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Court of Criminal Appeal 27 September 2021

MH (a pseudonym) v R

[2021] NSWCCA 230

Sexual offences

Citation: MH (a pseudonym) v R [2021] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 27 September 2021
Judges: Payne JA (primary reasons); Rothman J and Button J (agreeing)

Background

The applicant, MH, was convicted in the District Court of New South Wales on 28 August 2019 on three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offences were alleged to have occurred at a party on the night of 6 to 7 February 2016, committed against CHL, the applicant's cousin who was visiting from overseas and staying at his parents' home in Kenthurst.

During the relevant period, the applicant used his mobile phone to record seven videos of the complainant. The first two recordings were timestamped at 12:45am and 12:46am on 7 February 2016 and showed the complainant in an apparently intoxicated or unconscious state on a bed. At trial, the Crown relied on these recordings as evidence that the complainant was unable to consent to the sexual intercourse that the applicant himself acknowledged had occurred shortly before the recordings were made.

At trial, the applicant disputed the timestamps in Exhibit D (the table summarising the recording metadata), arguing the videos were taken an hour earlier, at 11:45pm and 11:46pm. He gave evidence that he had engaged in consensual intercourse with the complainant and that the recordings were made immediately or very shortly afterwards. On appeal, the timestamps were accepted by both parties as correct: 12:45am and 12:46am.

  • Whether the Crown's cross-examination and closing address caused a substantial miscarriage of justice by relying on recordings timestamped at 12:45am and 12:46am as evidence negativing consent
  • Whether there was "no opportunity" for the alleged offending to have occurred at or around 12:45am, such that the recordings could not have probative value on the consent issue
  • Whether the applicant's conviction on count 3 was affected by the ground of appeal advanced on counts 1 and 2

Decision

The Court granted leave to appeal but dismissed the appeal unanimously. Payne JA delivered the primary reasons, with Rothman J and Button J agreeing.

On counts 1 and 2, the Court found that the central issue was not precisely when the sexual intercourse occurred, but rather the gap in time between the intercourse and the making of the recordings. The only evidence on that gap, given consistently by the applicant himself at trial, was that he made the recordings shortly after the intercourse. No reason emerged to suggest that evidence would have been different had the timestamp confusion not arisen during the trial.

The Court rejected the argument that there was "no opportunity" for offending shortly before the videos were taken at 12:45am. The new scenario urged on appeal, that the intercourse must have occurred before midnight with the parties simply returning to the bedroom at 12:45am, had never been raised at trial and represented an entirely new and inconsistent case. The Court applied Rodi v Western Australia (2018) 265 CLR 254, finding no reasonable possibility that the applicant lost a chance of acquittal fairly open to him.

On count 3, the Court noted that the appeal ground raised in relation to counts 1 and 2 had no bearing on the count 3 conviction. The jury was entitled to treat the applicant's evidence on count 3 as adversely affecting his credibility more broadly, including in relation to counts 1 and 2. The trial judge had given careful directions making clear that the timing and consent questions were matters for the jury to resolve on the evidence.

Orders Made

  • Time for filing the notice of appeal extended to 8 December 2020
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An appellant cannot mount an entirely new and internally inconsistent factual case on appeal that was never advanced at trial; doing so will not establish a miscarriage of justice.
  • Where a conviction rests partly on the accused's own consistent trial evidence about the proximity between events, a subsequent attempt to recharacterise the timeline will carry little weight on appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test from Rodi v Western Australia requires the applicant to demonstrate a reasonable possibility of having lost a chance of acquittal that was fairly open, not merely a theoretical alternative scenario.
  • Careful jury directions addressing the factual questions of timing and consent are a significant factor in assessing whether any miscarriage of justice occurred.
  • A conviction on one count that the applicant did not substantively challenge on appeal can still bear on the jury's credibility assessment across related counts on the same indictment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Appeal Rules, r 3A(2)

Cases
- Rodi v Western Australia (2018) 265 CLR 254; [2018] HCA 44 (applied)
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371