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Court of Criminal Appeal 16 July 2020

Kazantzis v R

[2020] NSWCCA 161

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION SEXUAL ASSAULT OFFENCES

Citation: Kazantzis v R [2020] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 16 July 2020
Judge(s): Bell P; Davies J; Wilson J

Background

The applicant and the complainant were in a short-term relationship that began around mid-January 2016, having met through the dating app Tinder. The relationship was sexually active and involved consensual acts of various kinds, including anal intercourse, bondage, threesomes, and the recording and sharing of sexual content on social media.

The applicant was charged with three counts of sexual intercourse without consent, each relating to a separate occasion in early 2016. The second count alleged that on 18 February 2016, in the carpark of a Sydney shopping centre, the applicant continued anal penetration after the complainant had withdrawn her consent, communicated pain and discomfort, physically attempted to push him away, and repeatedly asked him to stop. The applicant briefly withdrew but then re-inserted without asking.

After an eleven-day trial, the jury acquitted the applicant on counts one and three but found him guilty on count two. He was sentenced to a non-parole period of twelve months' imprisonment, with a further twelve-month parole period. He appealed on the single ground that the verdict on count two was unreasonable or unsupportable having regard to the evidence.

  • Whether the jury's guilty verdict on count two was unreasonable or unsupportable having regard to the evidence, applying the test in M v R (1994) 181 CLR 487 and Pell v R (2020) 94 ALJR 394.

Decision

Bell P (with Davies and Wilson JJ agreeing) granted leave to appeal but dismissed the appeal, finding that the verdict on count two was not unreasonable and that no miscarriage of justice had occurred.

Bell P reviewed the full body of evidence, including the complainant's statement to police, Facebook Messenger exchanges, a taped telephone conversation between the parties, and the transcript of the applicant's electronically recorded police interview (ERISP). On the basis of that material, it was well open to the jury to conclude that the applicant knew the complainant had withdrawn her consent and continued nonetheless.

Davies J, conducting his own examination of the evidence, was satisfied the jury could properly have found beyond reasonable doubt that the applicant was at least reckless as to whether the complainant was consenting when he continued the sexual intercourse. His Honour noted that the applicant's post-incident statements in the Facebook messages, taped call, and ERISP contained no suggestion that his later thinking differed from his thinking at the time. The jury was entitled to treat those statements as reflecting the applicant's contemporaneous knowledge and remorse.

The applicant's counsel had argued at trial and on appeal that those statements reflected hindsight rather than the applicant's state of mind during the act itself. The Court found the jury was entitled to reject that interpretation, and that doing so was consistent with a reasonable verdict.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury's verdict need not be explained by reference to each piece of evidence; the appellate court's function is to determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt.
  • Post-incident statements made by an accused, including in social media messages, recorded telephone calls, and a police interview, may support an inference about the accused's state of mind at the time of the alleged offence, not merely after it.
  • A jury is entitled to reject a defence argument that admissions or remorseful statements were made with the benefit of hindsight, where nothing in those statements suggests the accused's thinking had changed between the event and the statement.
  • The acquittals on counts one and three did not render the conviction on count two unreasonable; mixed verdicts are not inherently inconsistent where the evidence differs between counts.
  • Sufficient evidence existed in this case, including the complainant's verbal protests, physical resistance, and the applicant's re-insertion without asking, for a jury to conclude that consent had been withdrawn and that the applicant was aware of that withdrawal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Surveillance Devices Act 2007 (NSW)

Cases:
- M v R (1994) 181 CLR 487; [1994] HCA 63
- Pell v R (2020) 94 ALJR 394; [2020] HCA 12
- Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- RC v R; R v RC [2020] NSWCCA 76