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 Solicitors: M Bowe – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2014/191770 Publication restriction: Non-publication order in relation to complainant's name Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 April 2017 Before: Syme DCJ File Number(s): 2014/191770 JUDGMENT 1. HOEBEN CJ at CL: Trial outcome On 28 November 2016, James Holt, the applicant and two other accused, Dario Miletic (Miletic) and Andrew Dow (Dow), stood trial together before her Honour Judge Syme and a jury in the District Court in respect of an indictment containing the following counts: Count 1 – Miletic That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the offence Dario Miletic was in the company of James Holt, contrary to s 61J(1) Crimes Act 1900 (NSW) (Crimes Act). Count 2 – Miletic That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the offence Dario Miletic was in the company of James Holt, contrary to s 61J(1) Crimes Act. Count 3 – Miletic That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the offence Dario Miletic was in the company of James Holt, contrary to s 61J(1) Crimes Act; Count 4 – Applicant That on 5 January 2013, at Nelson Bay in the State of New South Wales, did, while in company of Dario Miletic, assault the complainant and at the time of that assault committed an act of indecency on the complainant, contrary to s 61M(1) Crimes Act. Count 5 – Applicant That on 5 January 2013, at Nelson Bay in the State of New South Wales, did, while in company of Dario Miletic, assault the complainant and at the time of that assault committed an act of indecency on the complainant, contrary to s 61M(1) Crimes Act. Count 6 – Applicant That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the offence James Holt was in the company of Dario Miletic, contrary to s 61J(1) Crimes Act. Count 7 – Dow That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the offence Andrew James Dow was in the company of Dario Miletic and James Holt, contrary to s 61J(1) Crimes Act; and Count 8 (in the alternative to Count 7) – Dow That on 5 January 2013, at Nelson Bay in the State of New South Wales, did have sexual intercourse with the complainant without her consent, knowing she was not consenting, contrary to s 61I Crimes Act. 1. On 13 December 2016 the jury delivered its verdict. The applicant was found guilty in respect of Counts 4 and 5, and not guilty in respect of Count 6. Miletic and Dow were found not guilty in relation to all of their respective counts. 2. In broad terms, the central issue at trial pertaining to the applicant and Miletic was consent. The applicant did not dispute that the physical acts alleged by the complainant in respect of Counts 4, 5 and 6 in fact occurred, nor did Miletic dispute that the physical acts of penile/vaginal sexual intercourse and digital penetration alleged in respect of Counts 1 and 3 respectively occurred. Rather, it was the case for the applicant and Miletic that those various acts occurred with the complainant's consent. Miletic did, however, dispute that the physical act giving rise to Count 2 (the complainant fellating Miletic) had occurred. Dow testified that he did not have sexual intercourse at all with the complainant. 3. On 13 April 2017, her Honour sentenced the applicant to a 3 year good behaviour bond under s 9 Crimes (Sentencing Procedure) Act 1999 (NSW). There is no appeal against the sentence. 4. The applicant has appealed against his conviction on Counts 4 and 5 on the following grounds: Ground 1 – Her Honour erred in her directions on Counts 4 and 5 by: (a) Erroneously directing the jury as to the law on the mental element of the offence; and/or (b) Failing to sufficiently and clearly identify the mental element of the offence; and/or (c) In explaining the relevance of consent by the complainant; and/or (d) Material errors on matters said to sustain Counts 4 and 5 on the elements of lack of consent, knowledge of lack of consent (SU 24, 27, 30) and "in company" (SU 35). Ground 2 – The verdicts of guilty are both unreasonable and inconsistent with the verdicts of not guilty on Counts 1 – 3 and 6 – 8. Overview of evidence 1. The complainant, who was aged 19 at the time of the incidents, and 23 years at the time of trial, attended the Nelson Bay RSL Club on the evening of 4 January 2013 with three of her girlfriends. Megan Day (Megan) was one of the girlfriends. The complainant gave evidence of consuming alcohol before attending the RSL Club, at the RSL Club and on the boat before the alleged assaults. In summary, she recounted consuming two drinks before the RSL Club and four drinks at the RSL Club. She described her level of intoxication when relocating to the boat as three out of ten. She was given a mixed vodka drink on the boat that was strong and she shared that with Megan. She gave evidence of also drinking some beer. She agreed that she told police that she felt a little light-headed, but not drunk. She said that she was coherent, could hold a conversation and no-one would have thought that she was drunk. 2. During the course of the evening, the complainant met Miletic, the applicant, and some other males who were at the club. These males included Alex Wilmore, David Baldwin, Marcus Christou and Lachlan Keating. 3. At about 2.30am on 5 January, the complainant and Megan Day left the club with Miletic, the applicant, Alex Wilmore and David Baldwin. They walked towards the nearby marina where a boat owned by the applicant's father was moored (the Holt boat). Another boat, which was owned by the Baldwin family (the Baldwin boat) was moored near the Holt boat. 4. The Holt boat was a large recreational fishing vessel with two levels and a cabin which included a room with bunk beds and a larger room with a double bed. There was a third room with bunks, but the evidence indicated that this was used for storage because it was too small to be practically used for sleeping. 5. After arriving at the Holt boat, the complainant and Miletic went to the front of the boat where they sat together and talked and kissed. At one point, the applicant walked over to where they were, sat next to the complainant, touched her on the thigh and attempted to kiss her. As he tried to do this, she turned away. On a second occasion, when she was lying on her back next to Miletic, the applicant lay down beside her and put his tongue in her mouth. This caused the complainant to get up and walk away. 6. Megan subsequently left the Holt boat with the other males, leaving the complainant, Miletic, the applicant and Dow on the Holt boat. Dow was then aged about 37 and had been employed by the Holt family for about eight years to work on the boat. Shortly afterwards, Miletic took the complainant by the hand and led her downstairs to one of the bedrooms which contained two bunks. The complainant and Miletic removed their clothes and commenced having consensual penile vaginal intercourse on the bottom bunk. 7. While they were engaged in the act of intercourse, the applicant opened the door and entered the room. The complainant told Miletic to stop and to close the door. Miletic got up from the bed, closed the door and then returned to the bed where he and the complainant continued to engage in consensual intercourse. 8. A short time later, the applicant re-entered the room wearing nothing but a shirt. He crouched down beside the bunk bed and touched the complainant on the breasts and other parts of her body (Count 4). The complainant tried to push the applicant away with her hands. The applicant grabbed her hand and pulled it towards his penis. Eventually, both the complainant and Miletic managed to push the applicant away. The applicant then positioned himself onto the top bunk bed and initially tried to reach down towards the complainant. Thereafter, the complainant heard noises coming from the top bunk which sounded like the applicant was masturbating. During this time, Miletic continued having sex with her while she was telling him to stop (Count 1). 9. At one point, Miletic rolled off the complainant, grabbed her shoulders and arms and pulled her on top so that their positions were reversed. By that time, the applicant had left the room. The applicant returned and started to touch the complainant while she was saying "no" and pushing him away. 10. The complainant was still on the bottom bunk but had moved herself as far away as she could from the applicant when Miletic pushed her head down over his penis (Count 2). She was not expecting this to happen. His penis was inside her mouth for a second or two before she pulled herself away. 11. Miletic pulled her down so that she was lying on her back. The applicant then started kissing her neck and lips and tried to put his tongue in her mouth (Count 5). While this was happening, Miletic, who was at the end of the bed, put his fingers into her vagina (Count 3). She did not say anything to Miletic about this, but clenched her legs together and tried to turn over. 12. During this period, the complainant's phone buzzed. The details relating to the applicant's phone and its use will be set out later in this overview of the evidence. Initially, the complainant said that when the phone buzzed, the applicant picked it up and asked her for her passcode, which she refused to give. The complainant said that she took the phone from the applicant and was able to see that she had received a message from Megan. The complainant's phone records were in evidence (Exhibits 5 & 7). 13. The complainant gave evidence that Miletic pushed her back onto the bed so that she was sitting on the bunk bed and near to the applicant who was pulling on her arms to get her to lie back down. 14. The applicant subsequently climbed on top of her, wedged himself between her legs and put his penis into her vagina (Count 6). The applicant had intercourse with her for about two minutes. The complainant did not say anything to the applicant while this was happening. The applicant kept asking her whether she liked it but she did not respond. She agreed in cross-examination that Miletic had left the room when the applicant was having intercourse with her. The applicant then rolled off the complainant and got off the bed. She could not recall whether the applicant ejaculated. 