Am v The Queen - [2011] NSWCCA 237

Court of Criminal Appeal

New South Wales

Case Title: AM v R

Medium Neutral Citation: [2011] NSWCCA 237

Hearing Date(s): 10 October 2011

Decision Date: 03 November 2011

Jurisdiction: Common Law - Criminal

Before:
McClellan CJ at CL at 1
Latham J at 2
Harrison J at 3

Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW - appeal against conviction - sexual assault - Crimes Act 1900 ss 61I and 61L - whether miscarriage of justice - whether trial judge erred in directing jury on question of whether appellant was reckless as to complainant's consent to sexual intercourse - whether jury verdict was unreasonable, or cannot be supported, having regard to the evidence - Criminal Appeal Act 1912 s 6(1) - appeal dismissed

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:
Banditt v The Queen [2005] HCA 80; (2005) 224 CLR 262
Kurdi v R [2011] NSWCCA 179
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
R v Henning (NSWCCA 11 May 1990, unreported)
R v Kitchener (1993) 29 NSWLR 696
SKA v The Queen (2011) HCA 13

Texts Cited:

Category: Principal judgment

Parties:
AM (Appellant)
Crown (Respondent)

Representation

- Counsel:
S Stanton (Appellant)
J Girdham (Respondent)

- Solicitors:
Cater and Blumer Solicitors
S Kavanagh (Solicitor for Public Prosecutions)

File number(s): 2008/12780

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sweeney DCJ

- Date of Decision: 27 July 2010

- Citation:

- Court File Number(s) 2008/12780

Publication Restriction:
Appellant to be referred to by pseudonym

JUDGMENT

McCLELLAN CJ at CL : The test to be applied with respect to a challenge to the reasonableness of the verdict of a jury or that the verdict cannot be supported having regard to the evidence is that formulated by the majority in SKA v The Queen (2011) HCA 13 at [21]. I have reviewed the whole of the evidence and I am satisfied that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty as charged. I agree with Harrison J's analysis of the relevant issues and with his Honour's reasons with respect to the other grounds of appeal. I agree with the orders proposed by Harrison J.
LATHAM J : I agree with Harrison J.
HARRISON J : The appellant was convicted on 19 October 2009 following a trial before Sweeney DCJ and a jury on one count of sexual intercourse without consent contrary to s 61I of the Crimes Act1900 and one count of indecent assault contrary to s 61L of that Act. He was sentenced on 27 July 2010. No complaint is made about the sentence.
There were originally seven grounds of appeal but only the fourth, fifth and seventh grounds are now pressed. They are in these terms:
Ground 4 : The learned trial judge erred in directing the jury that there was evidence on which it could find that the accused was reckless as to having a belief that the complainant consented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Am v The Queen

Details

AGLC: Am v The Queen [2011] NSWCCA 237
Case: [2011] NSWCCA 237
Decision Date: 03 November 2011

CaseChat Overview and Summary

In the case of Am v The Queen, the appellant sought to appeal against his conviction for sexual assault, arguing that the trial judge had erred in the direction given to the jury regarding whether the appellant was reckless as to the complainant's consent to sexual intercourse. The trial judge had directed the jury to consider whether the appellant was reckless under sections 61I and 61L of the Crimes Act 1900. The appellant claimed that a miscarriage of justice had occurred, and that the jury's verdict was unreasonable, or could not be supported, having regard to the evidence. The appeal was made under section 6(1) of the Criminal Appeal Act 1912.

The legal issues before the court were whether the trial judge had erred in the direction given to the jury, and if so, whether that error led to a miscarriage of justice. The court considered whether the jury's verdict was unreasonable or could not be supported, having regard to the evidence. The court also had to consider whether the trial judge's direction to the jury was in accordance with the statutory provisions and whether the appellant's rights to a fair trial were breached.

The court held that the trial judge's direction to the jury was correct, and that there was no error in the direction given. The court found that the jury's verdict was not unreasonable, or incapable of being supported, having regard to the evidence. The court concluded that the appellant's appeal against conviction should be dismissed, and that there had been no miscarriage of justice.

The final orders of the court were that the appeal against conviction was dismissed, and that the conviction and sentence of the appellant stood affirmed. The court held that the trial judge's direction to the jury was correct, and that the jury's verdict was not unreasonable or incapable of being supported, having regard to the evidence. The appellant's rights to a fair trial were not breached, and there had been no miscarriage of justice.

Orders