Citation: Stevenson v R; Waters v R [2020] NSWCCA 58
Court: Court of Criminal Appeal, NSW
Date: 3 April 2020
Judge(s): Harrison J, Hamill J (with reasons), Wilson J
Background
Two appellants were convicted in the District Court following a 2017 trial concerning a series of sexual offences alleged to have occurred on 22 and 23 May 2015. The prosecution alleged that the appellants were among a group of at least four men who engaged in sexual intercourse with a 16-year-old intellectually disabled complainant without her consent. Each relevant count charged the offence of aggravated sexual intercourse without consent under s 61J(1) of the Crimes Act 1900 (NSW), with the circumstance of aggravation being that each accused acted in the company of another.
The indictment was amended during trial after the trial judge directed not-guilty verdicts on the original counts, which included an element of reckless infliction of actual bodily harm. That element could not be established on the evidence. The jury then considered the amended counts, designated 1A through 6A, and returned guilty verdicts against each appellant on multiple counts.
A co-accused, Carlyle-Watson, had also been convicted at the same trial and subsequently appealed successfully. The present appellants relied on substantially the same grounds as those upon which Carlyle-Watson's appeal was upheld in Carlyle-Watson v R [2019] NSWCCA 226. The Director of Public Prosecutions conceded that a number of the convictions could not stand.
Legal Issues
- Whether the jury was properly directed on the legal basis for each appellant's criminal liability, particularly where an appellant was not the person who performed the act of sexual intercourse
- Whether the trial conflated two distinct bases of accessorial liability: joint criminal enterprise (making a person a principal in the first degree) and liability as a principal in the second degree (being present and assisting at the scene)
- Whether the directions adequately explained the different mental fault elements required for each basis of liability, particularly the state of knowledge required to establish guilt where an accused was not the primary offender
Decision
The central problem identified by Hamill J was that the prosecution never clearly articulated, and the trial judge never clearly directed the jury on, the precise legal basis upon which each "accessory" appellant was criminally responsible. At various points during the trial, the prosecution appeared to rely on joint criminal enterprise, and at other times on derivative liability as a principal in the second degree. These are legally distinct concepts with different requirements, and the jury directions failed to distinguish between them.
The distinction matters because each basis of liability carries a different fault element concerning knowledge of the complainant's non-consent. A joint criminal enterprise requires proof that the accused intentionally entered an agreement to commit the offence. Liability as a principal in the second degree requires actual knowledge of all circumstances making the act a crime. Directing the jury on both without clarity as to which applied, or treating them as interchangeable, constituted a misdirection.
For each count where an appellant was the accessory rather than the principal offender, this misdirection rendered the conviction unsafe. The Director of Public Prosecutions conceded this, and the Court agreed. Where an appellant was the principal offender, those convictions were affirmed: the misdirection did not affect counts where the relevant appellant was charged as the person who actually committed the act of intercourse.
The aggregate sentences imposed on both appellants were quashed as a consequence of the orders setting aside the relevant convictions. The matter was remitted to the District Court for re-sentencing on the affirmed counts, and potentially for re-trial on the quashed counts at the Director's discretion.
Orders Made
For Kurt Stevenson:
- Time for filing the notice of appeal extended
- Leave to appeal granted on ground 4
- Appeal allowed
- Convictions on counts 3A, 4A, and 6A set aside
- Proceedings remitted to the District Court for re-trial at the discretion of the Director of Public Prosecutions
- Convictions on counts 1A, 2A, and 5A affirmed
- Aggregate sentence quashed; proceedings remitted to the District Court for re-sentence on counts 1A, 2A, and 5A
- Bail refused
For Andrew Waters:
- Time for filing the notice of appeal extended
- Leave to appeal granted on ground 4
- Appeal allowed
- Convictions on counts 2A, 3A, 4A, and 5A set aside
- Proceedings remitted to the District Court for re-trial at the discretion of the Director of Public Prosecutions
- Conviction on count 6A affirmed
- Aggregate sentence quashed; proceedings remitted to the District Court for re-sentence on count 6A
- Bail refused
Key Takeaways
- Where an accused is charged as an accessory to a sexual offence rather than as the primary offender, the legal basis for liability must be clearly identified and consistently maintained throughout trial and in jury directions.
- Conflating joint criminal enterprise with liability as a principal in the second degree constitutes a misdirection, because each basis requires the prosecution to prove a different state of knowledge about the complainant's non-consent.
- A conviction on counts where the accused was the principal offender is not necessarily affected by misdirections going only to the accessory counts; the Court of Criminal Appeal affirmed the convictions that were uncontaminated by the error.
- Quashing individual convictions forming part of an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires the aggregate sentence itself to be quashed and the matter remitted for re-sentencing.
- The decision follows and applies the reasoning in Carlyle-Watson v R [2019] NSWCCA 226, in which the same trial gave rise to the same misdirection argument, successfully argued by a co-accused.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J(1) (aggravated sexual intercourse without consent)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (aggregate sentencing provisions)
Cases:
- Carlyle-Watson v R [2019] NSWCCA 226 (the earlier successful appeal by the co-accused, upon which the present grounds were substantially modelled)