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Court of Criminal Appeal 2 July 2021

Holt v R

[2021] NSWCCA 140

Sexual offences
HELD, NO ERROR

Citation: Holt v R [2021] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 2 July 2021
Judge(s): Hoeben CJ at CL, Bellew J, N Adams J

Background

The applicant was charged with seven counts arising from a sexual assault on a female friend during the early hours of the morning after a small gathering at which both had been drinking. The complainant, referred to in the judgment as "Holly" (a pseudonym), fell asleep on a couch and gave evidence of waking to find the applicant engaging in several sexual acts without her consent. A prior text message exchange between the parties was before the jury, establishing that the complainant had previously declined the applicant's romantic interest in her.

The applicant admitted performing several of the acts but maintained that the encounter was consensual. He was convicted on three of the seven counts: cunnilingus (count 4), digital penetration of the vagina (count 6), and intentionally recording an intimate image without consent by photographing the complainant's genitals (count 5). He was acquitted on the remaining four counts, which variously involved acts the complainant disputed recalling clearly, or which the applicant also disputed performing.

Following a sentence of six years' imprisonment with a non-parole period of three years, the applicant sought leave to appeal his convictions on three grounds, challenging the reasonableness of the jury's verdicts, the trial judge's failure to give certain standard jury directions, and the adequacy of directions relating to alleged consciousness of guilt.

  • Whether the guilty verdicts on counts 4 and 6 were unreasonable or could not be supported having regard to all the evidence, particularly given the applicant's acquittal on related counts
  • Whether the trial judge erred by failing to direct the jury on the limited use of evidence of the applicant's "changing story" (a so-called Zoneff direction)
  • Whether the trial judge erred by failing to direct the jury on the applicant's deletion of an intimate photograph as potential evidence of consciousness of guilt (a so-called Edwards direction)

Decision

Ground 1: Unreasonable verdicts. The Court of Criminal Appeal, with Bellew J conducting an independent assessment of the evidence, rejected the argument that the guilty and not-guilty verdicts were inconsistent or unreasonable. The counts on which the applicant was acquitted either involved acts he disputed performing (making consent irrelevant), or involved circumstances where memory fragmentation due to alcohol and sleep provided a rational basis for the jury's uncertainty. By contrast, the counts on which he was convicted were ones where he admitted the acts but disputed consent, and the jury was entitled to prefer the complainant's account on those counts.

Ground 2: Changing story and the Zoneff direction. A Zoneff direction is given when there is a risk the jury might use evidence of a lie told by the accused as independent evidence of guilt, rather than merely to assess credibility. The Court found no error in the trial judge's omission of such a direction. No request for the direction had been made at trial, which under rule 4 of the Criminal Appeal Rules is a reliable indicator of the adequacy of the summing-up. The Court refused leave on this ground.

Ground 3: Deletion of photograph and the Edwards direction. An Edwards direction addresses the use of post-offence conduct as evidence of a consciousness of guilt. The applicant had deleted the intimate photograph he took, telling police he did so because he "didn't feel right" about "how it ended." Critically, the Crown had expressly disavowed reliance on this deletion as consciousness-of-guilt evidence, and defence counsel had done the same. The Court found no real risk of jury confusion about how the evidence might be used, distinguishing the facts from DN v R [2016] NSWCCA 252 where the Crown had actively relied on the disposal of photographs to support the complainant's account. Again, the absence of any request for a direction at trial pointed against any error. Leave was refused.

Orders Made

  • Leave to appeal granted on ground 1
  • Leave to appeal refused on grounds 2 and 3 pursuant to rule 4 of the Criminal Appeal Rules
  • Appeal dismissed

Key Takeaways

  • Mixed verdicts in a sexual assault trial are not automatically inconsistent. Where some counts involve disputed acts and others involve disputed consent, the jury may rationally reach different conclusions on different counts without those verdicts being incompatible.
  • A Zoneff direction (limiting jury use of evidence of lies) is not automatically required wherever an accused has given differing accounts. The failure to request one at trial is treated as a significant indicator that no such direction was warranted.
  • An Edwards direction (on consciousness of guilt from post-offence conduct) is not required where neither the Crown nor the defence relies on the conduct as consciousness of guilt. The Court of Criminal Appeal confirmed that the obligation to give the direction is tied to how the evidence is actually deployed at trial.
  • Refusing leave under rule 4 of the Criminal Appeal Rules reflects the principle that an appellant who does not seek a direction during trial faces a high threshold in arguing omission of that direction was error on appeal.
  • In distinguishing DN v R, the Court confirmed that the Edwards obligation arises where the Crown positively uses disposal of evidence to support the complainant's account. It does not arise in all cases where an accused disposes of relevant material.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L, 91P(1)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Criminal Appeal Rules (NSW), r 4

Cases:
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- DN v R [2016] NSWCCA 252
- Tekely v R; Nagle v R [2007] NSWCCA 75
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- AH v R [2019] NSWCCA 152; ARS v R [2011] NSWCCA 266; Christian v R [2012] NSWCCA 34; Kim v R [2020] NSWCCA 288; Mark McKey v Regina [2012] NSWCCA 1; R v TK (2009) 74 NSWLR 299; Wheeler v R [2019] NSWCCA 255