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Court of Criminal Appeal 14 February 2022

Hayne v R

[2022] NSWCCA 11

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT ADDUCING OF EVIDENCE EXCLUDED AT PRE

Citation: Hayne v R [2022] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 14 February 2022
Judge(s): Bathurst CJ, Harrison J, Wilson J

Background

The appellant was convicted at a second trial by jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900. The first trial had ended in a hung jury. The counts reflected statutory alternatives to two aggravated sexual intercourse offences under s 61J.

The complainant and the appellant had no prior acquaintance before communicating in September 2018, including messages of a sexually explicit nature. On 30 September 2018, the appellant visited the complainant's home in Newcastle and engaged in digital penetration and oral sex. The physical acts themselves were not in dispute. The central issue at trial was whether the complainant consented and whether the appellant knew she did not.

The Crown relied on three alternative bases to establish the knowledge element: actual knowledge of non-consent, recklessness as to consent, and an absence of reasonable grounds for believing consent existed. The appellant denied the offences, maintaining the complainant consented throughout.

  • Whether the trial judge's written and oral directions to the jury incorrectly stated the legal test for knowledge under s 61HA(3) of the Crimes Act 1900, particularly with respect to recklessness and the "no reasonable grounds" limb
  • Whether the trial judge wrongly refused to delete, from the complainant's video evidence at the second trial, footage of an outburst the complainant made during the first trial (under s 306I(6) of the Criminal Procedure Act 1986)
  • Whether the trial judge at the second trial erred by overturning a pre-trial ruling from the first trial that had allowed the appellant to adduce evidence of the complainant's messages with a third party on 30 September 2018
  • Whether the jury's verdicts on both counts were unreasonable

Decision

Ground 1: Erroneous jury directions. The trial judge's written directions stated that recklessness could be established by proving the appellant "may have realised there was a possibility" the complainant was not consenting. The Court found this formulation was wrong: the Crown needed to prove the appellant actually realised there was a possibility of non-consent, not merely that there was a possibility he did so. The written directions also incorrectly framed the "no reasonable grounds" limb as an objective inquiry into whether reasonable grounds existed in the circumstances, rather than focusing on the appellant's own belief. Although the judge's oral directions corrected part of this error, the jury had the written directions with them throughout three days of deliberations, and the judge had expressly directed the jury to apply the law as summarised in those written documents. The Court held the oral correction was insufficient to cure the entrenched written error.

Application of the proviso. The Court considered whether, despite the misdirection, no substantial miscarriage of justice had occurred. The Crown had opened and closed on recklessness. Because the jury's verdict was inscrutable, it was impossible to rule out that the verdict rested on the flawed recklessness direction. The proviso under the Criminal Appeal Act 1912 did not apply.

Ground 2: Complainant outburst in video evidence. The Court granted leave to appeal but dismissed this ground. The complainant's outburst during cross-examination at the first trial, captured in the video evidence used at the second trial, was relevant to how the complainant presented as a witness. Its admission was not found to be unfairly prejudicial in a way that warranted deletion.

Ground 3: Messages with third party. The trial judge at the second trial departed from a pre-trial ruling made in the first trial that had allowed the appellant to adduce the complainant's messages with a third party. The Court found this reversal was erroneous. The messages were potentially relevant to the issues at trial and their exclusion deprived the appellant of the ability to deploy evidence that may have assisted his case.

Ground 4: Unreasonable verdicts. The Court dismissed this ground. It found the verdicts were not unreasonable given the whole of the evidence, including the complainant's account and the circumstantial evidence surrounding the events. The existence of an injury to the complainant and the circumstances of the evening provided a sufficient basis for the jury's findings.

Orders Made

  • Leave granted to appeal on grounds 1 and 3; appeal allowed on those grounds
  • Convictions quashed and new trial ordered
  • Leave granted to appeal on ground 2; ground 2 dismissed
  • Ground 4 dismissed
  • Proceedings listed for directions in the District Court on 18 February 2022

Key Takeaways

  • A direction on recklessness under s 61HA(3)(b) of the Crimes Act 1900 requires the jury to be satisfied the accused actually realised there was a possibility the complainant was not consenting; a direction that this element could be satisfied by proof that the accused "may have realised" a possibility of non-consent sets an insufficiently high threshold.
  • Where written jury directions are provided and taken into deliberations, subsequent oral corrections that contradict those written directions may not be sufficient to cure the original error, particularly where the trial judge has emphasised the written materials to the jury.
  • The Court of Criminal Appeal confirmed there is no absolute rule preventing the application of the proviso to directions errors going to the elements of an offence, but on these facts the proviso was inapplicable because the jury's reliance on the flawed recklessness direction could not be excluded.
  • Under the Criminal Procedure Act 1986, a judge at a second trial is not automatically bound by all pre-trial rulings made in the first trial, but departing from such rulings without sufficient justification may constitute error.
  • In dismissing the unreasonable verdict ground, the Court affirmed that verdicts may stand even where an appellant disputes key factual issues, provided the whole of the evidence reasonably supports the jury's conclusions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61HA, 61I, 61J, 61Q
- Criminal Appeal Act 1912 (NSW): ss 5F, 6
- Criminal Procedure Act 1986 (NSW): ss 130A, 293, 306I, 306J
- Evidence Act 1995 (NSW): ss 41, 137, 142

Cases
- Bazouni v R [2021] NSWCCA 256
- GEH v R (2012) 228 A Crim R 32; [2012] NSWCCA 150
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
- Lazarus v R [2016] NSWCCA 52
- Liberato v R (1985) 159 CLR 507; [1985] HCA 66
- O'Sullivan v R (2012) 233 A Crim R 449; [2012] NSWCCA 45
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Priday v R [2019] NSWCCA 272
- Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
- WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142