R v XHR

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.