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District Court 30 July 2020

R v Kim

[2020] NSWDC 405

Sexual offencesAssault & violence
CRIME TRIAL BY JUDGE ALONE CIRCUMSTANTIAL CASE INTOXICATION INTENTION MERE PREPARATION

Citation: R v Kim [2020] NSWDC 405
Court: District Court of New South Wales
Date: 30 July 2020
Judge: M Adams QC ADCJ

Background

The accused, a restaurant worker, spent the evening of 18 to 19 July 2019 drinking heavily with colleagues in Sydney's CBD. In the early hours of 19 July, he came across a woman (identified only as Ms S to protect her privacy) who was locked out of her apartment building and waiting at the entrance. He was heavily intoxicated at the time.

The accused grabbed Ms S from behind, fondled her breasts, and placed his hand under her skirt. The two fell to the ground, with the accused on top. Ms S resisted throughout, calling for help. The accused silenced her by covering her mouth, then punched her repeatedly before walking away. The entire interaction lasted approximately two minutes.

The accused pleaded guilty to sexually touching Ms S without her consent and to assaulting her. The contested charge was whether his conduct amounted to an attempt to have sexual intercourse with her without consent, knowing she was not consenting, contrary to section 61I of the Crimes Act 1900. The accused elected trial by judge alone.

Legal Issues

  • Whether the prosecution established beyond reasonable doubt that the accused intended to have sexual intercourse with Ms S, as distinct from sexual interference falling short of intercourse.
  • Whether the accused's extreme intoxication could be considered when assessing whether he had formed the requisite intention to commit the attempted offence.
  • Whether attempting to have sexual intercourse without consent is an "offence of specific intent" under Part 11A of the Crimes Act 1900, such that intoxication is relevant to the intention element.
  • Whether the accused's acts went beyond mere preparation and constituted an actual attempt to commit the substantive offence.

Decision

Issue 1: Intoxication and specific intent

The court examined whether an attempt to have sexual intercourse without consent falls within the category of "offences of specific intent" under Part 11A of the Crimes Act 1900. The court reasoned that, because intention to achieve a specific result (sexual intercourse) is an element of the attempt offence, intoxication may be considered when deciding whether that intention was formed (at [17]). Section 428D remained relevant, however, to the separate elements of knowledge of the complainant's lack of consent and honest and reasonable mistake (at [17]).

The court found it unnecessary to resolve the intoxication question definitively on the facts. It was satisfied beyond reasonable doubt that, despite the accused's heavy intoxication, he did not fail to appreciate that Ms S was not consenting to what he was attempting to do (at [18]).

Issue 2: Factual findings on the accused's conduct

The court accepted Ms S's evidence that the accused placed his hand under her skirt during the standing phase of the attack (at [9]). It was not persuaded, however, that a second attempt to lift her skirt occurred after the pair fell to the ground, finding only that his hand may have touched the rim of her skirt during the struggle (at [9]).

The CCTV footage played a central role. The court observed the accused touching his trouser flies in what appeared to be an attempt to open them before approaching Ms S, though it found he was too intoxicated to succeed (at [7]).

Issue 3: Intention to have sexual intercourse

The court concluded that, viewed as a whole, the accused's conduct from the moment he attempted to open his flies through to the struggle on the ground admitted only one rational hypothesis: that he intended to have sexual intercourse with Ms S, including in the form of digital penetration, regardless of her lack of consent (at [20]). The court gave serious consideration to whether his purpose might have been limited to sexual gratification short of intercourse, but found the violence of the attack, the fondling of her breasts, and the placing of his hand under her skirt were inconsistent with any more limited objective (at [20]).

Issue 4: Beyond mere preparation

The court found that the accused's acts were directly and proximately connected with his intention to have sexual intercourse with Ms S. They went beyond mere preparation and constituted an actual attempt to commit the substantive offence (at [21]). The court held that he had embarked upon the commission of the offence and could not reasonably be taken to have had any other purpose (at [21]).

Orders Made

  • Guilty verdict: the accused was convicted of attempting to have sexual intercourse with Ms S without her consent, knowing she was not consenting, on 19 July 2019 in Sydney, New South Wales.

Key Takeaways

  • An attempt to have sexual intercourse without consent is an offence of specific intent for the purposes of Part 11A of the Crimes Act 1900, meaning that self-induced intoxication may be taken into account when determining whether the accused formed the intention to have sexual intercourse (at [17]).

  • The District Court confirmed that Part 11A's provisions on intoxication operate differently across the elements of an attempted sexual assault: intoxication is relevant to the intention to achieve the specific result, but section 428D governs the distinct elements of knowledge of lack of consent and honest and reasonable mistake (at [17]).

  • Where circumstantial evidence is relied upon, the court must consider all proved facts as a whole to determine whether guilt is established beyond reasonable doubt, or whether a reasonable hypothesis of innocence exists, consistent with the approach in Shepherd v The Queen (1990) 170 CLR 573 (at [11]).

  • Conduct goes beyond mere preparation, and constitutes an actual attempt, where the acts are directly and proximately connected with the accused's intention to commit the substantive offence and the accused has in fact embarked upon its commission (at [21]).

  • Heavy intoxication does not automatically preclude a finding of specific intent where the overall circumstances, including the accused's observable behaviour before and during the attack, support only one rational conclusion as to purpose (at [19]-[20]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 1995

Cases
- Alister and ors v the Queen (1984) 154 CLR 404
- Day v R [2017] NSWCCA 192
- R v Holland (1993) 117 ALR 193
- R v Gulliford [2004] NSWCCA 338
- Shepherd v The Queen (1990) 170 CLR 573