Willcocks v The Queen

Case [2021] NTCCA 6

CITATION:Willcocks v The Queen [2021] NTCCA 6

PARTIES:WILLCOCKS, Kevin Glenn

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 8 of 2019 (21728562)

DELIVERED:  10 September 2021

HEARING DATES:  23 October 2020

JUDGMENT OF:  Grant CJ, Kelly and Blokland JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict

Applicant found guilty of sexual intercourse without consent – Whether verdict unreasonable and not supported by evidence at trial – Evidence identified by applicant did not lead to a satisfaction that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt –– Appeal on this ground dismissed.

Criminal Code 1983, s 43AB, s 43AE, s 43AH, s 43AI s 43AJ,s 43AK, s 192

GAX v The Queen (2017) 344 ALR 489, Libke v The Queen (2017) 230 CLR 559, Lynch v The Queen [2020] NTCCA 6, M v The Queen (1994) 181 CLR 487, Pell v The Queen [2020] HCA 12, SKA v The Queen (2011) 243 CLR 400, referred to.

CRIME – Appeals – Appeal against conviction – Miscarriage of justice

Whether trial judge erred by not putting mistaken belief to the jury – In order to have operation mistaken belief must negate relevant fault element – A state of satisfaction on the part of the jury that either knowledge or recklessness was satisfied would obviate any possibility of a mistaken belief – It was unnecessary to direct the jury on the issue of mistake in this case – Appeal on this ground dismissed.

Criminal Code 1983, s 43AW

Bahar & Ors v The Queen (2011) 45 WALR 100, Garcia v The Queen [2016] QCA 174, R v Donaldson & Poumako (2009) 103 SASR 309, referred to.

REPRESENTATION:

Counsel:

Applicant:T Game SC with M Thomas

Respondent:  WJ Karczewski QC (Director of Public Prosecutions) with S Geary

Solicitors:

Applicant:Peter McQueen

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  26

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Willcocks v The Queen [2021] NTCCA 6

CA 8 of 2019 (21728562)

BETWEEN:

KEVIN GLENN WILLCOCKS

Applicant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, KELLY and BLOKLAND JJ

REASONS FOR JUDGMENT

(Delivered 10 September 2021)

THE COURT:

  1. Following a trial by jury the applicant was found guilty of one count of sexual intercourse without consent contrary to s 192(3) of the Criminal Code 1983 (NT).  The applicant has brought an application for an extension of time within which to make an application for leave to appeal against conviction.  The proposed grounds of appeal are that:

    (a)the conviction was unreasonable and cannot be supported having regard to the evidence; and

    (b)that the trial judge erred in failing to put the question of ‘mistaken belief’ to the jury.

    Background

  2. Leaving aside the question of the applicant’s knowledge or belief,…

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Willcocks v The Queen [2021] NTCCA 6
Case
[2021] NTCCA 6
Decision Date

CaseChat Overview and Summary

In *Willcocks v The Queen*, the applicant, who had been found guilty by a jury of sexual intercourse without consent contrary to s 192(3) of the *Criminal Code 1983* (NT), sought an extension of time to appeal his conviction. The appeal was heard by Grant CJ, Kelly and Blokland JJ.

The legal issues before the Court of Criminal Appeal were whether the jury's verdict was unreasonable and unsupported by the evidence, and whether the trial judge erred by failing to direct the jury on the issue of a mistaken belief.

The Court dismissed the ground of appeal concerning the unreasonableness of the verdict. It found that the evidence identified by the applicant did not establish that a jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant's guilt. The Court noted that while the complainant had engaged in provocative behaviour and consumed alcohol, her evidence indicated she had explicitly warned the guests against touching her genitalia and moving onto the performance rug. The Court did not address the second ground of appeal in the provided text.

Orders

Orders of the court

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Background

Background to the litigation

Following a trial by jury the applicant was found guilty of one count of sexual intercourse without consent contrary to s 192(3) of the Criminal Code 1983 (NT). The applicant has brought an application for an extension of time within which to make an application for leave to appeal against conviction. The proposed grounds of appeal are that:(a)the conviction was unreasonable and cannot be supported having regard to the evidence; and(b)that the trial judge erred in failing to put the question of ‘mistaken belief’ to the jury.Background Leaving aside the question of the applicant’s knowledge or belief, there is no challenge to the facts as determined by the trial Judge in sentencing the applicant. So far as is relevant for these purposes, they may be summarised as follows. At some time prior to 10 June 2017, arrangements were made for a ‘buck’s party’ to be held on that day. As part of the arrangements, the host organised for a bus to take the guests on a ‘pub crawl’, and hired the complainant to act as a topless waitress on the bus and to perform a ‘dildo show’ when the bus returned to the host’s residence. On the appointed day the complainant arrived at the host’s residence at about 2 pm, and shortly afterwards those present boarded the bus and travelled to a tavern in the Darwin rural area. There, more alcohol was consumed and after a short period of time the guests boarded the bus and travelled to a second licensed premises in the Darwin rural area. The applicant joined the group at the second premises. The group continued drinking alcohol there and subsequently moved to a third licensed premises in the Darwin rural area. More alcohol was consumed by the members of the party and the bus then travelled on to a fourth licensed premises, where those present consumed more alcohol before departing for the host’s residence. During the course of the afternoon, the complainant acted as a topless waiter whilst the bus was in transit. She was also drinking alcohol. She entertained the guests during the journeys in various ways, including by exposing her buttocks and breasts to those in a motor vehicle following the bus and by giving some of the guests what were described as ‘motorboats’, which involved the complainant rubbing her breasts into the faces of some of the men. The guests on the bus were well‑behaved and acted appropriately towards the complainant, and there was no suggestion that the complainant authorised or permitted anyone to touch her genitalia. The party arrived back at the host’s residence at around 7 pm. Shortly after their arrival, the complainant told the host that she was going to get ready for the ‘show’. Before the ‘show’ started, all of the guests who had participated in the ‘pub crawl’ continued drinking beer or spirits and were intoxicated, some of them heavily so. In preparation for the ‘show’, the complainant set up her iPod so that she could play music and changed into a schoolgirl outfit. The complainant’s evidence was that before the show started, she addressed the group in a loud voice and told the guests that there was to be no touching unless invited, that photos and video recordings were not to be taken, and that no one was permitted to move onto the rug on which she would be performing. The complainant’s evidence was that this was something that she invariably did at the commencement of every ‘show’.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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