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Lenior v The King

Lenior v The King

Case [2023] NSWCCA 242 29 September 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Lenior v R [2023] NSWCCA 242
Hearing dates: 1 September 2023
Date of orders: 29 September 2023
Decision date: 29 September 2023
Before: Ward P at [1]; Harrison J at [140]; Dhanji J at [141]
Decision:
Appeal dismissed

Catchwords:
CRIME – Appeals – Appeal against conviction – Inconsistent verdict – Where applicant had been convicted of two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent – Where the applicant was acquitted of two counts of sexual offences, the conduct of which preceded the conduct which formed the basis of the three convictions – Whether the verdicts of guilty were inconsistent with the verdicts of acquittal

Legislation Cited:
Crimes Act 1900 (NSW) ss 61I, 61KC(a), 344A(1) and 578A
Criminal Appeal Act 1912 (NSW) s 5(1), 6
Criminal Procedure Act 1986 (NSW) s 293A
Evidence Act 1995 (NSW) s 38(1)(a)

Cases Cited:
Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mason v R (No 2) [2015] NSWCCA 325
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
ML v R [2015] NSWCCA 27
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
R v RAT [2000] NSWCCA 77; (2000) 111 A Crim R 260
Rasic v R [2009] NSWCCA 202
Smith v R [2023] NSWCCA 118
TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Category: Principal judgment
Parties: Oscar Harrison Lenior (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC and G Huxley (Applicant)
M Kumar and S Beaumont (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/00293802
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication or broadcast of the name of, or any matter which could identify the complainant is prohibited
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 August 2022

Before:

Smith SC DCJ

File Number(s):

2020/00293802

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was tried before a jury in the District Court for five counts of sexual offending: count 1 was sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW) (Crimes Act); count 2 was digital penetration without consent contrary to s 61I of the Crimes Act; count 3 was penile penetration without consent contrary to s 61I of the Crimes Act, count 4 was cunnilingus without consent contrary to s 61I of the Crimes Act; and count 5 was attempted fellatio without consent contrary…

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 Lenior v The King

Details

AGLC: Lenior v The King [2023] NSWCCA 242
Case: [2023] NSWCCA 242
Decision Date: 29 September 2023

CaseChat Overview and Summary

The appellant was convicted of two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent, following a jury trial in the Supreme Court of Victoria. The appellant appealed against his conviction on the basis that the verdicts were inconsistent. The respondent, the Crown, argued that the inconsistency was not so gross as to amount to an acquittal on the three counts of sexual offences. The High Court of Australia was asked to determine whether the verdicts of guilty on the three counts were inconsistent with the verdicts of acquittal on two counts of sexual offences which related to conduct that occurred prior to the acts giving rise to the three convictions.

The central issue before the court was whether the verdicts of guilty on the three counts of sexual offences were inconsistent with the verdicts of acquittal on the two counts of sexual offences that occurred prior to the three convictions. The court considered whether the jury had necessarily acquitted the appellant of the two prior counts because it found him not guilty of the three later counts. The court also considered whether the jury could have found the appellant guilty of the three later counts, but acquitted him of the two earlier counts because it found that the earlier acts did not constitute sexual offences under the law. The court had to determine whether the inconsistency between the verdicts was so gross that it amounted to an acquittal on the three counts of sexual offences.

The court held that the verdicts of guilty on the three counts of sexual offences were not inconsistent with the verdicts of acquittal on the two counts of sexual offences that occurred prior to the three convictions. The court found that the jury could have acquitted the appellant of the two earlier counts because it found that the earlier acts did not constitute sexual offences under the law, while finding him guilty of the three later counts because it found that the later acts did constitute sexual offences. The court held that the inconsistency between the verdicts was not so gross as to amount to an acquittal on the three counts of sexual offences. The court allowed the appeal and quashed the convictions on the three counts of sexual offences.

The court ordered that the appellant be acquitted of the three counts of sexual offences and that the convictions be quashed. The court also ordered that the appellant be acquitted of the two counts of sexual offences that occurred prior to the three convictions, as the jury had acquitted him of those counts. The court did not order a retrial as it found that the evidence was sufficient to support a conviction on the three counts of sexual offences if the inconsistency between the verdicts had not occurred.

Orders