Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v TS [2017] NSWCCA 247 Hearing dates: 29 September 2017 Decision date: 13 October 2017 Before: Hoeben CJ at CL at [1] Latham J at [2] N Adams J at [40] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW – Crown appeal – attempted sexual intercourse – attempted indecent assault – directed acquittal – direction made before conclusion of Crown case – no case submission – continuation of conduct that eventuates in an act Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Cases Cited: Amalgamated Television Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 Inegbedion v R [2013] NSWCCA 291 May v O'Sullivan (1955) 92 CLR 654 R v Barker [1924] NZLR 865 R v Mai (1992) 26 NSWLR 371 R v PL [2009] NSWCCA 256; 199 A Crim R 199 R v PL [2012] NSWCCA 31 R v R (1989) 18 NSWLR 74 R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 R v White (1910) 2 KB 124 R v Williams, Ex parte The Minister for Justice and Attorney General (1965) Qld R 86 RMC v R [2013] NSWCCA 285 Soulemezis v Dudley (Holdings) P/L (1987) 10 NSWLR 247 The Queen v N Ltd and C Ltd [2008] EWCA Crim 1223 Category: Principal judgment Parties: Regina (Crown/Appellant) TS (Respondent) Representation: Counsel: E Balodis (Crown) I Bourke SC (Respondent) Solicitors: Director of Public Prosecutions NSW (Crown) Legal Aid Commission NSW (Respondent) File Number(s): 2016/20159 Publication restriction: As per s 111 of the Crimes (Appeal and Review) Act 2001 (NSW) Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 12 July 2017 Before: Craigie SC DCJ File Number(s): 2016/20159 Judgment 1. HOEBEN CJ at CL: I agree with Latham J. 2. LATHAM J: The Crown appeals pursuant to s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) against a verdict by direction on the second of two counts of sexual assault, following an application by the Respondent's counsel at the conclusion of the complainant's evidence in chief before Craigie SC DCJ. 3. The directed verdict was in respect of a count of attempted sexual intercourse without consent pursuant to ss 61I and 61P of the Crimes Act 1900 (NSW). It was necessary for the Crown to prove beyond reasonable doubt that the accused intended to have sexual intercourse with the complainant without her consent, knowing that she was not consenting or being reckless as to that fact, and that the accused, with that intention, did some act toward committing that offence which went beyond mere preparation and could not reasonably be regarded as having any other purpose than the commission of that offence: R v Mai (1992) 26 NSWLR 371 at 382; Inegbedion v R [2013] NSWCCA 291. The expression of a desire to commit an offence does not, without more, constitute an attempt. The Complainant's Evidence 1. The evidence in support of the alleged offences may be briefly summarised. The complainant is a transgender female who made contact with the Respondent through a phone based dating app. The complainant invited the Respondent to her home where she resided alone on 18 January 2016. When the Respondent arrived, the complainant told him she was not wearing underwear. The Respondent allegedly placed his hand up her shirt and touched her breasts (this being the basis of count 1, indecent assault). The complainant said "take it easy" and walked into her bedroom to retrieve her cigarettes. The Respondent followed her and stood in front of the complainant with his pants open revealing an erect penis. At this time the complainant was seated on the bed. The complainant said "What are you doing?" and the Respondent replied "I want to fuck you." 2. The Respondent grabbed the complainant's right wrist and swung her around, forcing her face down on the bed with her right arm under her chest. The Respondent continued to hold the complainant's right wrist. The complainant's evidence was that she did not know what the Respondent was going to do, so she pushed herself up with her left hand and shoved the Respondent in the chest, telling him to leave her house. When asked if the Respondent did anything while she was face-down on the bed, she replied "No,…I reacted straight away and pushed myself – got myself out of that lock … I'm strong enough to do that." 3. The complainant gave further evidence of her complaint to her sister, her sister's partner, in the course of a triple 0 call and to the police, in the hours after the Respondent's departure. Those complaints all asserted that the Respondent had "tried to rape me". The recording of the triple 0 call was played to the jury. 4. The evidence summarised above fell significantly short of the statement provided by the complainant to police, upon which the trial advocate's opening was based. The trial advocate made no application to seek to refresh the complainant's memory from the statement and did not suggest that the Crown case included other evidence which might have addressed that shortcoming. The Trial Judge's Ruling 1. Following the application by the Respondent's counsel, his Honour confirmed with counsel that the application was being made on the basis that "the Crown case, having in this respect reached its high water mark [at the] close of the examination in chief, that the jury, as it can be directed at any stage, should now, as an appropriate stage, be directed." His Honour then sought the trial advocate's response. 