15. Shortly after this, Dow came into the room, climbed on top of the complainant, wedged himself between her legs, put his penis into her vagina and had intercourse with her for about two or so minutes (Count 7, alternatively Count 8). Neither she nor Dow said anything at that time. Both the applicant and Miletic had left the room by that time. Dow held her hands above her head by the wrists but the complainant was unable to say how tight his grip was. After he finished, he rolled off and left the room. The complainant recalled that at one point both the applicant and Miletic came back and stood in the doorway and were laughing and telling Dow not to "hog it all" and "to share it all around". 16. After Dow left, the complainant was lying on the bed when Miletic came and lay next to her. She recalled rolling off the bed and getting dressed. Miletic pulled her back onto the bottom bunk. Meanwhile, the applicant had come back into the room and jumped onto the top bunk. Miletic fell asleep with his arms around her. Sometime later, Dow came into the room, woke up Miletic and the applicant and told them that they were taking the boat out early. They told the complainant she had to leave. 17. The complainant was not sure what happened after that but she did not leave the boat. She recalled waking up some hours later on the double bed in the master bedroom next to Miletic. The complainant was unable to explain how she got there. She woke to find her handbag on her chest. She was unable to find her phone and walked into the main cabin where she saw Dow. He offered her some water and then rang her mobile number. The phone was found in the front cabin with the bunk beds. This call was made at about 6.04am. The complainant left the boat at that time. She sent an SMS to Megan at that time and also texted a friend, Phil Foster, who arranged for her to obtain a key and to let herself into his home. 18. After leaving the Holt boat, the complainant made her way to the home of Mr Foster. He was not present when she arrived, but arrived soon after with his partner Michaela. The complainant spoke to Michaela and Mr Foster about what had happened on the Holt boat. She was crying at the time. Mr Foster specifically remembered the complainant saying the following: * "They were as gentle as they could be". * She remembered one male was named Daniel, the other was Darius or something, and there was a third named Andy who was older. * "All I can taste in my mouth is alcohol and cigarette smoke" and one of the guys was "pretty much a chain smoker". (The evidence was that of the three accused, only Dow was a smoker.) 1. After Mr Foster drove Michaela to work, he drove the complainant to retrieve her car and she drove home. She showered and brushed her teeth. She recalled the taste of cigarettes in her mouth which she ascribed to Dow kissing her while having sex with her. She attended a pre-arranged hair appointment. She then met Michaela, after Michaela had finished work. They spoke further about the matter and it was during this discussion that the complainant decided to report the matter to police. Michaela Foster accompanied her. They attended Nelson Bay Police Station which was unoccupied. Later the complainant had an initial conversation with Constable Burgess and some hours later, made a formal statement to Detective Deacon. She was later taken to John Hunter Hospital where she was examined. 2. The complainant did not look at her phone when she made her statement but provided the phone to police on that day. She could not remember for how long the police had her phone, but recalled disabling her passcode for them. She took the phone with her after she had finished at the police station. She subsequently upgraded her phone and lost a lot of her data. She did not delete any of her messages. She could not recall the text messages and phone calls she received that night as it was over three years before. 3. The applicant, Miletic and Dow were arrested at about 6pm on 6 January 2013. Each accused refused to take part in a recorded interview. A DNA sample was obtained from each of them. 4. Semen was subsequently detected from a stain on the bed sheet taken from the lower bunk bed. DNA recovered from the semen had the same profile as Miletic. DNA recovered from a non-semen fraction was found to be a mixture originating from four individuals, the major component having the same profile as the complainant. Dow and the applicant were excluded as contributors to this mixture. 5. The applicant and Miletic did not give evidence at trial, nor did they call any witnesses. Dow was the only accused to give evidence. He denied having sexual intercourse with the complainant, or hearing laughter, or words like "stop" or "don't" coming from the front bunk room. He did admit to going into the front bunk room with the intention of getting a blanket and seeing the complainant lying on the bunk bed alone and naked. He said that she reached out and grabbed him and kissed him. In cross-examination, he admitted that he found her to be attractive and pretty and kissed her for about five minutes. He left the room because he had a girlfriend and felt bad about himself. He said that neither the applicant nor Miletic were in the room while he was with the complainant. He agreed that he was a smoker and had smoked on the night in question, but denied fabricating his evidence about the kiss in order to explain the complainant's evidence concerning the taste of cigarettes in her mouth. 6. The applicant had no criminal record or traffic history and could rely upon good character. 7. Evidence was led from the other males who had accompanied Megan. It was common ground that on that evening, Alex Wilmore had formed a connection with Megan. He had a limited memory of events when on the Holt boat with the complainant and Megan. He gave evidence that he left with Megan and recalled her trying to contact the complainant from time to time after that. 8. David Baldwin had a friend, Marcus Christou, visiting from interstate. The night of 4 January 2013 was his last. He gave evidence that when at the RSL Club, he observed the complainant to be "quite friendly" and "touchy, feely, laughing, chatting" with both the applicant and Miletic. At the time of leaving, he had invited the girls back to the Baldwin boat, but the complainant had been "firm" in saying that she wanted to remain on the Holt boat. He confirmed that the two boats were moored near each other. 9. Marcus Christou gave evidence that he and the complainant kissed in the "pokie" room at the RSL Club. Thereafter, he had limited involvement with the complainant. 10. A report, commissioned by the applicant, was tendered and marked Exhibit B. This set out the dimensions of the bunk room with particular attention being drawn to the minimal height between the underside of the top bunk and the mattress of the bottom bunk, i.e. 460mm, and the narrow width of the bottom bunk varying between 580mm at one end and 690mm at the other. 11. Megan had significant deficits in her memory of the night. She did, however, confirm the content of the communications with the complainant which were contained in Exhibit 7. (Exhibit 7 contained the agreed facts which set out those communications.) 12. Megan confirmed that before leaving the Holt boat, she checked with the complainant that the complainant was comfortable to stay with "these guys". After leaving the complainant, she briefly went to the Baldwin boat before moving on to Alex Wilmore's house nearby. While at that house, she recalled receiving a voice call from the complainant's phone. She did not speak with the complainant at that time – rather the call was made by one of the males. He was asking her to come back to the boat. Megan asked to speak with the complainant but the request was denied. Megan believed she could hear the complainant in the background. Megan had no recollection of making the call that appears at 5.10am in Exhibit 7. She agreed that during her time on the Holt boat, she went for a swim and that she was provided with a blanket by Dow to keep warm after she left the water. 13. In cross-examination, Megan accepted that the Holt boat and the Baldwin boat "weren't too far apart" and that it would have been a "short trip" between them. After leaving the complainant, she remained in the company of the men from the other group and had concerns been raised with her about the complainant's safety, she could have returned with these men to provide assistance to the complainant. She did not have such concerns. 14. When cross-examined about the telephone records, she accepted that there was a call when the complainant came to the phone and spoke with her directly. She said that during that call, the complainant assured her that she was fine. Evidence of phone calls and texts 1. The contents of Exhibit 7 were as follows: "3.51am SMS Megan Day to [Complainant] If anything happens you feel weird about, message me and I'll come straight away 3.59am SMS Megan Day to [Complainant] Baby really! Anything happens! I will come get you and the boys, anything! Please ring, text, yell anything. Love you babe XOXO 4.04am SMS [Complainant] to Megan Day I will I promise! And same to you babe! Seriously! Love you XX 4.04am SMS Megan Day to [Complainant] Good!!!! Love you XOXO be safe XX 4.05am SMS [Complainant] You to babe 4.37am SMS Megan Day to [Complainant] [No detail of SMS recorded] 4.42am VOICE [Complainant] to Megan Day (180 seconds) 5.10am VOICE Megan Day to [Complainant] (32 seconds) 5.11am VOICE [Complainant] to [her sister] (25 seconds) 6.04am – Dow to [Complainant] 6.05am SMS [Complainant] to Megan Day Where are you?" 1. When the complainant was cross-examined as to the contents of Exhibit 7, she said that she did recall getting her phone back and having access to it after it was first taken from her. She did not recall making all the calls set out in Exhibit 7, but explained she could have. She recalled receiving a call from Megan but did not recall ringing her. She denied that she called her sister at any time. She had no recollection of sending text messages and explained that they did not sound how she talks. When Megan was asked whether the text messages that she was receiving were all absolutely consistent with the kind of messages she would expect from the complainant, she said "yes, possibly". 