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Enoka v The The King

Enoka v The The King

Case [2022] NSWCCA 272 15 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Enoka v R [2022] NSWCCA 272
Hearing dates: 04 November 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Garling J at [1]
Adamson J at [145]
Button J at [146]
Decision:
(1) Grant leave to appeal;
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against conviction — Inconsistent verdicts — Applicant charged with one count of intentionally choking, one count of aggravated sexual assault and nine counts of sexual intercourse without consent — Jury found the applicant guilty of intentionally choking but not guilty of each other count — Where the events founding the 11 counts were intertwined temporally and contextually — Whether there was any logical basis to distinguish the verdicts — Distinguishing factors included the different elements of the offences, the different availability and quality of objective evidence and the different quality of complaint evidence — Appeal dismissed

Legislation Cited:
Crimes Act 1900 ss 37(1), 61I, 61J(1)
Criminal Appeal Act 1912 s 5(1)(b)

Cases Cited:
Dadley v R [2021] NSWCCA 267
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Roos v R [2019] NSWCCA 67

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Tuii Enoka (Applicant)
The Crown (Respondent)
Representation:
Counsel:
L Brasch / J Leaver (Applicant)
S Traynor (Respondent)
Solicitors:
Australian Lawyers and Advocates (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/00038417
Publication restriction: Publication of any matter which identifies or which is likely to lead to the identification of the complainant is prohibited: Crimes Act 1900 s 578A.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 November 2020

Before:

Townsden DCJ

File Number(s):

2019/00038417

Judgment

GARLING J: The applicant, Tuii Enoka, seeks leave, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912, to appeal against his conviction for an offence of intentionally choking, contrary to s 37(1) of the Crimes Act 1900.
That offence was charged as count one on an 11-count indictment that also charged a count of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act, and nine counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act.
Following a trial in the District Court, on 24 November 2020, a jury delivered its verdicts of guilty to count one, the charge of intentionally choking, and not guilty to each other count, the charges of aggravated sexual assault and sexual intercourse without consent.
On 7 May 2021, Townsden DCJ, who had presided over the applicant’s trial, sentenced the applicant to imprisonment for four years and four months, including a non-parole period of 2 years and 2 months. His Honour also imposed a 3-year Apprehended Domestic Violence Order and revoked a conditional release order which had previously been imposed upon the applicant for an offence of common…

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 Enoka v The The King

Details

AGLC: Enoka v The The King [2022] NSWCCA 272
Case: [2022] NSWCCA 272
Decision Date: 15 December 2022

CaseChat Overview and Summary

The case of Enoka v The King involved an appeal against the applicant's conviction on various charges, including intentionally choking, aggravated sexual assault, and multiple counts of sexual intercourse without consent. The jury found the applicant guilty of the choking charge but not guilty of any other offence. The events underlying the 11 charges were closely linked in time and context. The appeal sought to challenge the inconsistency of the verdicts.

The central legal issue for the court was whether there was any logical basis for the jury to distinguish between the applicant's guilt on the choking charge and his innocence on the other charges, given the intertwined nature of the events. The court examined whether the different elements of the offences, the varying availability and quality of objective evidence, and the differing quality of the complaint evidence could justify the jury's inconsistent verdicts.

In its reasoning, the court found that the jury had a rational basis to reach the inconsistent verdicts. The court concluded that the differing elements of each offence, the varying quality and availability of objective evidence, and the differing quality of the complaint evidence provided adequate grounds for the jury to acquit the applicant on the more serious charges while finding him guilty of the choking charge. The appeal was dismissed, upholding the jury's verdict.

Orders