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16
Court of Criminal Appeal 21 August 2023

Lee v R

[2023] NSWCCA 203

Also reported as (2023) 310 A Crim R 170
Sexual offences

Citation: Lee v R [2023] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 21 August 2023
Judges: Kirk JA; Button J; Lonergan J

Background

The applicant was convicted by a District Court jury on two counts arising from events at a party in September 2020. The first count involved sexual touching without consent (a "motorboat" performed on the complainant's breasts). The second count involved digital penetration of the complainant's vagina while she was asleep, charged as sexual intercourse without consent.

The applicant sought leave to appeal his conviction on three grounds: that the verdicts were unreasonable, that the trial judge's directions under ss 292A-292E of the Criminal Procedure Act 1986 (NSW) caused a miscarriage of justice, and that the judge's directions on recklessness as a mental element were legally incorrect.

Leave to appeal was granted, but all three grounds failed and the appeal was dismissed.

  • Whether the jury's verdicts were unreasonable given contradictions between the complainant's evidence and the applicant's account
  • Whether the transitional provisions governing ss 292A-292E of the Criminal Procedure Act 1986 (NSW) meant those jury direction requirements applied to this trial, and whether any error in applying them caused a miscarriage of justice
  • Whether the trial judge's direction on "inadvertent recklessness" (failing to turn one's mind to consent) was legally correct, including whether legislative reforms had implicitly abolished that category of mental element

Decision

Ground 1: Unreasonableness of the verdicts

The Court held that the verdicts were not unreasonable. Kirk JA reaffirmed that a complainant's evidence being contradicted by apparently plausible defence evidence does not automatically entitle an accused to acquittal on appeal. The Court also emphasised a jury's structural advantage over an appellate court: 12 randomly drawn community members, unanimously reaching a verdict, bring a diverse range of human experience and judgment that an appellate panel cannot replicate. Lonergan J added that brief video footage of a Twister game, which the applicant said showed the complainant enjoying herself, in fact corroborated her account that she felt uncomfortable and tried to extricate herself.

Ground 2: Directions under ss 292A-292E

The Court found, on the proper construction of the transitional provisions, that ss 292A-292E did not apply to this trial. The phrase "the hearing of the proceedings began" refers to the time of first arraignment, not the commencement of the trial proper. Parliament's repeated use of that phrase in transitional provisions supported a consistent interpretation, and the value of certainty in the law reinforced that position. However, all three parties and the trial judge had proceeded on a shared misapprehension that the provisions did apply. The Court held that no miscarriage of justice resulted: the directions were discussed and modified with both sides' participation, senior counsel for the applicant raised no objection to them (save in one limited respect), and directions designed to dispel misconceptions do not become unjust merely because they were given without legal compulsion.

Ground 3: Inadvertent recklessness directions

Button J, writing for the Court on this ground, rejected the argument that legislative reform had implicitly abolished inadvertent recklessness as a mental element in sexual offences. There is a meaningful distinction between active advertence to consent (including an unreasonable belief in its presence) and complete non-advertence, where the accused simply never turns their mind to the question at all. The Court observed that Parliament had repeatedly re-enacted the relevant sexual offences provisions after non-advertent recklessness was recognised by this Court in the late 1980s and early 1990s, and the presumption of re-enactment indicates Parliament intended to preserve that category. The Court also found that the direction given, while imperfect in its wording, did not cause a miscarriage of justice.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A jury's verdict is not unreasonable merely because a complainant's evidence is contradicted by plausible defence evidence; the Court of Criminal Appeal confirmed that a jury's collective and diverse judgment represents an advantage that an appellate court cannot fully replicate.
  • The phrase "the hearing of the proceedings began" in transitional provisions of the Criminal Procedure Act 1986 (NSW) refers to the date of first arraignment, not the commencement of the substantive trial; the Court applied this consistently with prior authority, emphasising the value of certainty and coherent statutory interpretation.
  • Where a trial judge gives jury directions that were not legally required, no miscarriage of justice automatically follows; the absence of objection by experienced senior counsel, and the directions' relevance to genuine issues at trial, are significant factors in assessing whether any prejudice resulted.
  • Non-advertent recklessness (complete failure to turn one's mind to consent) remains a distinct category of mental element for sexual offences under the Crimes Act 1900 (NSW), separate from the category of unreasonable belief in consent introduced by later reform.
  • In dismissing all three grounds, the Court reaffirmed that legislative silence following the judicial recognition of a legal category carries weight: Parliament's repeated re-enactment of relevant provisions without removing a judicially recognised mental element supports its continued existence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), including ss 61I, 61KC, 61HE
- Criminal Procedure Act 1986 (NSW), ss 292-292E
- Crimes Amendment (Consent-Sexual Assault Offences) Act 2007 (NSW)
- Crimes Amendment (Sexual Offences) Act 2003 (NSW)
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
- Crimes Legislation Amendment Act 2014 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Evidence Act 1995 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
- Director of Public Prosecutions Reference No 1 of 2019 (2021) 274 CLR 177; [2021] HCA 26
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Bektasovski v R [2022] NSWCCA 246
- GG v R (2010) 79 NSWLR 194; [2010] NSWCCA 230
- ARS v R [2011] NSWCCA 266
- R v Adamcik, Court of Criminal Appeal, 22 November 1996, unreported
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25