Stevenson v The Queen; Waters v The Queen

[2020] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Stevenson v R; Waters v R [2020] NSWCCA 58
Hearing dates:	25 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Before:	Harrison J at [1] Hamill J at [2] Wilson J at [30]
Decision:	Kurt Stevenson: (1) Extend time for the filing of the notice of appeal. (2) Grant leave to appeal in relation to ground 4. (3) Allow the appeal. (4) Set aside the convictions on counts 3A, 4A and 6A. (5) Remit the proceedings to the District Court for re-trial at the discretion of the Director of Public Prosecutions. (6) Affirm the convictions on counts 1A, 2A and 5A. (7) Quash the aggregate sentence imposed by Judge Norton SC and remit the proceedings to the District Court for re-sentence on counts 1A, 2A and 5A. (8) Bail is refused. (9) The case is listed for mention before the District Court in Sydney on 1 May 2020.  Andrew Waters: (1) Extend time for the filing of the notice of appeal. (2) Grant leave to appeal in relation to ground 4. (3) Allow the appeal. (4) Set aside the convictions on counts 2A, 3A, 4A and 5A. (5) Remit the proceedings to the District Court for re-trial at the discretion of the Director of Public Prosecutions. (6) Affirm the convictions on count 6A. (7) Quash the aggregate sentence imposed by Judge Norton SC and remit the proceedings to the District Court for re-sentence on count 6A. (8) Bail is refused. (9) The case is listed for mention before the District Court in Sydney on 1 May 2020.
Catchwords:	CRIMINAL LAW – sexual offences alleged against multiple accused – confusion as to basis of liability – principal in the second degree – joint criminal enterprise – where earlier decision of the Court quashed a co-accused’s conviction – no challenge to earlier decision – concession by Director of Public Prosecutions – multiple offences – appeal upheld in relation to convictions on some counts – convictions on other counts confirmed – aggregate sentence quashed – matter remitted to District Court for re-sentencing
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Carlyle-Watson v R [2019] NSWCCA 226 (restricted)
Category:	Principal judgment
Parties:	Andrew Waters (Applicant) Kurt Stevenson (Applicant) Regina (Respondent)
Representation:	Counsel: S Kluss (Waters) S Fraser (Stevenson) C Curtis (Regina)   Solicitors: Ross Hill & Associates Solicitors (Waters) McGirr Lawyers (Stevenson) Director of Public Prosecutions (Regina)
File Number(s):	2015/300972; 2015/301034
Publication restriction:	Non-publication orders over identification of the complainant pursuant to s 578A of the Crimes Act 1900 (NSW) and name of ML pursuant to s 15A Children (Criminal Proceedings) Act 1987.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 January 2018 Before: Norton SC DCJ File Number(s): 2015/300972; 2015/301034

Judgment

1. HARRISON J: I agree with Hamill J.

2. HAMILL J: Kurt Stevenson and Andrew Waters seek leave to appeal against their convictions in relation to a number of offences of aggravated sexual intercourse without consent pursuant to s 61J(1) of the Crimes Act 1900 (NSW) and one count of attempting to commit that crime. The convictions followed a trial in the District Court which took place in July and August 2017. The allegations against each of the appellants arose out of a sordid incident which occurred on 22 and 23 May 2015. The allegation was that the appellants were part of a group of at least four men who had sexual intercourse with an intellectually disabled 16 year old when she was not consenting. The circumstance of aggravation in each case was that each accused acted in the company of the other.

3. A co-accused who stood trial with the appellants was a man called Tristan Carlyle-Watson. He was convicted of one count of aggravated sexual intercourse without consent. That was count 6A on the indictment and involved an allegation that Mr Waters had sexual intercourse while Mr Stevenson and Mr Carlyle-Watson were present.

4. Mr Carlyle-Watson appealed to this Court and his appeal was upheld by the Court differently constituted (Payne JA, Garling and Wright JJ): Carlyle-Watson v R [2019] NSWCCA 226. (This judgment is currently restricted.) The grounds of appeal relied on by the present appellants echo the grounds upon which Mr Carlyle-Watson's appeal was upheld. The Director of Public Prosecutions concedes that at least one of those grounds should be upheld and that a number of the convictions should be quashed. The convictions that the Director conceded should be quashed, were those where the particular appellant was not the person who committed the act constituting sexual intercourse.

5. At the hearing of the appeal, the Court indicated its unanimous view that it was inclined to accept the Director’s concession that those convictions should be quashed. Counsel for Mr Stevenson indicated that the conviction appeal with respect to the other counts, the details of which will become clear, was not pressed. Counsel for Mr Waters made a similar concession. Further, counsel for Mr Waters did not press two additional grounds that were unrelated to the matters dealt with by the Court in Carlyle-Watson v R.

