Cha v The Queen - [2012] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cha v R [2012] NSWCCA 142
Hearing dates: 20 June 2012
Decision date: 04 July 2012
Before: McClellan CJ at CL at [1]
Price J at [34]
Button J at [35]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - conviction - whether directions of trial judge correct - whether directions regarding whether certain acts constitute sexual intercourse correct - leave to appeal granted - appeal dismissed.
Legislation Cited: Crimes Act 1900
Criminal Procedure Act
Cases Cited: Johnson v Miller (1937) 59 CLR 576
R v Khouzame &Saliba [1999] NSWCCA 173
R v S [2000] 1 Qd R 445
Walsh v Tattersall (1986) 188 CLR 77
Category: Principal judgment
Parties: Jong Kyu Cha (Appellant)
Crown
Representation: Counsel:
W Brewer (Appellant)
T Smith (Crown)
Solicitors:
Ford Criminal Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/288593
Decision under appeal

Date of Decision:

2011-09-02 00:00:00

Before:

Syme DCJ

File Number(s):

2010/288593

Judgment

McCLELLAN CJ at CL: The appellant was tried on an indictment which included two counts of having sexual intercourse with the complainant without her consent, being a breach of s 61I of the Crimes Act 1900. He was also charged with assaulting the complainant and, at the time of the assault, committing an act of indecency contrary to s 61L of the Crimes Act. He was only convicted of one of the counts which was in the following terms:

'On 30 August 2010 at Ultimo in the State of New South Wales, did have sexual intercourse with [the complainant] without her consent knowing she was not consenting thereto."

The appellant was sentenced to a non-parole period of 2 years and 6 months to date from 6 June 2011 and expire on 5 December 2013 with an additional term of 1 year and 6 months to expire on 5 June 2015.

There are five grounds of appeal against conviction. The appellant does not seek leave to appeal against his sentence.

The grounds of appeal are as follows:

Ground 1: That the learned trial judge erred in law by ruling at the completion of the Crown case that evidence that the appellant had penetrated the complainant's genitalia in a number of ways, including touching her clitoris, and inserting his finger into her vagina, could be variously relied upon by the jury as sufficient proof that the appellant had sexual intercourse with the complainant.

Ground 2: That the learned trial judge erred in law by providing the jury with directions to the jury consistent with her ruling described in ground 1 herein.

Ground 3: That the learned trial judge's ruling and directions jury had the effect of charging the appellant with having committed two or more offences in the one charge, and was thereby, in the result, bad for duplicity.

Ground 4: That in consequence of the learned trial judge's ruling and directions to the jury on this issue, the trial of the…

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 Cha v The Queen

Details

AGLC: Cha v The Queen [2012] NSWCCA 142
Case: [2012] NSWCCA 142
Decision Date: 04 July 2012

CaseChat Overview and Summary

The appeal before the court involved the conviction of the appellant, Cha, on charges related to sexual offences. The dispute centred on the interpretation and application of certain legal principles by the trial judge in directing the jury on the definition of sexual intercourse and the appellant's intent. The case was heard in the High Court of Australia.

The central legal issue before the court was whether the trial judge's directions to the jury regarding the definition of sexual intercourse and the mens rea for the offence were correct. The appellant argued that the trial judge had misdirected the jury, leading to an unsafe and unsatisfactory verdict. The respondent, The Queen, contended that the trial judge's directions were appropriate and that the jury's verdict was supported by the evidence.

The court found that the trial judge had indeed provided correct directions to the jury on the relevant legal principles. The court held that the trial judge had appropriately defined sexual intercourse in line with legal precedent and had correctly explained the necessary intent for the charged offences. The jury's verdict was found to be safely based on the evidence presented at trial, and the court dismissed the appeal. The appellant's conviction was upheld.

No further orders were made by the court.

Orders