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Court of Criminal Appeal 1 September 2000

R v AT

[2000] NSWCCA 342

Sexual offences
CRIMINAL LAW TRIAL BY JURY APPELLANT GAVE EVIDENCE WHETHER VERDICTS OF GUILTY UNREASONABLE CRIMINAL LAW EVIDENCE OF COMPLAINTS

Citation: AT v R [2000] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 1 September 2000
Judge(s): Studdert J, Simpson J, Dowd J

Background

The appellant, referred to as AT, was tried in the District Court at Parramatta in March 1999 on eight counts of sexual offences against his stepdaughter. The prosecution alleged the offences were committed over a period when the complainant was aged between eleven and thirteen years, between May 1992 and December 1994, all within the family home.

The jury convicted AT on six of the eight counts and acquitted him on two. He was sentenced to concurrent terms of imprisonment with a minimum term of four years and an additional term of two and a half years. AT appealed against both conviction and sentence.

The trial turned substantially on the credibility of two competing accounts: the complainant's evidence of repeated sexual abuse, and the appellant's denial. There was limited independent corroborating evidence for most counts.

  • Whether the guilty verdicts on six counts were unreasonable, having regard to the acquittals on the other two counts and the state of the evidence overall
  • Whether the trial judge's summing-up adequately directed the jury on the practical difficulties caused to the appellant by the complainant's delay in reporting the alleged offences
  • Whether the evidence of complaints made by the complainant to others was properly handled

Decision

The Court of Criminal Appeal focused on the tension between the jury's verdicts of guilty on six counts and its acquittals on the remaining two counts. On the two counts where the jury acquitted, there was independent evidence against which the complainant's account could be tested. On both of those counts, that external evidence undermined the complainant's version to the point where the jury was not satisfied beyond reasonable doubt.

The central difficulty, as Studdert J reasoned by reference to the High Court's approach in Jones v The Queen, was that the complainant's evidence was the foundation for all eight counts equally. If the jury found her evidence insufficiently reliable to support convictions on counts 1 and 8 when tested against other material, there was no satisfactory basis for treating her evidence as more reliable on the remaining six counts, which lacked any such external check.

The Crown was unable to point to features of the evidence on the six convicted counts that distinguished them and justified the jury accepting the complainant's account on those counts while rejecting it (or being uncertain about it) on the others. Studdert J concluded that the verdicts were inconsistent in a legally significant way, and that the Court was required to intervene.

Studdert J also found a separate ground of appeal established concerning the summing-up's treatment of delay in complaint. The trial judge had not adequately directed the jury on the practical difficulties that the long delay in reporting created for the appellant in mounting his defence. However, because success on the unreasonable verdict ground required judgments of acquittal rather than a retrial, that ground ultimately determined the outcome.

Orders Made

  • Appeals allowed
  • Convictions and sentences quashed
  • Judgments of acquittal entered

Key Takeaways

  • Where a jury acquits on some counts but convicts on others in a trial depending substantially on a single complainant's credibility, the Court of Criminal Appeal may find the verdicts legally inconsistent if there is no principled basis for treating the complainant's evidence as more reliable on the convicted counts than on the acquitted counts.
  • Applying the reasoning in Jones v The Queen (1997) 191 CLR 439, inconsistency in verdicts can render a conviction unreasonable where the same witness's evidence underlies all counts and nothing distinguishes that evidence across counts in terms of reliability.
  • A finding that guilty verdicts are unreasonable requires entry of judgments of acquittal, not merely an order for retrial. This is a higher threshold finding than a procedural or summing-up error, which would ordinarily attract a new trial order.
  • Trial judges have an obligation when summing up to alert juries to the practical disadvantage caused to a defendant by significant delay between the alleged offences and the complaint, beyond simply noting that delay occurred.
  • Acquittals on some counts can provide a meaningful internal benchmark against which the reasonableness of convictions on other counts in the same trial can be assessed on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW)
- Criminal Procedure Act (NSW)
- Criminal Appeal Rules (NSW)

Cases:
- Jones v The Queen (1997) 191 CLR 439
- Mickelberg v The Queen (1988) 167 CLR 259
- R v Birks (1990) 19 NSWLR 677
- R v Johnston (1998) 45 NSWLR 362
- Fleming v The Queen (1998) 158 ALR 379
- R v Giam [1999] NSWCCA 53
- R v RAT [2000] NSWCCA 77
- R v Hemsley (unreported, NSWCCA, 29 November 1995)