MR v R

HEADNOTE [This headnote is not to be read as part of the judgment] On 17 March 2023, MR was convicted by Judge Townsden in a judge alone trial of committing an assault occasioning actual bodily harm against his stepson, TG, contrary to s 59(2) of the Crimes Act 1900 (NSW) ("Count 1"). He was found not guilty of common assault contrary to s 61 of the Crimes Act ("Count 2"). MR appealed against his conviction on the single ground that the verdict is unreasonable and cannot be supported having regard to the evidence ("the first appeal"). On 23 March 2023, MR was convicted in a separate trial by jury of committing aggravated sexual intercourse without consent in circumstances of aggravation (complainant under the age of 16 years) against his stepchild, VL, contrary to s 61J(1) of the Crimes Act. MR appealed against that conviction on the single ground that the trial judge erred in failing to leave to the jury the question of honest and reasonable mistake of fact ("the second appeal"). The facts of the first appeal are that when TG was 5 or 6 years old, MR warned him not to look in a certain linen cupboard (the cupboard contained cannabis leaf). On one occasion, MR caught him looking in the cupboard and hit him, causing him to fall and hit his head on the wooden door of the cupboard. TG left an indent on the wooden door of the cupboard, and started bleeding from his head (Count 1). On another occasion, when TG was 10 or 11 years old, he stole a watch from school. Upon learning this, MR took TG's hand and forcibly held it onto a burning hotplate (Count 2). His sister, VL, witnessed the event. He received no medical treatment, other than some aloe vera provided to him by his sister. The facts of the second appeal are that on one evening between 1 January 2000 and 23 June 2003, MR's wife, JR, was in hospital after having suffered a miscarriage. On that evening, VL, who was either 12 or 13 at the time, was home alone with MR. VL went to MR's bedroom because she was scared, and MR invited her to stay in the matrimonial bed. After she had fallen asleep, VL awoke to a sharp pain that was pushing into her anus. She then ran to the toilet and locked herself in. A short time later, VL heard MR call out "[VL], what's wrong". At trial, MR argued there was sufficient evidence led in the Crown case to satisfy the evidentiary onus that he had an honest and reasonable but mistaken belief that VL was his wife. Judge Townsden declined to direct the jury as to the availability of honest and reasonable mistake of fact on the basis there was insufficient evidence to discharge the onus. The Court (Harrison CJ at CL, with Garling and McNaughton JJ agreeing) held: As to the first appeal: (1) The evidence revealed that TG and VL had previously discussed the events that gave rise to the proceedings. The difficulty with a submission that this gives rise to an inference of collusion, contamination, or concoction, is that there is no specific criticism that could assist the availability of that inference, save for the fact that discussion between or among witnesses concerning a particular event witnessed several years ago should be regarded as suspicious: [21]. (2) MR was not able to draw any particular strength from a suggestion that the not guilty verdict on Count 1 was only explicable in a way that also imperilled the verdict on Count 2. TG was much younger when the linen cupboard assault allegation occurred; Judge Townsden explained why he had a doubt about TG's version of the incident in a way that did not cast doubt upon his credibility; and Count 2 was corroborated by VL, who was assessed as a credible witness: [22]. As to the second appeal: (3) All the evidence and surrounding circumstances, taken at their highest, were not capable of satisfying a jury that MR's conduct was (objectively) reasonable: [39]. (4) MR was aware that his wife was not at home but was in hospital having suffered a miscarriage. That fact alone is entirely inconsistent with a belief that his wife was in bed with him: [40]. (5) MR agrees he consumed alcohol on that evening because of his grief and sadness about his wife's miscarriage. MR was painfully aware that his wife was not at home to comfort him: [41] (6) VL did not end up in MR's bed without his prior knowledge and approval. It is accepted that she had specifically asked him if she could get into bed with him and he agreed. It is not possible reasonably to accept that this fact somehow slipped his mind: [42]. (7) VL was at the time between 12 and 13 years of age. There was obviously a significant discrepancy between the ages of VL and her mother. That discrepancy must necessarily have meant that their bodies were physically different in size and shape, if not otherwise, so that MR could not reasonably have mistaken his 12-year-old stepdaughter for his wife: [43]. (8) In the course of any physical interaction between MR and VL in his preparation for, but not including the commencement of, intercourse with her, it cannot be accepted he could possibly have failed to become alerted to the fact that the person with whom he was about to have intercourse was not his wife. It is simply unbelievable that MR could have thought that the way his "wife" was responding to him was in any way "usual" or "familiar" or what he had come to expect having regard to the length and character of their intimate relationship: [44].