Citation: Regina v DSA [1999] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 8 March 1999
Judge(s): Spigelman CJ, McInerney J, Abadee J
Background
The appellant was charged with three counts of carnal knowledge of his sister, alleged to have occurred over a short period in early 1975 when the complainant was aged thirteen to fourteen. The events underlying all three counts were alleged to have taken place within the same date range specified on each count: 25 January 1974 to 28 February 1975.
At trial in the District Court, a directed verdict of not guilty was entered on the second count because the Crown conceded there was insufficient evidence of penile penetration. The jury acquitted the appellant on the third count but convicted him on the first. The appellant appealed that conviction to the Court of Criminal Appeal.
A complicating feature of the case was the appellant's own evidence. He denied the offences as the complainant described them, but acknowledged that one incident of sexual contact had occurred, characterising it as having been initiated by the complainant while he was asleep.
Legal Issues
- Whether the jury's verdict of guilty on the first count was unsafe or unjust, given the acquittal on the closely related third count and the directed verdict on the second count.
- Whether the jury may have used the appellant's own admission of some sexual contact to confirm its acceptance of the complainant's evidence on the first count, in circumstances where it had otherwise rejected her evidence in relation to the third count.
- Whether a new trial should be ordered or a verdict of acquittal entered.
Decision
The Court of Criminal Appeal found that the conviction on the first count was unsafe. Central to this conclusion was the fact that all three counts shared an identical date range, unlike cases such as Jones v R where separate counts covered distinct time periods. The overlap made it difficult to distinguish which incident the jury's reasoning tracked across the counts.
The Court identified a substantial possibility that the jury may have been mistaken or misled. In particular, the jury may have used the appellant's concession of some sexual contact as confirmation of the complainant's account on the first count, even though the jury had not accepted her evidence to the required standard on the third count. Spigelman CJ noted that the appellant's own version of events, even if accepted, could not have constituted the offence of carnal knowledge.
This reasoning engaged the test from Davies and Cody v The King (1937) 57 CLR 170, which permits a conviction to be set aside where there is "some feature of the case raising a substantial possibility that either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled." All three judges agreed that this test was satisfied.
The Court also exercised its discretion not to order a new trial, instead directing entry of a verdict of acquittal on the first count. The judgment of Abadee J (with which Spigelman CJ and McInerney J agreed) set out the reasons for that exercise of discretion, though the precise reasoning on that point is not fully reproduced in the available text.
Orders Made
- The appeal was allowed.
- The conviction on the first count was quashed.
- A verdict of acquittal on the first count was entered in lieu of a new trial.
Key Takeaways
- Where multiple counts share an identical date range, a jury's acquittal on some counts may raise a substantial possibility of error in a conviction on another count arising from the same factual circumstances.
- The test from Davies and Cody v The King (1937) allows a conviction to be set aside where there is a substantial possibility that the jury was mistaken or misled, whether in its conclusion or in the process by which it reached that conclusion.
- An accused's own concession of some sexual contact does not, without more, support a conviction for carnal knowledge where the accused's version, even if accepted, could not have constituted that offence.
- Under ss 6 and 8 of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal holds a discretion to direct entry of a verdict of acquittal rather than order a new trial; this discretion was exercised in the appellant's favour in the circumstances of this case.
- Inconsistent verdicts across closely related counts, particularly where the factual allegations overlap substantially, can provide grounds for appellate intervention even absent a specific misdirection by the trial judge.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 6 and 8
Cases:
- M (1994) 181 CLR 487
- Jones v R (1997) 72 ALJR 78
- R v Johnston (CCA, 31 July 1998, unreported)
- Davies and Cody v The King (1937) 57 CLR 170
- Gipp v The Queen (1988) 72 ALJR 1012
- Fleming v The Queen (1998) HCA 68; 158 ALR 382; 72 ALJR 1