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Court of Criminal Appeal 9 February 2024

Agnew v R

[2024] NSWCCA 5

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION W HETHER MISCARRIAGE OF JUSTICE

Citation: Agnew v R [2024] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 9 February 2024
Judge(s): Price J (principal judgment); Lonergan J and Dhanji J (agreeing)

Background

The applicant was convicted by a jury in the District Court of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The offences were alleged to have occurred on the night of 24 November 2018, when the complainant, a 16-year-old, was staying at a friend's caravan in Kyogle. The applicant, then aged 39, was said to have taken her to his motorbike workshop, where the assaults occurred.

The applicant's defence at trial was a flat denial: the sexual conduct did not happen at all. He did not give evidence and relied on his electronically recorded interview with police. His trial counsel expressly accepted that if the complainant's evidence were believed, all elements of the offences, including the elements of consent and the applicant's knowledge of lack of consent, would be satisfied.

The applicant sought leave to appeal out of time (the delay was attributed to the Lismore floods). The Crown did not oppose the extension of time.

  • Whether the trial judge erred in directing the jury by effectively removing the elements of consent and knowledge of lack of consent from the jury's consideration, given trial counsel's concessions
  • Whether the jury's verdicts were unsafe and unsatisfactory, having regard to inconsistencies in the evidence of Crown witnesses and an alleged motive for the complainant to fabricate her account

Decision

Ground 1: Jury directions on consent and knowledge

At trial, the applicant's counsel conceded there was "no issue as to consent or knowledge of consent." Acting on that concession, the trial judge instructed the jury on all elements of the offences but told them that consent and knowledge of lack of consent were not in dispute. The Court of Criminal Appeal held this was not an error. A trial judge's responsibility is to identify the real issues in the case, direct the jury on those issues, and instruct on so much of the law as is needed to resolve them. The judge did precisely that.

The Court noted that no objection had been taken to the directions at trial, and that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied accordingly. Given the explicit concession by trial counsel, the directions given did not produce any miscarriage of justice.

Ground 2: Safety of the verdicts

The applicant pointed to inconsistencies between the complainant's account and that of another Crown witness, Mr Wood, and argued that these divergences should have generated a reasonable doubt. The Court rejected this. The trial judge had given the jury a warning under s 165 of the Evidence Act 1995 (NSW) about the reliability of Mr Wood's evidence, and it was open to the jury to reject his account where it conflicted with the complainant's. The inconsistencies, considered individually and in combination, did not compel a reasonable doubt.

Price J concluded, after reviewing the whole of the evidence, that it was open to the jury to find the complainant's account both honest and reliable, and that no rational jury was required to entertain a reasonable doubt. Lonergan J and Dhanji J each conducted their own independent review of the evidence on ground 2 and reached the same conclusion.

Orders Made

  • Extension of time granted to seek leave to appeal against conviction
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A trial judge may properly limit jury directions to the real issues in the case. Where defence counsel has expressly conceded that certain elements of an offence are not in dispute, directing the jury that those elements are not contested does not constitute an error.
  • In dismissing ground 1, the Court of Criminal Appeal confirmed the principle drawn from Hargraves v The Queen (2011) 195 CLR 257 and Kalbasi v Western Australia (2018) 264 CLR 62: trial judges must instruct juries on the law relevant to the actual issues in dispute, not on every theoretical element when specific elements have been taken out of contention by counsel.
  • Concessions made by trial counsel carry real procedural weight on appeal. The absence of any objection to directions at trial engaged r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, raising the threshold the applicant needed to meet.
  • Inconsistencies between Crown witnesses do not automatically render a verdict unsafe. Where a reliability warning under s 165 of the Evidence Act 1995 (NSW) has been given, the jury is entitled to prefer one witness's account over another's.
  • Under the SKA v The Queen (2011) 243 CLR 400 and Dansie v The Queen (2022) 96 ALJR 728 framework for unsafe verdict appeals, the Court must be satisfied that a rational jury was required to entertain a reasonable doubt. Mere inconsistencies in evidence will not meet that standard where the complainant's core account was open to acceptance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Evidence Act 1995 (NSW), s 165
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Aravena v R (2015) 90 NSWLR 258; [2015] NSWCCA 288
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- Hargraves v The Queen (2011) 195 CLR 257; [2011] HCA 44
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13