Booth v The The Queen - [2022] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Booth v R [2022] NSWCCA 113
Hearing dates: 16 May 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Before: Beech-Jones CJ at CL at [1]
Hamill J at [55]
N Adams J at [65]
Decision:
(1) Leave to appeal against conviction granted.
(2) Appeal dismissed.

Catchwords:
CONVICTION – APPEAL – applicant found guilty of two counts of sexual assault – acquitted on other two counts – no dispute on two guilty counts that sexual acts occurred – victim gave answer to ambiguous question capable of suggesting she consented – necessary to consider evidence as a whole – whether verdicts inconsistent – verdicts can be reconciled on basis victim’s evidence imprecise about whether sexual acts on counts that led to acquittals occurred – whether verdicts of guilty unreasonable – reasonably open to jury to be satisfied beyond reasonable doubt that applicant knew victim did not consent

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Martin v R [2020] NSWCCA 192
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
SM v R [2022] NSWCCA 13

Category: Principal judgment
Parties: Shane Anthony Booth (Applicant)
Regina (Crown)
Representation:
Counsel:
Mr D Roff (Applicant)
Ms E Wilkins SC (Crown)
Solicitors:
Inner West Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2019/333481
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 June 2021

Before:

Weber SC DCJ

File Number(s):

2019/333481

Judgment

BEECH-JONES CJ at CL: This is an application for leave to appeal under s 5(1) of the Criminal Appeal Act 1912 against two convictions for sexual assault. The applicant’s sole ground of appeal is that the jury’s verdicts of guilty on two counts on the indictment were inconsistent with his acquittals on two other counts and were otherwise unreasonable and cannot be supported having regard to the evidence (Criminal Appeal Act, s 6(1)). For the reasons that follow, I would grant the applicant leave to appeal but dismiss the appeal.

Background

On 12 April 2021, the applicant was arraigned before a jury panel and his Honour Judge Weber SC on an indictment that contained four counts, all alleged to have been committed on Sunday, 11 August 2019. The first count charged the applicant with sexual touching contrary to s 61KC(a) of the Crimes Act 1900, specifically touching the victim’s vagina. The second count charged the applicant with one count of having sexual intercourse…

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 Booth v The The Queen

Details

AGLC: Booth v The The Queen [2022] NSWCCA 113
Case: [2022] NSWCCA 113
Decision Date: 03 June 2022

CaseChat Overview and Summary

The applicant was convicted of two counts of sexual assault and acquitted on two other counts. The appeal against conviction was heard by the High Court of Australia. The central issue in the appeal was whether the jury's verdicts were inconsistent and unreasonable. The court had to determine if the victim's evidence was sufficiently precise to allow the jury to be satisfied beyond reasonable doubt that the applicant knew the victim did not consent to the sexual acts on the counts that led to acquittal.

The court considered whether the verdicts could be reconciled by acknowledging the imprecision in the victim's evidence regarding the occurrence of the sexual acts on the counts that led to acquittal. The court concluded that the jury was reasonably satisfied beyond reasonable doubt that the applicant knew the victim did not consent to the sexual acts on the counts that led to conviction. The court held that the verdicts could be reconciled and were not inconsistent, given the imprecision in the victim's evidence. The court found that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant knew the victim did not consent to the sexual acts on the counts that led to conviction.

The appeal against conviction was dismissed. The convictions for the two counts of sexual assault were upheld.

Orders