JH v R [2021] NSWCCA 324

Procedural Posture

Application for Leave to Appeal Against Convictions for Sexual Intercourse Without Consent in Circumstances of Aggravation Contrary to S 61 J of the Crimes Act 1900 (nsw) / Court of Criminal Appeal; Application for Leave Under R 4 of the Criminal Appeal Rules to Rely on the Second Ground of Appeal and Appeal Against Conviction

Legal Issues

1. 1 ['Whether the verdicts were unreasonable or could not be supported having regard to the evidence that the complainant had a "serious physical disability" within s 61J(2)(f) of the Crimes Act 1900 (NSW).' 'Whether the expression "serious physical disability" required comparison with other physical disabilities or a more specific definition focusing on lack of independence and compromised functionality.' 'Whether the trial judge erred by not directing the jury more specifically on the meaning of "serious physical disability".' 'Whether leave should be granted under r 4 of the Criminal Appeal Rules 1952 (NSW) where no objection was taken to the jury direction at trial.']

Ratio Decidendi

The appeal failed because "serious physical disability" is an ordinary, undefined expression which did not require comparison with other disabilities or a judicial definition focusing on independence and functionality. It was open to the jury, having seen and heard the complainant and having evidence of cerebral palsy and dystonia affecting her speech, walking, strength, dexterity and daily life, to find beyond reasonable doubt that she had a serious physical disability. The trial judge's directions adequately identified the Crown case and the need for proof beyond reasonable doubt, so no miscarriage of justice was shown and leave under r 4 was refused.

Court Disposition

Leave under r 4 of the Criminal Appeal Rules to rely on the second ground of appeal refused; appeal dismissed.

Orders

• ['Refuse leave under r 4 of the Criminal Appeal Rules to rely on the second ground of appeal.' 'Dismiss the appeal.']