Stevenson v R; Waters v R [2020] NSWCCA 58

Stevenson v R; Waters v R [2020] NSWCCA 58

Ground 4 was established because, on the accepted reasoning in Carlyle-Watson v R and the Director's concession, the jury was not clearly or correctly directed that liability as a principal in the second degree required proof of actual knowledge of the complainant's lack of consent. The error affected only the counts on which the applicants were charged as accessories, not the counts on which they were principals in the first degree. The affected convictions were set aside, the unaffected convictions were affirmed, and the aggregate sentences were quashed because they could not stand after some convictions were quashed.

Jurisdiction
Australia
Judgment Date
03 April 2020
Procedural Posture
Criminal Conviction Appeal / Applications to Extend Time and for Leave to Appeal Against Convictions From the District Court of NSW
Outcome
Appeals allowed in part. Time extended and leave granted on ground 4. Accessory-liability convictions set aside, convictions as principals in the first degree affirmed, aggregate sentences quashed, proceedings remitted to the District Court for possible re-trial and re-sentence, and bail refused.
Legal Topics
['aggravated Sexual Intercourse Without Consent' 'attempt to Commit Aggravated Sexual Intercourse Without Consent' 'principal in the Second Degree' 'joint Criminal Enterprise' 'accessory Present at the Scene' 'jury Directions' 'miscarriage of Justice' 'aggregate Sentence' 'remittal for Re Trial and Re Sentence']
['criminal Law' 'criminal Procedure' 'sentencing'] ['aggravated Sexual Intercourse Without Consent' 'attempt to Commit Aggravated Sexual Intercourse Without Consent' 'principal in the Second Degree' 'joint Criminal Enterprise' 'accessory Present at the Scene' 'jury Directions' 'miscarriage of Justice' 'aggregate Sentence' 'remittal for Re Trial and Re Sentence']

Case Brief

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Procedural Posture

Criminal Conviction Appeal / Applications to Extend Time and for Leave to Appeal Against Convictions From the District Court of NSW

Legal Issues

  1. 1 ["Whether the trial miscarried because the basis of each applicant's liability as an accessory present at the scene or as a party to a joint criminal enterprise was not precisely identified for the jury." 'Whether the trial judge failed to direct the jury that liability as a principal in the second degree required proof that the applicant had actual knowledge that the complainant did not consent to the sexual intercourse.' 'Whether convictions on counts where the applicants were alleged to be principals in the first degree were affected by the erroneous directions concerning accessory liability.' 'Whether the aggregate sentences should be quashed after some convictions were set aside.']

Ratio Decidendi

Ground 4 was established because, on the accepted reasoning in Carlyle-Watson v R and the Director's concession, the jury was not clearly or correctly directed that liability as a principal in the second degree required proof of actual knowledge of the complainant's lack of consent. The error affected only the counts on which the applicants were charged as accessories, not the counts on which they were principals in the first degree. The affected convictions were set aside, the unaffected convictions were affirmed, and the aggregate sentences were quashed because they could not stand after some convictions were quashed.

Court Disposition

Appeals allowed in part. Time extended and leave granted on ground 4. Accessory-liability convictions set aside, convictions as principals in the first degree affirmed, aggregate sentences quashed, proceedings remitted to the District Court for possible re-trial and re-sentence, and bail refused.

Orders

  • ['Kurt Stevenson: Extend time for the filing of the notice of appeal.' 'Kurt Stevenson: Grant leave to appeal in relation to ground 4.' 'Kurt Stevenson: Allow the appeal.' 'Kurt Stevenson: Set aside the convictions on counts 3A, 4A and 6A.' 'Kurt Stevenson: Remit the proceedings to the District Court for re-trial at...