R v Knell - [2023] NSWDC 81

District Court

New South Wales

Medium Neutral Citation: R v Knell [2023] NSWDC 81
Hearing dates: 23 March 2023
Date of orders: 23 March 2023
Decision date: 23 March 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Jury direction on term ‘Cause to take”: See [28] – [37]
Application for verdict by direction – refused: See [43]

Catchwords:
CRIME – Attempt to cause a person to take an intoxicating substance with intent - sexual touching
CRIMINAL PROCEDURE — Trial — Directions to jury “cause to take” - s 38(b) Crimes Act 1900 – does “cause to take require proof of command or direction - verdict by direction application - application refused
WORDS AND PHRASES - Causes another person to take an intoxicating substance

Legislation Cited:
Crimes Act 1900, Section 38(b)
Crimes Amendment, (Drink and Food Spiking) Act 2008

Cases Cited:
Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31
O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220; [1957 HCA 8
R v Kennedy (No.2) [2008] 1 AC 269,
R vRiley [2011] NSWCCA 238
R vWilhelm [2010] NSWSC 334
The Daniels Corporation International Pty v ACCC [2002] HCA 49

Texts Cited:
Criminal Practice and Procedure NSW, LexisNexis Butterworths
3rd ed. of Halsbury's Laws of England

Category: Procedural rulings
Parties: Jakob Peter Knell (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr R Steward (for the accused)
Solicitors:
McAneny Lawyers (for the accused)
Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)

File Number(s): 2021/00309848
Publication restriction: The name of the complainant is not to be published, nor is any other material that could lead to the identification of that/those complainant(s): s.578A Crimes Act 1900.
Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT

Introduction

Earlier this week Jacob Knell was indicted and said he was not guilty of two counts:

Count 1 - attempt to cause a person to take an intoxicating substance with intent to commit an indictable offence of sexual touching, without consent, knowing the person was not consenting: s 38(b), s 344A(1) Crimes Act 1900.

Count 2 - sexual touching without consent, knowing the person was not consenting: s 38(b) Crimes Act 1900.

A jury was empanelled. The Prosecution case is about to close

I have been asked to rule on the direction I propose to give the jury in relation to the term “cause to take” in Count 1. This ruling will then impact upon the course of the trial, as a no-case submission in relation to Count 1 has been foreshadowed by the defence. The jury are waiting. They have been very patient, as today has been disrupted, including by the discharge of a sick juror: see separate judgment. I will be as succinct as I possibly can. I have added the references to authorities, quotations, and extracts from the transcript referred to when this judgment was taken out.
At the start of the trial, as…

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 Knell

Details

AGLC: R v Knell [2023] NSWDC 81
Case: [2023] NSWDC 81
Decision Date: 23 March 2023

CaseChat Overview and Summary

In the case of R v Knell, the accused faced charges related to the attempted administration of an intoxicating substance with the intent of facilitating a sexual touching. The matter was brought before the court for adjudication on several legal issues, particularly focusing on the interpretation of statutory language and the procedural aspects of the trial. The court was required to determine whether the phrase "cause to take" in the context of the Crimes Act 1900 necessitated proof of a command or direction, and whether a verdict by direction could be appropriately applied under the circumstances.

The court meticulously examined the statutory language in question, specifically s 38(b) of the Crimes Act 1900, and the interpretation of "cause to take" in criminal contexts. It was critical to ascertain whether the term implied a need for direct commands or if it could encompass broader actions that lead to the ingestion of the substance. Furthermore, the court considered the procedural implications of directing a verdict, evaluating whether the evidence presented was such that no reasonable jury could arrive at a different conclusion.

Upon thorough analysis, the court concluded that the term "cause to take" does not strictly require proof of a command or direction, but rather encompasses actions that result in the person taking the substance. The court held that a verdict by direction was not appropriate in this instance as there remained sufficient room for reasonable jurors to differ in their interpretation of the evidence. The court's reasoning was grounded in the necessity to allow the jury to exercise its judgment based on the presented facts and the applicable legal standards.

The final orders of the court included a detailed direction to the jury on the interpretation of the term "cause to take" and a refusal of the application for a verdict by direction, as outlined in the judgment from [28] to [43]. This decision underscored the importance of judicial interpretation in criminal law and the preservation of the jury's role in determining guilt or innocence.

Orders

Orders of the court

Jury direction on term ‘Cause to take”: See [28] – [37]

Application for verdict by direction – refused: See [43]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Knell [2023] NSWDC 81
Hearing dates:	23 March 2023
Date of orders:	23 March 2023
Decision date:	23 March 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Jury direction on term ‘Cause to take”: See [28] – [37] Application for verdict by direction – refused: See [43]
Catchwords:	CRIME – Attempt to cause a person to take an intoxicating substance with intent - sexual touching CRIMINAL PROCEDURE — Trial — Directions to jury “cause to take” - s 38(b) Crimes Act 1900 – does “cause to take require proof of command or direction - verdict by direction application - application refused WORDS AND PHRASES - Causes another person to take an intoxicating substance
Legislation Cited:	Crimes Act 1900, Section 38(b) Crimes Amendment, (Drink and Food Spiking) Act 2008
Cases Cited:	Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 O'Sullivan v Truth & Sportsman Ltd (1957) 96 CLR 220; [1957 HCA 8 R v Kennedy (No.2) [2008] 1 AC 269, R vRiley [2011] NSWCCA 238 R vWilhelm [2010] NSWSC 334 The Daniels Corporation International Pty v ACCC [2002] HCA 49
Texts Cited:	Criminal Practice and Procedure NSW, LexisNexis Butterworths 3rd ed. of Halsbury's Laws of England
Category:	Procedural rulings
Parties:	Jakob Peter Knell (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr R Steward (for the accused) Solicitors: McAneny Lawyers (for the accused) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions)
File Number(s):	2021/00309848
Publication restriction:	The name of the complainant is not to be published, nor is any other material that could lead to the identification of that/those complainant(s): s.578A Crimes Act 1900. Identifying information has been removed from this version of the judgment to comply with the statute.