Holt v R [2021] NSWCCA 140

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Holt v R [2021] NSWCCA 140 Hearing dates: 30 April 2021 Date of orders: 2 July 2021 Decision date: 02 July 2021 Before: Hoeben CJ at CL at [1]; Bellew J at [2]; N Adams J at [3]. Decision: (1) Grant leave to appeal on ground 1. (2) Refuse leave to appeal on grounds 2 and 3 pursuant to r 4, Criminal Appeal Rules. (3) Appeal is dismissed. Catchwords: CRIME — Appeals — Appeal against conviction — whether verdicts inconsistent or otherwise unreasonable – offences of sexual intercourse without consent, assault with act of indecency and recording intimate image without consent – where applicant was convicted of three counts and acquitted of four counts – where applicant admitted acts for counts upon which he was convicted but disputed consent – where counts upon which applicant was acquitted were disputed or involved possible fragmentation of memory due to alcohol consumption and sleep – held, verdicts not inconsistent or otherwise unreasonable CRIME — Appeals — Appeal against conviction — where applicant gave different versions to police and others – whether trial judge erred in failing to give Zoneff direction in relation to the applicant's "changing story" – where applicant told police that he deleted an intimate photograph of the complainant because he "didn't feel right" about "how it ended" – whether trial judge erred in failing to give Edwards direction in relation to deletion of photograph – where Crown did not rely upon lies or post-offence conduct as consciousness of guilt – held, no error Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L, 91P(1) Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1) Criminal Appeal Rules (NSW), r 4 Cases Cited: AH v R [2019] NSWCCA 152 ARS v R [2011] NSWCCA 266 Christian v R [2012] NSWCCA 34 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 DN v R [2016] NSWCCA 252 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Kim v R [2020] NSWCCA 288 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mark McKey v Regina [2012] NSWCCA 1; (2012) 219 A Crim R 227 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 Tekely v R; Nagle v R [2007] NSWCCA 75 Wheeler v R [2019] NSWCCA 255 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 Category: Principal judgment Parties: Thomlen Holt (Applicant) Regina (Respondent) Representation: Counsel: Mr K Averre (Applicant) Ms M Kumar (Respondent)