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Court of Criminal Appeal 19 April 2002

R v Corbett

[2002] NSWCCA 137

Sexual offences
JURY VERDICTS WHETHER INCONSISTENT WHETHER UNSAFE AND UNSATISFACTORY

Citation: R v Corbett [2002] NSWCCA 137
Court: Court of Criminal Appeal, New South Wales
Date: 19 April 2002
Judge(s): Handley JA; Sully J; Smart AJ

Background

The appellant was tried before Luland DCJ and a jury on seven counts of sexual misconduct against a female complainant who had been under the age of 16 at the time of the alleged offences. The counts included indecent assault and carnal knowledge, spanning events alleged to have occurred between 1969 and 1976, more than two decades before the trial. The complainant did not make a verbal complaint to anyone until 1989 and did not report the matter to police until 1997.

The jury convicted the appellant on count 1 (indecent assault) and counts 5 and 6 (carnal knowledge), and acquitted him on the remaining four counts. The trial judge sentenced him to concurrent terms, the longest being four years on counts 5 and 6 with a non-parole period of two years.

The trial judge granted a certificate that the case was a fit one for appeal on the ground that the verdicts appeared inconsistent. The appellant was granted bail pending the hearing.

  • Whether the jury's verdicts were logically inconsistent, such that the convictions could not stand
  • Whether the convictions on counts 5 and 6 were unsafe and unsatisfactory given the acquittals on the remaining counts
  • Whether the sentences imposed on counts 5 and 6 were manifestly excessive, having regard to the appellant's serious and permanent health conditions

Decision

The central question was whether the mixed verdicts could be reconciled on any rational and logical basis. The Court applied the test from Mackenzie v The Queen and the reasoning in Jones v The Queen, both of which require an appellate court to consider whether acquittals on some counts damage the complainant's credibility so severely that guilty verdicts on other counts cannot rationally co-exist.

On count 1, the Court found the verdict could not be reconciled with the acquittals on counts 2, 3, and 4, which charged similar conduct in a different location. The jury's question during deliberations, asking whether a charge could be altered to indecent assault, assisted the Crown's argument on counts 5 and 6 by suggesting the jury accepted the complainant's general account of what occurred at Granville. The Court treated this as a basis for distinguishing the Granville counts from the Guildford count.

The Court upheld the appeal on count 1, finding that the conviction was inconsistent with the acquittals and could not stand. The appeals against convictions on counts 5 and 6 were dismissed, the Court concluding that the jury's question provided a rational explanation for the split verdicts on those counts.

On sentence, the Court found that special circumstances existed. The appellant was a first-time custodial offender suffering from serious, permanent psychiatric and physical illness, with a poor prognosis for survival in custody. The Court concluded the remaining sentences were manifestly excessive and resentenced accordingly.

Orders Made

  • Appeal against conviction on count 1 upheld; conviction and sentence on count 1 quashed; verdict of acquittal entered
  • Appeal against conviction on counts 5 and 6 dismissed
  • Leave to appeal against sentence on counts 5 and 6 granted; appeal allowed; sentences quashed
  • In substitution, the appellant was sentenced on each of counts 5 and 6 to concurrent terms of 3 years imprisonment commencing 19 April 2002, with a non-parole period of 15 months ending 18 July 2003, on which date the appellant was to be released on parole
  • Directed that the pre-sentence report, psychiatric reports, and the court's reasons accompany the warrant of commitment

Key Takeaways

  • Where a jury acquits on some counts and convicts on others based on the evidence of the same complainant, acquittals can undermine the complainant's credibility in ways that render the remaining convictions logically irreconcilable.
  • The test for inconsistent verdicts, as confirmed in Mackenzie v The Queen and applied here, is one of logic and reasonableness: an appellate court will uphold verdicts only where there is a proper basis to conclude the jury discharged its function as required.
  • A jury's question during deliberations can, in appropriate circumstances, provide a rational explanation for what might otherwise appear to be inconsistent verdicts, as it did here in preserving the convictions on the Granville counts.
  • Under the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal can substitute its own sentence where the original terms are found to be manifestly excessive.
  • Serious permanent illness, a first period in custody, and poor prospects of survival in prison may collectively constitute special circumstances justifying a reduced non-parole period on resentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases:
- R v Markuleski (2001) 52 NSWLR 82
- Mackenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- Pearce v The Queen (1998) 194 CLR 610