2. The complainant said that she believed that her phone was locked but if it were unlocked when it was taken from her, everything would have been able to be accessed. She agreed that she did not call anyone to complain about what had happened. In re-examination she explained that she did not ask Megan to come back because she did not want her to be placed in the same position that she had been in. She did not recall an occasion when the applicant or one of the males spoke to Megan on her phone. The Crown closing address 1. The Crown closing address relied upon the evidence of the complainant to make out Count 4. The evidence was that the applicant grabbed her on the breasts and other parts of her body while she was engaged in sexual intercourse with Miletic. While the element of lack of consent was raised, there was no mention of any element of knowledge of lack of consent referred to by the prosecutor on this count. The presence of Miletic was relied upon for the "in company" element of Count 4. 2. Count 5 was said to be the kissing that occurred while Miletic was said to be putting his fingers in the complainant's vagina and she was indicating by her actions that she did not want Miletic's conduct to continue. The Crown said the same issue arose namely, whether it "was something she willingly engaged in or not". The Crown made no reference to knowledge in respect of that count. 3. It was common ground in the appeal that the statutory alternatives to Counts 4, 5 and 6 were not left to the jury. The effect of this was that the only case put forward by the Crown was that insofar as Counts 4 and 5 were concerned, the jury had to find that the offences were committed "in company", otherwise a verdict of acquittal would have to be entered. Put another way, it was not open to the jury to find in the alternative, in relation to Counts 4 and 5, that an indecent assault had been committed but that it had not been committed "in company". The summing up 1. The trial judge acknowledged from the outset in summing up that the issue in the applicant's trial was that of consent and knowledge of consent (SU 13.1). Her Honour made it clear that "the issue of consent" was important: "[n]ow going from the definition of sexual intercourse, I am going to jump now to sequences 4 and 5, that is the definitions of indecent assault and I am going to do that because after I deal with indecent assault, I am going to deal with the very important issue of consent as the issue of consent is relevant to both indecent assault and sexual intercourse." (SU 23.7) 1. In accordance with the Crown's closing address, her Honour summarised the case as to the acts relied upon for the assaults in Counts 4 and 5 as: "[t]ouching the complainant all over her body, in the context of Mr Holt entering the room at the time the complainant was engaged in consensual sexual intercourse with Mr Miletic and touching her all over the body. It is that act, the Crown says that led to the consent being withdrawn. It is the Crown case that the touching continued and in relation to count 5, the allegation is kissing the complainant on the mouth and putting his tongue into her mouth, in that same context". (SU 24.8-25.1) 1. There was a further reference to Counts 4 and 5 at SU 27.2 where her Honour said: "[f]or count 3 and for counts 4 and 5, the Crown allege in the same timeframe, while Mr Holt was still in the room, Mr Miletic placed his fingers into her vagina while Mr Holt was kissing her on the mouth and putting his tongue in her mouth. She told you that she did not consent to this and was at that time moving to avoid Miletic's fingers. She said that in her evidence she had said "no" or "stop" or words to that effect, many times at that point. She told you that she did not consent and was at the time moving her body to, as well as saying "no", signify her lack of consent. If you accept this evidence to the required standard, you may think that she was signifying very clearly her lack of consent." 1. In the appeal, issue was taken by the applicant with that summary of the factual evidence in that the applicant submitted that it was apparent from the evidence that the indications of lack of consent were directed at Miletic, and not him. 2. The direction on knowledge of lack of consent to the indecent assaults was given by her Honour in such a way that it was integrated with that of knowledge of lack of consent as it applied to sexual intercourse. The jury were given directions as to proof of knowledge of lack of consent to "any sexual activity", i.e. on all counts. 3. Relevantly, her Honour said: "[y]ou must consider, again I am going to say, each of the charges separately, even though I am giving you a global direction here. Now, if you are satisfied beyond reasonable doubt that an accused in the charge you are considering had sexual intercourse or there was an act of indecency, and that that sexual intercourse or act was not consented to by the complainant, then you must go on to consider the third element, whether the accused knew that the complainant was not consenting. The Crown must prove to you beyond reasonable doubt that an accused, in relation to the individual charge, knew that the complainant was not consenting. It is the accused's actual knowledge of lack of consent with which you are concerned. You might therefore ask how the Crown can prove that an accused knew a complainant did not consent without an admission to that effect. The Crown asks you to infer or conclude from the facts that they have set out to prove that an accused must have known, and indeed, did know, that the complainant was not consenting …" (SU 29.8-30.2) "It is up to you, members of the jury, as a jury, to decide what the situation was with respect to the issue of consent. Have the Crown proven the lack of consent to the required standard? … If you are so satisfied, then, and only then, do you consider the issue of knowledge. If you do accept the complainant's evidence that [what] she stated was clear and unequivocal with respect to her withdrawal of consent, which she said she conveyed by saying "no" or "stop", which she said she said on numerous occasions, and further, that she clenched her legs together and moved away from unwanted contact, then that is evidence that you can use to consider whether the accused, in the individual charges you are considering, whether that accused knew that she was not consenting. … In a situation where a complainant does not in fact consent, it is the accused's state of mind at the time of the act of intercourse, might be that he actually knew the complainant was not consenting, and that is called a guilty state of mind, for this offence. If the Crown satisfies you beyond reasonable doubt that this was the state of mind of an accused at the time of the act of intercourse, then the third element of the charge has been made out. On the other hand, you may decide, on the basis of the evidence led at the trial, and relied upon by the accused, that he might have believed the complainant was consenting to intercourse with him. Whether that belief amounts to a guilty state of mind depends on whether that accused honestly held that belief and, if so, whether the Crown have proved beyond reasonable doubt that there were no reasonable grounds for the accused to believe that the complainant consented. Therefore, the Crown must prove beyond reasonable doubt one of the two facts before you can find the accused guilty; either, number one, the accused did not honestly believe that the complainant was consenting, or, even if he did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented to the sexual intercourse. … It is for the Crown to prove that an accused had a guilty state of mind. It must eliminate any reasonable possibility that the accused did honestly believe, on reasonable grounds, that the complainant was consenting. Unless you find beyond reasonable doubt that the Crown has eliminated such reasonable possibility, then you would have to find that the third element of the offence has not been made out, and return a verdict of not guilty of this charge. … Mr Holt and Mr Miletic's position is clear; they say that any sexual activity that occurred, occurred with the consent of the complainant. The Crown position is clear; the Crown position is that any sexual activity that occurred after consent was withdrawn was made perfectly clear, and that consent was conveyed by words and actions to the accused at that time, and not only did they know that consent was withdrawn and consent was not given, but there were no reasonable grounds they would have had to assume that consent was given. On the Crown case, if you accept the evidence of the complainant that she at no time signified in any way that she was agreeable to sexual connection with both Holt and Miletic as indicated, and she said the opposite, then you would look at how that fact had impacted on what reasonable grounds the accused may have had. So, to summarise, the Crown can prove the accused had a guilty state of mind by either; the accused actually knew that the complainant was not consenting, or, even if the accused believed at the time the complainant was consenting, there were no reasonable grounds for believing that she consented to that sexual intercourse at that time." (Emphasis added.) (SU 31.3-33.8) 1. On the issue of "in company" her Honour said: "[i]n addition to these three essential ingredients, the Crown also allege a following additional circumstance in relation to each of the accused, and in relation to the indecent assault offence against Mr Holt, and that is the additional element of "in company". Now, again, you need only consider the element of "in company" if you are satisfied that the Crown has proven the other elements of the offence. … The Crown must prove beyond reasonable doubt that the offence was committed in the company of another person. If two or more people are present and share the same purpose, in this case, to have sexual intercourse with the complainant, or to indecently assault her, then they will be in company, even if a complainant is unaware of the other person's