R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228

R v Tyrone Chishimba, Tyrone Chishimba v R; Likumbo Makasa v R, R v Likumbo Makasa; Mumbi Peter Mulenga v R, R v Mumbi Peter Mulenga [2010] NSWCCA 228

By majority, the Court held that the Count 1 convictions were unreasonable and could not be supported because the evidence could not prove beyond reasonable doubt that the appellants knew intercourse with the complainant commenced while she was asleep or that their presence in the bedroom amounted to intentional encouragement of that unlawful act. The evidence had to be assessed consistently with the acquittals on the other sexual assault counts; evidence of later sexual activity and laughter could not materially support the alleged joint criminal enterprise for Count 1. Because the evidence at trial was insufficient to justify the convictions, acquittals rather than a new trial were...

Jurisdiction
Australia
Judgment Date
08 October 2010
Procedural Posture
Criminal Conviction Appeals and Crown Appeal Against Sentence / Appeals and Applications for Leave to Appeal in the New South Wales Court of Criminal Appeal From District Court Jury Convictions and Sentences
Outcome
Conviction appeals on Count 1 allowed by majority; Count 1 convictions quashed and acquittals entered; leave under rule 4 Criminal Appeal Rules refused for directions grounds; Makasa's sentence commencement date varied on Counts 8, 10 and 16; Crown appeal against sentence dismissed.
Legal Topics
['conviction Appeal' 'unreasonable Verdict' 'joint Criminal Enterprise' 'criminal Complicity' 'sexual Intercourse Without Consent' 'recklessness as to Consent' 'jury Directions' 'crown Appeal Against Sentence']
['criminal Law' 'criminal Procedure' 'sentencing'] ['conviction Appeal' 'unreasonable Verdict' 'joint Criminal Enterprise' 'criminal Complicity' 'sexual Intercourse Without Consent' 'recklessness as to Consent' 'jury Directions' 'crown Appeal Against Sentence']

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Procedural Posture

Criminal Conviction Appeals and Crown Appeal Against Sentence / Appeals and Applications for Leave to Appeal in the New South Wales Court of Criminal Appeal From District Court Jury Convictions and Sentences

Legal Issues

  1. 1 ['Whether the verdicts of guilty on Count 1 were unreasonable or could not be supported having regard to the evidence, particularly proof of a joint criminal enterprise.' "Whether the jury's acquittals on other counts affected the assessment of the convictions on Count 1." 'Whether the evidence was capable of proving beyond reasonable doubt that the appellants knew sexual intercourse with the complainant commenced while she was asleep and that they encouraged the criminal act.' 'Whether the trial judge erred in directions concerning joint criminal enterprise, recklessness as to consent, and lies alleged to evidence consciousness of guilt.' 'Whether a new trial should be ordered if the convictions on Count 1 were quashed.' "Whether the Crown appeal against sentence should be allowed, including in relation to Makasa's sentences on Counts 8, 10 and 16."]

Ratio Decidendi

By majority, the Court held that the Count 1 convictions were unreasonable and could not be supported because the evidence could not prove beyond reasonable doubt that the appellants knew intercourse with the complainant commenced while she was asleep or that their presence in the bedroom amounted to intentional encouragement of that unlawful act. The evidence had to be assessed consistently with the acquittals on the other sexual assault counts; evidence of later sexual activity and laughter could not materially support the alleged joint criminal enterprise for Count 1. Because the evidence at trial was insufficient to justify the convictions, acquittals rather than a new trial were...

Court Disposition

Conviction appeals on Count 1 allowed by majority; Count 1 convictions quashed and acquittals entered; leave under rule 4 Criminal Appeal Rules refused for directions grounds; Makasa's sentence commencement date varied on Counts 8, 10 and 16; Crown appeal against sentence dismissed.

Orders

  • ["Grant leave to the appellants Chishimba, Makasa and Mulenga to appeal upon the grounds contained in their Notices of Appeal, other than Grounds 3 and 4 referred to in [22] of the Court's reasons for judgment, leave to appeal not being required in respect of Grounds 3 and 4." 'Refuse leave under rule 4 Criminal...