AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 25 September 2001

R. v. AULIFF

[2001] NSWCCA 393

Sexual offences
CRIMINAL LAW PRACTICE AND PROCEDURE CRIMINAL LAW SEXUAL OFFENCES APPEAL AGAINST CONVICTION WHETHER INCONSISTENT VERDICTS.

Citation: R v Auliff [2001] NSWCCA 393
Court: NSW Court of Criminal Appeal
Date: 25 September 2001
Judge(s): Powell JA (with whom Sully J and Bell J agreed)

Background

The appellant was tried in the District Court on an indictment containing three counts arising from events on 30 December 1998. The complainant, a tourist, had dinner with the appellant at a Kings Cross restaurant, after which she began to feel suddenly and severely unwell. She recalled almost nothing from that point until she woke in her lodgings the following afternoon, missing her panty-liner, her jewellery and her contact lenses.

Urine samples revealed traces of a breakdown product of flunitrazepam (Rohypnol), as well as other benzodiazepine drugs. Semen found on the complainant's underpants was matched by DNA testing to the appellant. A search of the appellant's premises later uncovered a vial containing flunitrazepam.

The jury convicted the appellant on count one (causing the complainant to take a stupefying drug with intent to have non-consensual sexual intercourse), was unable to reach a verdict on count two (indecent assault), and acquitted on count three (sexual intercourse without consent). The appellant appealed the conviction on counts one, raising two grounds.

  • Whether the jury's acquittal on count three (sexual intercourse without consent) was logically inconsistent with the conviction on count one (administering a stupefying drug with intent to commit that same offence), rendering the count one verdict unreasonable or unsafe.
  • Whether the trial judge's failure to make a formal order under section 54(b) of the Jury Act 1977 before permitting the jury to separate overnight constituted a fundamental procedural failure that vitiated the trial.

Decision

On the inconsistent verdicts ground, Powell JA found no logical inconsistency between the two verdicts. The count one offence required only proof that the appellant administered the drug with the relevant intent; it did not require proof that he actually completed the act of sexual intercourse. The jury was entitled to accept the appellant's own evidence that some form of sexual activity occurred while, separately, remaining unpersuaded to the required criminal standard that full sexual intercourse without consent took place. The evidence of the drugging, DNA match, the flunitrazepam found at the appellant's premises, and his prior rejected advances to the complainant together supported the count one conviction independently of the count three charge.

On the jury separation ground, Powell JA held that the transcript clearly showed the jury had sought the judge's permission to adjourn overnight, and that the judge had granted it after giving the conventional warning against discussing the case with anyone. That amounted in substance to an authorisation of separation, even without a formally worded order under section 54(b) of the Jury Act. In any event, his Honour held that even if a technical procedural error had occurred, it had not produced any substantial miscarriage of justice and did not warrant the court's intervention.

Both Sully J and Bell J agreed entirely with Powell JA's reasons.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A conviction for administering a stupefying drug with intent to commit sexual intercourse without consent does not require proof that the intended intercourse was in fact completed; an acquittal on the substantive intercourse count is therefore not necessarily inconsistent with a guilty verdict on the drugging count.
  • In dismissing the inconsistency ground, the Court of Criminal Appeal confirmed that apparent inconsistency between verdicts must reflect a logical impossibility, not merely a tension; the jury is entitled to draw different conclusions on different elements of separate charges.
  • Where a trial judge grants a jury permission to separate overnight and delivers the conventional warning about not discussing the case, that conduct can satisfy the substance of the requirement under section 54(b) of the Jury Act 1977, even without a formally framed order.
  • No substantial miscarriage of justice arose from the absence of a formal separation order where there was no suggestion the jury had been improperly influenced during the overnight adjournment.
  • Under the proviso available to appellate courts, procedural irregularities that cause no practical prejudice to the accused will not warrant intervention.

Legislation and Cases Referenced

Legislation
- Jury Act 1977 (NSW), section 54(b)
- Poisons and Therapeutic Goods Act 1966 (NSW)

Cases
- R v Markulevski [2001] NSWCCA 290
- R v Radju [2001] NSWCCA 103
- R v Phan [2001] NSWCCA 29