JH v The Queen

[2021] NSWCCA 324

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

JH v R [2021] NSWCCA 324

Hearing dates:

9 June 2021

Decision date:

23 December 2021

Before:

McCallum JA at [1];
N Adams J at [41];
Cavanagh J at [42].

Decision:

(1) Refuse leave under r 4 of the Criminal Appeal Rules to rely on the second ground of appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether open to jury to find “serious physical disability” — Whether use of more specific definition required — Quintessential jury question

CRIMINAL PROCEDURE — Trial — Directions to jury — Misdirection — Whether direction necessary as to definition of “serious physical disability” — Whether miscarriage of justice established

Legislation Cited:

Community Welfare Act 1987 (NSW), s 3(1)

Crimes (Amendment) Act 1989 (NSW)

Crimes Act 1900 (NSW), ss 61HD, 61J, 61M, 66F

Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW)

Criminal Appeal Act 1912 (NSW), s 6

Criminal Appeal Rules 1952 (NSW), r 4

Cases Cited:

Brockie v R [2019] NSWCCA 120

Haoui v R [2008] NSWCCA 209

Mooney v The Queen [2016] NSWCCA 231

Obeid v R [2017] NSWCCA 221

R v Rhodes (1984) 14 A Crim R 124

Selby v R [2017] NSWCCA 40

Tindall v The Queen [2019] NSWCCA 136

Category:

Principal judgment

Parties:

JH (Applicant)
Crown (Respondent)

Representation:

Counsel:
K H Averre (Applicant)
E Balodis (Respondent)

Solicitors:
Andrews Solicitors (Applicant)
Directors of Public Prosecutions (Respondent)

File Number(s):

2017/379968

Publication restriction:

Applicant and complainant anonymised to protect identity of complainant.

Identification of witness prohibited by non-publication order.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Common Law – Criminal

Date of Decision:

23 May 2019

Before:

O’Connor QC ACDJ

File Number(s):

2017/379968

Judgment

1. McCALLUM JA: The applicant, JH, stood trial on an indictment containing four counts of sexual intercourse without consent in circumstances of aggravation contrary to s 61J of the Crimes Act 1900 (NSW) and one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. The charges all arose out of the same encounter. The circumstance of aggravation alleged in each case was that the complainant has a “serious physical disability”: s 61J(2)(f) of the Crimes Act. The trial proceeded before Acting Judge O’Connor QC with a jury over 9 days in May 2019 at Bathurst District Court. The trial judge directed the jury to return a verdict of not guilty to the count of aggravated indecent assault. As to the remaining counts, the jury returned verdicts of guilty to three of the counts of sexual intercourse and a verdict of not guilty to the fourth.

2. The applicant was sentenced on 14 October 2019 to an aggregate sentence of imprisonment of seven years and six months with a non-parole period of four years and six months to commence on 23 May 2019. The indicative sentence for each offence was seven years with a non-parole period of four years and three months.

3. The applicant seeks leave to appeal against his convictions. There is no appeal against sentence. Although consent was the issue at trial, the sole focus of the grounds of appeal is the element of aggravation, which required the Crown to prove beyond reasonable doubt that the complainant has a “serious physical disability” within the meaning of s 61J(2)(f) of the Crimes Act. The principal issue raised by the appeal is the meaning of that expression, which in turn will determine the adequacy of the evidence relied upon in support of its proof and the correctness of the judge’s directions to the jury. Those issues are reflected in the two grounds of appeal relied upon by the applicant, as follows:

1. The verdicts are unreasonable and cannot be supported having regard to the evidence.

2. The trial judge erred in his directions to the jury on the circumstance of aggravation, namely serious physical disability.

4. Rule 4 of the Criminal Appeal Rules applies to the second ground. That rule excludes reliance on a ground of appeal based on a direction to the jury unless objection was taken to the direction at the trial. There was no objection to the impugned direction in the present case and accordingly leave is required.

Evidence at Trial

5. In light of the narrow focus of the grounds of appeal, it is not necessary to give more than a brief summary of the evidence at the trial. The complainant was the applicant’s ex-girlfriend. They had only recently broken up at the time of the offences. They began dating in 2015 and at some point he moved in with her in a house she shared with her mother. The applicant lived there until around 6 December 2017 when the couple broke up and he moved out.

