Tonari v R [2013] NSWCCA 232

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tonari v R [2013] NSWCCA 232 Hearing dates: 29 July 2013 Decision date: 18 October 2013 Before: Johnson J at [1]; Price J at [222]; RA Hulme J at [224] Decision: 1. Appeal against conviction with respect to Counts 2 and 6, the s.61L Crimes Act 1900 counts is dismissed. 2. With respect to Counts 1, 3, 4, 5 and 7, the s.61J(1) Crimes Act 1900 counts, Ground 2A is upheld. 3. Pursuant to s.7(2) Criminal Appeal Act 1912, instead of allowing the appeal with respect to Counts 1, 3, 4, 5 and 7, substitute for the verdict found by the jury on each count, a verdict of guilty under s.61I Crimes Act 1900 of having sexual intercourse without consent. 4. Pursuant to s.12(2) Criminal Appeal Act 1912, remit the proceedings to the District Court so that the Appellant may be sentenced for the five offences under s.61I Crimes Act 1900 and the two offences under s.61L Crimes Act 1900. Catchwords: CRIMINAL LAW - conviction appeal - convictions for aggravated sexual intercourse without consent under s.61J Crimes Act 1900 (five counts) and indecent assault under s.61L Crimes Act 1900 (two counts) - s.61J counts contained incomplete statement of circumstances of aggravation - counts alleged threats "to inflict actual bodily harm" upon complainant - counts omitted to allege "by means of an offensive instrument" - omission detected after verdicts - unsuccessful Crown application to amend indictment after verdicts - appeal against conviction - appeal heard prior to sentence - claim that indictment a nullity - held indictment not a nullity - claim of misdirection on s.61J counts - ground established given absence of legal and factual directions concerning "offensive instrument" component - claim of erroneous Markuleski direction and good character direction - grounds rejected - claim that verdicts unreasonable - held that s.61L verdicts reasonable - s.61J verdicts cannot stand given established misdirection - whether substitute verdicts of guilty of having sexual intercourse without consent under s.61I Crimes Act 1900 should be returned on s.61J counts - application of s.7(2) Criminal Appeal Act 1912 - verdicts of guilty of s.61I offences returned on s.61J counts - proceedings remitted to District Court for sentence for s.61I and s.61L offences Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Abbosh v R [2011] NSWCCA 265 Alseedi v R [2009] NSWCCA 185 Area Concrete Pumping Pty Limited v Inspector Childs [2012] NSWCA 208; 232 IR 86 Boujaoude v R [2008] NSWCCA 35; 72 NSWLR 85 Chanthaboury v R [2007] NSWCCA 290; 176 A Crim R 438 Doja v R [2009] NSWCCA 303; 198 A Crim R 349 Geggo v R [2013] NSWCCA 7 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186