Holt v R [2019] NSWCCA 50

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Holt v R [2019] NSWCCA 50 Hearing dates: 15 February 2019 Decision date: 20 March 2019 Before: Hoeben CJ at CL at [1]; Schmidt J at [93]; Adamson J at [105] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The verdicts of conviction entered in respect of Counts 4 and 5 be quashed. (4) There be verdicts of acquittal entered in respect of Counts 4 and 5. Catchwords: CRIMINAL LAW – conviction appeal – trial involving three defendants charged with five counts of aggravated sexual assault and two counts of aggravated indecent assault – verdicts of acquittal entered in all the sexual assault matters – applicant convicted of the two aggravated indecent assault counts – whether written and oral directions given by trial judge correctly stated the mental element required for the aggravated indecent assault counts – whether evidence available to establish the "in company" element of the aggravated indecent assault counts – whether verdicts of guilty were unreasonable and inconsistent with the verdicts of acquittal – error in judge's directions established – applicant entitled to a retrial of the aggravated indecent assault counts – whether verdicts of acquittal should be entered in respect of the aggravated indecent assault counts. Legislation Cited: Crimes Act 1900 (NSW) – ss 61HA, 61I, 61J(1), 61M(1), Crimes (Sentencing Procedure) Act 1999 (NSW) – s 9 Criminal Appeal Act 1912 (NSW) – ss 6(2), 8(1) Criminal Appeal Rules (NSW) – r 4 Cases Cited: Gilham v R [2012] NSWCCA 131 Greenhalgh v R [2017] NSWCCA 94 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Anderson (1991) 53 A Crim R 421 R v Bonora (1994) 35 NSWLR 74 R v Button; R v Griffen [2002] NSWCCA 159; (2002) NSWLR 455 R v Kuckailis [2001] NSWCCA 333 R v Markuleski (2001) 52 NSWLR 82 Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 Category: Principal judgment Parties: James Joseph Holt – Applicant Regina – Respondent Crown Representation: Counsel: G Bashir SC – Applicant F Veltro – Respondent Crown