6. At 2:14am on 15 December 2017 the applicant called the complainant and asked if he could come over to talk. He was quite intoxicated. He arrived at her house in the company of another man, who will be referred to as Mr X, whom the complainant knew. The complainant was not expecting Mr X to be with the applicant. The applicant and Mr X went into the complainant’s bedroom. The applicant started trying to undress the complainant. She resisted and was trying to cover herself up. The complainant said that the applicant was making statements about taking photos of her and trying to get her to do sexual acts towards Mr X in his presence. She said the applicant was being “very nice” at first but that he got frustrated with the fact that she was resisting being undressed. Eventually he overcame her resistance and removed her pyjama top and her boxer shorts. She was pushing him away and asking him to leave. She said, “I was constantly trying to push him off and there was a point where he – I was getting frustrated and he tied my hands up.” She said he tied her hands up with a dressing gown cord and that she tried to stop him but her arms were not strong enough. She said he then put her boxer shorts over her head.

7. The indecent assault count which was the subject of the directed verdict was based on evidence that, at the urging of the applicant, Mr X touched the complainant’s breasts while she was on her bed with the boxer shorts over her head. At some point after that, Mr X left the room. The applicant then had penile vaginal intercourse with the complainant three separate times. She gave evidence that she did not consent to have sexual intercourse. Those acts formed the basis of the charges the subject of the jury’s three verdicts of guilty.

8. The applicant gave evidence. According to his version of events, the complainant effectively insisted that he have sexual intercourse with her as the price of returning some personal possessions he had left at her house and that it was she who suggested a threesome. The jury must be taken to have rejected that evidence and to have been satisfied beyond reasonable doubt as to the complainant’s lack of consent.

9. The circumstance relied upon to sustain the element of aggravation was that the complainant suffers from cerebral palsy and dystonia. She gave evidence, which was largely uncontested, about the disabilities caused by her condition. She said it affects her speech; that her arms are very stiff and “don’t really work or move properly”; that her right side is more affected than her left and she is right-handed; that she lacks muscle tone; that she has trouble doing “anything” with her arms including picking things up, opening jars, putting on a watch, opening a bag of chips or using a knife to cut vegetables; that she has a drop in her hips; that her legs cramp up; that she walks with a limp and walking long distances makes her “really, really tired”; that her right foot is crooked and that she requires Botox injections in her right leg every three months to loosen the muscles or they become very painful. It must be recalled that the jury saw and heard her give evidence and was in a position to observe how she moves, albeit to a limited extent as she gave her evidence via audio-visual link from a remote location.

10. The complainant said that she has no special modifications in her house to assist her in daily life. She can drive but it makes her very tired. She can cook but her mother cuts vegetables for her. She was able to undertake an online course in veterinary nursing however she could not complete it as her hands shake too much to insert a needle. She has a home gym where she lifts weights to help manage her muscle tone.

11. The applicant did not dispute the existence of the complainant’s conditions but gave evidence suggesting that she was more functional than her evidence indicated. He said she could “lift more weights” than he could and that he had seen her doing power squats and handling 20-kilogram medicine balls while working out.

12. The applicant also said that he and the complainant went walking and jogging together. He acknowledged that she “always used to cramp up” so they never did these activities for long periods of time. He also observed that she had a slight limp in her right leg. The complainant said that she had gone jogging with the applicant once but that it was too difficult for her given her disabilities.

13. The applicant also gave evidence that the complainant would occasionally hit him and that she once punched him so hard that his head hit a window and broke it. The complainant agreed she occasionally hit the applicant but denied ever doing so with any force. She denied that she had ever hit him so hard that he broke a window.

Ground One

14. The first ground of appeal is that the verdict is unreasonable, or cannot be supported, having regard to the evidence: s 6 of the Criminal Appeal Act 1912 (NSW). As already indicated, the submissions on this ground were confined to the requirement to prove the element of aggravation and the Court’s attention can be confined accordingly.

Meaning of the term “serious physical disability”

15. The circumstance of aggravation specified in s 61J(2)(f) of the Crimes Act is that the alleged victim has a “serious physical disability”. The resolution of both grounds of appeal turns on the meaning of that term, which is not defined in the Act. In the second reading speech of the Crimes (Amendment) Act 1989 (NSW), which introduced s 61J into the Crimes Act, the Attorney General noted that the terms “serious physical disability” and “serious intellectual disability” were undefined and that the question whether an alleged victim suffered from one would be a “matter for the courts”.