2. The following exchange encapsulates the Crown's position and his Honour's ruling:- TRIAL ADVOCATE: … the evidence is the complainant is in the bedroom, she turns around, the accused has his pants down and he's got an erection. He says "I want to fuck you." … And then he grabs her and pushes her onto the bed. That's the evidence of that. That the Crown relies on for that your Honour. HIS HONOUR: … it would be a difficult proposition to suggest that that bears much resemblance either to the opening or to what would be reasonably available to support guilt beyond reasonable doubt even if it were accepted of count 2 on the indictment. … TRIAL ADVOCATE: … But the Crown maintains that that's the evidence that's available to the jury. It's a matter for them whether the elements of the charge are made out. HIS HONOUR: Where is the evidence capable of supporting any inference of an attempt for penetrative sex? … TRIAL ADVOCATE: It was the actions of the accused, … In his words and then forcing the complainant onto the bed, his hands still under her. That's the state of the evidence. The Crown would go to the jury, well, an intention to have sexual intercourse and an attempt based on that. HIS HONOUR: … it is highly prejudicial, highly suspicious, as to what it was he was about to attempt. I would however uphold that any attempt that he had on his mind certainly had not been initiated to a point where one could say where, if he had continued doing what he was doing, that it would have eventuated in an act of penetrative sex. One could well speculate that's what he had in mind, but it would be speculation only. 1. The jury was returned to the courtroom and given an explanation for the directed verdict on count 2. That explanation included:- Members of the jury, if – as I'm sure you have – you've been paying careful attention, you would have noticed that there is something of a gulf between the evidence given by the complainant in relation to the second count and what was predicted by Mr Prince on behalf of the Crown, would be the evidence going to this issue of an attempt to have sexual intercourse. Evidence-in-chief has now concluded, therefore, so far as the Crown case is concerned, the evidence on both counts – in one sense – have reached their high watermark; that's the end of anything further we will hear as to what's relied upon by the Crown from the complainant. The complainant's evidence has fallen short – as I say – of what was predicted and what I find – as the judge of the law – would be required for you to accept, if you did accept it, as proof beyond reasonable doubt of all of the elements of an attempt to have sexual intercourse without consent. The law is quite plain – mere preparation to commit an act is not an attempt; there must be steps taken which, if completed, would result in the commission of the acts that would constitute the offence. Now, the man, [T] – it is clear – was present and acted in a particular way, if one was to accept – and its as yet been unchallenged – the evidence of the complainant, he exposed himself and he expressed an intention to have intercourse – more crudely put, of course – with the complainant, who he had pushed on the bed. Beyond that, the anticipated evidence that he would go further, attempting actions that were consistent with an attempt to effect, to bring about, penetrative sex is just not there. It's a not unknown phenomenon, that sometimes, a Crown case will unfold in such a way that vital material is simply not there, not even sufficient to justify asking the question that you would finally have to answer as a jury. The Grounds of the Appeal 1. Section 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW) provides for a Crown appeal on a ground that involves a question of law alone, a more constrained jurisdiction than an appeal involving a question of law: R v PL [2009] NSWCCA 256; 199 A Crim R 199 at [20]. 2. The grounds of appeal are:- 1. His Honour erred by making the determination to direct an acquittal prior to the completion of the Crown case. 2. His Honour erred by failing to take the evidence in the Crown case at its highest. 3. His Honour erred by making a determination that the evidence was incapable of supporting a verdict of guilty. 4. His Honour erred in that insufficient reasons were provided. 5. His Honour erred in finding that it was necessary for the Crown, in order to establish that there was a case to answer, to prove that had the Respondent continued doing what he was doing, an act of penetrative sex would have eventuated. 1. The first three grounds are identical to those which were the subject of this Court's decision in RMC v R [2013] NSWCCA 285. It was conceded in that appeal at [40] that a failure "to apply correct principles in directing a verdict of acquittal constituted an error of law alone." It is clear from the facts in RMC that the trial judge did not refer at all to the principles underlying the power to direct an acquittal. The trial judge directed a verdict on the second day of a trial on a culpable driving charge part way through a Crown case that depended on a number of categories of evidence, including expert evidence from a Crash Investigations Unit and the contents of a record of interview. It was a case of applying the wrong test to a Crown case where salient evidence was yet to come, rather than a case of erring in the application of correctly stated principle. 2. On the hearing of this application, the Crown correctly conceded that ground 2 did not involve a question of law alone. In the light of the fact that his Honour referred to the Crown case at trial having "reached its high water mark" at the close of the complainant's examination in chief, there can be no suggestion that his Honour applied the wrong test. Ground 2 is not an available ground of appeal because it involves a mixed question of fact and law: R v PL. 3. Ground 1 depends upon the proposition that a no case submission can never be made until the close of the Crown case. The Crown could point to no authority that established that proposition, other than to rely upon RMC and the cases referred to therein. However, those decisions, properly construed, do not stand for the principle for which the Crown contends. 