presence during the course of some of the event, or at the relevant time. In order to prove this, the Crown must prove that the coercive effect of the group, however many of the group out of two or three, operated either to embolden or reassure or encourage an accused person in committing the crime alleged, or to intimidate the alleged victim or complainant into submission. The perspective of the alleged complainant being confronted by a combined force or strength of two or more persons is relevant, but does not solely decide the issue. To paraphrase the words the Crown used, behaviour enabling or encouraging another person to act, but I would add to those words, the conduct must be in the commission of the offence, and that is, sexual intercourse without consent, or indecent assault, but again, there is an issue of consent. So the behaviour must be emboldening or encouraging, but in relation to the commission of the offence that you have, if you are at this level, that you have already decided has been proven. Participation by being present and participating in the offence by either encouraging or assisting is what is required to be proven. It is not necessary that the other person be present throughout the whole of the conduct the subject of the charge, but only that their proximity to the offence occurring was sufficient, as I said, to encourage or embolden the primary offender, or intimidate the complainant into submission. In relation to counts 1, 2 and 3 and counts 4 and 5, it is the Crown position, based on the evidence of the complainant, that both men were present for the duration of those offences from the time consent was withdrawn." (SU 34-35) 1. On the second day of the summing up, written directions were provided by her Honour to the jury which set out the elements of the offences. The written directions included: "SOME DIRECTIONS AT LAW … ELEMENTS OF THE OFFENCE COUNTS 1, 2 & 3 That the accused DARIO MILETIC on the 5th January 2013 at Nelson Bay 1. Had sexual intercourse with the complainant; and 2. That sexual intercourse occurred without the consent of the complainant; and 3. The accused knew the complainant was not consenting to the sexual intercourse; and 4. At the time the accused was in the company of James Holt. COUNT 4, 5 The accused JAMES JOSEPH HOLT on the 5th January 2013 at Nelson Bay 1. Assaulted the complainant; 2. At the time of the assault committed an act of indecency; 3. At the time the Accused was in the company of Dario Miletic. COUNT 6 The accused JAMES JOSEPH HOLT on the 5th January 2013 at Nelson Bay 1. Had sexual intercourse with the complainant; and 2. That sexual intercourse occurred without the consent of the complainant; and 3. The accused knew the complainant was not consenting to the sexual intercourse; and 4. At the time the accused was in the company of Dario Miletic. COUNT 7 The accused ANDREW JAMES DOW on the 5th January 2013 at Nelson Bay 1. Had sexual intercourse with the complainant; and 2. That sexual intercourse occurred without the consent of the complainant; and 3. The accused knew the complainant was not consenting to the sexual intercourse; and 4. At the time the accused was in the company of James Joseph Holt and Dario Miletic. Alternative Count. If and only if you are not satisfied, unanimously, that the Crown have proven a principle charge should you then consider the alternative charge. The alternative offered should not in any way be considered to be a compromise. COUNT 8 That the accused ANDREW JAMES DOW on the 5th January 2013 at Nelson Bay 1. Had sexual intercourse with the complainant; and 2. That sexual intercourse occurred without the consent of the complainant; and 3. The accused knew the complainant was not consenting to the sexual intercourse. DEFINITIONS 1. An Assault is a purposeful touching which is not consented to. 2. Act of Indecency. There is no need for [a] separate act of assault and indecency. The act of assault may in itself be an act of indecency. An Act of Indecency is one which right-minded persons would consider to be contrary to community standards of decency. … 4. Consent: means free and voluntary agreement. A person who gives consent freely and voluntarily can withdraw their consent at any time. Consent or withdrawal of consent can be expressed verbally or by conduct. A person who does not offer actual physical resistance to an assault or sexual intercourse is not, by reason only of that fact, to be regarded as consenting. 5. The Crown may establish that the accused KNEW the complainant was not consenting by establishing either: a) The accused actually knew that she was not consenting or b) He might have believed the complainant was consenting, but had no reasonable grounds for having that belief. … 6. In Company: An offence is committed in company if a) it is committed in the presence of another person, and b) both people shared the same purpose in committing the offence and c) the combined effect of both (or all) participants had the effect of either encouraging or emboldening the commission of the offence or intimidating an alleged victim into submission." 1. The jury asked a question on 12 December 2016 in relation to the written directions on knowledge. On 12 December 2016 further directions were given in relation to knowledge generally, which again included a direction on the application of the "no reasonable grounds test". On 13 December 2016 a further direction was given on the element of knowledge by reference to sexual intercourse. 2. The further oral direction given on 12 December 2016 in answer to the jury's question was: "HER HONOUR: … Members of the jury, I have your note and I thank you for it, I will just put it on the record, you say: "Also can you clarify" … Also can you clarify definition 5(b) regarding consent in the 'Some Directions at Law' document" that I provided to you on 9 December, and you ask, "to give an example and further explain". Now in looking at that document, members of the jury, 5(b) deals with the issue of knowledge of lack of consent, is that the section that you meant? You are nodding, okay, that is good. And 5(b) reads: "The Crown may establish that the accused knew the complainant was not consenting by establishing either subparagraph (a)", so they can establish that the accused knew the complainant was not consenting by establishing either that the accused actually knew she was not consenting, or, 5(b), that they can establish, the Crown must establish that an accused might have believed the complainant was consenting, and that is a subjective belief, if you understand what a subjective believe [sic] is on behalf of an accused person means what an accused person personally subjectively may have believed, but had no reasonable grounds for that belief, and those reasonable grounds is objective, that is, looking at it from an outsider's point of view. So the Crown, in order to establish 5(b), would have to prove subjectively that an accused person, whomever that is, might have believed that the complainant was consenting, but, objectively had no grounds to reasonably have that belief. Now you are still all looking puzzled, and it is a matter, members of the jury, if I can remind you, of my previous directions to you concerning the obligation and the onus on the Crown to prove those issues beyond reasonable doubt. That is the starting point for all of your deliberations, that the Crown must prove each of the elements of the offence, and the elements of the offence are over the page, each of the elements of the offence to the standard of beyond reasonable doubt. So they must prove that the complainant did not consent and they must prove that beyond reasonable doubt. And then they must prove and establish that an accused, whomever you are considering, knew that the complainant was not consenting, in that either they actually knew, or, if subjectively they might have thought that the complainant was consenting, or objectively there are no reasonable grounds for having had that subjective belief." (Emphasis added.) (SU 79.9-81.3) 1. On 13 December 2016, her Honour gave the following further direction in answer to that question: "I was also concerned yesterday after I spoke to you that I probably could have explained the answer to your question better yesterday afternoon and I am going to have another go at that today, because it is of course, very important that you understand the legal directions that I give you so you can assess the facts, as you find them to be, in accordance with those legal directions. In a situation where the complainant does not consent and you have found that the complainant does not consent, it is an accused's state of mind at the time of the act of intercourse that that accused person actually knew the complainant was not consenting, that the Crown must prove in that element of the offence and this is what I called the guilty state of mind when I addressed you orally in relation to this matter. If the Crown satisfies you beyond reasonable doubt that this was the state of mind of an accused at the time of the act of intercourse, then the third element of the charge has been made out. So we are now getting to the point, I think, of your question which is 5(b), so 5(a) if you like was a guilty of state of mind the Crown must prove that an accused knew that the complainant was not consenting. On the other hand, you may decide, on the basis of the evidence led at the trial and relied upon by an accused, that he might have believed the complainant was consenting to intercourse with him and whether that belief amounts to a guilty state of mind, depends upon whether an accused honestly held that belief and if so, whether the Crown has proved beyond reasonable doubt, that there were no reasonable grounds for an accused to believe that the complainant consented. Therefore, the Crown must prove beyond reasonable doubt, one of the two facts before you can find them guilty. Either, as I said before, that an accused did not honestly believe that the complainant was consenting or, even if that accused did have an honest belief in consent, there was no reasonable grounds for believing that the complainant consented to the sexual intercourse, in the context of this case … It is for the Crown to