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8
Court of Criminal Appeal 3 November 2000

R v Carbone

[2000] NSWCCA 387

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION SEXUAL ASSAULT MULTIPLE COUNT SEXUAL ASSAULT UNCORROBORATED EVIDENCE OF COMPLAINANT

Citation: Carbone v R [2000] NSWCCA 387
Court: New South Wales Court of Criminal Appeal
Date: 3 November 2000
Judge(s): Wood CJ at CL, O'Keefe J, Carruthers AJ

Background

The appellant was tried in the District Court on six counts of sexual assault and one count of common assault, arising from two separate incidents. The first incident occurred on 3 December 1996, when the complainant was 14 years old. The second occurred on 7 August 1997.

The prosecution case rested almost entirely on the uncorroborated evidence of the complainant. Other witnesses were present during or around the events but did not directly observe the alleged sexual misconduct. No forensic evidence confirmed the alleged acts.

The jury returned mixed verdicts. It convicted the appellant of two counts of indecent assault and one count of aggravated sexual intercourse, while acquitting him on the remaining counts. The appellant challenged all three convictions on the grounds that the verdicts were unreasonable and logically irreconcilable.

  • Whether the convictions were unreasonable or could not be supported having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether inconsistent verdicts across multiple counts, where the only direct evidence comes from a single complainant, required acquittal on the counts resulting in conviction
  • Whether any rational basis existed to distinguish the reliability of the complainant's evidence between the counts on which she was believed and those on which she was not

Decision

The Court of Criminal Appeal unanimously allowed the appeal. Wood CJ at CL (with O'Keefe J and Carruthers AJ agreeing) identified a critical problem in the jury's reasoning: once the jury declined to accept the complainant's evidence on the sexual intercourse counts from 3 December 1996, there was no logical or evidentiary basis for accepting her evidence on the indecent assault counts from the same incident.

The Court applied the principle, drawn from Jones (1997) 191 CLR 439 and related authorities, that in a multi-count case involving a single complainant and a single accused where the only direct evidence is the complainant's own account, an acquittal on any count will ordinarily require acquittal on the remaining counts. This is because a jury's rejection of the complainant's evidence on one charge damages the complainant's overall credibility. Something more, such as comparatively stronger evidence on the accepted counts, is needed to justify a different result across counts.

The Court found the prosecution case lacked probative force. In particular, witnesses who might have been expected to observe the alleged misconduct provided no direct corroboration. The Court also considered that there was no identifiable circumstance that could have elevated the complainant's credibility specifically in relation to the counts resulting in conviction, as opposed to those resulting in acquittal.

The Court noted that even if the jury had intended to return merciful rather than compromise verdicts, this did not explain the pattern of outcomes. The jury had acquitted on both the primary and back-up sexual intercourse charges from 3 December yet convicted on a more serious count from 7 August, a pattern the Court could not rationalise on the evidence.

Orders Made

  • Appeal against conviction allowed
  • Conviction and sentence set aside
  • Verdicts of acquittal substituted

Key Takeaways

  • In multi-count sexual assault proceedings involving a single complainant and single accused, where that complainant is the sole direct witness, an acquittal on any count will ordinarily compel acquittal on the remaining counts unless some rational basis exists to treat the evidence differently across counts.
  • Rejection of a complainant's evidence on one charge damages their overall credibility, and that damage cannot be overcome simply by the absence of an explicit reason to doubt the remaining counts. A positive distinguishing circumstance, such as comparatively stronger evidence on the accepted counts, is required.
  • The Court of Criminal Appeal confirmed it is not bound by a trial judge's views on guilt, but should give careful consideration to those views, particularly from experienced judges.
  • Where a prosecution case rests on uncorroborated testimony and other witnesses who might have observed the alleged conduct provide no supporting evidence, the overall probative force of the case is materially weakened.
  • Inconsistent verdicts that cannot be explained by differences in the underlying evidence will not survive appellate scrutiny under s 6(1) of the Criminal Appeal Act 1912 (NSW).

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW), ss 61M(1), 61J, 66C(1)

Cases:
- M (1994) 181 CLR 487
- Jones (1997) 191 CLR 439
- R v RAT (2000) 111 A Crim R 360
- Wells (NSWCCA, 17 June 1998)
- James [1999] NSWCCA 191
- Meala [1999] NSWCCA
- R v W (1999) 109 A Crim R 51