Citation: [1999] NSWCCA 62
Court: New South Wales Court of Criminal Appeal
Date: 31 March 1999
Judge(s): Abadee J, Barr J, Adams J
Background
The respondent/appellant was a Catholic priest who had joined a Caringbah parish in October 1975. He was charged with three counts of indecent assault on a complainant who was under 16 years of age at the relevant times. The alleged offences occurred across different locations: at a local oval during morning jogs, in the sacristy of his church on Ash Wednesday 1976, and at Wanda Beach during 1977.
The matter was tried before a jury in the District Court before Ford DCJ. The jury convicted the appellant on the first two counts (relating to the oval and the sacristy) and acquitted him on the third count (relating to Wanda Beach). The trial judge sentenced the appellant to two years' imprisonment on each count, to be served by way of periodic detention.
Both the appellant and the Crown appealed. The appellant challenged his convictions as unreasonable and inconsistent. The Crown separately appealed the adequacy of the sentences imposed.
Legal Issues
- Whether the jury's verdicts were inconsistent and therefore unreasonable, in circumstances where acquitting on the third count was irreconcilable with convicting on the first two counts
- Whether the trial judge's directions on the standard of proof were adequate, particularly the use of the phrase "substantially true" when directing the jury on how to assess the complainant's evidence
- Whether the Crown could rely on timing distinctions between counts to explain the apparently inconsistent verdicts
Decision
The Court found that the verdicts could not be reconciled. The Crown's primary argument for distinguishing the third count from the others rested on the possibility that the Wanda Beach incidents may have occurred outside the period specified in the indictment. However, the Court rejected this as a sufficient basis for the inconsistency, finding that the same reasoning about the complainant's credibility applied across all three counts. Because the entire Crown case rested on the complainant's evidence, an acquittal on the third count necessarily raised a reasonable doubt about the convictions on the first two.
Barr J led the principal judgment, concluding there was no principled way to reconcile the jury's verdicts. The Crown's timing argument was characterised as a formal distinction that could not explain why the jury would accept the complainant's evidence on some counts but not others when all three arose from essentially the same course of conduct and the same witness.
Adams J agreed with the orders but also identified a further, independent concern with the trial judge's summing-up. His Honour found that the direction which suggested the jury should convict if they accepted the complainant's account as "substantially true" was dangerously ambiguous. The phrase risked conflating an assessment of the complainant's general credibility with the distinct requirement that each element of the offence be proved beyond reasonable doubt. Adams J concluded this created a real risk of misdirection and independently left him with a reasonable doubt as to the appellant's guilt.
All three judges agreed that the convictions on the first two counts could not be supported having regard to the evidence, within the meaning of section 6(1) of the Criminal Appeal Act 1912, and that the convictions must be quashed.
Orders Made
- Appeal against convictions allowed
- Convictions quashed
- Crown appeal against adequacy of sentence did not arise
Key Takeaways
- Inconsistent jury verdicts will warrant appellate intervention where there is no principled way to reconcile them by reference to the evidence; a formal distinction based on timing will not suffice if the same findings of credibility must underpin all counts
- Where the entire Crown case rests on a single witness, an acquittal on one count can render guilty verdicts on remaining counts unreasonable and unsupportable
- A summing-up that directs a jury to convict if they find a complainant's account "substantially true" risks conflating credibility assessment with the standard of proof, and the Court of Criminal Appeal treated this as a separate and significant concern
- Appellate courts will not substitute their view of the facts for that of the jury where some evidence supports apparently inconsistent verdicts, but will intervene where no reasonable reconciliation is available on the evidence as a whole (citing Jones v The Queen (1997) 191 CLR 439 and M v The Queen (1984) 181 CLR 487)
- Once convictions were quashed, the Crown's related sentence appeal became moot and was not determined
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act (NSW), ss 360, 365
Cases:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1984) 181 CLR 487
- S v The Queen (1989) 168 CLR 266
- R v Burns (1920) 20 SR (NSW) 351