prove that an accused had a guilty state of mind. The Crown must eliminate any reasonable possibility that an accused did honestly believe, on reasonable grounds, that the complainant was consenting. That is the important part, I think, of this direction. Unless you find, beyond reasonable doubt, that the Crown has eliminated any such reasonable possibility, then you would have to find that this third element of the offence, has not been made out and return a verdict of not guilty. In determining whether the Crown has proved that the accused actually knew that the complainant was not consenting to intercourse, you must take into account what steps were actually taken by the accused to ascertain that the complainant was consenting to intercourse and that is a part 5(a) section but for part 5(b), you must look at whether the Crown has eliminated any reasonable possibility – any reasonable possibility that an accused honestly believed that they had a reasonable ground or reasonable grounds to believe that the complainant was consenting." (SU 1.9 – 3.5, 13.12.2016) THE APPEAL Ground 1 – Her Honour erred in her directions on counts 4 and 5 by: (a) Erroneously directing the jury as to the law on the mental element of the offence; and/or (b) Failing to sufficiently and clearly identify the mental element of the offence; and/or (c) In explaining the relevance of consent by the complainant; and/or (d) Material errors on matters said to sustain Counts 4 and 5 on the elements of lack of consent, knowledge of lack of consent (SU 24, 27, 30) and "in company" (SU 35). 1. The applicant submitted that the directions given at SU 33 and again at SU 79-81, in relation to all sexual activity, were wrong in law. This was because s 61HA(3)(c) did not apply to Counts 4 and 5. The applicant submitted that the Common Law applied so that in this case actual knowledge had to be proved for Counts 4 and 5 (recklessness not having been left to the jury). The applicant submitted that knowledge could not be proved through the "no reasonable grounds" mode of proof of knowledge. The applicant submitted that there was no objective element to be applied in the determination of whether the Crown had proved beyond reasonable doubt that the applicant knew that the complainant was not consenting. 2. The applicant submitted that in those circumstances there had been a miscarriage of justice and the trial had miscarried in that the elements of the offences and evidence of lack of consent and knowledge of lack of consent were central issues for consideration by the jury in relation to Counts 4 and 5. 3. The applicant submitted that although there was no complaint about the oral or written conditions at trial, both contained errors. This was so because the oral directions by her Honour made no distinction between the offences of aggravated indecent assault and sexual intercourse insofar as what had to be proved by way of consent and knowledge. The applicant submitted that the written directions gave rise to a similar error in that it was never said that the extended definition of consent there set out, did not apply to Counts 4 and 5. 4. The applicant submitted that the directions as to "in company" insofar as Counts 4 and 5 were concerned were defective in that it was never made clear that mere presence alone would not be sufficient to satisfy the test. The applicant submitted that insofar as the element of "in company" was concerned, it had to be proved that the applicant indecently assaulted the complainant while Miletic was present and shared the same purpose of indecently assaulting her, or encouraged and emboldened the applicant. The applicant submitted that there was no evidence of Mr Miletic's shared purpose of his intention. On the contrary, the only evidence on the subject was that insofar as Count 4 was concerned, it was both the complainant and Miletic who pushed the applicant away from the complainant (T25.49). The applicant further submitted that at no time during the incident which gave rise to Count 4 was he told by the complainant either "no" or "stop". Those requests were made to Miletic not to him. 5. The applicant submitted that because the summing up, both orally and in writing, gave rise to errors of law leave to raise those matters was not required. The applicant submitted that if he were incorrect in that submission, and leave under the Criminal Appeal Rules, r 4 was required, it should be granted because of the fundamental error in the summing up which allowed the jury to take into account the "reasonable grounds test" when considering Counts 4 and 5. 6. The Crown accepted that the "reasonable grounds test" did not apply to Counts 4 and 5. It submitted that when the summing up was read as a whole, it was clear that her Honour was only using the "reasonable grounds test" in relation to the sexual intercourse counts. The Crown did, however, accept that at no time in the summing up did her Honour state in terms that there was a fundamental difference between the mode of proof for the sexual intercourse counts as distinct from the indecent assault counts, i.e. that the "reasonable grounds" test did not apply to the indecent assault counts. The Crown also accepted that there was an ambiguity in the written directions in that it was not clear whether or not the expanded definition of knowledge in para 5(b) applied to the indecent assault counts. 7. The Crown made no response to the applicant's submission concerning the evidentiary deficiency in the evidence relied upon by the Crown to establish the "in company" element of Count 4. Consideration 1. While all the matters raised in this ground of appeal have not been made out, the fundamental submission that the oral summing up and written directions by her Honour on the issue of consent and knowledge of lack of consent were incorrect, has been made out. In those circumstances, I would grant leave pursuant to r 4 if such leave is required. 2. At the time these events took place, s 61HA Crimes Act was in the following terms: "61HA Consent in relation to sexual assault offences (1) Offences to which this section applies This section applies for the purposes of the offences or attempts to commit the offences under ss 61I, 61J and 61JA. (2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, (b) the person is reckless as to whether the other person consents to the sexual intercourse, (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse …" 1. Clearly, the "reasonable ground test" enunciated by that section did not apply to offences contrary to s 61M. At no time in the summing up or written directions was it ever pointed out to the jury that the test for lack of consent applicable to the offence of sexual intercourse pursuant to s 61J was different to that for offences pursuant to s 61M. On the contrary, on at least two occasions her Honour stated that the same test did apply and identified the nature of that test which included the capacity of the Crown to rely upon the "reasonable ground test". (The parts of the oral summing up where this occurred have been underlined for emphasis.) That involved an error of law which was directly applicable to an important issue in the trial. That error was replicated in the written directions. A miscarriage of justice has occurred and the applicant has not had a trial according to law in respect of Counts 4 and 5. This is particularly so when one has regard to the response by her Honour to the question put by the jury which was specifically directed to the reasonable knowledge test. 2. The proper test for consent and lack of consent which should have been applied in respect of Counts 4 and 5 is the test enunciated in R v Bonora (1994) 35 NSWLR 74 and R v Kuckailis [2001] NSWCCA 333. 3. In R v Bonora at 75 Finlay J said: "… The issue was as to the adequacy of the charge to the jury that there must be an assault. For there to be an assault the law requires an intentional application of force to the person of another which is unlawful. For it to be an unlawful act of the accused there must be no lawful justification for it. Consent in this case would be lawful justification or excuse. Moreover, to establish the guilty mind of the accused, the Crown must prove not only that the woman in this case did not consent but that the accused had a guilty mind in that he knew she was not consenting or, aware that she might not be consenting nevertheless determined to touch her. The jury's verdict determined their acceptance that the young woman did not consent to the intentional touching of her. The flaw in the trial is that the jury was never asked to find whether the Crown had also established that the accused knew she was not consenting or, aware that she might not be consenting, nevertheless determined to touch her. This requires this Court to intervene and quash the convictions." 1. In the same case, Abadee J (with whom Simpson J agreed) said at 80: "[a] review of the authorities suggests that where consent is in issue and is raised on the facts, the trial judge should direct the jury that the Crown also has to prove that the accused was aware that the complainant did not consent or was reckless as to whether the complainant consented or not. The accused's awareness that the complainant of an indecent assault is not or may not be consenting is an ingredient of the offence. In the circumstances of this case where there was an issue of consent, indeed that was what the case was essentially all about, his Honour should have directed the jury that the Crown was also required to prove that the appellant was aware at the time of each of the incidents that the complainant was not consenting or was reckless as to whether she was consenting or not." 1. In R v Kuckailis Howie J (with whom Bell J and Smart AJ agreed) said on the same issue: "18 The point raised by the Crown Prosecutor is that the directions given by his Honour in respect of the second count were erroneous in that the distinction which his Honour drew between the two offences was that in the first the Crown had to prove the state of knowledge of the appellant that the complainant was not consenting, whereas in the second count, the indecent assault, all that the Crown had to prove was the lack of consent. However, there is no doubt that, in order for the appellant to be convicted of the indecent assault of the complainant, the Crown not only had to prove that the complainant was not consenting but also that the appellant knew that she was not consenting or was reckless to that fact: R v Bonora (1994) 35 NSWLR 74; Fitzgerald v Kennard (1995) 38 NSWLR 184. The distinction which his Honour drew between the two counts on the indictment in terms of the necessary mental element did not in fact exist. 