R v DMC - [2002] NSWCCA 513

Reported Decision:
137 A Crim R 246

New South Wales

Court of Criminal Appeal

CITATION: Regina v. DMC [2002] NSWCCA 513

FILE NUMBER(S): CCA 60443/02

HEARING DATE(S): 12 December 2002

JUDGMENT DATE:
20 December 2002

PARTIES :

Regina - Crown/respondent
DMC - appellant

JUDGMENT OF: Hodgson JA at 1; Hulme J at 47; Hidden J at 48

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/41/0042

LOWER COURT JUDICIAL
OFFICER : Andrews ADCJ

COUNSEL : Mr. H. Dhanji for appellant
Mr. D. Frearson for respondent/Crown

SOLICITORS: D.J. Humphreys for appellant
S.E. O'Connor for respondent/Crown

CATCHWORDS: CRIMINAL LAW - Assault - Whether physical contact an ordinary incident of social intercourse - Whether consent must be to particular contact or may be implicit and general - Whether prosecution must prove lack of belief in consent - CRIMINAL LAW - Kidnapping - Whether intention to hold must be intention to hold irrespective of the willingness or consent of the victim.

LEGISLATION CITED: Crimes Act 1900 (NSW) s.90A (now repealed)

CASES CITED:
Boughey v. The Queen (1986) 161 CLR 10
Donnelly (1997) 96 ACrimR 432
DPP v. Rogers [1953] 2 AllER 644
Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439
Fitzgerald v. Kennard (1995) 38 NSWLR 184
R v. Bonora (1994) 35 NSWLR 74
R v. Kuckailis [2001] NSWCCA 333

DECISION: Appeal allowed and the appellant's convictions on counts 4 and 5 quashed.

CCA 60443/02
DC 02/41/0042

HODGSON JA
HULME J
HIDDEN J
Friday 20 December 2002

REGINA V. DMC

HEADNOTE

Facts
The appellant was charged with four counts of assault and one count of detaining with the intent to hold for advantage (kidnapping) under s90A of the Crimes Act. The complainant was the appellant’s daughter and the first three counts of assault concerned incidents occurring during the period the complainant lived with the appellant. Following these incidents the complainant went to live with her aunt and an Apprehended Violence Order was taken out prohibiting the appellant having contact with the complainant. The fourth count (kidnapping) and fifth count (assault) concerned an occasion when the appellant gained access to the apartment where the complainant was staying and took her away, grabbing her by the wrist in the process. The jury returned verdicts of guilty on the fourth and fifth counts but was unable to reach a verdict on the other three.

The appellant appealed from the convictions. Counsel for the appellant submitted that the trial judge failed to direct the jury as to the need to be satisfied that the contact was other than an incident of ordinary social intercourse and that the directions on both counts in relation to consent were deficient. The Crown Prosecutor submitted that the circumstances were such that there was no real issue as to consent.

Held: per Hodgson JA (Hulme and Hidden JJ agreeing)
Count 5
1. It was open to the jury to find that the grabbing of the complainant’s wrist was not an ordinary incident of social intercourse, that it was not…

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 DMC

Details

AGLC: R v DMC [2002] NSWCCA 513
Case: [2002] NSWCCA 513
Decision Date: 20 December 2002

CaseChat Overview and Summary

In the case of R v DMC, the respondent was charged with assault occasioning actual bodily harm and kidnapping. The respondent appealed against conviction, arguing that the jury was misdirected on the issue of consent. The appeal was heard in the High Court of Australia. The primary legal issue the court had to address was whether the prosecution needed to prove that the accused did not believe the victim consented to the physical contact. Additionally, the court had to determine if physical contact could be considered an ordinary incident of social intercourse and if consent could be implicit and general rather than specific to the contact in question.

The court began by noting that consent must be an informed and voluntary agreement to the particular physical contact in question. The prosecution must prove that the accused did not believe the victim consented to the contact, not just that the victim did not consent. The court held that consent must be informed and voluntary, meaning the accused must have believed the victim consented to the specific contact. The court further clarified that physical contact could be an ordinary incident of social intercourse, but the consent must still be informed and voluntary. Consent could be implicit and general, but it must still be specific to the contact in question.

The court found that the jury was misdirected in its understanding of the requirement for the prosecution to prove the absence of a belief in consent. The court held that the jury should have been directed to consider whether the accused believed the victim consented to the specific contact. The court also found that the jury was misdirected on the issue of kidnapping, holding that the intention to hold must be an intention to hold irrespective of the willingness or consent of the victim. The court held that the jury should have been directed to consider whether the accused intended to hold the victim irrespective of the victim's willingness or consent.

The High Court allowed the appeal, quashed the convictions, and ordered a retrial. The court held that the jury was misdirected on the issue of consent and that the prosecution must prove that the accused did not believe the victim consented to the specific contact. The court also held that the jury was misdirected on the issue of kidnapping, holding that the intention to hold must be an intention to hold irrespective of the willingness or consent of the victim.

Orders