Citation: Ahosivi v R [2024] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 29 April 2024
Judges: Ward P at [1]; Rothman J at [89]; Wright J at [93]
Background
The applicant was convicted by a jury in the District Court of one count of sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW). The offence occurred in December 2021 outside the Captain Cook Hotel in Botany, where the applicant and two complainants (referred to as X and Y) had gathered with work colleagues after a day of socialising at several venues.
The Crown particularised the sexual touching as the applicant lifting X's skirt and placing his hand on her buttock. This conduct was captured on CCTV footage tendered as Exhibit D at trial. The applicant was separately acquitted of one count of sexual intercourse without consent involving the second complainant, Y, which was alleged to have occurred inside an Uber.
The applicant was sentenced to a two-year community corrections order. He sought leave to appeal against his conviction on the sole ground that the verdict was unreasonable and could not be supported by the evidence.
Legal Issues
- Whether the jury's verdict of guilty was unreasonable and could not be supported having regard to the evidence, within the meaning of the Criminal Appeal Act 1912 (NSW)
- Whether the CCTV footage, at the timestamp particularised by the Crown, demonstrated the specific act of sexual touching alleged (touching of the buttock)
- Whether the jury should have entertained a reasonable doubt as to consent, given evidence of prior affectionate and reciprocal conduct between the applicant and X during the evening
Decision
Ward P (with Rothman and Wright JJ agreeing) granted leave to appeal, accepting that the ground raised a mixed question of fact and law, but dismissed the appeal.
On the question of whether the particularised act was established, Ward P found that the CCTV footage at the relevant timestamp clearly showed the applicant lifting X's skirt and placing his hand on her buttock, with sufficient motion to conclude that his hand briefly ran up the buttock. Each member of the Court independently reviewed the footage and reached the same conclusion.
On the question of consent, Ward P found the position equally clear. The footage showed that every time the applicant lifted or flipped X's skirt, she pushed or swatted his hand away. It was also open to the jury to accept X's evidence that she told the applicant to stop. The Court rejected the defence characterisation of X's physical responses as playful or affectionate, describing that suggestion as "ludicrous" when the footage was viewed in context. The Court also noted that in his own electronically recorded interview, the applicant acknowledged that if someone swiped his hands away, he would understand that to mean they were not interested.
The Court found it inconceivable that the applicant was unaware X was not consenting, and all three judges concluded there was no reasonable doubt as to guilt. The sole ground of appeal was not established.
Orders Made
No orders were made in this decision.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict ground requires the appellate court to independently assess the evidence, including any CCTV footage tendered at trial, not merely to defer to the jury's conclusions.
- Repeated physical rejection of conduct, such as consistently swatting away a hand, can provide compelling evidence of non-consent that is available to both the jury and an appellate court reviewing the footage directly.
- Prior affectionate or reciprocal behaviour during the same evening does not, without more, create a reasonable doubt as to consent to a specific and different act of touching that is physically rebuffed each time it occurs.
- A defendant's own statements in a police interview about how he would interpret someone swatting his hands away were treated as relevant to the question of whether he was aware of non-consent.
- Sufficient evidence of both the particularised act and absence of consent existed in the CCTV footage alone to support the conviction, regardless of the tension between the complainant's oral evidence and the Crown's particularised act.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61KC(a), 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- AJ v R (2022) 110 NSWLR 339; [2022] NSWCCA 136
- Rubinstein v R [2023] NSWCCA 288