16. Of course, where the issue arises in a trial on indictment, the court includes the jury. The Crown submitted that the issue of “serious physical disability” is a quintessential jury question that does not require explication, just as the issue of “grievous bodily harm” is one ordinarily left to the jury. The applicant countered during oral argument that, in a case raising the issue of grievous bodily harm, the jury is ordinarily at least told that “grievous bodily harm” means “really serious harm”. However, as noted by N Adams J during that exchange, that is because the word “grievous” is somewhat arcane. The significant point is that the question of seriousness of harm is considered to be within the realm of the task of the jury, appropriately in my view.

17. If I have understood the applicant’s argument correctly, it involved two steps. First, the word “serious” suggests a comparison. Whereas the assessment whether a person has a disability simpliciter requires comparison with the baseline of the general population, the notion of serious disability invites comparison with other disabilities, requiring the tribunal of fact to assess the alleged victim’s physical disability comparatively within the range of known physical disabilities to determine whether it falls at the serious end of that putative range (so the argument went). The applicant submitted that, when that exercise is undertaken in the present case, the (mostly uncontested) evidence of the complainant’s physical disability does not meet the test and therefore the jury’s verdict was unreasonable.

18. Secondly, it was submitted that, when undertaking the task of distinguishing between serious disabilities and others, it would assist to focus on “any lack of independence and a significant compromise of the person’s functionality”. That suggested definition was drawn from a consideration of other statutory provisions dealing with disability.

19. The applicant sought to support those contentions first by reference to a comparison with the definitions of “intellectual disability” and “cognitive impairment” in the Crimes Act. At the time s 61J was introduced into the Crimes Act by the Crimes (Amendment) Act 1989 (NSW), s 66F of the Act defined an intellectual disability as “an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities”. The applicant noted that those words were adopted in the bench book as the appropriate direction to a jury on whether a complainant had a “serious intellectual disability” for the purpose of an aggravated sexual assault. Following the enactment of the Crimes Amendment (Cognitive Impairment – Sexual Offences) Act 2008 (NSW), the term “intellectual disability” was replaced with “cognitive impairment” which was defined in s 61HD of the Crimes Act as any one of a variety of cognitive disabilities that result in “the person requiring supervision or social habilitation in connection with daily life activities”.

20. The applicant relied on the fact that both definitions have at their core the notion of a lack of independence and compromised functionality in performing everyday tasks. He submitted, “It may be seen that in order for the disability to be serious, it needed to be serious in comparison to other intellectual disabilities/cognitive impairments as opposed to serious in comparison to the general population”.

21. The argument then sought to apply the same reasoning to physical disabilities, drawing on different definitions in different legislation. In particular, the applicant referred to the following definitions in s 3(1) of the Community Welfare Act 1987 (NSW):

“[P]hysical impairment, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment.

[P]hysically disabled person includes a person who, as a result of having a physical impairment to his or her body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his or her opportunities to enjoy a full and active life.”

22. As with the definition of intellectual disability and cognitive impairment considered above, those definitions focused on the reduction in a person’s functioning as a result of their disability compared with the concept of a “full and active life” led by an able-bodied person. As I understood it, the submission was that comparison with the broader population is the baseline definition and accordingly that, in order to determine if a disability is “serious”, it is necessary to compare the alleged victim’s disability with that of other persons with physical disabilities.

23. With great respect to counsel for the applicant, who put the argument in a careful and nuanced way, the attempt to draw support from other statutory definitions is unhelpful and indeed inappropriate. The task is to construe the statute that applies to the present case. The other statutes referred to cannot assist in that task. If anything, the fact that cognitive impairment is defined, whereas physical disability is not, suggests that Parliament rejected the idea that the two can be compared or defined in comparable ways.

24. The law does not assume that juries are witless. On the contrary, juries are valued for their collective wisdom and experience. The term “serious physical disability” does not require explication. As the Crown submitted, it raises a quintessential jury question.

25. Further, the applicant’s suggested focus on “any lack of independence and compromised functionality in performing everyday tasks” puts a gloss on the statute. As demonstrated even in the provisions relied upon by the applicant, it is always open to parliament to define a term. There is no warrant for the Court to seek to impose a very particular definition of the kind contended for by the applicant. The words “serious physical disability” mean what they say and are capable of being applied by a jury.

Did the evidence support the verdict?

26. The second limb of the applicant’s argument assumed the correctness of the first and is significantly weakened by its rejection. The applicant submitted that, on the definition of “serious physical disability” contended for by him, it was unreasonable for the jury to find that the complainant had a serious physical disability based on the evidence in the trial.

