Regina v RCL [2002] NSWCCA 334

Reported Decision : (2002) 136 A Crim R 421

New South Wales Court of Criminal Appeal

CITATION : Regina v RCL [2002] NSWCCA 334 FILE NUMBER(S) : CCA 60758/99 HEARING DATE(S) : 31/7/02 JUDGMENT DATE : 12 December 2002

PARTIES : Crown RCL JUDGMENT OF : Santow JA at 1; Hidden J at 2; Adams J at 40

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0392 LOWER COURT JUDICIAL Grogan DCJ OFFICER :

COUNSEL : L Flannery - Applicant GIO Rowling - Crown SOLICITORS : DJ Humphreys - Applicant SE O'Connor - Crown CATCHWORDS : CRIMINAL LAW: Appeal against conviction - detaining for advantage, sexual assault (3) - found guilty of detaining for advantage only - whether verdict of guilty unreasonable in light of acquittals on other counts - whether directions about complainant's credibility adequate. LEGISLATION CITED : Crimes Act 1900 R v Markuleski (2001) 52 NSWLR 82 CASES CITED: Jones v The Queen (1997) 191 CLR 439 Mackenzie v The Queen (1996) 190 CLR 348 at 366 R v Kirkman (1987) 44 SASR 591 per King CJ at 593; DECISION : See para 39

IN THE COURT OF CRIMINAL APPEAL 60758/99 SANTOW JA HIDDEN J ADAMS J Thursday, 12 December, 2002 REGINA v RCL

JUDGMENT 1 SANTOW JA: I agree with Hidden J. 2 HIDDEN J: The appellant was tried in the District Court upon an indictment alleging four offences committed against his estranged wife. There were three children of the marriage and the complainant had children from a previous relationship. For the sake of those children the names of the appellant and the complainant will not be published. 3 The charges arose from the same incident, when the appellant is alleged to have forced the complainant at knife-point to accompany him to his car, to have had sexual contact with her against her will in the car, and to have driven her to his home where he had sexual intercourse with her again, also without her consent. The four counts in the indictment were as follows: 1: Detaining for advantage (s 90A Crimes Act); 2&3: Sexual intercourse without consent in circumstances of aggravation (s 61J Crimes Act); 4: Sexual intercourse without consent (s 61I Crimes Act). 4 The trial took place in 1999. The jury found the appellant guilty of the first count, but not guilty of the others. He was sentenced to a term of imprisonment which has since expired. He has appealed against his conviction. 5 The appellant and the complainant were married in 1989 and separated in 1997. The incident with which we are concerned occurred on Saturday 3 October 1998. At that time the complainant was living at Woodpark (a south-western Sydney suburb) with the children of the marriage and the children from the previous relationship, two teenage boys. One of those boys, to whom it will be necessary to refer, I shall call "B". The complainant was working at a supermarket in Merrylands. The appellant was living at Greystanes. They continued to see each other until August 1998. Thereafter, according to the complainant, he kept visiting her at her home or at the supermarket against her wishes.