AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 June 1999

R v Owen

[1999] NSWCCA 133

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION CRIMINAL LAW MULTIPLE COUNTS WHETHER VERDICTS INCONSISTENT CRIMINAL LAW

Citation: Owen v R [1999] NSWCCA 133
Court: New South Wales Court of Criminal Appeal
Date: 4 June 1999
Judge(s): Grove J, Dunford J, Greg James J

Background

The appellant was convicted in the District Court at Sydney before Pain ADCJ on three counts of sexual offences against his nephew by marriage: one count of procuring the complainant to commit an act of indecency on him (under s 81A of the Crimes Act 1900), and two counts of assaulting the complainant and committing acts of indecency upon him (under s 81). He was acquitted on a fourth count of a similar nature. He was sentenced to three concurrent twelve-month terms of imprisonment to be served by periodic detention.

The alleged offences occurred when the complainant was aged between twelve and fifteen, spanning incidents at the appellant's home and at his chemical factory premises in Wollongong. The complainant gave evidence of multiple incidents involving the use of vibrating devices and acts of fellatio performed by the appellant. The complainant did not disclose the offending to his parents until mid-1991, some years after the events.

The appellant appealed against his convictions on several grounds, challenging the reasonableness of the verdicts and arguing that the jury's verdict of acquittal on one count was inconsistent with its convictions on the remaining counts.

  • Whether the verdicts were unreasonable or not supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the convictions were inconsistent with the acquittal on the fourth count, given an apparent dating error in that count
  • Whether the trial judge erred in the direction given to the jury regarding the Jones v Dunkel inference arising from the failure to call certain witnesses

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Grove J and Greg James J agreeing with the reasons of Dunford J. On the question of whether the verdicts were unreasonable, the Court examined the evidence carefully. Although the complainant's account contained some inconsistencies, including differences between his 1991 and 1996 statements and a change in his evidence about how many times a sander was used, the Court was not persuaded that a jury acting reasonably could not have reached the convictions. The evidence of two other witnesses, who gave similar accounts of the appellant's conduct at his factory, was treated as significant supporting material.

On the question of inconsistency between the acquittal and the convictions, the Court noted that the indictment appeared to contain a dating error on the count on which the appellant was acquitted. That count, relating to an alleged incident at a rented house, was said to have occurred in 1982, yet the complainant placed it in Year 9 when he would have been fourteen or fifteen. Once the apparent error was accounted for, the acquittal and convictions were not logically incompatible, and no inconsistency vitiating the convictions was established.

On the Jones v Dunkel direction, the Court found that the trial judge's direction was adequate. The question concerned the failure to call the appellant's wife's sister, who had lived next door to the appellant, as a witness to whether the complainant had stayed overnight at the appellant's home. The Court held that the sister fell within the category of witness the appellant, rather than the Crown, would normally have been expected to call. The direction given, which informed the jury that an uncalled witness's absence meant nothing that person could say would assist the party who would normally call them, together with a further observation about deficiencies in the Crown's evidence, was found to be sufficient in the circumstances.

Orders Made

  • Appeal dismissed
  • Convictions affirmed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that inconsistencies in a complainant's account do not automatically render a verdict unreasonable; the question is whether a jury acting rationally could have been satisfied of guilt beyond reasonable doubt.
  • Where an apparent drafting or dating error exists in a count on which an accused is acquitted, that acquittal does not necessarily create a logical inconsistency with convictions on other counts.
  • Similar fact evidence from other witnesses describing comparable conduct by the accused in the same setting can properly support the complainant's account and reinforce the reasonableness of a conviction.
  • The Jones v Dunkel inference applies differently depending on which party would normally be expected to call the absent witness: where the witness is more closely connected to the accused, the inference operates against the accused rather than the Crown.
  • A standard Jones v Dunkel direction, to the effect that an uncalled witness's absence suggests nothing they could say would assist the party expected to call them, is generally sufficient without requiring the further direction that the jury may more readily accept the other party's evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 81, 81A
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1994) 181 CLR 487
- Fleming v The Queen (1998) 158 ALR 379
- Penney v The Queen (1998) 155 ALR 605
- R v Giam [1999] NSWCCA 53
- R v Murray (1987) 11 NSWLR 12
- Jones v Dunkel (1959) 101 CLR 298
- R v Buckland [1977] 2 NSWLR 452
- Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557