27. In support of that submission, the applicant cited passages from this Court’s judgment in Haoui v R [2008] NSWCCA 209 (Haoui). Haoui was concerned with an issue as to whether it was open to the jury to be satisfied on the evidence in that case that the victim of the applicant’s dangerous driving had suffered “grievous bodily harm”. Probably the only legal principle that can be gleaned from the decision is that “there is no bright-line test for determining whether a particular injury or injuries constitute grievous bodily harm”: at [162] per Johnson J, with whom I agreed at [168]. The same can be said of the task of determining whether a particular physical disability is “serious”.

28. Finally, the applicant also sought to derive support for this ground from three previous decisions of this Court concerning offences of aggravated sexual intercourse without consent where the circumstance of aggravation was, as here, that the complainant had a serious physical disability. The decisions relied upon were Mooney v The Queen [2016] NSWCCA 231; Tindall v The Queen [2019] NSWCCA 136 and Brockie v R [2019] NSWCCA 120 (Brockie).

29. There is, with respect, nothing in any of those decisions to assist the applicant. None raised a question as to the meaning of the term “serious physical disability”. The decisions accordingly offer no guidance as to the meaning of that term. The applicant nonetheless relied on them because, as it was put, the complainant’s physical disability in the present case was significantly less serious than in any of those cases. As a consideration of those decisions reveals, that may well be right. It does not follow that the disability was not serious in the present case. It is not clear why the decision in Brockie was included in the catalogue. The appellant in that case was originally committed for trial on two counts of sexual intercourse without consent in the circumstance of aggravation that the complainant had a serious physical disability. She suffered from congenital deafness, cerebral palsy and moderate intellectual delay. However, before the commencement of the trial, the Crown prosecutor decided not to proceed on the charge under s 61J and instead sought a conviction only on the offence simpliciter. The decision accordingly provides no guidance in law as to the meaning of the term “serious physical disability”. If the point was to provide an illustration of some kind of disparity in the exercise of the prosecutorial discretion, it was misconceived. The responsibility to “find a bill” (select the appropriate charge on the basis of the available evidence) falls to the prosecutor alone. It is no part of the role of the court to intrude on that decision.

30. As the authorities provide no guidance other than that there is no “bright-line test” for assessing whether a physical disability is “serious”, the determination of this ground of appeal reduces to an analysis of whether it was open to the jury on the evidence to find that the complainant had a serious physical disability or whether a verdict based on that conclusion was unreasonable. The authorities on that issue are well known and need not be rehearsed here. I have already noted the important advantage the jury had in seeing and hearing the complainant give evidence. It may also be noted that the trial judge observed that the complainant’s speech was audibly affected by her disability.

26. On the basis of the evidence in the trial, I am satisfied that it was well open to the jury to find that the complainant had a serious physical disability. Given that the jury clearly did not accept the applicant’s evidence as to consent it was reasonably open to them also to reject his evidence as to her physical capacities. Even if they accepted that evidence, it was not inconsistent with the existence of a serious physical disability. There was no reason to doubt the complainant’s evidence that she suffered from cerebral palsy and dystonia which adversely affected her speech, walking, strength, and dexterity. Her disabilities were significant in the context of this offence in which she tried to prevent being undressed and tied up by the applicant but found her arms were not strong enough. Her physical disability had serious impacts on her daily life and made her more vulnerable during the commission of this offence against her. For those reasons, I would reject the first ground of appeal.

Ground Two

32. The second ground of appeal was that the trial judge erred in his directions to the jury as to the circumstance of aggravation as an element of the offences. The applicant accepted that sufficient directions were given to the jury as to the actual evidence of the complainant’s physical disability. However, he submitted that a direction was required in accordance with the submission addressed above, namely, that the jury have been directed to consider whether the complainant had any lack of independence or compromise of functionality as a result of her physical disability and whether her disability was “serious” compared with the range of other known physical disabilities.

33. The judge’s direction to the jury on the issue of disability began as follows:

“The circumstances of aggravation is [sic] relied upon, was that at the time of the offence [the complainant] had a serious physical disability. It is the Crown case that the complainant suffered from cerebral palsy and dystonia and, as a consequence, had the following physical issues.

She said she has low muscle tone, especially in the right leg, she has a limp, she has botox treatment for the leg every three months which helps her walking.

