R v Kim

Mr Kim's movements

1. These matters are admitted. On 18 July 2019 Mr Kim worked at his regular place of employment, a restaurant in Haymarket, Sydney. He finished work at about 10pm and began socialising with work colleagues. This involved drinking alcohol. Sometime between midnight and 1 am on 19 July, Mr Kim left the restaurant with a friend and they went to a licensed venue in the CBD where they continued drinking for about an hour or so before moving on to drink at a restaurant in Goulburn Street. Shortly after 3am the two men left the restaurant and went their own ways. Mr Kim walked along Goulburn Street until he came to the apartment building where Ms S resided.

Ms S' movements

1. On the evening in question, Ms S worked a shift at a city hotel, finishing in the early hours of 19 July. She walked from the hotel to the apartment building where she lived with her boyfriend. She had, however, lost her key earlier that night and attempted to contact her boyfriend to open the entrance to the apartment and let her in. However, it appeared that his phone was out of power and Ms S pressed the access button to the units a number of times in the hope that someone might be able to help her. The CCTV clearly shows her at the entrance and Mr Kim's approach at this time. No one was in the vicinity. It was about 3:40am.

The physical interaction

1. The CCTV shows Mr Kim walking unsteadily up the footpath, with the entrance to the apartment building on his right. Ms S was about 3 m away from him inside a wide passage from the footpath to the entrance doors. Mr Kim had almost passed the passage when he noticed Ms S at the doors and stopped. He watched her for something over a minute as she was standing close to the doors to the apartments, on her mobile and obviously not attempting to enter. He then touched his trouser flies in a manner that, to my mind, was an attempt to open them but, on my viewing of the CCTV (and contrary to the prosecution submission), he failed, I infer because he was likely too drunk and unable to coordinate his finger movements. He then approached Ms S, stopping again for a short time before grabbing her from behind with both arms. At first, Ms S thought he was her boyfriend playing a trick on her but very quickly realised this was not so when Mr Kim grabbed her breasts, one with each hand from behind. (It is this conduct which constitutes the sexual touching contrary to s 61KC(a), to which Mr Kim pleaded guilty.)
2. Ms S struggled to free herself from Mr Kim's hold but was unsuccessful. She said that he put what she thought was his right hand under her skirt onto the front of her right thigh. She tried to push it away and pulled down her skirt. They then fell, with Ms S facing the ground and Mr Kim on top of her. It seems to me that the CCTV shows that Mr Kim had instigated the fall to bring Ms S to the ground. Ms S thought she felt him try to lift her skirt again and she used her hand to pull her skirt down to prevent access. She was not sure whether he was able to reach under her skirt on this occasion.
3. The prosecution has drawn my attention to particular parts of the CCTV depiction which, it is submitted, at least shows Mr Kim's hand at the edge of Ms S' skirt. Mr Park, Counsel for Mr Kim, submitted that closer attention shows his hand in another place. Mr Park pointed also to the fact that Mr Kim was carrying in his right hand and over his right shoulder for a short time a small bag which would have prevented his using that hand as claimed by Ms S. I have carefully examined the CCTV with these submissions in mind. It provides some real but nevertheless relatively slight support for what might be regarded as the first attempt; it is, to my eye, no more than consistent with the possibility that there was a second attempt after the pair had fallen to the ground. Although I accept that Ms S was a completely honest witness, it is necessary to bear in mind, when considering the reliability of her evidence, that the attack was completely unexpected and involved a violent struggle with relatively quick movements over a very short time. In the result, I am satisfied that Ms S' evidence about the first attempt can and should be accepted. Whilst I accept that Ms S sincerely believes that Mr Kim made a second attempt to lift her dress, the circumstances are such that I feel unable to conclude that this in fact occurred, given that they were on the ground, both were moving quite quickly and the time frame was so brief. My conclusion can go no higher than that his hand may have touched the rim of her skirt during the struggle.
4. Ms S shouted for help and Mr Kim covered her mouth with his right hand, which she then bit as hard as she could. He removed his hand and punched her with his left hand to the back of her head several times and, as he got to his feet, punched her again several times and walked away. Fortunately, Ms S was wearing a hooded coat which gave her head some protection and, although she was hurt, she suffered no injury. (These are the assaults constituting the offence under s 61, to which Mr Kim also pleaded guilty.) When Mr Kim left her, Ms S got to her feet and sought assistance at a nearby store. The interaction had taken something like two minutes. It is clear that Mr Kim desisted only because of Ms S' determined resistance and, perhaps, her calls for help.

Circumstantial case

1. This is a circumstantial case in which most, though not all of the facts are undisputed or indisputable. The question is whether, taking all the facts that I consider to be proved, the only rational hypothesis is that the offence charged was committed. There is no particular fact in this case that needs to be established beyond reasonable doubt. Rather, the evidence must be considered as a whole, like a cable made up of different strands of varying cogency for the purpose of determining whether, taken as a whole the accused's guilt is proved beyond reasonable doubt or, to put the test in another way, it is reasonably possible that the accused is innocent (see eg Shepherd v The Queen (1990) 170 CLR 573).

