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Court of Criminal Appeal 15 July 2024

Smee v R

[2024] NSWCCA 121

Sexual offences
CRIME SEXUAL OFFENCES SEXUAL ASSAULT CONSENT FROM JURY VERDICT MISDIRECTION

Citation: Smee v R [2024] NSWCCA 121
Court: Court of Criminal Appeal, NSW
Date: 15 July 2024
Judge(s): Mitchelmore JA, Kirk JA (principal judgment), Davies J

Background

The applicant was charged with two counts of aggravated sexual assault arising from events on 14 April 2019. He was 18 years old at the time; the complainant was 15. The complainant and a school friend had consumed a significant amount of vodka during the afternoon and evening before the relevant events occurred. The complainant had very limited recollection of what took place due to her intoxication, and she ultimately became unresponsive, requiring an ambulance.

It was not in dispute that acts of fellatio and cunnilingus occurred between the applicant and the complainant. The applicant's account of these events came primarily from a police interview he gave 13 months later. He was acquitted on the count relating to cunnilingus (count 1) and convicted on the count relating to fellatio (count 2). He was sentenced to three years' imprisonment with an 18-month non-parole period.

The two central issues at trial were whether the complainant had consented to the sexual activity in the relevant legal sense, and whether the applicant knew or was reckless as to the lack of consent. The applicant's sole ground of appeal was that the trial judge misdirected the jury on the relationship between the complainant's substantial intoxication and the question of consent.

  • Whether s 61HE of the Crimes Act 1900 (NSW), as it stood from 1 December 2018 to 31 May 2022, operates so that a complainant's substantial intoxication alone is sufficient to establish an absence of consent.
  • Whether the trial judge's directions correctly explained the legal effect of substantial intoxication on consent under that provision.
  • Whether any misdirection constituted a miscarriage of justice warranting a new trial.

Decision

Meaning of s 61HE: Kirk JA, with whom Mitchelmore JA and Davies J agreed, described s 61HE as "not a model of drafting." The Court examined s 61HE(8), which provides that it "may be" established that a person does not consent if they consented while substantially intoxicated. The use of "may be" is critical: unlike some other subsections that automatically negate consent, this provision does not operate as an automatic override. The question remains whether it is established that the person did not freely and voluntarily agree to the sexual activity, taking account of all the circumstances, including what the person said or did as well as the fact of substantial intoxication.

No causation requirement: The Court clarified that it is not necessary to show a direct causative link between the intoxication and what was said or done to indicate consent. If anything the complainant said or did to indicate consent occurred while she was substantially intoxicated, the fact of that intoxication can be taken into account in assessing whether she freely and voluntarily agreed. The Court suggested a clear model direction to that effect for future cases.

The misdirection: The trial judge directed the jury on three separate occasions in terms that effectively stated that a finding of substantial intoxication was sufficient to establish non-consent. That formulation wrongly elevated intoxication to a conclusive or near-conclusive condition rather than one circumstance to be weighed in the overall assessment. The Court noted that while the Crown's closing address contained some ameliorating language, it also included a sentence that similarly tended to suggest intoxication alone was enough. Juries are presumed to follow the judge's directions, and nothing in the rest of the directions overcame the force of what the judge had said three times.

Miscarriage of justice: The Court found a real chance that the jury would have understood from the directions as a whole that finding substantial intoxication was, of itself, enough to conclude the complainant had not consented. That real chance of effect on the verdict established a miscarriage of justice. The conviction on count 2 was quashed and a new trial ordered. Whether the prosecution proceeds is a matter for the Director of Public Prosecutions.

Orders Made

  • Leave to appeal granted, to the extent necessary.
  • Appeal upheld.
  • Conviction on count 2 quashed, with a new trial to be had.
  • Matter listed for arraignment in the District Court on 19 July 2024 or as otherwise directed by that Court.

Key Takeaways

  • Under s 61HE(8) of the Crimes Act 1900 (NSW) (as in force from 1 December 2018 to 31 May 2022), a complainant's substantial intoxication is not, by itself, sufficient to establish an absence of consent: it is one circumstance to be weighed in assessing whether there was free and voluntary agreement.
  • The Court of Criminal Appeal confirmed that no causative link need be proved between the intoxication and what was said or done to indicate consent; if indicative words or conduct occurred while the complainant was substantially intoxicated, that intoxication is available as a relevant consideration.
  • A direction that frames substantial intoxication as automatically or effectively establishing non-consent misrepresents the operation of the provision and may constitute a misdirection.
  • Jury directions must be read as a whole, but where a judge has stated an incorrect legal proposition on three separate occasions, it is unlikely that other parts of the summing-up or counsel's addresses will neutralise the error.
  • Where there is a real chance that a misdirection affected the verdict, a miscarriage of justice is established and the conviction cannot stand.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HA (historical), 61HE (historical, 1 December 2018 to 31 May 2022), 61J(1)
- Crimes Amendment (Consent — Sexual Assault Offences) Act 2007 (NSW)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases:
- HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Tabbah v R [2017] NSWCCA 55
- Beattie v R [2020] NSWCCA 334; (2020) 287 A Crim R 287
- Attwater v R [2021] NSWCCA 17
- Irmak v R [2021] NSWCCA 178
- Pandamooz v R [2023] NSWCCA 221
- Cliff v R [2023] NSWCCA 15