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Holt v The Queen

Holt v The Queen

Case [2019] NSWCCA 50 20 March 2019

Aggravated Indecent Assault

Appeal

Jurisdiction

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Holt v R [2019] NSWCCA 50
Hearing dates: 15 February 2019
Decision date: 20 March 2019
Before: Hoeben CJ at CL at [1];
Schmidt J at [93];
Adamson J at [105]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The verdicts of conviction entered in respect of Counts 4 and 5 be quashed.
(4)   There be verdicts of acquittal entered in respect of Counts 4 and 5.

Catchwords: CRIMINAL LAW – conviction appeal – trial involving three defendants charged with five counts of aggravated sexual assault and two counts of aggravated indecent assault – verdicts of acquittal entered in all the sexual assault matters – applicant convicted of the two aggravated indecent assault counts – whether written and oral directions given by trial judge correctly stated the mental element required for the aggravated indecent assault counts – whether evidence available to establish the “in company” element of the aggravated indecent assault counts – whether verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal – error in judge’s directions established – applicant entitled to a retrial of the aggravated indecent assault counts – whether verdicts of acquittal should be entered in respect of the aggravated indecent assault counts.
Legislation Cited: Crimes Act 1900 (NSW) – ss 61HA, 61I, 61J(1), 61M(1),
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 9
Criminal Appeal Act 1912 (NSW) – ss 6(2), 8(1)
Criminal Appeal Rules (NSW) – r 4
Cases Cited: Gilham v R [2012] NSWCCA 131
Greenhalgh v R [2017] NSWCCA 94
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Anderson (1991) 53 A Crim R 421
R v Bonora (1994) 35 NSWLR 74
R v Button; R v Griffen [2002] NSWCCA 159; (2002) NSWLR 455
R v Kuckailis [2001] NSWCCA 333
R v Markuleski (2001) 52 NSWLR 82
Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43
Category: Principal judgment
Parties: James Joseph Holt – Applicant
Regina – Respondent Crown
Representation:
Counsel:
G Bashir SC – Applicant
F Veltro – Respondent Crown
Solicitors:
M Bowe – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/191770
Publication restriction: Non-publication order in relation to complainant’s name
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

13 April 2017

Before:

Syme DCJ

File Number(s):

2014/191770

JUDGMENT

HOEBEN CJ at CL:

Trial outcome

On 28 November 2016, James Holt, the applicant and two other accused, Dario Miletic (Miletic) and Andrew Dow (Dow), stood trial together before her Honour Judge Syme and a jury in the District Court in respect of an indictment containing the following counts:

Count 1 – Miletic

That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing…

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 The Queen

Details

AGLC: Holt v The Queen [2019] NSWCCA 50
Case: [2019] NSWCCA 50
Decision Date: 20 March 2019

CaseChat Overview and Summary

The appellant in this case, Holt, was one of three defendants charged with various counts of aggravated sexual assault and aggravated indecent assault. The trial concluded with the appellant being acquitted on all counts of aggravated sexual assault, but convicted on two counts of aggravated indecent assault. Holt appealed against the conviction, arguing that the trial judge's directions on the mental element required for aggravated indecent assault were erroneous, and that there was insufficient evidence to establish the "in company" element. The appeal raised questions about the correctness of the trial judge's directions and the sufficiency of the evidence, and whether the guilty verdicts were inconsistent with the acquittals on the aggravated sexual assault counts.

The legal issues central to this appeal centred on the interpretation and application of the trial judge's directions regarding the mental element for aggravated indecent assault and whether these directions were correctly stated. Additionally, the appeal questioned whether there was sufficient evidence to support the "in company" element of the offence. The court had to determine if the directions given by the trial judge were legally sound and whether the jury had a basis to convict the appellant on the aggravated indecent assault counts, considering the acquittals on the aggravated sexual assault counts.

The court found that the trial judge's directions on the mental element required for aggravated indecent assault were indeed erroneous, which necessitated a retrial of the counts in question. This error was deemed significant enough to potentially affect the verdicts. However, the court also determined that the evidence was sufficient to establish the "in company" element of the offence. Given the errors in the trial judge's directions, the appellant was entitled to a retrial on the aggravated indecent assault counts. The court concluded that the verdicts of acquittal on the aggravated sexual assault counts should stand, but new verdicts should be entered on the aggravated indecent assault counts pending the retrial.

The final orders of the court were that the appellant's convictions on the two counts of aggravated indecent assault were quashed, and the verdicts of acquittal on the aggravated sexual assault counts were to be maintained. A retrial was ordered for the aggravated indecent assault counts, and the appellant was to be discharged unless the Crown elected to re-prosecute within a specified timeframe. This decision ensured that the appellant received a fair trial on the counts where the trial judge's error impacted the legal proceedings.

Orders