Intoxication

1. As I have already mentioned, Mr Kim was extremely drunk. But this was not to the degree that he was unable to walk, although not in a straight line. He was able to remain upright. He noticed Ms S and, plainly enough, was able to identify her as female. He watched what she was doing. He attempted to open his flies. He grabbed her and (opportunistically) placed his hands over her clothing on her breasts. He kept her in his grip as they fell and placed his hand over her mouth to silence her calls for help. His response to her biting his hand was to remove it and punch her both as he was on the ground and as he got to his feet. He then made off, walking unsteadily, but resuming the direction in which he had earlier been moving.
2. In considering what Mr Kim was attempting to do when he attacked Ms S, in particular, whether he was attempting to have sexual intercourse without consent, it would conventionally be necessary to consider the possible effect of his extreme intoxication on his ability to form the requisite intention. This calls into consideration the provisions of Part 11A which, the prosecution submitted, prohibits consideration being given to Mr Kim's intoxication in relation to his intent to commit the offence. Section 428B specifies the offences of "specific intent" to which the Part applies, as being those offences "of which an intention to cause a specific result is an element" and, without limiting the generality of this definition, lists a large number of examples of "offences of specific intent" by reference to the relevant section of the Act with the section heading. The only attempts mentioned are ss 29 and 30 (which deal specifically with attempts). The relevant operational provisions are ss 428C and 428D, in the following terms - 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person - (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 428D Intoxication in relation to other offences In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct - (a) if the intoxication was self-induced - cannot be taken into account, or (b) if the intoxication was not self-induced - may be taken into account.
3. There is no doubt that Mr Kim's intoxication was self-induced. Is an attempt to commit the offence of having sexual intercourse without a person's consent knowing that the person was not consenting an "offence of specific intent"? Section 428A defines "offence" as including "an attempt to commit the offence". The list in the Table to s 428B does not include either the substantive offence relevant here nor any attempt which, by virtue of s 344A, renders the offender liable to be punished for the penalty applicable to the substantive offence. Section 344A does not, however, create, let alone specify the elements of a criminal attempt. It merely specifies the punishment that applies to its commission. The elements of the crime are to be found in the common law. They are not complicated. A useful statement of its character may be found in Alister and ors v the Queen (1984) 154 CLR 404 at 421-2, per Gibbs CJ at (omitting some references) - "One constituent element of the crime of an attempt is "an intention on the part of the offender to commit the complete offence": Director of Public Prosecutions v. Stonehouse (1978) AC 55, at p 68 It follows that a person is not guilty of an attempt to murder unless he intends to kill. 'Paradoxically, but inevitably, the law's requirements on a charge of attempting to commit a crime are stricter than on a charge of actually committing it; for the concept of attempt necessarily involves the notion of an intended consequence': Smith and Hogan, Criminal Law, 4th ed. (1978), p. 247. Accordingly, a person who attacks another intending to do him grievous bodily harm will be guilty of murder if the victim dies, but not of attempted murder if he does not. In R. v. Wybrow, (1951) 35 CrAppR 141, at pp 146-147 … Lord Goddard L.C.J. said: 'Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm and death does not result, it is not attempted murder, but wounding with intention to do grievous bodily harm. It is not really illogical because, in that particular case, the intention is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intention to do grievous bodily harm.' … I regard the law as correctly stated in Russell on Crime, 12th ed. (1964), vol. 1, p. 177, where it was said that "a man cannot attempt to do that which he does not intend, if he is able to, to do" and that "obviously there can be no question of 'recklessness' or 'negligence' amounting to sufficient mens rea for a criminal attempt". Since those words were written, it has been held in Reg. v. Mohan (1976) QB 1 that an attempt to commit a crime requires 'proof of specific intent, a decision to bring about, in so far as it lies within the accused's power, the commission of the offence which it is alleged the accused attempted to commit …' (1976) QB, at p 11 and that a reckless state of mind is not enough …"
4. In R v Gulliford [2004] NSWCCA 338, the appellant was convicted of breaking and entering a dwelling house and committing a serious indictable offence, namely the attempt to have sexual intercourse without consent, knowing there was no consent. At the relevant time, attempting to commit the substantive offence rendered the offender liable to the same penalty was a specifically provided for by s 61P, so that reference to s 344A was unnecessary. (Section 61P has since been repealed, so the relevant provision for punishing the attempted substantive offence is, as mentioned, s 344A). The jury was, in substance, instructed that, if they were not satisfied (the other elements having been established) that sexual intercourse occurred but were satisfied that the accused had attempted to have sexual intercourse without consent, knowing of the absence of consent, then they could convict him of the offence of breaking and entering and committing a serious indictable offence, though that was an attempt to have sexual intercourse without consent rather than having sexual intercourse without consent. The real issue was whether the appellant had penetrated the complainant or had tried to do so but failed. The complainant and the appellant had been in a relationship and, according to the complainant, he asserted that he "[knew she] wanted it". There was evidence that the appellant was intoxicated. The defence was, in substance, that no intercourse or attempt to have intercourse occurred. So far as the attempt was concerned, the jury were instructed that they must be satisfied that "in [his] mind he is trying to commit the offence. There must be some act which identifies … not just that the accused intended to commit the offence but that he actually tried …". Wood CJ at CL (with whom Spigelman CJ, as to this matter and Howie J agreed) concluded (at [127]) in substance that this direction gave sufficient guidance on the issue of intention. His Honour went on to say - 127 In any event, s 428D of the Crimes Act provides that in determining whether a person had the mens rea for an offence other than one of specific intent, evidence that the person was intoxicated cannot be taken into account, if it was self-induced. Clearly the intoxication of the Appellant in the present case was self-induced. The offence charged in s 112(2) of the Crimes Act is not included in the list of offences contained within s 428B as an offence of specific intent (that being defined as "an offence of which an intention to cause a specific result is an element"); nor is s 61I or s 61P included in that list. The decision in R v Holland (1993) 117 ALR 193 would also support that outcome.
5. Holland concerned allegations of digital penetration and cunnilingus of a girl aged 13 years. Consent was, therefore, not in issue. The appellant was convicted of attempted sexual intercourse in respect of the digital penetration. He contended that inadequate directions were given to the jury on the issue of attempt. The majority (Mason CJ, Brennan, Deane and Toohey JJ) pointed out (at [12]) that committing the substantive offence required a non-specific intention to do the act, in the sense of placing his finger where he intended to put it, whether or not he was aware of the particular organ he was penetrating, whilst the intention necessary for attempt was different and required the intention to insert a finger into the complainant's genitalia as far as he chose, so that, but for the impediment (as it happened) at the entry of the vagina, his finger would have penetrated it to some extent. The minority (Dawson, Gaudron and McHugh JJ) differed only as to whether the jury should have been instructed that, if there was a reasonable possibility that the appellant intended to touch or fondle the complainant's externa genitalia without penetrating it, he should be acquitted (ibid at [6]). It was agreed (by all their Honours) that the directions as to attempt were inadequate but the majority concluded that, in all the circumstances of the case, no miscarriage of justice resulted. With respect, it seems to me that the reference by Wood CJ at CL to Holland concerned his Honour's conclusion about whether there had been a miscarriage rather than the possible application of s 428D in light of the actual direction about the need to be satisfied that the appellant was, indeed, attempting to have sexual intercourse with the complainant knowing she was not consenting.
6. In my opinion, where the alleged offence is an attempt to have sexual intercourse without consent, knowing that the complainant was not consenting, the Crown must prove beyond reasonable doubt in every case that the intention or purpose of the accused was to have sexual intercourse with the complainant and, accordingly, intoxication may be a factor to consider when deciding that question. To that extent, the offence of attempt is (as Alister and Holland, amongst many others, demonstrate) an offence of specific intent. I do not understand the passage from Gulliford, to which I have referred, to suggest otherwise. However, s 428D is relevant to the other elements of knowledge of lack of consent, and honest and reasonable mistake: see, eg, Day v R [2017] NSWCCA 192.
7. In the circumstances of this case, I am at all events satisfied beyond reasonable doubt that the actions of Mr Kim do not admit of the possibility that he did not appreciate that the complainant was not consenting to what he was attempting to do.

