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Court of Criminal Appeal 1 August 2000

R v Barnett

[2000] NSWCCA 283

Sexual offences
APPEAL AGAINST CONVICTION CARNAL KNOWLEDGE OF A MINOR INCONSISTENT VERDICTS

Citation: Barnett v R [2000] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 1 August 2000
Judge(s): Dunford J, Foster AJA, Smart AJ

Background

The appellant was tried in the District Court at Penrith on six counts arising from alleged sexual offending against a complainant over several years in the early 1960s. The charges included carnal knowledge (sexual intercourse with a minor, then an offence under s 71 of the Crimes Act 1900) and indecent assault at various locations in NSW, as well as a rape count. The trial judge directed an acquittal on the rape count at the close of the Crown case, after the complainant herself gave evidence that sexual intercourse had not occurred on that occasion.

The jury acquitted the appellant on counts 1, 2, and 5, but convicted him on counts 3 and 4, both carnal knowledge charges relating to alleged incidents when the complainant travelled with the appellant in his interstate truck. He was sentenced to a minimum term of four years with an additional term of two years.

The Crown's case rested almost entirely on the complainant's own evidence, supplemented by a statement from her deceased mother and brief police evidence. The alleged offences had occurred between 1961 and 1966, but the complainant did not report the matter to police until 1993, and the trial did not take place until 1999.

  • Whether the guilty verdicts on counts 3 and 4 were inconsistent with the acquittals on counts 1, 2, and 5, given that all counts rested on the same body of uncorroborated evidence from the complainant.
  • Whether the guilty verdicts were unreasonable and could not be supported having regard to the evidence, applying the principles established by the High Court in Jones v The Queen (1997) 191 CLR 439.

Decision

Dunford J, with whom Foster AJA and Smart AJ agreed, noted a distinction drawn in the earlier Court of Criminal Appeal decision R v RAT [2000] NSWCCA 77 between strictly inconsistent verdicts and verdicts that are unreasonable under the Jones principles. The court focused primarily on the second ground: whether the convictions on counts 3 and 4 could stand given the jury's own acquittals on the remaining counts.

The court found that all counts rested overwhelmingly on the complainant's uncorroborated evidence. The acquittals on counts 1, 2, and 5 indicated the jury entertained a reasonable doubt about the complainant's evidence on those counts. Because the evidence on counts 3 and 4 was of the same character and quality, and was similarly unsupported by any independent material, the jury's doubt should logically have extended to those counts as well.

Dunford J noted that the only count where corroboration might have been available was count 5, where the appellant's ex-wife could potentially have confirmed an incident she had allegedly witnessed. She gave no such confirmation. The mother's statement provided some circumstantial support for opportunity on counts 1 and 2, but opportunity alone was not sufficient to establish that the offences had been committed.

The court also took into account the significant delay between the alleged offences and the trial, with witnesses giving evidence about events up to 37 years earlier. Although acknowledging that the complainant's written evidence read as convincing, and that the jury had the benefit of observing witnesses, the court concluded that the convictions on counts 3 and 4 were unreasonable and could not stand.

Orders Made

  • Appeal allowed.
  • Convictions and sentences on counts 3 and 4 quashed.
  • Verdicts of acquittal entered.

Key Takeaways

  • Where all counts in a sexual assault indictment rest on the same uncorroborated complainant evidence, acquittals on some counts may render guilty verdicts on the remaining counts unreasonable under the Jones v The Queen principles, even if the verdicts are not strictly logically inconsistent.
  • A conviction will be unreasonable where, on the evidence as a whole, a properly instructed jury ought to have had the same doubt about an offence as it clearly entertained in relation to closely comparable offences on the same indictment.
  • Proof of opportunity to commit an offence does not, without more, establish that the offence was committed; the prosecution must satisfy the jury beyond reasonable doubt as to the commission of the act itself.
  • Lengthy delay between alleged offending and trial is a relevant consideration in assessing the reasonableness of a verdict, particularly where events up to 37 years old are in issue.
  • The Court of Criminal Appeal can substitute verdicts of acquittal where convictions are found to be unreasonable and unsupportable on the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 63, 71, 76

Cases:
- R v RAT [2000] NSWCCA 77
- Jones v The Queen (1997) 191 CLR 439
- McKenzie v The Queen (1996) 190 CLR 348