Citation: Regina v Gulliford [2004] NSWCCA 338; 148 A Crim R 558
Court: NSW Court of Criminal Appeal
Date: 30 September 2004
Judge(s): Spigelman CJ; Wood CJ at CL; Howie J
Background
The appellant was tried in the Lismore District Court on three counts arising from two separate incidents involving a former partner. The jury acquitted him on counts of indecent assault and break, enter and sexual intercourse without consent, but returned a guilty verdict on an alternative count of break, enter and commit a serious indictable offence, namely attempted sexual intercourse without consent knowing of that lack of consent.
The central facts concerned a late-night return by the appellant to the complainant's home. He entered through the back door, pushed the complainant onto her bed, held her wrist and persisted despite her repeated refusals. Her son and brother-in-law arrived on hearing the dogs bark, finding the appellant naked behind the bedroom door. Physical evidence included DNA-matched blood on clothing and a bruise on the complainant's wrist.
The appellant's defence was that the visit was consensual, prompted by a pre-arranged telephone signal, and that he was too intoxicated to have attempted intercourse. Call charge records did not support his account of receiving a signal call.
Legal Issues
- Whether the alternative count of break, enter and commit a serious indictable offence (attempted sexual intercourse without consent) was an offence known to law and properly left to the jury.
- Whether the trial judge's directions on the alternative verdict were legally adequate, including as to the elements of intention and knowledge of lack of consent.
- Whether the summing-up adequately addressed the element of knowledge of lack of consent, and if not, whether the proviso under s 6 of the Criminal Appeal Act 1912 applied to avoid a new trial.
- Whether evidence of the complainant's prior consistent statements was improperly admitted.
- Whether the trial judge's interruptions during the appellant's evidence prejudiced the fair conduct of the trial.
Decision
Ground 1: Was the alternative count a known offence?
Wood CJ at CL (with Howie J agreeing) held that the alternative count was a valid offence. The combined operation of ss 61I and 61P of the Crimes Act 1900 created the relevant serious indictable offence of attempted sexual intercourse without consent, and s 4 confirmed its classification. The court also confirmed that trial judges may, in appropriate circumstances, leave an alternative count not raised by either party, provided defence counsel can properly address it and the accused suffers no unfair prejudice. No prejudice arose here because the appellant had contested the attempt allegation from the outset.
Ground 2: Adequacy of directions on the alternative count
The majority refused leave to argue this ground, noting the absence of any complaint at trial. The substantive content overlapped with ground 1, which had been resolved against the appellant.
Ground 4: Knowledge of lack of consent and the proviso
This ground produced the only split in the Court. Spigelman CJ held that the summing-up failed to direct the jury to determine, beyond reasonable doubt, whether the appellant knew the complainant had not consented. His Honour treated this as a critical element of the offence that was simply never put to the jury, and concluded that the proviso could not save the conviction because the omission amounted to a substantial miscarriage of justice warranting a new trial.
Wood CJ at CL and Howie J disagreed on the application of the proviso. Applying the approach in Festa v The Queen (2001) 208 CLR 593, they concluded that on the properly admitted evidence, a jury properly directed would inevitably have convicted. The physical evidence, the complainant's repeated refusals, and the contemporaneous police report collectively left no real possibility that the jury, if correctly directed, would have acquitted. The appeal was accordingly dismissed by majority.
Orders Made
- Appeal dismissed (by majority: Wood CJ at CL and Howie J; Spigelman CJ dissenting, who would have ordered a new trial).
Key Takeaways
- An offence of break, enter and commit a serious indictable offence is properly constituted where the underlying serious indictable offence is itself known to law; the Court of Criminal Appeal confirmed that attempted sexual intercourse without consent, arising from the combined effect of ss 61I and 61P of the Crimes Act 1900, satisfies that requirement.
- A trial judge is not prohibited from leaving an alternative count that neither party raised, but must assess the timing, whether counsel can adequately respond, and whether the defence would be prejudiced in how it conducted its case.
- Where a summing-up omits a direction on a critical element of an offence, the question of whether the proviso under s 6 of the Criminal Appeal Act 1912 applies requires the appellate court to assess whether, on the properly admitted evidence, a jury correctly directed would inevitably have convicted.
- The majority's application of the proviso in this case turned on the strength of uncontested physical evidence and the complainant's contemporaneous account, which together made an acquittal on the knowledge element implausible even without a specific direction.
- Spigelman CJ's dissent illustrates that where the jury is never asked to determine a critical element of an offence, a co-equal member of the Court may regard the proviso as unavailable, treating the omission as a substantial miscarriage of justice regardless of the strength of the evidence overall.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61P, 4, 344A
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6
Key Cases:
- Festa v The Queen (2001) 208 CLR 593
- Mraz v The Queen (1955) 93 CLR 493
- Beckwith v The Queen (1976) 135 CLR 569
- R v Pureau (1990) 19 NSWLR 372
- R v Cameron [1983] 2 NSWLR 66
- R v Quinn (1991) 55 A Crim R 435
- TKWJ v The Queen (2002) 212 CLR 124
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Markuleski (2001) 52 NSWLR 82
- R v Skaf [2004] NSWCCA 37; [2004] NSWCCA 74
- BRS v The Queen (1997) 191 CLR 275