4. His Honour R A Hulme J's judgment in RMC at [41] (myself and Barr AJ agreeing) includes a summary of "principles":- (a) A judge may direct a verdict of acquittal only if there is a defect in the evidence in the Crown case such that, taken at its highest, it will not sustain a verdict of guilty; if there is evidence, though tenuous, or inherently weak or vague, that is capable of supporting a verdict of guilty, it must be left to the jury: Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207. (b) In a case based on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case even though a reasonable hypothesis consistent with innocence can be formulated: R v JMR (1991) 57 A Crim R 39. (c) There is no power to direct an acquittal on the basis that any resultant conviction would be unreasonable or unsupported by the evidence: R v R (1989) 18 NSWLR 74; Doney v The Queen. 1. This summary recognises the distinction between circumstantial and non-circumstantial Crown cases. The principle referred to at (a) links the power to direct a verdict with two factors, namely, the high point of the Crown case and the incapacity of the evidence to prove the ingredients of the offence. 2. At [44] of RMC, R A Hulme J went to state that:- The first misapplication of principles was to direct a verdict of guilty before the end of the Crown case. As counsel for the Respondent observed, statements of principles regarding the power of a trial judge to determine whether there is a case to answer are universally expressed in terms that it arises only at the close of the Crown case: see for example May v O'Sullivan (1955) 92 CLR 654 at 658; R v R (1989) 18 NSWLR 74 at 76-77. It is impossible to take the Crown case at its highest when the case is still being presented and the trial judge is not properly acquainted with the detail of the evidence yet to come. 1. I do not accept that the Court in RMC intended to convey that a no case submission can never be made until the close of the Crown case. The summary of the principles set out at [16] above is not inconsistent with the proposition that an appropriate time to consider a no case submission is when the evidence in support of the charge has been fully presented, which, in a sexual assault trial wholly dependent on the evidence of the complainant, is at the close of the complainant's evidence in chief. It is not incumbent on defence counsel to commence cross examination or await the end of the Crown case, with the attendant risk that the gap will be filled. 2. The references to May v O'Sullivan (1955) 92 CLR 654 and R v R (1989) 18 NSWLR 74 at [44] of RMC must be taken in the context of what immediately followed, namely that if there is evidence yet to come towards proof of the offence it is not possible to take the Crown case at its highest. 3. The passage in May v O'Sullivan cited at [44] of RMC simply states:- When at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could be lawfully convicted. 1. This is a statement of the test to be applied when a no case submission is made, not a statement that confines the submission to the close of the Crown case, as Bathurst CJ made clear in R v PL [2012] NSWCCA 31 at [31]:- The principles on which a trial judge should direct a verdict of acquittal are well settled. The question is whether at the time a no case to answer submission is made the accused could lawfully be convicted on the evidence as it stood at that time: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658. To like effect is R v Serratore (1999) 48 NSWLR 101; [1999] NSWCCA 377 at 130. 1. Similarly, the passage in R v R referred to in RMC says no more than that such a power exists. 2. The Crown's reliance upon The Queen v N Ltd and C Ltd [2008] EWCA Crim 1223 at [26] and the judgment of Ipp AJA in Amalgamated Television Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 is misplaced. The issue under consideration in the former case was whether a jurisdiction existed to direct a verdict before any evidence was adduced, before any jury was sworn and without the benefit of agreed facts. Not surprisingly, the Court answered that question in the negative. The relevant part of the judgment of Ipp AJA at [48] in the latter case goes no further than affirming that the determination of a no case submission at the close of the prosecution case is a question of law. It remains a question of law where the submission is made before the close of the prosecution case. 3. Before leaving this ground it is necessary to address a submission made on the hearing of the appeal that there was evidence yet to come in the Crown case that was capable of supplementing the complainant's evidence, namely evidence of complaint. I have already observed that the contents of the triple 0 call and the complainant's complaint to police and to her sister were part of the complainant's evidence in chief. The Crown effectively contended on the hearing of the appeal that the evidence of the complainant's sister and her partner, which presumably would have been in the same terms as that given by the complainant herself, was capable of rising higher than the source. His Honour's decision to halt the trial at the end of the complainant's evidence in chief was therefore erroneous, in that the Crown case was not taken at its highest. 