Regina v XHR [2012] NSWCCA 247

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Regina v XHR [2012] NSWCCA 247 Hearing dates: 26 July 2012 Decision date: 23 November 2012 Before: Beazley JA at [1]; Hall J at [106]; SG Campbell J at [107] Decision: (1) Verdict of acquittal quashed; (2) Remit the matter to the District Court for trial. Catchwords: CRIMINAL LAW - Crown appeal against directed acquittal - Grounds of appeal involved questions of law alone - Crimes (Appeal and Review) Act 2001, s 107.

CRIMINAL LAW - Sexual assault offence - Requisite proof of knowledge of lack of consent - Circumstantial evidence relied upon by Crown - Trial judge erred in determining that the Crown was required to establish communication of lack of consent prior to acts of intercourse occurring - Trial judge's failure to have regard to requirements of s 61HA(3)(d) - Trial judge erred by having regard to statutory provisions concerning the vitiation of apparent consent - Findings involving questions of law alone - Crimes Act 1900, ss 61HA, 61I.

CRIMINAL LAW - No case to answer application - Trial judge is to determine whether there is evidence in respect of every element of the offence - Complainant's evidence could sustain verdict of guilty - Trial judge erred in prohibiting the Crown from relying upon the accused's answers in the ERISP in support of the circumstantial case.

WORDS AND PHRASES - "Question of law alone" Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Evidence Act 1995 Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 Doney v R [1990] HCA 51; 171 CLR 207 JMR (1991) 57 A Crim R 39 M v R [1994] HCA 63; 181 CLR 487 Mule v R [2005] HCA 49; (2005) 221 ALR 85 R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452 R v JS [2007] NSWCCA 272; 175 A Crim R 108 R v LK [2010] HCA 17; 241 CLR 177 R v PL [2009] NSWCCA 256; 199 A Crim R 199 R v Porteous [2003] NSWCCA 18 R v R (1989) 18 NSWLR 74 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Salmond v R [2010] NSWCCA 141 Williams v R [1986] HCA 88; 161 CLR 278 Category: Principal judgment Parties: Regina (Appellant) XHR (Respondent) Representation: Counsel: L Babb SC; N Gouda (Appellant) P Strickland SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Appellant) Lawside Lawyers (Respondent) File Number(s): 2011/144802 Publication restriction: No Decision under appeal Date of Decision: 2011-12-08 00:00:00 Before: Keleman DCJ File Number(s): 2011/144802