RH v R [2011] NSWCCA 98

Procedural Posture

Criminal Appeal Against Conviction / Appeal From Jury Convictions on Counts 2, 3 and 4 After Trial Before Coolahan Dcj; No Leave to Appeal Against Sentence Was Sought.

Legal Issues

1. 1 ['Whether the trial judge erred by failing to direct the jury on Count 3 that the Crown had to prove the Appellant knew the complainant was not consenting.' "Whether the trial judge erred by failing to direct the jury on Counts 3 and 4 about knowledge of lack of consent and the Appellant's reasonable belief in consent." 'Whether the consciousness of guilt directions concerning the SMS messages and self-harm were inadequate and caused a miscarriage of justice.' 'Whether the errors affected Counts 2, 3 and 4 and required the convictions to be set aside.']

Ratio Decidendi

The evidence in the Records of Interview and the Crown opening sufficiently raised the issue of the Appellant's reasonable belief in the complainant's consent, and it was an element of Counts 3 and 4 that the Appellant knew the complainant was not consenting. The trial judge failed to give adequate directions on that issue and, after the jury asked for clarification about consent, repeated a direction that effectively excluded reasonable belief in consent. The trial judge also failed to give proper consciousness of guilt directions concerning the self-harm evidence, including by not directing attention to alternative explanations and the absence of evidence that the Appellant knew police...

Court Disposition

Appeal against conviction allowed; verdicts of guilty set aside; new trial ordered.

Orders

• ['Allow the appeal against conviction, set aside the verdicts of guilty, and order a new trial.']