6. The parties provided the Court with draft orders amenable to all of the parties to the appeal. Those orders, modified to some extent, are appropriate and should be made.

7. In such circumstances, I will provide very brief reasons explaining why the orders agreed upon by the parties should be made. It is necessary to set out the facts of the case very briefly and to explain the basis upon which each of the appellants was said to be criminally responsible.

8. There were initially seven counts on the indictment. All of the counts, except count 7, alleged the reckless infliction of actual bodily harm. At the conclusion of the prosecution case each of the accused sought a directed verdict of not guilty on the basis that the element of actual bodily harm was not established. The trial judge accepted that there was no evidence to support the element of actual bodily harm and directed the jury to return a verdict of not guilty on the counts as originally charged. An amended indictment, deleting the allegation of the infliction of actual bodily harm, was presented and the trial proceeded. Each of the accused men was found guilty of the particular offences with which they were charged in counts 1A through to 6B. Count 1A applied only to Mr Stevenson. Counts 2A, 3A, 4A, 5A and 6A each charged two or more of the accused with an offence of aggravated sexual intercourse without consent.

9. In relation to each count, one of the accused was alleged to be the principal in the first degree; that is, the person who committed the act of sexual intercourse upon the complainant. The other accused nominated in those counts was said to be liable because of their presence and involvement but not by virtue of committing the act of intercourse themselves. I will call that accused “the accessory” although that term is problematic for reasons that will become clear. The problem at the heart of the trial, and the reason that some of the convictions cannot stand, is that the legal basis upon which the accessory in each case was criminally responsible was never made clear to the jury. As a result, there was at least one misdirection as to what the prosecution needed to prove to sustain a finding of guilt. At times, it seemed that the prosecution was running the case on the basis of a joint criminal enterprise. At other times, including at the end of the trial, the basis of liability seemed to be derivative or accessorial, that is that the accused was alleged to be a principal in the second degree (or, as it is sometimes described, an accessory at the fact or accessory present at the scene). The consequence was that the jury was not properly directed as to the state of knowledge required to be established in relation to each count where an accused was charged as an accessory.

10. The following table sets out the counts, identifies the principal in the first degree and the act alleged against that accused, and identifies the accused charged as an accessory (or as part of a joint criminal enterprise).

Count	Principal in the first degree and act of sexual intercourse alleged	Accused also present and charged
1A	Stevenson Penile/vaginal intercourse	Nil
2A	Stevenson Cunnilingus	Waters
3A	ML Digital penetration of the vagina	Stevenson Waters
4A	ML Attempted fellatio	Stevenson Waters
5A	Stevenson Penile/vaginal intercourse	Waters
6A	Waters Penile/vaginal intercourse	Stevenson Carlyle-Watson
7	Carlyle-Watson - Verdict of not guilty

11. Mr Stevenson raised the following grounds of appeal:

1. A miscarriage of justice was occasioned by:

i. The failure throughout the trial to precisely identify the basis for the Applicant's liability; and/or

ii. The conflation throughout the trial of the meaning of 'in company' with 'common purpose' and/or liability as a principal in the 2nd degree.

2. The trial Judge erred in her directions to the jury in respect of Counts 3A, 4A and 6A in that the trial Judge failed to direct the jury in clear terms (or at all) as to whether the Crown case alleged that the Applicant was one of joint criminal enterprise, or, liability as a principal in the 2nd degree.

3. In so far as the case was based on joint criminal enterprise the trial Judge erred in her directions to the jury in respect of counts 3A, 4A and 6A by failing to direct in clear terms (or at all):

i. of the requirement that there be an agreement;

ii. of the requirement that the Crown prove that the Applicant intentionally (not recklessly) entered into an agreement that the offence be committed;

iii. that neither recklessness as to the consent of the complainant nor a lack of reasonable grounds for believing she was consenting were sufficient proof of the offence(s).

4. In so far as the case for counts 3 A. 4A and 6A was based on liability as a principal in the 2nd degree, the trial Judge erred in her directions to the jury by failing to direct in clear terms (or at all) of the requirement that in order to prove that the Applicant 'knew all the circumstances necessary to show the crime was committed by the alleged principal' the Crown was required to prove that the applicant had actual knowledge that the complainant did not consent to the sexual intercourse.

12. Mr Waters raised the following grounds of appeal (spelling of “principle” as per the original document):

1. A miscarriage of justice was occasioned by:

a.   the failure throughout the appellant's trial to precisely, for the jury, the basis of the appellant's liability as an accessory present at the scene (principle in the second degree) or as being a party to a joint criminal enterprise (principle in the first degree)

and /or

b.   the conflation throughout the appellant's trial of the meaning of "in company" with "common purpose" and/or a liability as an accessory present at the scene (principle in the second degree).