19 The Crown accepts, as I have already indicated, that this would probably explain why it was that the jury were able to distinguish between the two counts on the indictment and acquitted the appellant of the first count but convicted him of the second count. There is clearly a substantial possibility of a miscarriage of justice arising from the erroneous directions. In those circumstances it is clear, as the Crown has conceded, that the conviction of the appellant cannot remain. It is also clear that the conviction should be quashed and that, in light of the nature of the offence and the sentence imposed upon the appellant, that there should be a verdict of acquittal entered and no order for a re-trial. They are the orders which I propose." 1. Accordingly, as a result of his success on this issue, at the very least the applicant's conviction in respect of Counts 4 and 5 should be quashed and the matter referred to the Director of Public Prosecutions for consideration of whether there should be a retrial on those counts. 2. There is another problem raised by this ground of appeal (Ground 1(d)) and which is also raised by Ground 2. This concerns the evidence available to establish the "in company" element of Count 4. As the applicant pointed out in submissions, the only evidence to support that element of the offence was to the effect that far from Miletic encouraging the applicant when he was touching the complainant, Miletic joined the complainant in pushing the applicant away. There is also the difficulty that at no point in the summing up was it ever stated that the mere presence of another while an offence was being committed was not sufficient to make out that element. 3. Since the statutory alternative offence (i.e. without the element of "in company") was not left to the jury, on that state of the evidence and in accordance with the requirements in law to establish "in company", not only should the verdict against the applicant in respect of Count 4 be quashed, there should also be a verdict of acquittal entered. Ground 2 – The verdicts of guilty are both unreasonable and inconsistent with the verdicts of not guilty on Counts 1 – 3 and 6 – 8. 1. The applicant submitted that the acquittals of Miletic on Counts 1 – 3, and in particular Counts 2 and 3, placed doubt on the conviction of the applicant in relation to Count 5. The applicant submitted that the acquittals of Miletic are difficult to ascribe to a failure to prove knowledge of lack of consent in circumstances where the complainant gave evidence that she was continuously saying "no, stop". The applicant submitted that the various contradictions in the complainant's testimony, and in particular the failure on her part to take any positive steps to remove herself from the boat or call for assistance, were strongly suggestive of the jury having doubts about the complainant's reliability and truthfulness. 2. The applicant submitted that it was difficult to reconcile the acquittal verdicts in respect of Counts 1 – 3, with the verdict on Count 5. This was because against Miletic the Crown had a further alternate, partly objective mode of proof of knowledge, i.e. the reasonable grounds test, which was not available at law to the Crown in relation to Count 5. The applicant made the same submission in relation to the inconsistency between the acquittals in respect of Counts 6 – 8 and the conviction in relation to Count 5. 3. The applicant submitted that the verdicts of acquittal, when taken with the conviction for Count 5, represented an affront to logic and common sense which was unacceptable. He submitted that the inconsistencies in the complainant's evidence were of such a kind as would require the intervention of this Court to prevent a possible injustice. The applicant referred at some length to the inconsistencies in the complainant's evidence and most particularly, the inaction on her part by way of complaint or in trying to remove herself from a location and circumstances which had given rise to the offences charged. 4. The Crown submitted that the complainant was vigorously cross-examined on all of those issues. The Crown relied upon the complainant's explanation as to why she did not ask Megan to return to the Holt boat, i.e. she did not want to get her friend involved in what was going on in that boat. 5. The Crown submitted that the jury had the benefit of being able to hear and see the complainant who had given evidence and been cross-examined over a period of four days. The Crown submitted that the not guilty verdicts did not necessarily mean that the jury rejected the complainant's evidence, only that they were not satisfied beyond reasonable doubt as to its reliability. The Crown submitted that the jury may well have considered the complainant's evidence to be more probable than not but required something in addition before accepting that evidence beyond reasonable doubt. 6. The Crown submitted that in respect of Counts 4 and 5, there were additional circumstances which the jury could have relied upon which did not apply to the sexual intercourse counts. They were that it was made clear to the applicant on a number of occasions that his amorous intentions towards the complainant were not welcome. Consideration 1. It is correct, as the applicant submits, that the evidence of the complainant was replete with inconsistencies and contradictions (e.g. the phone calls, the texts and how the evidence changed when the complainant was taken to the phone records). Those matters, however, were comprehensively canvassed by defence counsel in his submissions. As the verdicts make clear, many of those submissions were successful in raising a reasonable doubt in the minds of the jury. 2. The issue of whether the Crown could prove beyond reasonable doubt that each accused knew that the complainant was not consenting was a matter that clearly troubled the jury as can be seen from the explanation which they sought from her Honour after the conclusion of the summing up. 3. There is considerable force in the Crown's submissions that Counts 4 and 5 could be distinguished from the other counts because of the clear indications which the complainant gave of her lack of consent to the applicant's advances. She had already twice rebuffed the applicant when she arrived on the boat. When he first entered the bunk room while she was engaged in consensual intercourse with Miletic, she asked Miletic to close the door. In those circumstances, the applicant could have been under no misapprehension that his advances were at that time not welcome. This was particularly so when the complainant was otherwise engaged with Miletic. Accordingly, although the actions giving rise to Count 6 occurred in close proximity to those giving rise to Counts 4 and 5, the point of distinction is that the intercourse occurred at a time when Miletic had left the room. Moreover, contrary to what occurred during the alleged indecent assaults, the complainant did not say or do anything to rebuff the applicant when intercourse with him was taking place. 4. I have concluded that despite the problems with the complainant's evidence, the assessment of her credibility and reliability in relation to Counts 4 and 5 were essentially jury questions. It was the jury that saw and heard her give that evidence and be tested on it over four days. The assessment of the reliability and credibility of the applicant in relation to Count 5 was essentially a jury question. In those circumstances it was well open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of Count 5. Ground 2 has not been made out in relation to Count 5. Count 4 is in a different category because of the failure by the Crown to establish the "in company" element for the reasons already set out. Proposed orders 1. That does not end the matter. Having regard to the applicant's success on Ground 1, it is necessary to consider the orders that should be made. Section 6(2) Criminal Appeal Act 1912 (NSW) provides that: Subject to the special provisions of this Act, the court shall, if it allows an appeal under s 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. One of the "special provisions" to which s 6(2) refers is s 8(1) which provides: 8(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. 1. The principles to be applied in such circumstances were comprehensively set out by McClellan CJ at CL in Gilham v R [2012] NSWCCA 131 at [648] and following. Although Fullerton and Garling JJ disagreed with McClellan CJ at CL as to the outcome, I do not understand them to have disagreed with his Honour's analysis of the applicable principles. 