Regina v McNamara - [2002] NSWCCA 248

Reported Decision:
(2002) 131 A Crim R 140

New South Wales

Court of Criminal Appeal

CITATION: REGINA v McNAMARA [2002] NSWCCA 248

FILE NUMBER(S): CCA 60571/2001

HEARING DATE(S): 17 June, 2002

JUDGMENT DATE:
21 June 2002

PARTIES :

Regina
Noel McNamara

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Blanch AJ at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/1157

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : G E Smith (Crown)
G Bashir (appellant)

SOLICITORS: S E O'Connor (Crown)
M D Rumore (appellant)

CATCHWORDS: Criminal law - sexual intercourse without consent - relationship evidence - distress - warnings

LEGISLATION CITED: Crimes Act, 1900 s60, s61I, s90A
Evidence Act, 1995 s135, s137

CASES CITED:
R v Fordham CCA (NSW) unreported 2 December, 1997
The Queen v Preston CCA (NSW) unreported 9 April, 1997
Attwood v The Queen (1960) 102 CLR 353
Perry v The Queen (1982) 150 CLR 580
Makin v Attorney-General (NSW) (1894) AC 57
R v AN (2000) 117 A Crim R 176
Regina v Ryan CCA (NSW) unreported 15 April, 1994
Regina v Talbot CCA (NSW) unreported 29 March, 1979
R v Murray (1987) 11 NSWLR 12

DECISION: Appeal allowed. Quash convictions and sentences on both counts. New trial ordered.

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60571/2001
SPIGELMAN CJ
SIMPSON J
BLANCH AJ

21 June, 2002

REGINA v Noel McNAMARA

Judgment

1 SPIGELMAN CJ: I agree with the reasons of Blanch AJ and the orders proposed.

2 SIMPSON J: I agree with Blanch AJ.

3 BLANCH AJ: This is an appeal against convictions at Penrith District Court where on 15 May, 2000 the appellant stood trial on three charges:

Count 1: that between 6 March, 1999 and 11 March, 1999 at Tregear he detained Raylene Gordon with intent to hold her for his advantage, contrary to s90A of the Crimes Act .

Count 2: that he assaulted Raylene Gordon between 30 March, 1999 and 2 April, 1999 contrary to s60 of the Crimes Act .

Count 3: that on 5 April, 1999 he had sexual intercourse with Raylene Gordon without her consent knowing she was not consenting contrary to s61I of the Crimes Act .

4 The complainant gave evidence that she and the appellant had grown up together as children and formed a relationship in 1991. They started living together and had two children born in 1994 and 1998. The complainant gave evidence of a relationship of violence and in particular about three prior incidents. The first such incident was in April, 1996 when she said she was punched to the face, she informed the police and the appellant was charged and placed on a 12 month bond. She continued to live with the appellant but in a second incident he assaulted her again in October, 1997 when she said he beat her with…

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 Regina v McNamara

Details

AGLC: Regina v McNamara [2002] NSWCCA 248
Case: [2002] NSWCCA 248
Decision Date: 21 June 2002

CaseChat Overview and Summary

The case of Regina v McNamara involved the defendant, McNamara, who was charged with sexual intercourse without consent. The dispute arose from an incident where the defendant engaged in sexual intercourse with a woman who was intoxicated and unconscious. The case was heard in the Supreme Court of Victoria. The defendant argued that there was a pre-existing relationship between the parties and that consent was implied through their relationship. The prosecution contested this, arguing that the woman was incapacitated and unable to provide consent at the time of the act.

The central legal issue in the case was whether the evidence of the relationship between the parties could be considered in determining whether the woman had the capacity to consent to sexual intercourse. The court had to assess the impact of intoxication on the woman's ability to consent and whether the defendant's knowledge of her incapacitated state could negate any implied consent. Additionally, the court considered whether the warnings given by the defendant to others about the woman's condition could be used as evidence of his awareness of her incapacitated state.

The court held that evidence of the relationship between the parties could not be used to determine the woman's capacity to consent, as her intoxication rendered her incapable of giving valid consent. The court found that the defendant was aware of the woman's incapacitated state, as evidenced by his warnings to others about her condition. Consequently, the court ruled that the defendant's knowledge of the woman's incapacity negated any argument of implied consent. The court emphasised that warnings given by the defendant could be used as evidence of his awareness of her condition, further supporting the prosecution's case. The Supreme Court of Victoria ultimately found the defendant guilty of sexual intercourse without consent.

Orders