What was Mr Kim's intention?

1. I am satisfied beyond reasonable doubt that, for all that he was heavily intoxicated, Mr Kim intended to sexually interfere with Ms S. There is a real question, however, whether he had actually formulated the intention to have sexual intercourse with her whether or not she consented. The objective facts to which I have already adverted as to his actions certainly demonstrate that he was indifferent to Ms's struggle to free herself from his grasp, indeed that he attempted to overcome her resistance by force and the punches to her head whilst they were on the ground, though drunkenly ineffectual, were part of this attempt, as well as an angry response to being bitten.
2. It is necessary to consider what Mr Kim did as a whole. I am satisfied that the only reasonable conclusion is that, from the time he attempted to open his flies to the time he struggled with Ms S on the ground, his intention was to have sexual intercourse, in at least the sense of digital penetration, if he could, despite her lack of consent. I have given serious consideration to the possible hypothesis for explaining his conduct that he had some sexual gratification in mind falling short of sexual intercourse but the very violence of his attack, which included fondling her breasts and placing his hand under her skirt, was not indicative of any limited objective. His intoxication would likely have reduced his ability to judge whether he could or might have succeeded and I would accept that, except for the ineffectual attempt to physically overwhelm Ms S, he had no real idea how he would go about achieving his purpose, but he went as far as he could and would have gone further had he been able.

Mere preparation?

1. The acts of Mr Kim were directly and proximately connected with his intention to have sexual intercourse with Ms S despite the lack of consent by his physical attack on her designed to overcome her resistance and enable him to fulfil his purpose. They therefore went further than mere preparation and constituted an actual attempt to commit the substantive offence. In other words, he had actually embarked upon the commission of the substantive offence and cannot reasonably be held to have had any other purpose than doing so.

Conclusion

1. I am satisfied beyond reasonable doubt that Mr Kim is guilty of the offence of attempting, on 19 July 2019, at Sydney in the State of New South Wales, to have sexual intercourse with the complainant named in the indictment knowing she was not consenting. Accordingly, he is convicted of this offence.

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