New South Wales Court of Criminal Appeal CITATION : R v Kuckailis [2001] NSWCCA 333 FILE NUMBER(S) : CCA 60189/2001 HEARING DATE(S) : 05/09/01 JUDGMENT DATE : 5 September 2001 PARTIES : Regina v Rimantas Kuckailis JUDGMENT OF : Bell J at 20, 22; Howie J at 1; Smart AJ at 21 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0718 LOWER COURT JUDICIAL Shillington DCJ OFFICER : COUNSEL : P. G. Berman SC P.G. Maiden SOLICITORS : S.E. O'Connor Back Schwartz Vaughan, Solicitors CATCHWORDS : Criminal Law - Indecent assault - elements of assault - erroneous directions lead to miscarriage of justice LEGISLATION CITED : Crimes Act 1900 - ss 61I, 61L Crimes (Sentencing Procedure) Act 1999 - s 12 CASES CITED: R v Bonora (1994) 35 NSWLR 74 Fitzgerald v Kennard (1995) 38 NSWLR 184 DECISION : Appeal allowed, conviction quashed, verdict of acquittal entered and no order for a re-trial. IN THE COURT OF CRIMINAL APPEAL 60189/01 BELL J HOWIE J SMART AJ WEDNESDAY 5 SEPTEMBER 2001 REGINA v RIMANTAS KUCKAILIS JUDGMENT 1 HOWIE J: The appellant was arraigned before a jury on an indictment containing two counts. The first count charged an offence contrary to s 61I of the Crimes Act alleging that the appellant had attempted sexual intercourse without consent. The second count on the indictment was in the alternative to the first count and charged an offence contrary to s 61L of the Crimes Act alleging an assault with an act of indecency. 2 Both charges arose from the same incident which was alleged to have occurred on 18 March 2000 and involved the same complainant. After a trial of some four days the jury acquitted the appellant of the first count on the indictment but convicted him of the second alternative count. As a consequence of this conviction the appellant was sentenced by the trial Judge to imprisonment for one year, that sentence being suspended under s 12 of the Crimes (Sentencing Procedure) Act. The appellant appeals against his conviction but does not seek leave to appeal against the sentence imposed. 3 There are two grounds of appeal filed on behalf of the appellant both of which assert in effect that it was not open to the jury to have been satisfied beyond reasonable doubt of the second count on the indictment in light of what is said to be the manifest deficiencies in the complainant's account of the events and circumstances in which she said that the appellant sexually assaulted her. However, as matters have transpired it is unnecessary for this Court to consider these grounds of appeal or to evaluate the evidence and assess whether the jury were entitled to be satisfied beyond reasonable doubt that the appellant committed the offence charged against him in the second count on the indictment. 4 The Crown Prosecutor on the hearing the appeal, Mr Berman of Senior Counsel, very fairly and properly brought to the Court's attention what he asserts to be a fundamental defect in the directions given by the trial Judge as to the elements of the offence contained in the second count. The Crown has conceded that these erroneous directions gave rise to a miscarriage of justice. As the Crown has pointed out, the misdirections appear to explain why the jury convicted the appellant of the second count on the indictment while not being satisfied beyond reasonable doubt of the allegation involved in the first count. Both counts on the indictment arose from almost identical facts and circumstances and it is difficult to distinguish any material difference between the findings to be made by the jury in order to convict the appellant of one charge but not the other. 5 The Crown has further conceded that, if this Court allows the appeal and quashes the conviction, it should not order a re-trial but direct a verdict of acquittal. In my view the Crown's concessions were appropriately made and, therefore, it is unnecessary to consider the grounds of appeal raised by the appellant which, if they had been successful, would have resulted in the very same orders being made. 6 The evidence given in the trial can, in the light of the Crown's concessions, be very briefly referred to. In effect the complainant asserted that the appellant, with whom she was sharing accommodation, had sexually assaulted her while he was under the influence of alcohol. Her evidence was that, taking the opportunity of finding himself alone with the complainant, he had committed acts of indecency against her in the premises in which they lived but that she was able to discourage him by pushing him away. 7 The complainant asserted that the appellant then went to the bathroom and, when he returned, he was naked. She gave evidence that the appellant then carried her forcibly into a bedroom where he threw her on to a bed and commenced to have sexual activity with her against her will. The complainant's version was that the appellant attempted to insert his penis into her vagina notwithstanding that she was struggling against him but that he failed in his endeavour because the two fell from the bed on to the floor as a result of her struggles. 8 The complainant stated that the appellant had struck his head on a piece of furniture in the bedroom causing his head to bleed. The complainant said that she was then ordered to leave the premises, which she did. She made complaint about the appellant's conduct to friends a short time later. 9 The appellant gave evidence that, rather than he being the person who was interested in having sexual relations with the complainant, it was she who had attempted in effect to seduce him while she was under the influence of intoxicating liquor. He told the jury that he had rebuffed her approaches and no intimacy occurred between them. 10 This was the factual dispute between the complainant and the appellant that was before the jury for their determination. In effect the appellant asserted that he had never attempted to have sexual intercourse with the complainant let alone without her consent. 