By Paul Gregoire and Ugur Nedim
Kin Wah Kwan, a manager of Sugar Babes brothel in the western Sydney suburb of Clyde, entered the room of the establishment where he’d spotted a regular sex worker “lying on the bed, sleeping” at the beginning of his 10 pm shift on the night of 5 June 2022. The sex worker had finished her afternoon shift at 7 pm that evening and subsequently, fallen asleep on the bed.
Adam Holmes and another male arrived at the brothel at 10.01 pm, after drinking at the Granville Hotel for the past 3 hours, and Kwan showed them “some girls”. However, at around 10.42 pm, Holmes and his companion entered the room where the sex worker had earlier been sleeping, and he allegedly commenced performing cunnilingus on the woman as she continued to sleep.
Kwan then noticed the door of the room ajar, and as he entered it to check if the woman was still asleep, he noticed Holmes at the end of the bed bent forward before the woman who was still apparently asleep on her back. The man’s movements conveyed that he was performing cunnilingus upon her. Kwan then called out the woman’s name, and she woke in shock.
The sex worker found two men in her room, with one of them sexually assaulting her. Kwan asked her how much time the man had paid to see her and where the money was, to which she replied she did not know, as she had not agreed to his performing oral sex on her.
So, Kwan began quizzing the offender about the arrangement and he replied, “This one was free.”
The brothel manager then called NSW police and two constables arrived on the scene, with a subsequent supervisor later called upon to attend, and Holmes was arrested and taken into Granville police station for charging.
Guilty as charged
Holmes stood trial in late June 2023, facing on one count of sexual assault, or sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900 (NSW). On 3 July of that year, a NSW District Court jury then found him guilty of the offence, which carries a maximum penalty of 14 years in prison.
At trial, the defendant didn’t dispute that he’d performed cunnilingus on the sex worker, but he claimed it was consensual, and that she’d agreed to oral sex in exchange for $100, and that the woman had then gone on to pretend to be asleep on being caught by her manager, as she’d agreed to the transaction without telling her boss in contravention of brothel rules.
During the trial, two body worn camera videos taken at the scene by NSW police sergeant Johnston and constable Vanecek were tendered as evidence, as was the recording of the police interview with Holmes down at the police station.
However, NSW District Court Judge Nanette Williams had raised concerns with the defence and prosecution in respect of the admissibility of the evidence, only to then be reassured by Holmes’ defence lawyers that both parties had agreed to their inclusion.
So, following the jury entering a guilty verdict, her Honour then sentenced the accused to 4 years and 6 months imprisonment, with non-parole set at 2 years and 6 months.
Grounds of appeal
Holmes then appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA) on 18 November 2024, in regard to four grounds of appeal.
The grounds comprised of whether the inclusion of the body worn video by sergeant Johnston presented a miscarriage of justice, that the same issue was posed by the inclusion of the footage captured by constable Vanecek, as well as the admission of the unedited police interview being in error and fourthly, that the inclusion of all three items had resulted in a miscarriage of justice.
Section 6(1) of the Criminal Appeal Act 1912 (NSW) provides that an individual can appeal against a verdict when it is unreasonable, when the evidence could not support it, regarding any wrong decision in terms of a question of law or when a miscarriage of justice has taken place.
As in this case, when the assertion is a miscarriage of justice was due to the “incompetence of counsel” or the accused’s lawyer, the NSWCCA underscored that a court takes this as a “heavy burden” to determine, and that it must act “extremely cautious” in making a finding in regard to this.
In terms of the first ground, it comprised of the body worn video footage captured by sergeant Johnston presenting issues for Holmes as it depicted him as being detained in an area by police, it showed him being handcuffed and arrested and it featured a number of other instances of him being treated in a manner that inferred he’d committed the offence.
But this ground was not made out, as despite the inferences that might be taken from the footage, the jury had been given sufficient directions about what was actually occurring, and the defence wished the clip to be shown in court as it presented the accused as cooperating with police.
Holmes raised the inclusion of the police interview as being problematic, as it showed the interviewing officers ridiculing the defendant’s version of events and expressing their disbelief. Yet, the lawyer for the defence pointed out at trial, that what was revealed was that their client’s version of events held up against a “very extreme method of testing”.
The tendering of footage captured by constable Vanecek was found to be problematic, however as an unidentified woman at the scene suggested Holmes had been “trying to leave” and had subsequently been locked in a room. And the clip also featured other women stating that the sex worker was asleep at the time of the incident and that she was unaware of the man’s presence.
These depictions of the scene of the alleged crime on the Vanecek body worn footage being aired in the courtroom were determined to have posed a miscarriage of justice as it created “unfair prejudice” against the accused to the jury.
Therefore, the second ground of appeal was made out and due to the conclusions reached in terms of the first three grounds, the fourth ground did not have to be considered.
Conviction quashed
“In circumstances where I consider that the applicant’s conviction, and therefore the sentence imposed in consequence, should be quashed, it is neither necessary nor appropriate to deal with the applicant’s challenge that the sentence imposed was manifestly excessive,” NSWCCA Justice Nicolas Chen determined on the 13 December 2024.
His Honour further ordered that along with the quashing of the conviction and sentence imposed on 15 September last year, the case should be remitted to the lower court for retrial.
And NSWCCA Justices Natalie Adams and Mark Ierace agreed with their colleague’s orders.
