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Court of Criminal Appeal 31 July 2002

R v GDM

[2002] NSWCCA 261

Sexual offences
CRIMINAL LAW: CHARGES OF SEXUAL ASSAULT

Citation: GDM v R [2002] NSWCCA 261
Court: New South Wales Court of Criminal Appeal
Date: 31 July 2002
Judge(s): Mason P, Hidden J, Carruthers AJ

Background

The appellant was tried in the District Court before Coleman DCJ and a jury on nine counts of sexual offences against his younger sister, alleged to have occurred between 1972 and 1975 at the family home in Fairfield. The complainant, who was born profoundly deaf, was between approximately 10 and 14 years old at the relevant time. The appellant was approximately eight years her senior.

The offences charged included indecent assault and attempted carnal knowledge under provisions of the Crimes Act 1900 that have since been repealed. The appellant denied all allegations at trial.

The jury returned a mixed verdict: it found the appellant guilty of three counts (counts 2, 3 and 5) and not guilty of the remaining counts. The trial judge had directed an acquittal on count 4. The appellant appealed against the guilty convictions, arguing that those verdicts were unreasonable in light of the acquittals on the other counts.

  • Whether the verdicts of guilty on counts 2, 3 and 5 were unreasonable given the jury's acquittals on the remaining counts
  • Whether the acquittals on some counts, particularly counts 8 and 9, demonstrated that the jury viewed the complainant's credibility so unfavourably that the guilty verdicts could not be sustained
  • Whether, on the totality of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the counts for which he was convicted

Decision

The Court dismissed the appeal by majority. Carruthers AJ, with whom Mason P agreed, examined the evidence carefully and concluded that it was open to the jury to be satisfied beyond reasonable doubt on counts 2, 3 and 5. The court noted that the jury appeared to discharge its responsibilities with care, giving separate consideration to each count as directed.

On counts 2 and 3 (the "home sick incident"), the evidence established that the appellant had been convalescing at home following a car accident in September 1972, and that at the relevant time he and the complainant were the only two people in the home. Regarding his physical capacity to commit the offences, the appellant had himself acknowledged in evidence that he retained use of his left hand during his convalescence, and the jury was entitled to conclude he was physically capable of the conduct described.

On count 5 (the "bathroom incident"), the complainant gave detailed evidence of the appellant's conduct, and the jury was also entitled to take into account evidence of admissions allegedly made by the appellant.

Mason P addressed the argument that the acquittals on counts 8 and 9 demonstrated the jury had viewed the complainant's credibility so unfavourably that the guilty verdicts were undermined. He found this was not a case where the prosecution evidence on those counts was "fanciful or inherently improbable." The acquittals were explicable by specific factual difficulties in the Crown case on those counts, including that the complainant had not reported that incident until two years after initially speaking to her mother. The court remained satisfied that the guilty verdicts were open on the evidence.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Mixed verdicts do not automatically render the guilty findings unreasonable; acquittals on some counts may reflect the jury's careful, count-by-count assessment of the evidence rather than a wholesale rejection of the complainant's credibility.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle from M v The Queen (1994) 181 CLR 487 that the ultimate question is whether it was open to the jury to be satisfied beyond reasonable doubt, with full regard given to the jury's role as the primary fact-finder and its advantage of seeing and hearing witnesses.
  • Acquittals will only undermine concurrent guilty verdicts in cases where the evidence on the acquitted counts was "fanciful or inherently improbable" or where the acquittals otherwise demonstrate real disfavour toward the central witness's credibility, as discussed in R v Markuleski (2001) 52 NSWLR 82.
  • Specific, identifiable weaknesses in the Crown case on particular counts (such as delayed reporting of a particular incident) can explain acquittals without casting doubt on convictions based on stronger and differently-circumstanced evidence.
  • The fairness and legal correctness of the trial process were noted as relevant considerations; the Court of Criminal Appeal found the trial had been conducted with impeccable fairness and full compliance with the law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 72 and 76 (since repealed)

Cases:
- R v Markuleski (2001) 52 NSWLR 82
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Mackenzie v The Queen (1996) 190 CLR 348
- Longman v The Queen (1989) 168 CLR 79
- R v W (1999) 109 A Crim R
- R v Kirkman (1987) 44 SASR 591