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Court of Criminal Appeal 18 October 2000

Regina v Whitehead

[2000] NSWCCA 400

Sexual offences
AS TO FIRST INDICTMENT APPEAL ACT OF INDECENCY HOMOSEXUAL INTERCOURSE AS TO THE SECOND INDICTMENT APPEAL

Citation: Regina v Whitehead [2000] NSWCCA 400
Court: NSW Court of Criminal Appeal
Date: 18 October 2000
Judge(s): Wood CJ at CL, O'Keefe J, Carruthers AJ

Background

The appellant was tried in the Muswellbrook District Court before Acting Judge Nader and a jury on an indictment containing seven counts. The counts related to alleged acts of indecency and homosexual intercourse against a single complainant, with the offences said to have occurred between 1982 and 1985 on farms in the Hunter Valley. The trial judge directed acquittals on four of the counts before the jury deliberated.

The jury returned guilty verdicts on counts one and four, but acquitted the appellant on count five. The Crown case rested almost entirely on the complainant's evidence, which the appellant denied in both a recorded interview and his own trial testimony.

Following the jury's verdicts on the first indictment, the appellant was arraigned on a second indictment and pleaded guilty to a charge of indecent assault against a different complainant. He was sentenced to a combination of fixed and minimum terms totalling several years of imprisonment. He appealed against both the jury convictions and the guilty plea conviction.

  • Whether the guilty verdicts on counts one and four of the first indictment were unsafe and unsatisfactory in light of the jury's acquittal on count five, applying the principles in Jones v The Queen (1997) 191 CLR 439.
  • Whether the guilty plea entered on the second indictment should be set aside on the basis that it resulted from imprudent and inappropriate advice from the appellant's then legal representatives.

Decision

First indictment: The Court applied the Jones principle, under which an acquittal on one count can render convictions on other counts unsafe where the complainant's evidence was equally the foundation of all counts and there is no basis for distinguishing the reliability of that evidence across counts. The jury's acquittal on count five necessarily implied a rejection of the complainant's account on that count, which in turn cast doubt on his overall credibility.

Crown counsel fairly acknowledged there was no evidence suggesting the complainant's account was more reliable on counts one and four than on count five. Indeed, Crown counsel went further and indicated that the evidence on count four was, if anything, less credible than on count five. The Court accepted the appellant's argument and found the convictions on counts one and four were unsafe and unsatisfactory, entering verdicts of acquittal.

Second indictment: The Court received unchallenged evidence that the appellant had consistently maintained his innocence of the charge in the second indictment, yet pleaded guilty immediately after receiving advice from his then legal representatives that the Court characterised as imprudent and inappropriate. The Crown did not oppose this ground of appeal.

Applying the principle from Davies (1993), the Court found the plea had not been entered with full knowledge of the facts or a genuine recognition of guilt. A real question existed as to the appellant's guilt, and justice required the plea to be set aside, the conviction quashed, and a new trial ordered.

Orders Made

As to the first indictment:
- Appeal allowed
- Convictions on counts one and four quashed, and verdicts of acquittal entered

As to the second indictment:
- Appeal allowed
- Conviction quashed
- Leave granted to the appellant to withdraw his plea of guilty
- New trial ordered

Key Takeaways

  • Where a Crown case rests almost entirely on a single complainant's evidence, an acquittal on one count involving that complainant can render convictions on other counts unsafe, particularly where the prosecution cannot identify any basis for treating the complainant's evidence as more reliable on the convicted counts than on the acquitted count.
  • The Jones v The Queen principle requires courts to examine whether an acquittal, by implicitly rejecting a complainant's credibility, necessarily undermines the evidential foundation for companion convictions.
  • A guilty plea entered on the basis of imprudent or inappropriate legal advice, without a genuine recognition of guilt, may be set aside on appeal where a real question as to guilt remains to be tried.
  • Inconsistent verdicts do not automatically lead to acquittals; the analysis turns on whether there is any rational basis for the jury to have differentiated between counts in terms of the reliability of the supporting evidence.
  • Crown counsel's concession that no distinguishing feature existed between the evidence on the convicted and acquitted counts was significant to the Court's reasoning, demonstrating the importance of prosecutorial fairness in appellate proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E(1), 61E(2), 78K

Cases:
- Jones v The Queen (1997) 191 CLR 439
- RAT [2000] NSWCCA 77 (24 March 2000)
- Davies (NSWCCA, unreported, 16 December 1993)
- Ganderton (NSWCCA, unreported, 17 December 1998)
- Favero [1999] NSWCCA 320 (11 October 1999)