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Court of Criminal Appeal 9 June 2023

McCosker v R

[2023] NSWCCA 131

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER MISCARRIAGE OF JUSTICE

Citation: McCosker v R [2023] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judges: Ward P, Price J (joint judgment); Beech-Jones CJ at CL (agreeing)

Background

The applicant stood trial in the District Court at Armidale on three counts of sexual intercourse without consent, arising from separate acts alleged to have occurred in the early hours of 27 December 2020. He was acquitted on counts 1 and 2 (digital-vaginal and penile-vaginal intercourse) but convicted on count 3 (penile-anal intercourse). He was sentenced to 12 months' imprisonment with a non-parole period of 7 months.

The Crown case at trial was confined to two mental elements: that the applicant either knew the complainant was not consenting, or was reckless as to whether she consented. The applicant's own evidence was that he denied the anal intercourse had occurred at all, and that in any event he did not recall it taking place.

In summing up, the trial judge directed the jury that the applicant could be convicted even if he held an honest belief in consent, provided there were no reasonable grounds for that belief. That third pathway, derived from s 61HE(3)(c) of the Crimes Act 1900 (NSW), had not been part of the Crown's case. The sole ground of appeal was that this direction produced a miscarriage of justice.

  • Whether the trial judge's direction about an unreasonable belief in consent introduced a basis for conviction that the Crown had not relied upon at trial.
  • Whether that direction could have been understood by the jury as applying to the count of penile-anal intercourse (count 3).
  • Whether the direction caused a miscarriage of justice, in the sense of creating a real possibility that the jury convicted on that unauthorised basis.

Decision

The Court accepted that the impugned direction was capable of being understood by the jury as applying to all counts, including count 3. The direction therefore introduced a third pathway to a guilty verdict, being that the applicant held an honest but unreasonable belief in consent, which the Crown had never advanced. This represented a misdirection.

The central question then became whether the misdirection produced a miscarriage of justice. The Court applied the principle that unfairness from a direction going beyond the Crown case is measured by the tactical disadvantage suffered by the accused. A miscarriage requires more than a theoretical possibility of prejudice: there must be a real possibility that the jury convicted on the erroneous basis.

The Court found that no such real possibility existed. The applicant's own evidence was that he either denied anal intercourse occurred or did not recall it occurring at all. That evidence was fundamentally inconsistent with him having held any belief, reasonable or otherwise, about consent to anal intercourse. The jury could not reasonably have applied the "unreasonable honest belief" pathway to count 3 in circumstances where the applicant's entire defence on that count excluded the possibility of any belief as to consent.

Beech-Jones CJ at CL agreed, applying the test from Hofer v The Queen that the irregularity must have had a "real chance" of affecting the verdict. His Honour was satisfied that threshold was not met, and that no miscarriage of justice arose under the Criminal Appeal Act 1912 (NSW).

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • A trial judge's direction leaving a basis for conviction not relied upon by the Crown can amount to a misdirection, even where the statutory provision in question is technically available.
  • The relevant test for whether such a misdirection produces a miscarriage of justice is whether there is a real possibility that the jury convicted on the unauthorised basis, not merely a theoretical one.
  • Where the accused's own evidence is inconsistent with the very premise of the erroneous direction (here, any belief as to consent to the act in question), the jury cannot reasonably be taken to have applied that direction.
  • In dismissing the appeal, the Court confirmed that the absence of a trial objection to a jury direction is a relevant, though not determinative, factor in assessing miscarriage of justice under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Tactical disadvantage to the accused remains the measure of unfairness where a jury is directed on a basis the Crown did not advance, following Robinson v R [2006] NSWCCA 192.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61HE(3)(c)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 38(1)(a)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Hofer v The Queen [2021] HCA 36; 95 ALJR 937
- Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
- R v Solomon [1980] 1 NSWLR 321
- Campbell v R [2014] NSWCCA 175
- Sheen v R [2011] NSWCCA 259; (2011) 215 A Crim R 208
- Hamilton (a pseudonym) v The Queen [2021] HCA 33; 95 ALJR 894
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48