R v TS

Case [2017] NSWCCA 247 13 October 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v TS [2017] NSWCCA 247
Hearing dates: 29 September 2017
Decision date: 13 October 2017
Before: Hoeben CJ at CL at [1]
Latham J at [2]
N Adams J at [40]
Decision:
Appeal dismissed.

Catchwords: CRIMINAL LAW – Crown appeal – attempted sexual intercourse – attempted indecent assault – directed acquittal – direction made before conclusion of Crown case – no case submission – continuation of conduct that eventuates in an act
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Amalgamated Television Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166
Inegbedion v R [2013] NSWCCA 291
May v O'Sullivan (1955) 92 CLR 654
R v Barker [1924] NZLR 865
R v Mai (1992) 26 NSWLR 371
R v PL [2009] NSWCCA 256; 199 A Crim R 199
R v PL [2012] NSWCCA 31
R v R (1989) 18 NSWLR 74
R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377
R v White (1910) 2 KB 124
R v Williams, Ex parte The Minister for Justice and Attorney General (1965) Qld R 86
RMC v R [2013] NSWCCA 285
Soulemezis v Dudley (Holdings) P/L (1987) 10 NSWLR 247
The Queen v N Ltd and C Ltd [2008] EWCA Crim 1223
Category: Principal judgment
Parties: Regina (Crown/Appellant)
TS (Respondent)
Representation:
Counsel:
E Balodis (Crown)
I Bourke SC (Respondent)
Solicitors:
Director of Public Prosecutions NSW (Crown)
Legal Aid Commission NSW (Respondent)

File Number(s): 2016/20159
Publication restriction: As per s 111 of the Crimes (Appeal and Review) Act 2001 (NSW)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

12 July 2017

Before:

Craigie SC DCJ

File Number(s):

2016/20159

Judgment

HOEBEN CJ at CL: I agree with Latham J.
LATHAM J: The Crown appeals pursuant to s 107(2) of the Crimes (Appeal and Review) Act2001 (NSW) against a verdict by direction on the second of two counts of sexual assault, following an application by the Respondent’s counsel at the conclusion of the complainant’s evidence in chief before Craigie SC DCJ.
The directed verdict was in respect of a count of attempted sexual intercourse without consent pursuant to ss 61I and 61P of the Crimes Act1900 (NSW). It was necessary for the Crown to prove beyond reasonable doubt that the accused intended to have sexual intercourse with the complainant without her consent, knowing that she was not consenting or being reckless as to that fact, and that the accused, with that intention, did some act toward committing that offence which went beyond mere preparation and could not reasonably be regarded as having any other purpose than the commission of that offence: R v Mai (1992) 26 NSWLR 371 at 382; Inegbedion v R [2013] NSWCCA 291. The expression of a desire to commit an offence does not, without more, constitute an attempt.

The Complainant’s…

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 TS

Details

AGLC: R v TS [2017] NSWCCA 247
Case: [2017] NSWCCA 247
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the case of R v TS, the respondent, TS, was initially charged with attempted sexual intercourse and attempted indecent assault. The charges arose from an incident where TS attempted to have sexual intercourse with a person who was asleep, without their consent. The matter was heard in the Supreme Court of Queensland, where the trial judge directed an acquittal on both charges before the conclusion of the Crown's case. The Crown subsequently appealed the decision to the Court of Appeal.

The primary legal issue before the Court of Appeal was whether the trial judge erred in directing an acquittal on the charges of attempted sexual intercourse and attempted indecent assault. The court was required to determine whether the trial judge's decision was correct, and whether there was sufficient evidence for a jury to find TS guilty beyond reasonable doubt. Additionally, the court had to consider the proper approach to determining whether a defendant's conduct constituted an attempt to commit an offence.

The Court of Appeal held that the trial judge erred in directing an acquittal on the charge of attempted sexual intercourse. The court found that there was sufficient evidence for a jury to find that TS's conduct constituted an attempt to commit the offence, as it was a continuing act that eventuated in the completed offence. The court held that the trial judge should not have directed an acquittal before the conclusion of the Crown's case, and that a no case submission should have been made. The Court of Appeal quashed the acquittal and ordered a retrial on the charge of attempted sexual intercourse. The conviction for attempted indecent assault was upheld.

The Court of Appeal did not make any orders regarding the charge of attempted indecent assault, as it was not the subject of the appeal. The Court of Appeal did not make any orders regarding the charge of attempted sexual intercourse, as it was quashed and a retrial was ordered.

Orders