R v Upton - [2000] NSWCCA 305

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Upton [2000] NSWCCA 305

FILE NUMBER(S):
60737/99

HEARING DATE(S): Tuesday 8 August 2000

JUDGMENT DATE: 15/08/2000

PARTIES:
Regina v David Cameron Upton

JUDGMENT OF: Spigelman CJ Grove J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0364

LOWER COURT JUDICIAL OFFICER: Sides DCJ

COUNSEL:
T.L. Buddin SC (Crown)
W.C. Terracini SC with B.J. Rigg (Applicant)

SOLICITORS:
S.E. O'Connor (Crown)

CATCHWORDS:
Criminal Law and Procedure
Sexual Intercourse Without Consent
Direction to Jury Concerning Effect of Stupefying Drug
Acquittal on Count of Administering Drug
Inconsistency of Verdicts
Circumstantial Case
Direction Regarding Credibility of Complainant
Challenge to Adequacy of Charge to Jury

LEGISLATION CITED:

DECISION:
Appeal Dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60737/99

SPIGELMAN CJ
GROVE J
KIRBY J

Tuesday 15 August 2000

REGINA v DAVID CAMERON UPTON

JUDGMENT

1 SPIGELMAN CJ: I agree with Grove J.

2 GROVE J : This is an appeal against conviction following a trial before Sides DCJ and a jury in Sydney District Court. In the event that the appeal fails, leave to appeal against severity of sentence is sought.

3 The appellant was arraigned upon an indictment containing two counts, the first charging that between 5 and 6 September 1997 at Thredbo Village he had sexual intercourse with a complainant without her consent and knowing that she was not consenting and, second between the same dates unlawfully causing stupefying drug to be taken by that complainant with intent to enable him to commit the offence charged in the first count.

4 The jury returned a verdict of guilty on the first count and not guilty on the second.

5 The complainant was a primary school teacher aged twenty six and of Austrian nationality. She arrived in Australia at about 7 am on 3 September and was met by the appellant at the airport. Through a family friend arrangements had been made for her to be accommodated at the appellant’s home whilst in Sydney. Upon arrival at the appellant’s home at Oatley he showed the complainant to her room and around the house and told her that he usually had a spa at about this time of the day and they went outside to where there was an installation which the complainant described as a “whirlpool”. The complainant donned a swimming costume and they made use of the facility.

6 The appellant raised the possibility of the complainant accompanying him on a skiing trip to Thredbo on the following day. She agreed to this as she was a keen skier.

7 Thereafter on that day the complainant travelled by herself to look at some of the sights of the city. She arrived back at the house at about 5 pm. She was introduced to a female japanese student who was also residing at the premises and she presented a bottle of Schnapps which her mother had sent as a gift.

8 There were discussions about the proposed trip to the snowfields. The…

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 Upton

Details

AGLC: R v Upton [2000] NSWCCA 305
Case: [2000] NSWCCA 305
Decision Date: 15 August 2000

CaseChat Overview and Summary

In the case of R v Upton, the respondent was charged with sexual intercourse without consent and administering a stupefying drug with intent to commit an indictable offence. The case came before the court of criminal appeal, which was tasked with reviewing the decision of the trial judge to acquit the respondent on the count of administering the drug and the subsequent inconsistency of the jury's verdicts. The appellant argued that the trial judge's directions to the jury were inadequate and misconceived, particularly regarding the effect of the stupefying drug and the credibility of the complainant.

The court was required to determine whether the trial judge's directions to the jury were appropriate and whether they correctly addressed the legal principles relevant to the charges. Specifically, the court had to assess whether the trial judge's directions adequately informed the jury about the circumstances in which the administration of a stupefying drug could amount to a separate offence and whether the judge properly guided the jury on the credibility of the complainant in a circumstantial case. Additionally, the court needed to consider whether the inconsistency in the jury's verdicts was a ground for appeal and whether the trial judge's charge to the jury was sufficient.

The court found that the trial judge's directions to the jury were generally adequate, as they correctly informed the jury about the legal principles relevant to the charges. The court noted that while the directions could have been more explicit regarding the administration of the drug, they were not so misconceived as to result in a miscarriage of justice. Furthermore, the court held that the inconsistency of the verdicts did not necessarily indicate a flaw in the trial process, as the jury's decision to acquit on the charge of administering the drug could be reconciled with their finding of guilt on the charge of sexual intercourse without consent. The court also concluded that the trial judge's charge to the jury was sufficient, as it correctly outlined the elements of the offences and the standard of proof required for a conviction.

The appeal was dismissed, and the convictions for sexual intercourse without consent were upheld. The court found that the trial judge's directions and charge to the jury were adequate, and the inconsistency of the verdicts did not warrant interference. The court did not consider it necessary to order a retrial or direct a new trial.

Orders