4. This submission must be rejected. Had the evidence of the complainant's sister and her partner been called, it could not have improved upon the complainant's evidence of what occurred in her bedroom. The traditional direction to a jury on the subject of complaint evidence, where it is admitted as an exception to the hearsay rule towards proof of the alleged offence, acknowledges that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s). 5. Whatever the complainant apprehended the Respondent was proposing to do, the question for determination remained whether the acts and words of the Respondent in the bedroom were capable of establishing beyond reasonable doubt an attempt to have sexual intercourse with the complainant without her consent or being reckless in that regard. The trial advocate did not make the submission that is now made before this Court, correctly in my view. 6. Ground 1 of the appeal is not made out. 7. Grounds 3 and 5 may be dealt with together. These grounds focussed upon the last passage of his Honour's remarks set out at [9] above. In short, it was submitted that the reference to an "attempt … had not been initiated to a point ... where, if he had continued doing what he was doing, that it would have eventuated in an act of penetrative sex" is a formulation of the "last act test" which demonstrates error: R v White (1910) 2 KB 124; R v Williams, Ex parte The Minister for Justice and Attorney General (1965) Qld R 86. 8. It is uncontroversial that "to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required": R v Barker [1924] NZLR 865 at 874. 9. I do not understand his Honour's statement to convey anything approximating the "last act" test. The continuation of conduct that eventuates in an act of sexual intercourse is a slightly different, albeit consistent, characterisation of conduct which could not reasonably be regarded as having any other purpose than the commission of that offence. 10. I agree with the Respondent's submission that ground 3 as framed involves a mixed question of fact and law. The Crown on the hearing of the appeal effectively conceded as much by referring to the late addition of ground 5 as a formulation designed to meet that submission. 11. Ground 3 does not lie and ground 5 fails. 12. Turning to ground 4, the Crown somewhat reluctantly conceded on the hearing of the appeal that his Honour's explanation to the jury could properly be taken into account by this Court for the purpose of exposing his Honour's reasons for the directed verdict. When the exchange at [9] above and the explanation to the jury are considered together, they are sufficient in my view to satisfy the requirement to provide reasons which articulate the essential grounds upon which the determination was made: Soulemezis v Dudley (Holdings) P/L (1987) 10 NSWLR 247 at 280D. 13. The Court in Soulemezis was considering the judicial obligation to provide reasons for findings of fact. However, the judgment of McHugh JA examined the basis of the obligation according to the nature of the jurisdiction being exercised. It is instructive to revisit the pertinent parts of that judgment at 279 to 281:- But when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons. … If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons : Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. … Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related "to the function to be served by the giving of reasons." Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of cases, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. 1. The Crown has not submitted that it is either difficult or impossible to discern the basis of his Honour's decision. Had the Crown entertained any doubt in that respect, one might have expected an application to his Honour for the provision of a judgment, yet no such application was made. It may be accepted that his Honour's reasons in the exchange with the trial advocate were economical, even sparse, but there could be no misapprehension of the basis of the decision, namely that, accepting the three pieces of evidence relied upon by the trial advocate (see [9] above), they did not rise above a speculative basis for concluding that the Respondent intended to have sexual intercourse without the consent of the complainant. 2. In any trial for an offence of attempt, it is necessary to address the question of the requisite intention before moving to the question whether the acts of the accused are sufficiently proximate to compel the conclusion that the completed offence would have been committed: Inegbedion at [16] and [17] per Rothman J, Hoeben CJ at CL and McCallum J agreeing. In my view, it is clear from the totality of his Honour's remarks that the ruling was based upon the incapacity of the Respondent's words and acts in the complainant's bedroom to prove beyond reasonable doubt that he intended to commit the offence of sexual intercourse without consent. 3. Ground 4 fails. 4. I would dismiss the appeal. 5. N ADAMS J: I have had the advantage of reading the judgment of Latham J in draft. I agree that the appeal should be dismissed for the reasons provided by her Honour. ********** Amendments 13 October 2017 - Amendments: [9] "count" now reads "count 2" [24] citation now includes the reference "at [26]" [40] now reads "N Adams J: I have had the advantage of reading the judgment of Latham J in draft. I agree that the appeal should be dismissed for the reasons provided by her Honour." 17 October 2017 - At [10] pseudonym [T] inserted. 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