R v XHR

Case [2012] NSWCCA 247 23 November 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Regina v XHR [2012] NSWCCA 247
Hearing dates: 26 July 2012
Decision date: 23 November 2012
Before: Beazley JA at [1];
Hall J at [106];
SG Campbell J at [107]
Decision:
(1) Verdict of acquittal quashed;
(2) Remit the matter to the District Court for trial.

Catchwords:
CRIMINAL LAW - Crown appeal against directed acquittal - Grounds of appeal involved questions of law alone - Crimes (Appeal and Review) Act 2001, s 107.

CRIMINAL LAW - Sexual assault offence - Requisite proof of knowledge of lack of consent - Circumstantial evidence relied upon by Crown - Trial judge erred in determining that the Crown was required to establish communication of lack of consent prior to acts of intercourse occurring - Trial judge's failure to have regard to requirements of s 61HA(3)(d) - Trial judge erred by having regard to statutory provisions concerning the vitiation of apparent consent - Findings involving questions of law alone - Crimes Act 1900, ss 61HA, 61I.

CRIMINAL LAW - No case to answer application - Trial judge is to determine whether there is evidence in respect of every element of the offence - Complainant's evidence could sustain verdict of guilty - Trial judge erred in prohibiting the Crown from relying upon the accused's answers in the ERISP in support of the circumstantial case.
WORDS AND PHRASES - "Question of law alone"
Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes Act 1900
Evidence Act 1995
Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
Doney v R [1990] HCA 51; 171 CLR 207
JMR (1991) 57 A Crim R 39
M v R [1994] HCA 63; 181 CLR 487
Mule v R [2005] HCA 49; (2005) 221 ALR 85
R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452
R v JS [2007] NSWCCA 272; 175 A Crim R 108
R v LK [2010] HCA 17; 241 CLR 177
R v PL [2009] NSWCCA 256; 199 A Crim R 199
R v Porteous [2003] NSWCCA 18
R v R (1989) 18 NSWLR 74
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Salmond v R [2010] NSWCCA 141
Williams v R [1986] HCA 88; 161 CLR 278
Category: Principal judgment
Parties: Regina (Appellant)
XHR (Respondent)
Representation: Counsel:
L Babb SC; N Gouda (Appellant)
P Strickland SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Lawside Lawyers (Respondent)

File Number(s): 2011/144802
Publication restriction: No
Decision under appeal

Date of Decision:

2011-12-08 00:00:00

Before:

Keleman DCJ

File Number(s):

2011/144802

Judgment

BEAZLEY JA: This is an appeal by the Director of Public Prosecutions (New South Wales) (the DPP) against a directed verdict of acquittal ordered by Keleman DCJ pursuant to the Crimes (Appeal and Review) Act 2001, s 107. The DPP, on the appeal, seeks an order quashing the acquittal and an order that there be a new trial.

It should…

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 XHR

Details

AGLC: R v XHR [2012] NSWCCA 247
Case: [2012] NSWCCA 247
Decision Date: 23 November 2012

CaseChat Overview and Summary

In the case of R v XHR, the Crown sought to appeal a decision by a trial judge who had directed an acquittal on charges of sexual assault. The trial judge had determined that the Crown had failed to establish the requisite knowledge of lack of consent by the accused, and that there was insufficient evidence to support a conviction. The case before the court was to determine whether the trial judge had erred in his assessment of the evidence and the applicable legal standards.

The central legal issues were whether the trial judge had misapplied the statutory requirements for establishing the offence of sexual assault without direct evidence of communication of lack of consent, and whether the trial judge had correctly evaluated the admissibility of the accused's answers in the Extended Record of Interview for the purposes of supporting a circumstantial case. The Crown argued that the trial judge had erred in requiring the Crown to establish communication of lack of consent prior to the acts of intercourse, and in excluding the accused's statements from consideration.

The court found that the trial judge had indeed erred in his interpretation of the statutory provisions. The court held that the trial judge had not correctly applied section 61HA(3)(d) of the Crimes Act 1900, which pertains to the requisite knowledge of lack of consent, by imposing a requirement for direct communication of such lack of consent prior to the acts of intercourse. The court also determined that the trial judge had erred in excluding the accused's answers during the ERISP from consideration, as they could support a circumstantial case. The findings involved questions of law alone, and thus fell within the scope of appeal under the Crimes (Appeal and Review) Act 2001.

The appeal was allowed, and the matter was remitted to the trial court for a new trial. The court did not directly order a conviction but rather found that the trial judge's errors warranted a fresh assessment of the evidence by a properly instructed trial judge.

Orders