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Court of Criminal Appeal 8 April 2002

Regina v Fry

[2002] NSWCCA 127

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION INCONSISTENT VERDICTS CONVICTION UNSAFE AND UNSATISFACTORY APPEAL UPHELD.

Citation: Regina v Fry [2002] NSWCCA 127
Court: New South Wales Court of Criminal Appeal
Date: 8 April 2002
Judge(s): Ipp AJA; Bell J; Smart AJ

Background

The appellant was tried in the District Court on two counts of indecent assault in aggravated circumstances. Both counts alleged sexual acts against a five-year-old complainant occurring within the same period between July and October 1998. The complainant's evidence was the sole material evidence against the appellant, who did not testify.

Count 1 alleged the appellant placed his penis against the complainant's bottom in the appellant's bedroom. Count 2 alleged the appellant placed his penis in the complainant's mouth in the complainant's lounge room. The Crown also led relationship evidence concerning approximately ten further alleged incidents.

The jury convicted on Count 1 but acquitted on Count 2. The appellant appealed to the Court of Criminal Appeal, arguing the verdicts were inconsistent and that the conviction was unsafe and unsatisfactory.

  • Whether the jury's verdicts on Count 1 and Count 2 were inconsistent with each other in a legally significant way.
  • Whether, given those inconsistent verdicts, the conviction on Count 1 was unsafe and unsatisfactory under the test in M v The Queen (1994) 181 CLR 487.

Decision

The Court of Criminal Appeal found the verdicts were materially inconsistent. The Crown's entire case rested on the credibility of the complainant. Both counts were affected by similar discrepancies in his evidence, including inconsistencies about the location of the alleged acts and the number of times the conduct was said to have occurred.

The Crown argued the inconsistencies on Count 2 were qualitatively worse because they concerned the nature of the sexual act itself, whereas those on Count 1 related only to location. Ipp AJA rejected that distinction. The inconsistencies on Count 1 were serious in their own right, relating not only to place but also to the number of sexual acts involved. There was no real difference in the quality of the unreliability across the two counts.

Applying the principle from Jones v The Queen (1997) 191 CLR 439, the Court held that the acquittal on Count 2 implicitly rejected the complainant's account of those events, which necessarily damaged his overall credibility with respect to both counts. Nothing in the evidence gave reason to regard the complainant as more reliable on Count 1 than on Count 2.

Applying the test from M v The Queen, the Court concluded it was not open to a reasonable jury to be satisfied beyond reasonable doubt of the appellant's guilt on Count 1, given that the jury had already rejected the complainant's evidence on Count 2 as insufficient to convict. The conviction was set aside as unsafe and unsatisfactory.

Orders Made

  • The conviction on Count 1 was set aside.
  • A verdict of acquittal was entered on Count 1.

Key Takeaways

  • Where a Crown case rests entirely on the credibility of a single witness, a jury's acquittal on one count may fatally undermine its conviction on a closely related count supported by the same witness.
  • Applying Jones v The Queen, an acquittal that implicitly rejects a witness's account of one incident diminishes that witness's overall credibility across the entire indictment.
  • The distinction between inconsistencies about the nature of a sexual act versus its location will not necessarily save a conviction: the Court of Criminal Appeal found no meaningful difference in the quality of the unreliability affecting each count.
  • Under the M v The Queen test, a conviction is unsafe and unsatisfactory where, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of guilt. The absence of corroboration and the complainant's young age reinforced the need for careful scrutiny.
  • Inconsistent verdicts are not automatically fatal, but where the same credibility problems infect both counts equally, a conviction on one count cannot rationally stand alongside an acquittal on the other.

Legislation and Cases Referenced

Cases:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487

Legislation: No specific legislation was cited in the judgment.