Holt v R

Case [2021] NSWCCA 140 2 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Holt v R [2021] NSWCCA 140
Hearing dates: 30 April 2021
Date of orders: 2 July 2021
Decision date: 02 July 2021
Before: Hoeben CJ at CL at [1];
Bellew J at [2];
N Adams J at [3].
Decision:
(1) Grant leave to appeal on ground 1.
(2) Refuse leave to appeal on grounds 2 and 3 pursuant to r 4, Criminal Appeal Rules.
(3) Appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against conviction — whether verdicts inconsistent or otherwise unreasonable – offences of sexual intercourse without consent, assault with act of indecency and recording intimate image without consent – where applicant was convicted of three counts and acquitted of four counts – where applicant admitted acts for counts upon which he was convicted but disputed consent – where counts upon which applicant was acquitted were disputed or involved possible fragmentation of memory due to alcohol consumption and sleep – held, verdicts not inconsistent or otherwise unreasonable
CRIME — Appeals — Appeal against conviction — where applicant gave different versions to police and others – whether trial judge erred in failing to give Zoneff direction in relation to the applicant’s “changing story” – where applicant told police that he deleted an intimate photograph of the complainant because he “didn’t feel right” about “how it ended” – whether trial judge erred in failing to give Edwards direction in relation to deletion of photograph – where Crown did not rely upon lies or post-offence conduct as consciousness of guilt – held, no error

Legislation Cited:
Crimes Act 1900 (NSW), ss 61I, 61L, 91P(1)
Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
Criminal Appeal Rules (NSW), r 4

Cases Cited:
AH v R [2019] NSWCCA 152
ARS v R [2011] NSWCCA 266
Christian v R [2012] NSWCCA 34
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
DN v R [2016] NSWCCA 252
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Kim v R [2020] NSWCCA 288
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Tekely v R; Nagle v R [2007] NSWCCA 75
Wheeler v R [2019] NSWCCA 255
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Principal judgment
Parties: Thomlen Holt (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr K Averre (Applicant)
Ms M Kumar (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00185831
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 August 2019

Before:

King SC DCJ

File Number(s):

2018/00185831

Judgment

HOEBEN CJ AT CL: I agree…

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 Holt v R

Details

AGLC: Holt v R [2021] NSWCCA 140
Case: [2021] NSWCCA 140
Decision Date: 02 July 2021

CaseChat Overview and Summary

In Holt v R, the applicant appealed against his conviction on three counts of sexual intercourse without consent, assault with an act of indecency, and recording an intimate image without consent. The case was heard by the Court of Appeal. The applicant was acquitted on four other counts related to the same incident. He admitted to the acts for which he was convicted but denied consent. The counts for which he was acquitted involved disputed facts or potential memory issues due to alcohol consumption and sleep.

The primary legal issues the court had to address were whether the verdicts were inconsistent or unreasonable and if the trial judge erred in not providing specific directions to the jury concerning the applicant's changing accounts and the deletion of an intimate photograph. The applicant's story varied between different accounts, and he deleted a photograph of the complainant, stating he "didn't feel right" about "how it ended." The Crown did not argue that these actions constituted consciousness of guilt.

The court concluded that the verdicts were neither inconsistent nor unreasonable. The varying accounts and the deletion of the photograph did not render the convictions unsafe and unsatisfactory. The court found no error in the trial judge's handling of the jury directions regarding the applicant's changing story and the deletion of the photograph. The court dismissed the appeal, upholding the applicant's conviction on the three counts.

Orders