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Court of Criminal Appeal 26 February 2001

R v MILLS

[2001] NSWCCA 48

Sexual offences
CRIMINAL LAW INCONSISTENT VERDICTS.

Citation: R v Mills [2001] NSWCCA 48
Court: New South Wales Court of Criminal Appeal
Date: 26 February 2001
Judges: Heydon JA, Barr J, Smart AJ

Background

The appellant was charged in the District Court with three counts of sexual intercourse without consent with a complainant (referred to as "S"), who was aged approximately 12 to 13 at the time of the offending. All three counts were alleged to have occurred on the same occasion at Church premises in 1982. The appellant also faced a separate charge of indecent assault, to which he pleaded guilty.

The jury convicted the appellant on counts one and two (penile-oral contact and digital penetration respectively) but acquitted him on count three (cunnilingus). The trial judge sentenced the appellant to concurrent terms of three years' imprisonment on each of the two conviction counts, with a minimum term of one year and nine months.

On appeal, the appellant argued that the jury's verdicts were irreconcilably inconsistent: the only direct evidence on all three counts came from S herself, and if the jury had a reasonable doubt about her evidence on count three, they were bound to have the same doubt on counts one and two.

  • Whether the verdicts of guilty on counts one and two were inconsistent with the acquittal on count three, where all counts rested on the same complainant's uncorroborated evidence about events occurring in a single episode.
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence.
  • Whether any proper basis existed to reconcile the mixed verdicts.

Decision

The majority (Heydon JA and Barr J) allowed the appeal and ordered acquittals on counts one and two. The majority found that no sufficient basis existed to distinguish S's evidence in relation to count three from her evidence on counts one and two. Since all counts arose from a single continuous episode and rested on the same witness's account, a reasonable doubt about her account on one count necessarily infected the others.

The majority applied the principle from Jones v The Queen (1997) 191 CLR 439, which requires that where apparent inconsistency cannot be reconciled by reference to some differentiating feature in the evidence, guilty verdicts cannot stand. The Court acknowledged the general reluctance of appellate courts to interfere with jury verdicts, but concluded that no such distinguishing feature was available here.

Smart AJ dissented. His Honour reasoned that the acquittal on count three could be explained by the physical circumstances surrounding that particular act: S was standing, the appellant was kneeling before her, and her legs were not deliberately apart. Those circumstances created a reasonable possibility that the relevant contact had not actually been made. In Smart AJ's view, this physical distinction meant the acquittal did not undermine S's credibility on counts one and two, particularly given corroborating evidence relevant to count one.

Despite the dissent, the majority view prevailed, and the convictions on counts one and two were quashed.

Orders Made

  • Appeal allowed.
  • Convictions and sentences on counts one and two quashed.
  • Verdict of not guilty entered on each of those counts.

Key Takeaways

  • Where all counts in a sexual assault indictment arise from a single episode and rest entirely on one witness's evidence, a jury's acquittal on one count may be irreconcilable with guilty verdicts on the others, requiring those convictions to be set aside.
  • Under the Jones v The Queen principle, an appellate court must examine whether any feature of the evidence rationally justifies a jury's discrimination between counts; if none can be identified, the guilty verdicts cannot be sustained.
  • A merciful acquittal by a jury is permissible in law, but that principle does not save a conviction where the acquittal is logically incompatible with the factual findings necessary to support the guilty verdicts.
  • The Court of Criminal Appeal confirmed that appellate courts retain significant reluctance to interfere with jury verdicts, and will uphold mixed verdicts wherever a proper reconciliation can be found.
  • Smart AJ's dissent illustrates that the physical circumstances surrounding individual acts within a single episode can, in some cases, supply a rational basis for distinguishing between counts, even where the same complainant's evidence underlies all charges.

Legislation and Cases Referenced

Cases:
- Jones v The Queen (1997) 191 CLR 439
- McKenzie v The Queen (1996) 190 CLR 348
- R v Crisologo (1997) 99 A Crim R 178
- R v Kirkman (1987) 44 SASR 591

Legislation: No specific legislation was cited in the decision text.