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Court of Criminal Appeal 3 October 2001

Regina v NEK

[2001] NSWCCA 392

Sexual offencesAssault & violence
SEXUAL ASSAULTS MULTIPLE COUNTS INCONSISTENT VERDICTS

Citation: Regina v NEK [2001] NSWCCA 392
Court: NSW Court of Criminal Appeal
Date: 3 October 2001
Judge(s): Priestley JA; Sully J; Smart AJ

Background

The appellant was tried in the District Court on 12 counts of sexual offences against his daughter, spanning alleged conduct between September 1989 and April 1999, together with one count of assault occasioning actual bodily harm. The complainant gave evidence of the specific charged acts and also of a broader pattern of sexual conduct, admitted to provide context rather than as proof of the charged offences. The appellant denied all allegations.

The jury acquitted the appellant on 11 counts and convicted him on one count (count 11), which alleged sexual intercourse without consent occurring between February and August 1993. Judge Armitage DCJ sentenced the appellant to four years' imprisonment with a three-year non-parole period.

The appellant appealed against conviction on the primary ground that the jury's extensive acquittals were logically irreconcilable with the guilty verdict on count 11, given that the complainant's evidence across all counts came from the same source and rested on the same credibility.

  • Whether a jury's acquittals on multiple counts of sexual assault necessarily, or in the circumstances of this case, undermined the logical basis for convicting on a remaining count where all counts depended on the complainant's evidence
  • Whether the inconsistency between verdicts rendered the conviction on count 11 unreasonable, applying the test of logic and reasonableness from MacKenzie v The Queen
  • Whether any material differences in the evidence supporting count 11 distinguished it sufficiently from the counts on which the jury acquitted

Decision

Priestley JA, with whom Sully J and Smart AJ agreed, allowed the appeal. The central question was whether the jury's acquittals on 11 counts made it unreasonable to convict on count 11 when all counts depended on the same complainant. Drawing on the High Court's reasoning in Jones v The Queen and this Court's five-judge decision in Regina v Markuleski, Priestley JA confirmed that mixed verdicts do not automatically require a court of criminal appeal to set aside a conviction. The relevant inquiry is whether, on the full range of circumstances, the acquittals necessarily undermined the complainant's credibility on the count where conviction was returned.

The Crown argued that count 11 was distinguishable because the complainant was older and living more independently at the time, gave more detailed evidence, and because a third-party admission allegedly supported that specific count. Priestley JA rejected each of these distinctions. The level of detail in the complainant's account of count 11 was no greater than her evidence on other counts. The passage of time before complaint remained considerable, and the alleged admission could equally relate to the earlier counts on which the jury had acquitted.

Priestley JA concluded that nothing of significance differentiated the complainant's evidence on count 11 from her evidence on the counts where the jury had a reasonable doubt. The MacKenzie test of logic and reasonableness was not satisfied. The verdict on count 11 was therefore set aside and a verdict and judgment of acquittal entered. The Court did not need to address the two remaining grounds of appeal.

Orders Made

  • Appeal allowed
  • Conviction on count 11 set aside
  • Verdict and judgment of acquittal entered in favour of the appellant

Key Takeaways

  • Mixed verdicts in sexual assault trials do not automatically compel a court of criminal appeal to set aside a conviction on the counts where the jury convicted; the outcome turns on the specific circumstances of each case.
  • Where all counts rest solely on a single complainant's evidence and no material distinction exists between the quality or character of that evidence across counts, acquittals on some counts may render a conviction on another count logically unreasonable.
  • The Court of Criminal Appeal confirmed the approach in Regina v Markuleski [2001] NSWCCA 290: the question is whether, in the full circumstances, the jury's reasonable doubt on some counts ought necessarily to have produced a reasonable doubt on others.
  • Proposed distinguishing features, such as the complainant's age at the time, greater independence, level of detail, or a third-party admission, must be examined critically; in this case none of those features was sufficient to explain the differential verdicts.
  • Applying the MacKenzie test of logic and reasonableness, a conviction cannot stand where the court can identify no principled basis on which the jury could accept the complainant's evidence beyond reasonable doubt on one count but not on substantially similar counts.

Legislation and Cases Referenced

Cases Cited:
- Jones v The Queen (1997) 191 CLR 439
- MacKenzie v The Queen (1996) 190 CLR 348
- Regina v Markuleski [2001] NSWCCA 290
- Regina v KET [1998] VSCA 73
- Regina v Kirkman (1987) 44 SASR 591