2. His Honour set out those principles as follows: "649 The relevant principles were discussed in Reid v The Queen [1980] 1 AC 343 and Fowler: R v Anderson (1991) 53 A Crim R 421 at 453 (Gleeson CJ). The overriding consideration is whether the interests of justice require a new trial: Fowler at 630. Unless the interests of justice require the entry of a verdict of acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge: Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 at [104]. The court determines where the interests of justice lie by considering various factors, including: • the public interest in the due prosecution and conviction of offenders (R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [49]; Anderson at 453; Reid at 349); • the seriousness of the alleged crimes (Anderson at 453; Reid at 350; Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 at [164] (Johnson J)); • the strength of the Crown case (Anderson at 453); • the desirability, if possible, of having the guilt or innocence of the accused finally determined by a jury, which, according to the constitutional arrangements applicable in New South Wales, is the appropriate body to make such a decision (Taufahema at [51]; Anderson at 453; Reid at 350); • the length of time between the alleged offence and the new trial, and in particular whether the delay will occasion prejudice to the accused (Taufahema at [55]; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 520 (Dawson, Toohey and McHugh JJ); Anderson at 453); • whether the grant of a new trial would impermissibly give the prosecution an opportunity to supplement or "patch up" a defective case or to present a case significantly different to that presented to the jury in the previous trial (R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 518; King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 433 (Dawson J); Parker at 520 (Dawson, Toohey and McHugh JJ); Reid at 350; Fowler at 630; Anderson at 453; Taufahema at [59]); • the interests of the individual accused, and in particular whether it would be unduly oppressive to put the accused to the expense and worry of a further trial (Spies at [103]; Reid at 350); • whether a significant part of the sentence imposed upon conviction has already been served (Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 at 590 (McHugh J)); • the expense and length of a further trial (Reid at 350); • whether a successful appellant to the Court of Criminal Appeal has been released from custody (Taufahema at [55]; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Wilton (1981) 28 SASR 362; (1981) A Crim R 5 at 367-68 (King CJ)); and • whether an acquittal would usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions (R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 at [27])." 1. A number of those principles favour a verdict of acquittal in this matter. The seriousness of the conduct in Count 5 is not particularly high. The Crown case is not strong, particularly when regard is had to the six verdicts of acquittal. Over six years have passed since the events, the subject of the proceedings, took place. There is a considerable risk that the grant of a new trial would give the prosecution an opportunity to supplement or "patch up" a defective case. It is very much in the interests of the applicant that he not be put to the expense and worry associated with a further trial. Almost two-thirds of the good behaviour bond imposed on him has now been served. The expense and length of a further trial is not justified when regard is had to the events giving rise to Count 5. 2. There are also some very real practical difficulties associated with a re-trial of Count 5. It would be very difficult, if not impossible, to adduce evidence only of Count 5 without traversing the verdicts of acquittal on the sexual assault charges. This is particularly so in circumstances where the complainant's evidence was that these events occurred without her consent. However, the effect of the jury's verdicts is that the sexual intercourse episodes could not be so described, nor could evidence be given to that effect. As a matter of practicality, once the incontrovertibility of the acquittals is taken into account, there would have to be a major change in the Crown case. In any re-trial, there would have to be evidence of the allegations of the acquitted counts which of necessity would give rise to unfairness to the applicant in a new trial. Even if evidence of the matters found not proved by the jury was not led in a re-trial, this would still give rise to unfairness to the applicant because the conduct giving rise to Count 5 cannot be looked at in isolation. 3. Taking all those matters into account, I am of the opinion that it is not in the interests of justice that there be a re-trial of Count 5. 4. Accordingly, the orders which I propose are: 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. 1. SCHMIDT J: I, too, have had the benefit of reading Hoeben CJ at CL's reasons in draft, but unlike Adamson J, I agree with all of the orders which his Honour proposes. I also agree with his Honour's outline of the evidence and the parties' cases. 2. I agree with the conclusion on Ground 1, that the applicant's convictions must be quashed, because the trial judge's directions did not draw the required distinction between the mental element for unlawful sexual intercourse contrary to s 61J of the Crimes Act offence, to which s 61HA applied and the mental element for the s 61M indecent assault offence, to which s 61HA did not apply, for the reasons which both Hoeben CJ at CL and Adamson J have given. 3. This was complicated, as was submitted for the applicant, by the fact that the directions given also did not draw necessary attention to the fact that absence of consent was an element of the indecent assault offence. A misdirection on the elements of an offence can involve a miscarriage of justice: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]. 4. As to Ground 2, which complains both that the guilty verdicts on counts 4 and 5 were inconsistent with the jury's not guilty verdicts on counts 1 to 3 and 6 to 7 and that they were unsafe and unsatisfactory, it must be accepted, I agree with Adamson J, that the jury found aspects of the complainant's evidence to have been credible, given the applicant's convictions on counts 4 and 5. The acquittals on counts 1 to 3 and 6 to 8 thus may reflect a cautious approach on the jury's part, to the discharge of their responsibility. 5. To find the applicant guilty of counts 4 and 5, however, the jury had to be satisfied that he was then "in company" with Mr Miletic. That required that the evidence establish beyond reasonable doubt not only that Mr Miletic was physically present during both assaults, but that on both occasions, the applicant and Mr Miletic shared a common purpose, namely, to indecently assault the complainant: R v Button; R v Griffen [2002] NSWCCA 159; (2002) NSWLR 455 at [120]. As Hoeben CJ at CL has explained, this was a requirement also not sufficiently drawn to the jury's attention, during the summing up. 6. Like Hoeben CJ at CL, I have concluded that on the evidence, it was not open to the jury to have concluded that the applicant was in company with Mr Miletic, when the events the subject of count 4 occurred. 7. This is because the evidence was that the complainant was having consensual intercourse with Mr Miletic, in a bedroom on the boat, with the door closed, when the applicant entered the room. The complainant told Mr Miletic to stop and he got up and closed the door again. The intercourse resumed, but the applicant re-entered the room shortly afterwards and touched the complainant on the breast and other parts of her body, that comprising count 4. The complainant tried to push him away, but he grabbed her hand and pulled it towards his penis, before both she and Mr Miletic then managed to push him away. 8. The applicant then climbed to the top bunk and tried to reach down to the complainant, before making noises which sounded like masturbation, while the complainant continued having consensual intercourse with Mr Miletic, whereupon the complainant said that she told Mr Miletic to stop, but Mr Miletic continued, that comprising count 1, of which Mr Miletic was acquitted. 9. In those circumstances I agree that it was not open to the jury to conclude that the evidence established, beyond reasonable doubt, that at the time the events which comprised count 4 occurred Mr Miletic, engaged as he was in having consensual intercourse with the complainant and joining with her in pushing the applicant away, as they both did, then shared with the applicant the common purpose of indecently assaulting the complainant. 10. By comparison the evidence as to count 5, which occurred later, was that the applicant kissed the complainant, who was lying on her back on the bed while Mr Miletic, who was then at the end of the bed, put his fingers into her vagina and she clenched her legs together and tried to turn over. This comprised count 3, of which Mr Miletic was also acquitted. 11. It follows that contrary to count 4, on the evidence as to count 5 it was open to the jury to conclude that while the Crown had not proven beyond reasonable doubt that Mr Miletic had then also assaulted the complainant, when the applicant assaulted her the second time, he and Mr Miletic then shared the common purpose of indecently assaulting her. As Hoeben CJ at CL has observed the Crown case on count 5 could not, however, be described to have been a strong one. 12. I thus agree that there must be a verdict of acquittal on count 4 and that the conviction entered on count 5 must be quashed. 13. That leaves the question of whether the interests of justice require that there be a new trial of count 5, there being evidence to support that charge, weak though it is: Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]. There the appellant had already served the sentence imposed upon him and it was found to be "unthinkable" that, if he were convicted on the charge, he would receive another custodial sentence or, for that matter, any additional punishment. It was thus concluded that it seemed prima facie oppressive to put the appellant to the expense and worry of another trial, which was likely to take about 10 days. Nevertheless, account was taken of the fact that the case against the appellant in respect of that charge seemed to be strong, with the result that it was concluded that the interests of justice did not require that the appellant be acquitted of the charge. It was accepted that it was a matter for the prosecuting authority to determine whether, in all those circumstances, there should be a further trial. 14. Like Hoeben CJ at CL, I consider that unlike in Spies, it would not be in the interests of justice to order a new trial in this case, given: * the case against the applicant on count 5 is clearly not strong; * that it is unlikely that the applicant would be sentenced to any additional punishment than that which he has already served, if convicted after a further trial; * that there is real difficulty involved in pursuing count 5 at another trial, given that the acquittals on all of the other charges could not be traversed; and * what such a trial would involve for both the applicant and the complainant; 1. In the result I agree that notwithstanding that ordinarily, whether there should be a new trial is a matter for the prosecuting authority to determine the Court having, as it does, a discretion in an appropriate case to depart from that course, it must be concluded that this is such a case. 2. Accordingly, I agree with all of the orders which Hoeben CJ at CL proposes. 