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McCosker v The King

McCosker v The King

Case [2023] NSWCCA 131 9 June 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McCosker v R [2023] NSWCCA 131
Hearing dates: 12 May 2023
Date of orders: 9 June 2023
Decision date: 09 June 2023
Before: Ward P at [1]; Beech-Jones CJ at CL at [118]; Price J at [1]
Decision:
1. Leave to appeal against conviction is granted.
2. Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against conviction – Whether misdirection on availability of mental element of sexual offences – Where the trial judge gave a direction as to an additional mental element that was not part of the Crown case – Whether miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), ss 61I, 61HE(3)(c)
Evidence Act 1995 (NSW), s 38(1)(a)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
ARS v R [2011] NSWCCA 266
Beattie v R [2021] NSWCCA 291
Campbell v R [2014] NSWCCA 175
Carr v The Queen [2000] TASSC 183; 117 A Crim R 272
CV v R [2022] NSWCCA 264
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894
Hanna v R [2022] NSWCCA 7
Hofer v The Queen [2021] HCA 36; 95 ALJR 937
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Meher [2004] NSWCCA 355
R v RTB [2002] NSWCCA 104
R v Solomon [1980] 1 NSWLR 321
Robinson v R [2006] NSWCCA 192; 162 A Crim R 88
Sahartor v R [2018] NSWCCA 236
Saunders v R [2022] NSWCCA 273
Sheen v R [2011] NSWCCA 259; (2011) 215 A Crim R 208
Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104
Xu v R [2023] NSWCCA 93
Zhou v R [2021] NSWCCA 278

Category: Principal judgment
Parties: Ethan McCosker (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Odgers SC (Applicant)
E Balodis (Respondent)
Solicitors:
Borthwick and Butler (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2021/00080640
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of anything which would identify the complainant is restricted
Decision under appeal

Court or tribunal:

District Court at Armidale

Jurisdiction:

Criminal

Date of Decision:

11 August 2022

Before:

Coleman SC DCJ

File Number(s):

2021/00080640

HEADNOTE

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

On 25 May 2022, following a trial by jury in the District Court, the applicant, Mr Ethan McCosker, was found guilty and convicted of one count of sexual assault, contrary to s 61I of the Crimes Act 1900 (NSW).

The Crown case at trial was that the applicant had committed three acts of sexual intercourse on the complainant, including one act involving penile-anal intercourse, and that the Crown had to prove either that the applicant had actual knowledge that the complainant did not consent or that the applicant was reckless as to whether the complainant consented. In summing up, the trial judge directed the jury…

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 McCosker v The King

Details

AGLC: McCosker v The King [2023] NSWCCA 131
Case: [2023] NSWCCA 131
Decision Date: 09 June 2023

CaseChat Overview and Summary

McCosker v The King was an appeal against conviction in the High Court of Australia. The appellant, McCosker, was convicted of multiple counts of sexual assault. The central issue was whether there was a misdirection by the trial judge regarding the mental element required for the offences. Specifically, the trial judge provided a direction to the jury that included an additional mental element that was not part of the Crown's case. This potentially expanded the scope of the required mental state for the offences.

The legal issue before the court was whether this misdirection amounted to a miscarriage of justice. The appellant argued that by introducing an additional mental element not presented by the Crown, the trial judge had misdirected the jury, thus potentially affecting the fairness of the trial. The court had to determine whether this error was significant enough to warrant a new trial. The Crown contended that the misdirection was not substantial enough to have affected the outcome of the trial.

The court held that the trial judge's misdirection did indeed constitute a miscarriage of justice. The additional mental element introduced by the trial judge was not part of the Crown's case and, therefore, not relevant to the jury's consideration. This misdirection altered the legal standard required for conviction, which was not reflective of the actual charges. Consequently, the court quashed the convictions and ordered a new trial to ensure that the jury was properly directed on the correct legal standards.

Orders