Citation: Regina v MFA [2001] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 21 March 2001
Judge(s): Heydon JA, Barr J, Smart AJ
Background
The appellant was charged on a nine-count indictment with a series of sexual offences against a male complainant, referred to as LB, committed across several years from late 1993 into early 1998. The offences alleged spanned periods when LB was aged 12 through to 16, and centred on incidents said to have occurred at a private residence. A jury in the District Court acquitted the appellant on seven counts but convicted him on two counts: indecent assault of LB (count 7) and homosexual intercourse with LB (count 8), both relating to an incident alleged to have occurred in mid-1997 when LB was 15.
The appellant was sentenced in the District Court by Ford DCJ, receiving concurrent fixed-term sentences including 2 years and 6 months for the indecent assault conviction and a longer term for the intercourse conviction. He was released on bail in December 2000 pending his appeal to the Court of Criminal Appeal.
On appeal, the appellant challenged both his convictions and the sentences imposed, arguing that the guilty verdicts on counts 7 and 8 were unreasonable given the jury's acquittals on the other seven counts.
Legal Issues
- Whether the guilty verdicts on counts 7 and 8 were unreasonable or could not be supported having regard to the evidence, particularly in light of the acquittals on the remaining seven counts
- Whether the sentences imposed for counts 7 and 8 were excessive or otherwise attended by error
Decision
The Court rejected the argument that the convictions on counts 7 and 8 were unreasonable simply because the appellant was acquitted on the other seven counts. Smart AJ, with whom Heydon JA and Barr J agreed, found that there was specific supporting evidence bearing on counts 7 and 8 that was not present for the other counts. That distinction provided a rational basis for the jury's differentiated verdicts.
The supporting evidence for count 7 came primarily from MA, a witness who was present in the caravan during the incident and who corroborated the complainant's account of the appellant touching the complainant's penis. Although both the complainant and MA had made initial statements to police denying the events, each explained this by reference to fear. The court accepted it was reasonably open to the jury to be satisfied of guilt beyond reasonable doubt on both counts 7 and 8, noting the age of MA at the time of the events (approximately 12) and at trial (approximately 15), and the difficulties he experienced in giving evidence. Both conviction appeals were dismissed.
On sentence, the court found no error in the sentence imposed for count 8 and dismissed that aspect of the appeal. However, the concurrent fixed-term sentence of 2 years and 6 months for count 7 (indecent assault) was found to be excessive. Smart AJ held that a fixed term of 15 months was the correct sentence for that count, selecting a fixed term because a longer concurrent sentence was running for count 8.
Orders Made
- Appeals against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence on count 8 (homosexual intercourse) dismissed
- Appeal against sentence on count 7 (indecent assault) allowed; sentence of 2 years and 6 months quashed and replaced with a fixed term of 15 months imprisonment commencing 22 March 2000
- Appellant to be returned to custody to serve the balance of his term, having been released on bail on 19 December 2000
Key Takeaways
- Acquittals on some counts within a multi-count indictment do not automatically render guilty verdicts on other counts unreasonable, provided there is a rational evidentiary basis distinguishing those counts from the ones on which the accused was acquitted.
- In dismissing the conviction appeals, the Court of Criminal Appeal confirmed that the presence of corroborating or supporting evidence specific to particular counts can justify differentiated outcomes across an indictment.
- The court recognised that initial denials by witnesses, when explained by evidence of fear, do not necessarily destroy the credibility of later, more detailed accounts.
- Difficulties experienced by a young witness in giving evidence, including prior inconsistent statements, are factors a jury may weigh when assessing credibility and reliability; the jury is not precluded from accepting that evidence.
- A sentence may be excessive even where the sentencing judge's approach to the gravity of the offending is not itself in error; the Court of Criminal Appeal substituted a materially shorter fixed term for the indecent assault count without disturbing the approach taken on the more serious count.
Legislation and Cases Referenced
Legislation: None cited in the judgment.
Cases: None cited in the judgment.