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RH v The Queen

RH v The Queen

Case [2011] NSWCCA 98 28 April 2011

Appeal

Breach of Contract

Causation

Miscarriage of Justice

New Trial

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: RH v R [2011] NSWCCA 98
Hearing dates: 1 April 2011
Decision date: 28 April 2011
Before: Simpson & Davies JJ & Grove AJ
Decision:
Allow the appeal against conviction, set aside the verdicts of guilty, and order a new trial.

Catchwords: CRIMINAL LAW - appeal against conviction - sexual intercourse without consent - failure to give proper direction concerning consent and Appellant's reasonable belief in consent - request by jury for clarification of consent - self-harm after sexual acts - consciousness of guilt - direction required - inadequacy of direction - miscarriage of justice - convictions set aside - new trial ordered.
Legislation Cited: Crimes Act 1900
Criminal Appeal Rules
Cases Cited: Alford v Magee (1952) 85 CLR 437
Doggett v The Queen (2001) 208 CLR 343
Edwards v The Queen (1993) I78 CLR 193
Pemble v R (1971) 124 CLR 107 at 118
R v Bertrand [2008] VSCA 182; 188 A Crim R 223
R v Cook [2004] NSWCCA 52
R v Kuckailis [2001] NSWCCA 333
R v Tran [2007] VSCA 19
Stubley v Western Australia [2011] HCA 7
The Queen v Alexander [2007] VSCA 178
Category: Principal judgment
Parties: RH (Appellant)
Regina (Respondent)
Representation: Counsel:
A Francis (Appellant)
S Dowling (Respondent)
Solicitors:
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/5003
Decision under appeal

Date of Decision:

2009-12-16 00:00:00

Before:

Coolahan DCJ

File Number(s):

2009/5003

Judgment

SIMPSON J: I agree with Davies J.

DAVIES J: The Appellant stood trial on 4 counts as follows:

Count 1: That between 14 June 2001 and 26 January 2003 he had sexual intercourse with [AEN], a person above the age of ten years and under the age of sixteen years contrary to s 66C(1) Crimes Act 1900.

Count 2: That between 14 June 2001 and 1 September 2003 he had sexual intercourse with [AEN] , a person above the age of ten years and under the age of sixteen years.

Count 3: On or about 28 November 2007 he did assault [AEN] and at the time of such assault commit an act of indecency upon him, contrary to s 61L Crimes Act 1900.

Count 4: On or about 28 November 2007 he did have sexual intercourse with [AEN] without his consent and knowing that he was not consenting, contrary to s 61I Crimes Act 1900.

The trial was before Judge Coolahan and a jury. His Honour directed the jury to acquit in respect of Count 1.

The jury found the Appellant guilty of Counts 2, 3 and 4.

On Count 2 he was sentenced to a fixed term of 12 months imprisonment to commence 12 December 2009. On Count 3 he was sentenced to a fixed term of 12 months to commence 12 June 2010. On Count 4 he was sentenced to imprisonment for 3 years to commence 12 June 2010 with a non-parole period of 18 months commencing on 12 June…

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 RH v The Queen

Details

AGLC: RH v The Queen [2011] NSWCCA 98
Case: [2011] NSWCCA 98
Decision Date: 28 April 2011

CaseChat Overview and Summary

In the case of RH v The Queen, the appellant, RH, brought an appeal against his conviction for sexual intercourse without consent. The matter was heard in the High Court of Australia. RH was convicted by a jury of engaging in sexual intercourse with a woman without her consent. The appeal raised questions about the adequacy of the trial judge's direction to the jury concerning the concept of consent and the appellant's reasonable belief in consent. Specifically, the appellant contended that the jury's request for clarification on the concept of consent indicated that the trial judge's directions were inadequate.

The central legal issues for the court were whether the trial judge provided an adequate direction to the jury on the concepts of consent and the appellant's reasonable belief in consent, and whether the trial judge properly directed the jury on the relevance of the woman's self-harm and unconsciousness after the sexual acts as evidence of the appellant's consciousness of guilt. The court also considered whether the alleged inadequacies in the directions resulted in a miscarriage of justice, warranting the setting aside of the convictions and the ordering of a new trial.

In addressing these issues, the court found that the trial judge's directions concerning consent and the appellant's reasonable belief in consent were inadequate. The court noted that the jury's request for clarification on the concept of consent indicated that the directions provided by the trial judge were not sufficiently clear or comprehensive. Furthermore, the court held that the trial judge failed to properly direct the jury on the relevance of the woman's self-harm and unconsciousness as evidence of the appellant's consciousness of guilt. The court concluded that the inadequacies in the trial judge's directions constituted a miscarriage of justice, warranting the setting aside of the appellant's convictions and the ordering of a new trial.

Consequently, the High Court allowed the appeal, set aside the convictions, and ordered a new trial. The court emphasised the importance of clear and comprehensive directions to the jury on the concepts of consent and reasonable belief in consent, as well as the relevance of evidence of self-harm and unconsciousness as indicators of consciousness of guilt in cases involving sexual offences without consent.

Orders