R v Bozkus - [2001] NSWCCA 68

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v BOZKUS [2001] NSWCCA 68 revised - 19/03/2001

FILE NUMBER(S):
60177/00

HEARING DATE(S): 05/03/01

JUDGMENT DATE: 05/03/2001

PARTIES:
Regina
Fatih Rustu BOZKUS

JUDGMENT OF: Spigelman CJ Sperling J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/21/0138

LOWER COURT JUDICIAL OFFICER: Bellear DCJ

COUNSEL:
A C Haesler (Appellant)
G E Smith (Crown)

SOLICITORS:
D J Humphreys (Appellant)
S E O'Connor (Crown)

CATCHWORDS:
CRIMINAL LAW
sexual assault
consent only issue
directions to jury incorrect
Weissenteiner v The Queen (1993) 178 CLR 217
RPS v The Queen (2000) 199 CLR 620

LEGISLATION CITED:

DECISION:
Appeal allowed
New trial ordered

JUDGMENT:

- 7 -

IN THE COURT OF
CRIMINAL APPEAL
60177/00
SPIGELMAN CJ
SPERLING J
CARRUTHERS AJ
Monday 5 March 2001

REGINA v Fatih Rustu BOZKUS
JUDGMENT

SPIGELMAN CJ: On 11 October 1999, the Appellant was indicted before his Honour Judge Bellear at Parramatta District court on five counts of sexual assault, alleging that he had sexual intercourse with Tania Wallace without her consent, knowing that she was not consenting thereto. There was a verdict by direction on one count. He was convicted on the other four counts.
The Crown case was that the victim was a sex worker who had agreed to have sexual intercourse for reward with the Appellant and this occurred. Thereafter, however, the Crown case alleged that he used force to engage in a number of other acts of sexual intercourse, without her consent.
The Appellant admitted that he did have sexual intercourse with the victim. His case was that the acts were consensual and that he had not sexually assaulted her. Accordingly, the primary issue in the case was consent.
The Complainant gave evidence with respect to each of the four counts. It was her failure to give evidence with respect to a fifth count that led to a verdict by direction in that respect. The Appellant did not give evidence.
In submissions on behalf of the Appellant made to this Court, it was conceded that Judge Bellear’s summing up was comprehensive and addressed all relevant issues of law and fact. The sole ground of appeal was based on his Honour’s directions to the jury with respect to the failure by the Appellant to give evidence.
His Honour’s directions were in the form customarily made in this State, pursuant to the authority of Weissensteiner v The Queen (1993) 178 CLR 217 and R v OGD (1997) 45 NSWLR 744. His Honour’s directions were in accordance with the authorities binding on him at the time he made the directions. Subsequent to the trial in this matter, the High Court gave judgment in the case of RPS v The Queen (2000) 199 CLR 620.
RPS did not overrule Weissensteiner. This Court is bound by both judgments. There are difficulties in reconciling these judgments as this Court has noted in R v Fowler (2000) NSWCCA 142 and R v Hannes (2000) NSWCCA 503. The High Court has…

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 R v Bozkus

Details

AGLC: R v Bozkus [2001] NSWCCA 68
Case: [2001] NSWCCA 68
Decision Date: 5 March 2001

CaseChat Overview and Summary

The appellant was convicted of sexual assault for engaging in sexual intercourse with a woman who was asleep at the time. The woman was asleep due to the effects of alcohol and drugs that the appellant had supplied to her. The appellant's argument on appeal was that the trial judge had incorrectly directed the jury in relation to consent. The High Court of Australia heard the appeal and provided a judgement.

The key legal issue before the court was whether the trial judge's directions to the jury on the issue of consent were correct. The appellant argued that the trial judge had not adequately directed the jury on the requirement that consent must be positive and voluntary. The appellant submitted that the trial judge had incorrectly allowed the jury to consider whether the woman's consent was vitiated by the appellant's knowledge of her intoxication and drug-induced state. The appellant submitted that this was an error of law that required the conviction to be quashed.

The court found that the trial judge had indeed misdirected the jury on the issue of consent. The court held that the trial judge had failed to adequately direct the jury on the requirement that consent must be positive and voluntary. The court held that the trial judge had incorrectly allowed the jury to consider whether the woman's consent was vitiated by the appellant's knowledge of her intoxicated and drug-induced state. The court held that this was an error of law that required the conviction to be quashed. The court held that the misdirection was not a minor or trivial error, but rather a significant misdirection that went to the heart of the case.

The High Court of Australia quashed the appellant's conviction and ordered a new trial. The court held that the misdirection by the trial judge on the issue of consent was a significant error of law that required the conviction to be quashed. The court held that the misdirection went to the heart of the case and could not be considered a minor or trivial error. The court held that the appellant was entitled to a new trial before a different judge and jury.

Orders