3. ADAMSON J: I have had the benefit of reading the reasons of both Hoeben CJ at CL and Schmidt J in draft. I respectfully adopt the summary of the evidence and the parties' submissions in the reasons of Hoeben CJ at CL. I agree that the convictions of the applicant on counts 4 and 5 must be quashed as the trial judge failed to direct the jury as to the distinction between the mental element required for unlawful sexual intercourse (s 61J of the Crimes Act 1900 (NSW)) and the mental element required for indecent assault (s 61M of the Crimes Act). The provisions of s 61HA of the Crimes Act applied to the s 61J offence, but not to the s 61M offence. The difference was explained by Basten JA (Button and N Adams JJ agreeing) in Greenhalgh v R [2017] NSWCCA 94 at [5]: "[There are] different requirements with respect to the mental state of the offender in relation to the offence of sexual intercourse without consent and the offence of indecent assault. With respect to the counts of indecent assault, it was necessary for the prosecution to prove that the accused knew that the complainant did not consent, or was at least indifferent to the absence of consent. With respect to sexual intercourse, it was sufficient for the prosecution to prove that the complainant did not consent and that the accused knew that she did not consent, or was indifferent as to consent. However, pursuant to s 61HA of the Crimes Act 1900 (NSW), it was also sufficient if the prosecution established that the accused had no reasonable grounds for believing that the complainant consented." 1. This distinction was fundamental in the present case and needed to be clearly drawn in order for the jury to understand the difference in what the Crown was required to prove with respect to each of the two offences. 2. While it is regrettable that counsel, particularly of such experience, did not alert the trial judge to the deficiencies in the trial judge's directions and summing up in this regard, this is no impediment to the grant of relief by this Court. Accordingly, I agree with orders (1), (2) and (3) proposed by Hoeben CJ at CL. 3. I respectfully disagree with the reasons of Hoeben CJ at CL and Schmidt J as to their proposed order (4). The reasons for my (minority) view are as follows. The question whether a re-trial ought be ordered on counts 4 and 5 or whether an acquittal on these counts ought be entered requires an analysis of whether verdicts on these grounds would be unreasonable on the basis of the correct law and whether the verdicts returned were inconsistent. 4. Count 4 (indecent assault of the complainant by the applicant in the company of Dario Miletic (Miletic)) was alleged to have been committed while the conduct the subject of count 1 (unlawful sexual intercourse) was occurring and count 5 (indecent assault of the complainant by the applicant in the company of Miletic) was alleged to have been committed while the conduct the subject of count 3 (unlawful sexual intercourse) was occurring. Because Miletic was, relevantly, acquitted of counts 1 and 3, any further trial of the applicant on counts 4 and 5 would have to be premised on the circumstance that the intercourse between the complainant and Miletic was not non-consensual. 5. Ms Bashir SC, who appeared on behalf of the applicant, accepted that no direction had been sought at the trial that an acquittal of Miletic on counts 1 and 3 necessarily led to an acquittal of the applicant on counts 4 and 5. Nor did Ms Bashir submit that it would not have been open to a rational jury, correctly directed, to convict the applicant on counts 4 and 5 having acquitted Miletic on counts 1 and 3. 6. In respect of counts 4 and 5, I am not satisfied that the statutory alternatives were properly left to the jury despite occasional references to the statutory alternatives in the course of the transcript. Accordingly, it was necessary for the Crown to establish the charges as alleged on the indictment; namely, that each of counts 4 and 5 was committed "in company". This required the Crown to prove, in respect of each of counts 4 and 5, that Miletic was not only present during, but also assisting and encouraging, the applicant's indecent assault of the complainant in respect of each of counts 4 and 5. 7. Ms Bashir took the Court through the complainant's evidence about the text messages and call records on her phone in support of a submission that the complainant's evidence was so unreliable as to make the verdicts of guilty in respect of counts 4 and 5 unreasonable. I do not accept this submission. The jury, who had the benefit of seeing and hearing the complainant give evidence and be cross-examined, could well have considered that her recollection about the times and contents of calls and text between the complainant and her friend (who was on a nearby boat) to be unreliable but that her evidence as to what occurred on the boat between her, the applicant and Miletic was sufficiently reliable to be satisfied of counts 4 and 5 beyond reasonable doubt. It is open to a tribunal of fact to accept part of a witness's evidence and not accept another part. 8. It does not follow from Miletic's acquittal on counts 1, 2 and 3; Mr Dow's acquittal on counts 7 and 8 and the applicant's acquittal on count 6 that the jury regarded the complainant as generally unreliable. A verdict of "not guilty" does not necessarily imply any "want of confidence" in the complainant but "may simply reflect a cautious approach to the discharge of a heavy responsibility": MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ). See also R v Markuleski (2001) 52 NSWLR 82 at [219]-[221]. 9. Ms Bashir further submitted that the verdict of guilty in respect of count 4 was unreasonable since Miletic had actually helped the complainant push the applicant away and therefore could not be said to have assisted or encouraged the applicant's indecent assault. However, there was evidence from which the jury could have found that Miletic was assisting and encouraging the applicant's indecent assault of the complainant until the complainant indicated that she no longer wanted to engage in consensual sex with Miletic while the applicant was in the room, at which point Miletic helped the complainant push the applicant away. If the jury accepted the complainant's evidence on this matter and engaged in the reasoning set out above, it would have been open to them to convict the applicant on count 4. 10. I am not satisfied that there is any inconsistency between the verdicts of not guilty on counts 1 to 3 and 6 to 8 and the verdicts of guilty on counts 4 and 5. It was open to the jury not to be satisfied that the sexual intercourse between the complainant and Miletic was non-consensual (counts 1, 2 and 3), not to be satisfied of the offences involving Mr Dow (counts 7 and 8), not to be satisfied of count 6 (which involved the applicant), but nonetheless be satisfied that the complainant did not consent, to the knowledge of Miletic and the applicant to the indecent assaults by the applicant which Miletic assisted and encouraged (counts 4 and 5). I do not regard the Crown cases against the applicant in respect of counts 4 and 5 as being materially different. For the reasons given above it was open to the jury to be satisfied that Miletic, at least for some period, was encouraging and assisting the applicant's indecent assault, although this encouragement and assistance stopped when he assisted the complainant to push the applicant away in the course of count 4. 11. For these reasons I do not agree with order (4) proposed by Hoeben CJ at CL. 12. Because I consider that the evidence presented at trial was sufficiently cogent to justify a conviction on counts 4 and 5, the further question arises whether it is appropriate to order a re-trial pursuant to s 8(1) of the Criminal Appeal Act 1912 (NSW). Unless the interests of justice require the entry of an acquittal, this Court should usually order a new trial of a charge where a conviction in respect of the charge has been quashed but there is evidence to support the charge. Where a new trial is ordered by this Court, it is a matter for the prosecuting authorities whether there should be a further trial: Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104] (Callinan J), cited with approval by this Court in Gilham v R [2012] NSWCCA 131 at [649]. The factors relevant to this Court's discretion whether to order a new trial were summarised in Gilham v R at [649] and R v Anderson (1991) 53 A Crim R 421 at 453 (Gleeson CJ). 13. The principal considerations in favour of ordering a new trial are the public interest in the prosecution and conviction of offenders and the desirability of having the guilt or innocence of the applicant determined by a jury. The considerations against an order for a new trial include that the applicant has served a substantial period of the bond into which he entered following his conviction and that the Crown case would have to be modified on any re-trial to remove any suggestion that the intercourse between the complainant and Miletic, at the time the conduct the subject of counts 4 and 5 was occurring, was not consensual. It is also relevant that the events the subject of the charges occurred some six years ago. 14. On balance I consider that the public interest in the prosecution and conviction of offenders and the desirability of having the guilt or innocence of the applicant determined by a jury is not outweighed by the other considerations to which I have referred. I am not satisfied that the interests of justice require the entry of an acquittal. It will, accordingly, be a matter for the prosecuting authorities whether there should be a further trial. Proposed orders 1. For the reasons given above, I agree with orders (1), (2) and (3) proposed by Hoeben CJ at CL. In lieu of his Honour's proposed order (4), I propose the following order: (4) Order a re-trial in respect of counts 4 and 5. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2019