She finds jogging too hard and tires easily. Her speech is affected. Her hands shake resulting in an inability to cut vegetables, open jars, packets of chips, putting on a watch. If she tried to cut vegetables, she is liable to cut her hands. She was unable to complete vet nurse training as she was unable to insert a needle into a vein because her hands shake.

In writing, her hand gets tired and sore; picking up items is difficult. She is able to drive a motor vehicle but gets tired.

In cross-examination, she said she could not cook, and I think the accused said that she needs a fire extinguisher in the kitchen, no doubt to extinguish any unfortunate accident. She could lift, she could use a 20-kilogram medicine ball but could not do push-ups.

She did weight training in the home gym. She has a limp and cramps. She denied she was able to repeatedly punch the accused in the head, causing him to collide with a window head first breaking the window.

So that is, in summary form, what she says the physical effects of those conditions are.”

34. His Honour then continued:

“It is a matter entirely for you, looking at those areas, as to whether you are satisfied beyond reasonable doubt that she suffers from a serious physical injury.

If you find the circumstances of aggravation proved beyond reasonable doubt, namely that [the complainant] had a serious physical disability, having already found that there was a sexual assault, then the accused is to be found guilty as charged…”

35. The trial judge further directed the jury that if they were satisfied that all of the elements had been proven except the circumstance of aggravation, they were to return a verdict of not guilty to the offence charged but guilty of an offence of sexual assault simpliciter. The trial judge also provided written directions to the jury which were to the same effect as the oral directions set out above.

36. For the reasons I have given in respect of the first ground of appeal, I do not think the term “serious physical disability” requires the jury to assess whether a physical disability is serious in comparison with other physical disabilities. It follows that the trial judge was not required to direct the jury to adopt that paradigm.

37. Furthermore, I do not think the trial judge was required to provide any explanation of the appropriate test beyond informing the jury they must be satisfied beyond reasonable doubt that the complainant had a “serious physical disability”. This approach has been approved in the case of offences involving a requirement to prove “grievous bodily harm” in R v Rhodes (1984) 14 A Crim R 124 where Brooking J said at 128:

“Once the jury has been given the usual short definition of grievous bodily harm, it is not the practice, and would indeed be unwise (Smith (1861) AC 290 at 335) to attempt a more elaborate exposition of the meaning of that phrase. The law gives only very general assistance to juries in this regard. While some injuries are manifestly too slight and some injuries clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view.”

38. The term “serious physical disability” is similarly capable of encompassing a vast array of different conditions. In my view, it would be unwise to attempt a more elaborate exposition of the meaning of that phrase.

39. As no objection was taken to the direction at the time of the trial, Rule 4 of the Criminal Appeal Rules applies and leave is required for this ground of appeal. The failure of counsel to object at the time of trial is usually an indicator that the directions were fair and adequate: see Selby v R [2017] NSWCCA 40 at [46]. However, leave should be granted where there was a miscarriage of justice that would immediately give rise to an acquittal: see Obeid v R [2017] NSWCCA 221 at [24]-[26]. In the current case, there was no such miscarriage of justice as the trial judge’s directions were entirely appropriate. In the circumstances, I would refuse leave under r 4 of the Criminal Appeal Rules to argue this ground of appeal.

40. Accordingly, I propose the following orders:

1. Refuse leave under r 4 of the Criminal Appeal Rules to rely on the second ground of appeal.

2. Dismiss the appeal.

41. N ADAMS J: I have had the advantage of reading the judgment of McCallum JA in draft. I agree with the orders proposed for the reasons provided by her Honour.  The term “serious physical disability” raises a quintessential jury question. No error is disclosed in the approach taken by the trial judge on that question. It follows that am I not persuaded that the verdicts on the aggravated version of the offences are unreasonable either.

42. CAVANAGH J: I agree with McCallum JA. Serious physical disability is not a defined term and it was a matter for the jury to determine whether having regard to the evidence the complainant suffered from a serious physical disability. It is not to the point to compare the complainant’s disability with the disabilities suffered by other persons in other cases. The words are ordinary English words and are capable of being understood and applied by the jury without reference to comparative examples or other terms or words in other sections or legislation.

43. Further, no error is demonstrated in the trial judge’s directions. The proposition that the trial judge should have given a more specific direction as to the meaning of serious physical disability should be rejected. Indeed, it would be difficult to envisage what a trial judge might say which would not have the effect of directing the jury whether the disability in any given case was a serious physical disability, in other words, overstepping the role of the trial judge in such a case.

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Decision last updated: 23 December 2021