's removal of handcuffs from the complainant: from that moment, the court found he was clearly aware she was not consenting to actions directed at his sexual gratification, including the retrieval of the hard drives and the attempt to play the recordings.
However, the court was not satisfied beyond reasonable doubt that the actual bodily harm identified (scratches to the complainant's wrist) occurred during the period of detention after the accused's knowledge of non-consent was established. The scratches were found to have occurred before the removal of the handcuffs. Accordingly, the aggravated element under s 86(2)(b) was not made out, and the court returned an alternative verdict of guilty of the non-aggravated offence of detaining a person for advantage under s 86(1), pursuant to s 86(4) of the Crimes Act.
Orders Made
- Not guilty of Count 1 on the indictment.
- Not guilty of Count 2 on the indictment, but guilty of the non-aggravated form of the offence under s 86(1) of the Crimes Act 1900 (NSW).
Key Takeaways
- In a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), the judge must expressly articulate the principles of law applied and the factual findings made, with reasoning that visibly links those principles to the verdicts reached, as confirmed in Fleming v The Queen (1998) 197 CLR 250.
- A conviction for aggravated detention under s 86(2)(b) requires the Crown to prove beyond reasonable doubt that actual bodily harm was occasioned to the complainant at the time of the detention. Where that element fails, s 86(4) permits an alternative verdict of guilty of the basic offence under s 86(1).
- The District Court applied the Castle v The Queen [2016] NSWCCA 148 formulation for the knowledge element of detention offences: the Crown must prove the accused actually knew the complainant did not consent, or was reckless in the sense that he recognised the possibility of non-consent but proceeded regardless.
- Detention within the meaning of s 86 does not require prolonged confinement. Even a brief interference with a person's liberty, preventing them from leaving as they choose, is sufficient.
- Where the timing of physical harm is uncertain on the evidence, courts applying the reasonable doubt standard may decline to attribute that harm to the specific period of proven unlawful detention, which can reduce the charge to its non-aggravated form.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 86(1), 86(2)(b), 86(4), 111(2), 115A, 428B
- Criminal Procedure Act 1986 (NSW): ss 133, 293A
Cases
- Azzopardi v The Queen (2001) 205 CLR 50
- Castle v The Queen [2016] NSWCCA 148
- Fleming v The Queen (1998) 197 CLR 250