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Court of Criminal Appeal 16 February 2000

R v RASO

[2000] NSWCCA 22

Sexual offences

Citation: R v RASO [2000] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 16 February 2000
Judge(s): Spigelman CJ, Hulme J, Smart AJ

Background

The appellant was tried in the District Court on four counts arising from alleged conduct towards his sister-in-law, who was under 16 at the time of the relevant events. The counts included two charges of indecent assault (in 1995), one charge of sexual intercourse without consent (rape), and an alternative count of sexual intercourse with a person aged between 10 and 16. The appellant denied all allegations.

The jury acquitted the appellant on the first three counts but found him guilty on the fourth count, the alternative charge of sexual intercourse with a person under 16. He was sentenced to two years penal servitude to be served by way of periodic detention.

The appellant appealed, challenging both the consistency of the verdicts and the overall safety of the guilty verdict.

  • Whether the guilty verdict on count 4 was legally inconsistent with the not guilty verdicts on counts 1, 2, and 3
  • Whether the guilty verdict was unsafe and unsatisfactory (or unreasonable within the meaning of s 6 of the relevant appeals legislation)

Decision

Hulme J (with whom Spigelman CJ and Smart AJ agreed) examined the evidence in detail, focusing on the complainant's testimony and the circumstances under which each count could have been assessed by the jury. His Honour noted that juries are entitled to accept part only of a witness's evidence, provided their approach is rational. The question was whether a rational basis existed for accepting the complainant's account on count 4 while declining to accept it on the other counts.

Hulme J identified reasons why each of the first three verdicts was explicable independently of the fourth. On count 1 (the breast-touching), the complainant's account was such that the jury may have inferred the contact was accidental. On count 2 (the lounge room incident), the absence of any recollection by a corroborating witness of sexual activity beyond kissing may have left the jury unpersuaded of indecency. On count 3 (the rape charge), the jury could have accepted that sexual intercourse occurred without being satisfied beyond reasonable doubt that the complainant had not consented, since lack of consent was the element distinguishing count 3 from count 4.

Spigelman CJ added that the apparent inconsistency between counts 3 and 4 was not a true inconsistency. The complainant's evidence on the occasion in question went to the lack of consent, but the jury was entitled to accept evidence of the act of sexual intercourse itself while not being satisfied beyond reasonable doubt on the consent element. His Honour declined to place weight on the complainant's failure to mention the alleged rape when she attended the police station, noting that the circumstances at that time may have been hostile in a broader sense. All three judges agreed the appeal should be dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A jury's entitlement to accept part only of a witness's evidence, provided that approach is rational, is a well-established principle that can support apparently divergent verdicts on related counts arising from the same factual narrative.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that no necessary inconsistency arises where an acquittal on a more serious charge and a conviction on an alternative charge can each be explained by reference to a distinct element of the respective offences.
  • Where counts differ by a single element (here, consent), a jury finding on one count does not automatically dictate the finding on the other, provided a rational evidential basis supports the distinction.
  • No error was established in the District Court's approach, and the Court of Criminal Appeal found no basis for concluding the guilty verdict was unreasonable within the meaning of the relevant statutory test, applying Fleming v The Queen (1998) 158 ALR 379.
  • Contextual factors surrounding a complainant's failure to disclose alleged offending to police at an early opportunity may bear on how that omission is assessed, and the hostile circumstances may extend beyond the conduct of any one individual present at the time.

Legislation and Cases Referenced

Cases:
- Fleming v The Queen (1998) 158 ALR 379

Legislation:
- Section 6 of the Criminal Appeal Act 1912 (NSW) (referenced by way of the "unreasonable verdict" test; not cited by name in the judgment but identifiable from context)