Harper v R [2022] NSWCCA 211

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Harper v R [2022] NSWCCA 211 Hearing dates: 27 May 2022 Decision date: 30 September 2022 Before: Bell CJ at [1]; Button J at [2]; N Adams J at [179] Decision: (1) Leave to appeal against conviction and sentence granted. (2) Appeal against conviction dismissed. (3) Appeal against sentence dismissed. Catchwords: CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Applicant found guilty by jury of two counts of adult sexual assault – Applicant acquitted by jury of multiple counts of same offending – Where Crown case was that two conviction counts were supported by contemporaneous complaint material in the form of text messages – Where applicant contends the jury must have misused the evidence of text messages – Where appeal court should not attempt to parse jury findings in determining unreasonable verdict ground – Where text messages sent by complainant to applicant were powerful contemporaneous complaint suggestive of adult sexual assault CRIME – Appeals – Appeal against conviction – Where applicant convicted of multiple counts of sexual and physical violence – Summing-up of trial judge – Where trial judge gave partial Liberato direction – Where direction did not speak of complete rejection of evidence of applicant – Where primary fact in contention was issue of consent – Where applicant gave sworn evidence in his defence contradicting evidence of complainant on two counts – Where applicant also gave sworn evidence admitting two offences – Where Crown relied on evidence of applicant in that regard – Where defence counsel at trial explicitly satisfied with partial Liberato direction – Where Rule 4.15 engaged – Where no miscarriage of justice CRIME – Appeals – Appeal against conviction – Final address of Crown prosecutor – Summing-up of trial judge – Where final address of Crown prosecutor referred to asserted lies and unusual behaviour of applicant – Where vast majority of final address of Crown prosecutor did not feature consciousness of guilt reasoning – Where one submission of Crown prosecutor should, on analysis, be characterised as consciousness of guilt reasoning – Where applicant contends Edwards direction should have been given to jury –Where defence counsel at trial did not request Edwards direction – Where no miscarriage of justice CRIME – Appeals – Appeal against sentence – Manifest excess – Where applicant submitted that indicative sentences for non-sexual assault offences were manifestly excessive – Where jury verdicts regarding previously committed sexual assaults meant that applicant could not rely on prior good character –Where aggregate sentence imposed for four offences was arguably lenient – Where no manifest excess established Legislation Cited: Supreme Court (Criminal Appeal) Rules 2021 (NSW) Cases Cited: Dansie v The Queen [2022] HCA 25 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 Haile v R [2022] NSWCCA 71 Kassab (a pseudonym) v R [2021] NSWCCA 46 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Maughan v R [2020] NSWCCA 51 Neto v R [2020] NSWCCA 128 Nguyen v R [2022] NSWCCA 126 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v Lane [2011] NSWCCA 157 Rao v R [2019] NSWCCA 290 Stevenson v R [2022] NSWCCA 133 Vaughan v R [2020] NSWCCA 3 VP v R [2021] NSWCCA 11 Xu v R [2019] NSWCCA 178 Zhou v R [2021] NSWCCA 278 Category: Principal judgment Parties: Luke Harper (Applicant) Rex (Respondent) Representation: Counsel: K Ginges with S De Brennan (Applicant) M Milward (Respondent)