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Court of Criminal Appeal 26 July 2024

Tuuholoaki v R

[2024] NSWCCA 135

Sexual offences

Citation: Tuuholoaki v R [2024] NSWCCA 135
Court: Court of Criminal Appeal
Date: 26 July 2024
Judge(s): Adamson JA (principal judgment); Wilson J and Faulkner J (agreeing)

Background

The applicant was a security guard working at a hotel in Parramatta on the evening of 26 February 2022. After the complainant, a 19-year-old woman, was removed from the hotel following an altercation, the applicant escorted her away from the premises on the street. The complainant gave evidence that she was heavily intoxicated and that the applicant took her behind an electricity box nearby, where he attempted and then completed penile-vaginal intercourse with her without her consent.

The applicant's version was that the complainant had initiated kissing, that she did not appear intoxicated, and that he did not know she was not consenting. Following a jury trial before Herbert DCJ, the applicant was convicted of two counts (attempted and completed sexual intercourse without consent) and acquitted of a third count involving fellatio. He was sentenced to an aggregate term of 2 years and 7 months imprisonment.

The applicant sought leave to appeal his convictions on two grounds: that the verdicts were unreasonable and unsupported by the evidence, and that the trial judge misdirected the jury on how the Crown could prove recklessness as to consent under s 61HE of the Crimes Act 1900 (NSW).

  • Whether the jury's verdicts on both counts were unreasonable and could not be supported by the evidence, including whether the complainant's credibility and reliability were sufficiently undermined to leave a reasonable doubt
  • Whether the trial judge erred in directing the jury on recklessness as an element of "knowledge" that the complainant was not consenting, specifically whether the directions erroneously permitted conviction on the basis of purely inadvertent recklessness
  • Whether leave to raise ground 2 should be granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW), given that trial counsel had not objected to the impugned directions

Decision

Ground 1: Unreasonable verdict

The court granted leave to appeal on ground 1 but dismissed it. Adamson JA, after reviewing all the evidence, concluded that it was open to the jury to find the applicant guilty and that there was no doubt of his guilt. The complainant's account of the two counts was cogent, internally consistent, and corroborated by the forensic examination, her visible distress when she returned to the hotel, her immediate complaint to those present, and her account to police that evening.

The court found it was open to the jury to accept that the complainant's intoxication and fear left her without the capacity for overt resistance, and to reject the applicant's version as not reasonably possible. The court identified significant inconsistencies in the applicant's evidence that supported the jury's rejection of his account. None of the credibility or reliability criticisms raised by the applicant was sufficient to displace the jury's assessment of the complainant as a witness of truth.

Ground 2: Alleged misdirection on recklessness

The court refused leave to appeal on ground 2 under r 4.15, on the basis that trial counsel had not objected to the directions at the time. Adamson JA also addressed the substantive legal question. The critical distinction in directing a jury on recklessness as to consent is between subjective and objective recklessness, not between advertent (conscious) and inadvertent (unconscious) recklessness. The relevant inquiry is what was actually in the accused's mind at the time, and recklessness sufficient for knowledge of non-consent can be either advertent or inadvertent or a mixture of both.

The court emphasised that a trial judge's task is to explain the law as simply as possible for the jury's purposes. Introducing the distinction between advertent and inadvertent recklessness into jury directions is both unnecessary and potentially detrimental, as it creates confusion without corresponding benefit. That distinction is one explored in appellate reasoning, not one Parliament drew in the legislation.

Orders Made

  • Leave to appeal granted on ground 1
  • Ground 1 dismissed
  • Leave to raise ground 2 refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
  • Appeal otherwise dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in assessing an unreasonable verdict ground, the appellate court reviews the whole of the evidence to determine whether it was reasonably open to the jury to be satisfied of guilt beyond reasonable doubt, following M v The Queen (1994) 181 CLR 487.
  • Recklessness sufficient to establish knowledge of non-consent under s 61HE of the Crimes Act 1900 (NSW) must be subjective, meaning the jury must consider what was actually in the accused's mind at the relevant time, consistent with Banditt v The Queen (2005) 224 CLR 262.
  • The distinction between advertent and inadvertent recklessness is relevant to appellate analysis of substantive law but is not a distinction that a trial judge is required, or even advised, to put to a jury; doing so risks obscuring rather than clarifying the applicable test.
  • A failure to object to jury directions at trial is a significant obstacle to raising those directions as a ground of appeal, requiring separate leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Corroborating circumstances such as forensic evidence, immediate complaint, and visible distress upon return to a scene can support a jury's acceptance of a complainant's evidence notwithstanding challenges to credibility and reliability raised on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61D, 61HE, 61I, 61K, 344A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 292, 292A, 292B, 292C, 292E
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
- La Fontaine v The Queen (1976) 136 CLR 62; [1976] HCA 52
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2
- R v Kitchener (1993) 29 NSWLR 696
- R v Tolmie (1995) 37 NSWLR 660
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Lee v R [2023] NSWCCA 203
- Z (a pseudonym) v R [2022] NSWCCA 8
- ARS v R [2011] NSWCCA 266
- R v Morgan [1976] AC 182
- R v Haughian (1985) 80 Cr App R 334