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: Christian v R [2012] NSWCCA 34
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
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
Category: Principal judgment Parties: Thomlen Holt (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr K Averre (Applicant)
Ms M Kumar (Respondent)
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…
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- Holt v R [2021] NSWCCA 140
- Case
- [2021] NSWCCA 140
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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