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Court of Criminal Appeal 13 December 2024

Holmes v R

[2024] NSWCCA 233

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION INCOMPETENCE OF COUNSEL MISCARRIAGE OF JUSTICE ESTABLISHED CONVICTION AND SENTENCE QUASHED

Citation: Holmes v R [2024] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 13 December 2024
Judges: N Adams J, Ierace J, Chen J

Background

The applicant stood trial in the District Court on a single count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The alleged offence occurred on 5 June 2022 at a brothel in western Sydney, where the complainant, a sex worker, gave evidence that she had fallen asleep after her shift and woken to find the applicant performing a sex act on her.

The sole issue at trial was consent. The applicant did not dispute that the sexual act occurred. His case was that the complainant had agreed to the act in exchange for $100, and that she feigned sleep when the brothel manager entered the room because the arrangement breached the brothel's rules.

The jury convicted the applicant on 3 July 2023, and he was sentenced to four years and six months imprisonment with a non-parole period of two years and six months. The applicant appealed his conviction on four grounds, all concerning the admission of three recordings: two police body worn videos and an electronically recorded interview with the applicant (known as an ERISP, or Electronic Record of Interview with Suspected Person).

  • Whether the trial miscarried because the applicant's trial counsel consented to the admission of a body worn video recorded by Sergeant Johnston (Exhibit 4) that contained prejudicial material
  • Whether the trial miscarried because of the admission of a body worn video recorded by Constable Vanecek (Exhibit 6), which included statements by unidentified bystanders and another officer that were unfairly prejudicial to the applicant
  • Whether the trial miscarried because the unedited ERISP (Exhibit 5) was admitted, including passages where police ridiculed the applicant's account and expressed disbelief
  • Whether the combined effect of the three exhibits, if individually insufficient, produced a miscarriage of justice

Decision

Ground 1 (Sergeant Johnston's body worn video): The Court found that the applicant was not handcuffed and arrested in a manner that created unfairness, given the jury received clear directions on this and no further directions were sought by trial counsel. Crucially, the recording also captured the applicant giving an early account of his consent defence to police. The Court found a rational forensic basis for admitting the entirety of this exhibit, and ground 1 was not established.

Ground 2 (Constable Vanecek's body worn video): The Court found this exhibit was significantly prejudicial in several respects. It contained a statement suggesting the applicant had been "trying to leave," which risked being interpreted as consciousness of guilt. It also contained statements by unidentified women, made in response to a police question asking what happened, that the complainant had been asleep and unaware of the applicant's presence. A further statement by another sex worker who described what occurred as a sexual assault, and visibly consoled the complainant, strongly reinforced the Crown's case. Additionally, an officer's remark to the complainant that "what's happened to you is not good" was capable of being understood as a police opinion that a non-consensual act had occurred. The trial counsel's stated forensic justification for consenting to the admission of this exhibit was found to be difficult to justify on any rational basis, and the slight forensic advantage was substantially outweighed by the prejudice. Ground 2 established a miscarriage of justice.

Ground 3 (ERISP): The Court acknowledged that the ERISP contained police questioning that ridiculed the applicant's account and expressed disbelief in it, carrying a clear risk of misuse by the jury. However, the decision to tender the ERISP also had a clear forensic benefit: it placed before the jury a detailed, early account of the applicant's consent version. The Court found a rational basis for tendering it, and ground 3 did not independently establish a miscarriage.

Ground 4 (combined effect) and the proviso: Having established a miscarriage of justice through ground 2, the Court considered whether to apply the proviso under the Criminal Appeal Act 1912 (NSW), which allows a court to dismiss an appeal despite an error if no substantial miscarriage of justice has actually occurred. The Court declined to apply the proviso. Because the trial turned entirely on credibility, the Court was unable to satisfy itself that guilt was established beyond reasonable doubt on the properly admitted evidence alone. A new trial was ordered.

Orders Made

  • Leave granted to appeal against conviction
  • Appeal allowed
  • Conviction and sentence of 15 September 2023 quashed
  • New trial ordered
  • Matter listed for arraignment on 20 December 2024 in the District Court at Sydney

Key Takeaways

  • Where a case turns wholly on contested credibility, an appellate court cannot apply the proviso to dismiss an appeal despite an established miscarriage of justice, because it cannot properly assess whether guilt was proved beyond reasonable doubt on the admissible evidence alone.

  • Trial counsel's decision to consent to the tender of inadmissible evidence may ground a conviction appeal, but the applicant must demonstrate that any forensic benefit of the admission was outweighed by the forensic disadvantage caused; not every consent to a problematic tender will produce a miscarriage.

  • The Court of Criminal Appeal confirmed that body worn video footage can contain multiple, distinct categories of inadmissible or prejudicial material, each of which must be assessed separately for its forensic impact.

  • Statements made by bystanders and police officers captured on body worn video, including expressions of disbelief, apparent consolation of a complainant, and lay characterisations of what occurred, carry a significant risk of being misused by a jury if left unredacted.

  • No substantial miscarriage of justice can be found to have occurred, even where other evidence supports guilt, if the improperly admitted material went to the heart of the very credibility contest the jury was required to resolve.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases:
- Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
- GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40
- Hamilton v The Queen (2021) 274 CLR 531; [2021] HCA 33
- HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
- Duke v The Queen (1989) 180 CLR 508
- Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
- Hughes v R [2018] NSWCCA 2
- Zhou v The Queen [2021] NSWCCA 278
- R v Birks (1990) 19 NSWLR 677