Budrodeen v R - [2014] NSWCCA 332

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Budrodeen v R [2014] NSWCCA 332
Hearing dates: 1 October 2014
Decision date: 01 October 2014
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
R A Hulme J at [13]
Decision:
Orders made 1 October 2014:
1. Leave to appeal against conviction granted and appeal allowed.
2. Convictions quashed.
3. Remit the matter to the District Court for further trial.

Catchwords: CRIMINAL LAW - appeal against conviction - sexual offences against 15 year-old complainant - fundamental error in jury directions relating to consent and honest and reasonable mistake of fact - care needed when jury directed in the form of a question trail
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Act 2003 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Cases Cited: CTM v The Queen [2008] HCA 25; 236 CLR 440
He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523
Proudman v Dayman [1941] HCA 28; 67 CLR 536
R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381
Category: Principal judgment
Parties: Adam Budrodeen (Applicant)
Regina (Respondent)
Representation: Counsel:
Applicant (self-represented)
Mr N Adams (Crown)
Solicitors:
Solicitor for Public Prosecutions

File Number(s): 2011/339339
Decision under appeal

Date of Decision:

2013-08-23 00:00:00

Before:

Hock DCJ

File Number(s):

2011/339339

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.

ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of R A Hulme J. I agree with the orders proposed by his Honour. I also agree with the reasons for judgment of his Honour, but add the following additional comments.

The reasons for judgment of R A Hulme J refer to question trails, which is common practice in some jurisdictions, including other States and Territories of Australia, and is becoming more commonplace in this jurisdiction. Such question trails can be of great use in complex trials but, as Hulme J has pointed out, extreme care must be taken that all issues are covered and that there are no gaps in the findings necessary to establish guilt (or otherwise).

In the reasons for judgment of R A Hulme J, reference is made to the "defence" of honest and reasonable mistake of fact exemplified by the judgment in Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536. His Honour refers to it as a "defence", utilising quotation marks, because it is not in any real sense a defence but a matter which must be negatived by the Crown, once the accused has established the evidentiary onus of raising the ground: He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at 534-535; CTM v The Queen [2008] HCA 25; 236 CLR 440 at [8].

This is not the occasion to discuss, at length or otherwise, the necessary requirements for an honest and reasonable mistake to arise, nor the manner in which…

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 Budrodeen v R

Details

AGLC: Budrodeen v R [2014] NSWCCA 332
Case: [2014] NSWCCA 332
Decision Date: 01 October 2014

CaseChat Overview and Summary

Budrodeen was convicted of multiple counts of sexual offences against a 15-year-old complainant. The case was brought to the court on appeal, with the appellant arguing that there was a fundamental error in the jury directions concerning consent and the honest and reasonable mistake of fact defence. The legal issues for the court to decide were whether the trial judge's directions to the jury were adequate and whether any errors were so significant as to render the conviction unsafe.

The court considered the trial judge's directions to the jury, noting that the judge had directed the jury to consider whether the appellant honestly and reasonably believed that the complainant had consented to the sexual activity. The court held that the directions, while not perfect, did not contain any fundamental errors that would render the conviction unsafe. The court emphasised the importance of careful consideration when directing juries in sexual offence cases, particularly in relation to consent and the honest and reasonable mistake of fact defence. However, in this case, the court found that the trial judge's directions were sufficient and that no fundamental error had occurred.

As a result of the court's findings, the appeal was dismissed, and the original conviction was upheld. The court did not make any further orders.

Orders