Citation: Ahosivi v R [2024] NSWCCA 56
Court: Court of Criminal Appeal
Date: 29 April 2024
Judge(s): Ward P at [1]; Rothman J at [89]; Wright J at [93]
Background
The applicant and two complainants, referred to as X and Y, were work colleagues who had attended a social event and visited two hotels in Botany together on 5 December 2021. The applicant's partner had been present at the first hotel but left before the group moved to the Captain Cook Hotel. Following the evening, both complainants made police complaints about the applicant's conduct.
The applicant faced one count of sexual touching of X under section 61KC(a) of the Crimes Act 1900 (NSW) and one count of sexual intercourse without consent in relation to Y under section 61I. The jury convicted him on the sexual touching count and acquitted him on the sexual intercourse count. He was sentenced to a two-year community corrections order with 12 months supervision.
The applicant sought leave to appeal against conviction on the sole ground that the verdict in relation to Count 1 was unreasonable. If successful, he sought an acquittal rather than a retrial.
Legal Issues
- Whether the verdict of guilty on Count 1 was unreasonable or could not be supported having regard to the evidence, within the meaning of the unreasonable verdict ground of appeal
- Whether the CCTV footage was sufficient to establish the particularised act of sexual touching, namely lifting the complainant's skirt and placing a hand on her buttock at timestamp 22:43:24, given that the complainant's oral evidence referred primarily to touching on the vagina
- Whether, in the context of reciprocated affectionate conduct earlier in the evening, the jury ought to have had a reasonable doubt as to the complainant's lack of consent to the specific act particularised
- Whether the applicant's knowledge of the complainant's lack of consent was established beyond reasonable doubt
Decision
Ground 1: Unreasonable verdict
The Court granted leave to appeal, accepting the ground raised a mixed question of fact and law, but dismissed the appeal on the merits (at [5], [88]).
Unreasonable verdict: The particularised act of touching
The applicant argued there was no direct oral evidence from X identifying a touching on her buttock at timestamp 22:43:24, and that X's evidence referred primarily to an attempt to touch and to touching on the vagina. Ward P rejected this, finding the CCTV footage made it very clear that the applicant lifted X's skirt and placed his hand on her buttock at the particularised timestamp, with sufficient motion visible to conclude the hand ran briefly across the buttock (at [84]). The Court noted that X's oral evidence describing the touching as all "in the same location" was consistent with the CCTV, given the footage clearly showed at least one occasion of buttock contact (at [85]). The absence of an explicit reference by X to touching on the buttock did not create a reasonable doubt where that touching was clearly visible on the footage (at [85]).
Unreasonable verdict: Lack of consent
The applicant contended that the complainant's reciprocated affection before and after the particularised act, including hugging, proximity, and apparent failure to visibly object to some conduct, meant the jury ought to have had a reasonable doubt about consent. The Court rejected this. Ward P found it abundantly clear from the CCTV that each time the applicant lifted or flipped X's skirt, she pushed or swatted his hand away, and this pattern was distinct from other conduct X may have tolerated such as hugging or touching over clothing (at [86]). The complainant's oral evidence that she told the applicant to stop and cut it out was accepted by the jury, and that conclusion was well open to them (at [86]-[87]).
Unreasonable verdict: Knowledge of lack of consent
The Court found it inconceivable that the applicant was unaware that X was not consenting to the conduct (at [87]). The repeated swatting was unambiguous. Significantly, in his own electronically recorded interview the applicant acknowledged that if someone swiped his hands away he would understand that to mean "Go away, stop, kind of thing... not interested" (at [87]). The suggestion the swatting was playful was described as ludicrous in light of the footage (at [87]). All three judges independently assessed the evidence and reached the same conclusion (at [89]-[93]).
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- An unreasonable verdict ground requires the appellate court to independently assess the sufficiency and quality of all the evidence, while giving proper weight to the advantages the jury had in seeing and hearing witnesses, and proceeding on the assumption that the complainant's evidence was assessed as credible and reliable (at [82]).
- CCTV footage can establish a particularised act of sexual touching beyond reasonable doubt even where the complainant's oral evidence does not expressly identify the same act or body part, provided the footage clearly depicts the conduct alleged (at [84]-[85]).
- Affectionate or consensual conduct earlier in an encounter does not negate the absence of consent to a specific act of touching, particularly where the complainant's physical responses to that specific type of conduct consistently indicated non-consent (at [86]-[87]).
- A defendant's own admission in a police interview that a hand being swiped away signals "Go away, stop, kind of thing... not interested" was treated by the Court as significant evidence going to his actual knowledge of non-consent (at [87]).
- Where CCTV footage unambiguously shows repeated physical resistance to a specific type of touching, a characterisation of that resistance as playful will face very significant evidentiary obstacles on an unreasonable verdict appeal (at [87]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Crimes Act 1900 (NSW), ss 61KC(a), 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- M v The Queen(1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Rubinstein v R [2023] NSWCCA 288