11 The first count on the indictment was explained to the jury by the trial judge as being an attempt by the appellant to insert his penis into the vagina of the complainant without her consent and knowing that she was not consenting and that he failed to complete that act simply because he fell from the bed and cut his head. The alternative count was put to the jury on the basis that, if the jury had a doubt as to whether he intended to have sexual intercourse without her consent, that is penile penetration of her vagina, then he would be convicted of an indecent assault. The Crown alleged that the act of indecency included the fact that the appellant had placed his penis on the outside of the vagina of the complainant. 12 The trial Judge summed up the case to the jury in a brief manner as was befitting the particular issues which were before them. In explaining the elements of the offence to the jury that were involved in the first count on the indictment, his Honour indicated that the jury had to be satisfied beyond reasonable doubt that the appellant had attempted to have sexual intercourse with the complainant without her consent and that he knew she was not consenting. It was the Crown's allegation that the appellant must have known of the fact that the complainant was not consenting by reason of her struggles and attempts to resist him. 13 The trial Judge explained to the jury that the second count on the indictment was available to the jury if they had some doubt as to whether the appellant was intending to actually carry on with the act of intercourse if the complainant did not ultimately consent to his sexual advances. His Honour explained to the jury that, before the accused could be convicted of the alternative offence, the Crown was required to prove that there was an act of indecency which was committed by the appellant without the complainant's consent. 14 After they were asked to consider their verdict, the jury raised a question with the trial judge as to the distinction between the two counts on the indictment. The question the jury asked was as follows: "Can your Honour please clarify once more for the benefit of the jury what precisely is the distinction of law between the two counts on the indictment"? 15 His Honour in effect repeated in a somewhat shortened form the directions he had given to the jury in relation to the elements of the two different offences in the major part of his summing-up. He indicated to the jury once more that the first count on the indictment required the Crown to prove beyond reasonable doubt not only that the complainant was not consenting but that the appellant also knew that she was not consenting to the act of intercourse. He explained to the jury that the second count on the indictment merely required that the Crown prove that the appellant had performed the indecent assault upon the complainant, that being attempting to put his penis into her vagina and that there was no consent to that act. 16 After his Honour had asked whether these further directions made clear to the jury the distinction between the two offences, the foreman of the jury said this: "We don't seem to have unanimous agreement that it is clear, still seems to be some doubt as to the distinction between the two." His Honour once more attempted to explain to the jury, in the way he had previously done so, the different elements of the two offences. 17 After he had concluded this further direction to the jury and asked whether they now understood the distinction, the following exchange occurred: "Foreman: So the critical difference in his knowing that there was no consent? His Honour: Yes. Foreman: Is that the case? His Honour: Yes knowing - or continuing to do it realising there would be no consent. Foreman: Which is the first. His Honour: Which is the first. Thank you members of the jury…….." Then as I have indicated the jury further deliberated on the matter and eventually determined to acquit the appellant of the first count but to convict him of the second alternative count. 18 The point raised by the Crown Prosecutor is that the directions given by his Honour in respect of the second count were erroneous in that the distinction which his Honour drew between the two offences was that in the first the Crown had to prove the state of knowledge of the appellant that the complainant was not consenting, whereas in the second count, the indecent assault, all that the Crown had to prove was the lack of consent. However, there is no doubt that, in order for the appellant to be convicted of the indecent assault of the complainant, the Crown not only had to prove that the complainant was not consenting but also that the appellant knew that she was not consenting or was reckless to that fact: R v Bonora (1994) 35 NSWLR 74; Fitzgerald v Kennard (1995) 38 NSWLR 184. The distinction which his Honour drew between the two counts on the indictment in terms of the necessary mental element did not in fact exist. 19 The Crown accepts, as I have already indicated, that this would probably explain why it was that the jury were able to distinguish between the two counts on the indictment and acquitted the appellant of the first count but convicted him of the second count. There is clearly a substantial possibility of a miscarriage of justice arising from the erroneous directions. In those circumstances it is clear, as the Crown has conceded, that the conviction of the appellant cannot remain. It is also clear that the conviction should be quashed and that, in light of the nature of the offence and the sentence imposed upon the appellant, that there should be a verdict of acquittal entered and no order for a re-trial. They are the orders which I propose. 20 BELL J: I agree. 21 SMART AJ: I also agree. 22 BELL J: The orders of the Court will be as Howie J has proposed. ************ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.