2.   The trial judge erred in her directions as to the elements of counts 2A, 3 A, 4A, 5A as they applied to the appellant, by providing written directions the same as that for the alleged principle offender. In particular her Honour failed to direct in clear terms (or at all) whether the Crown case was at the appellant was alleged to be party to a joint criminal enterprise to commit a crime, or was an accessory (principle in the 2nd degree) to a crime committed by another

3.   In so far as the Crown case was based on joint criminal enterprise her Honour in her directions to the elements of count 2A, 3A, 4A, 5A as they applied to the appellant, by providing written and oral directions the same as that for the alleged principle offender. In particular her honour failed to direct in clear terms (or at all);

a.   The requirement for agreement,

b.   The requirement for the Crown to prove beyond reasonable doubt that the appellant intentionally (not recklessly) entered into an agreement that the offences contrary to s 61J be committed and/or,

c.    That it was sufficient that the offence the subject of the agreement might be committed by a person who was either reckless as to the consent of the complainant or did not have reasonable grounds to believe that complaining was consenting.

4.   In so far is the Crown case was based on liability as an accessory (principle in the second degree ) her Honour erred in her directions as to the elements of count 2A, 3A, 4A, 5A as they apply to the appellant, by failing to explain that the requirement that the crown prove beyond reasonable doubt that the appellant knew 'all the circumstances necessary to show the crime was committed by the alleged principle' required proof beyond reasonable doubt of his actual knowledge that the complainant did not consent to the sexual intercourse, an essential element of the alleged principles crime.

5.   In relation to count 6A, the crown's address included an invitation to reverse the onus of proof with respect to the knowledge of the appellant that the complainant was not consenting.

6.   Her Honours directions in relation to count 6A as to the knowledge of the appellant erred in that they did not deal with the issues raised by the crown's address and confused the directions as to recklessness.

13. It will be seen that, subject to identification of the counts upon which the individual appellant was charged as an accessory, grounds 1 to 4 are the same in each appeal. As already indicated, counsel for Mr Waters did not press grounds 5 and 6.

14. In written submissions and at the hearing of the appeal, the Director conceded that ground 4 (in each appeal) was established. This was based on an acceptance of the correctness of the decision of the Court in Carlyle-Watson v R. In accordance with that concession, the Director submitted that the convictions of Mr Stevenson on counts 3A, 4A and 6A should be quashed. The Director also conceded that the convictions of Mr Waters on counts 3A, 4A and 5A should be quashed. The Director did not accept that grounds 1, 2 and 3 in each appeal were established.

15. I accept the concession that the identified convictions should be quashed. In view of the joint position of the parties, the absence of any challenge to the decision in the Carlyle-Watson v R, and the agreed orders it is unnecessary to provide extensive reasons. The reader should be aware of the judgment of Payne JA in Carlyle-Watson v R, a judgment with which Garling and Wright JJ agreed. That decision sets out the course of the trial in some detail. It also reproduces the kind of directions that give rise to the grounds of appeal, and the Director’s concession, in the present appeals.

16. Payne JA accepted a submission by Mr Carlyle-Watson that the trial was:

“a jumble from the very beginning right through until the very end and nobody really seemed to apply their mind to the precision of the basis of liability that seemed to have been complicated by … the aggravating circumstance of in company”: Carlyle-Watson v R at [57].

17. The prosecution case was largely proven by a video tape taken on a Go Pro device operated by one of the offenders. It depicted the victim and the accused over a period of around 17 minutes. The victim herself had little or no memory of the events. Expert evidence was called as to her intellectual disability. A number of people present near the scene gave evidence along with a number of police officers involved in the investigation. It is unnecessary to go into further detail of the evidence called at the trial.

18. In relation to counts 2A – 6A the prosecution case was that one or other of the accused was the principal offender and either one or two others were guilty by virtue of their presence in the room where the outrages took place. The problem was that the basis of the liability of the accessory or accessories in each case was not properly or consistently articulated. In a nut-shell:

• The Prosecutor’s opening was unclear as to the basis upon which it was said that the accessories were guilty of each count. The language employed was generally consistent with the proposition that the case was being put on the basis that each offender was engaged in a joint criminal enterprise to have sexual intercourse without the complainant’s consent, knowing that she was not consenting and that this was done in company.

• The Prosecutor’s closing address was also unclear as to the basis of liability but by then it appeared that the case was being put on the basis of derivative or accessorial liability. That is, the accused who did not commit the act of intercourse was liable as an accessory present at the scene aiding and abetting the commission of the offence, and thus a principal in the second degree.

• Neither the written directions nor the summing up provided clarity as to the basis of liability and, in particular, the jury was not clearly or correctly directed as to the state of knowledge required to be establish that the particular accused could be found guilty as principal in the second degree.

19. For those reasons, ground 4 in each case is established and the Director’s concession is to be accepted. I would be inclined to accept that grounds 1, 2 and 3 are also established. However, it is unnecessary to reach any final conclusion in relation to those grounds and it would be procedurally unfair to the Director to determine them in the circumstances where counsel was not given the opportunity to make further oral submissions once the parties were aware that the concession in relation to ground 4 would be accepted. The most convenient approach is not to grant leave to argue those grounds given that they involve matters that were not ventilated in the trial proceedings: Criminal Appeal Rules, rule 4.

20. In the circumstances where the jury was erroneously directed in respect of the elements of the offence, there was no suggestion that the proviso should apply. In other words, the Director did not submit that no substantial miscarriage of justice actually occurred.

21. For reasons which are unnecessary to explore, but which were explained in affidavit evidence, the appeals were brought well out of time. The prosecution does not oppose the extension of time and time will be extended.

22. It is also the case that rule 4 of the Criminal Appeal Rules applies to the fourth ground of appeal in each case. No objection was taken at trial to the manner in which the Prosecutor presented the case and there was no application for re-direction at the conclusion of the summing up. Nor was any complaint made about the written directions. Again, the Director did not oppose the grant of leave and it cannot be said that the appellants did not lose a chance of acquittal reasonably open to them. Accordingly leave under rule 4 will be granted.

23. The result is that the convictions of Mr Stevenson in respect of counts 3A, 4A and 6A cannot stand. Similarly, the convictions of Mr Waters in relation to counts 2A, 3A, 4A and 5A must be set aside.

24. Initially, each appellant contended that the errors in the trial were such that they may also impact upon those counts in which they were the principal in the first degree; that is, counts 1A, 2A and 5A in Mr Stevenson’s case and count 6A in Mr Waters case. The Director submitted in writing that the errors identified in the trial did not in any way impact upon the verdicts entered where the offender was the principal in the first degree. This submission is correct. It is clear that the jury accepted that each committed the act in question, that they did so knowing that the complainant did not consent (or being reckless as to consent), and that they were in company at the time of the offences. The erroneous direction and confusion around the basis of liability of the accessories did not impact on those offences where the appellant was alleged to be the person who committed the act of intercourse. At the hearing of the appeal, both appellants withdrew the submission that the counts upon which they were convicted as principals in the first degree should also be quashed. The convictions on those counts should be affirmed.

19. The sentencing Judge imposed aggregate sentences on each of the appellants. As was required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour indicated the sentences that would have been imposed in respect of each count had she not imposed an aggregate sentence. Now that the convictions in relation to one or more of the counts have been quashed, the aggregate sentence cannot stand. The parties agreed that the best approach was to quash the aggregate sentence and remit the case for determination in the District Court. That may occur after a re-trial if the Director decides to put the appellants on trial again for those offences where in the convictions have been quashed. If the Director orders no further proceedings, the sentencing can then occur.

20. Neither appellant sought bail pending any re-trial or re-sentence. The indicative sentences relating to the counts upon which the convictions will be affirmed are of many years duration and those sentences will not expire before any re-trial or a decision to discontinue is made. Accordingly, bail will be refused and the matter remitted to the District Court on the next convenient date.

21. For those reasons, I would make the following orders in the appeal of Kurt Stevenson:

1. Extend time for the filing of the notice of appeal.

2. Grant leave to appeal in relation to ground 4.

3. Allow the appeal.

4. Set aside the convictions on counts 3A, 4A and 6A.

5. Remit the proceedings to the District Court for re-trial at the discretion of the Director of Public Prosecutions.

6. Affirm the convictions on counts 1A, 2A and 5A.

7. Quash the aggregate sentence imposed by Judge Norton SC and remit the proceedings to the District Court for re-sentence on counts 1A, 2A and 5A.

8. Bail is refused.

9. The case is listed for mention before the District Court in Sydney on 1 May 2020.

28. For the same reasons, I would make the following orders in the appeal of Andrew Waters:

1. Extend time for the filing of the notice of appeal.

2. Grant leave to appeal in relation to ground 4.

3. Allow the appeal.

4. Set aside the convictions on counts 2A, 3A, 4A and 5A.

5. Remit the proceedings to the District Court for re-trial at the discretion of the Director of Public Prosecutions.

6. Affirm the convictions on count 6A.

7. Quash the aggregate sentence imposed by Judge Norton SC and remit the proceedings to the District Court for re-sentence on count 6A.

8. Bail is refused.

9. The case is listed for mention before the District Court in Sydney on 1 May 2020.

29. The judgment will be restricted until conclusion of the proceedings in the District Court.

30. WILSON J: I agree with Hamill J.

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Amendments

03 May 2021 - Change to publication restriction. The judgment can now be published on Caselaw, subject to certain non-publication orders.

Decision last updated: 03 May 2021