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Court of Criminal Appeal 18 July 2002

Regina v GMS

[2002] NSWCCA 275

Sexual offences
CRIMINAL LAW CONVICTION APPEAL APPELLANT CONVICTED, CO ACCUSED ACQUITTED

Citation: Regina v GMS [2002] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 18 July 2002
Judge(s): O'Keefe J, Greg James J, Carruthers AJ

Background

The appellant was tried jointly with a co-accused in the Wollongong District Court before Judge Goldring DCJ. Both men were charged with aggravated sexual intercourse without consent, alleged to have occurred on 6 October 2000 in a park, where the complainant was fifteen years old. The Crown case was that the appellant had intercourse with the complainant first, followed immediately by the co-accused.

The jury returned verdicts of not guilty on the primary aggravated charge against both accused. However, the jury convicted the appellant on the alternative count of sexual intercourse without consent under s 61I of the Crimes Act 1900, while acquitting the co-accused on the same alternative count. The appellant was subsequently sentenced to three years and six months imprisonment with a non-parole period of two years and three months.

The appellant appealed his conviction to the Court of Criminal Appeal, arguing that the jury's verdicts were inconsistent and that the conviction could not stand.

  • Whether the guilty verdict against the appellant was unreasonable or could not be supported, given that the co-accused was acquitted on an identical alternative charge arising from the same events
  • Whether the trial judge should have directed the jury that an acquittal on one count (or in respect of one accused) must be taken into account when assessing the complainant's general credibility
  • Whether there was a rational explanation for the apparent inconsistency in the verdicts

Decision

On the credibility direction ground, the Court noted that the trial judge had specifically directed the jury to examine the complainant's evidence "with great care" because it was the only evidence bearing on the question of consent. The Court observed that the passage from Spigelman CJ's judgment in R v Markuleski, on which the appellant relied, did not establish that such a direction was required in every case involving multiple counts or multiple accused. The absence of an express request for the direction by defence counsel at trial also meant leave was required to raise this ground on appeal.

On the central ground of apparent inconsistency, the Court identified a rational explanation that reconciled the two verdicts without impugning the jury's reasoning. The critical distinction between the appellant and the co-accused lay in the mental element: specifically, whether each man knew the complainant was not consenting. The Court noted that the appellant was the first to have intercourse with the complainant, and the jury had before them cogent evidence that he knew she was not consenting.

By the time the co-accused had intercourse, the complainant was blacking out and her speech was slurred and incoherent from excessive alcohol consumption. The Court reasoned that the jury may have entertained a reasonable possibility that the co-accused honestly, though wrongly, believed the complainant was consenting, which would constitute a complete answer to the charge. This differential state of knowledge between the two accused provided a rational and principled basis for the divergent outcomes.

The Court concluded that the verdicts were not truly inconsistent. No failure in the jury's reasoning process was established. All four grounds of appeal were rejected and the appeal was dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Apparently inconsistent verdicts between jointly tried accused will not automatically vitiate a conviction where a rational explanation exists that is consistent with the evidence and directions given at trial.
  • A distinction in the mental state of two accused at the time of the same alleged events can provide a rational basis for one conviction and one acquittal, even where the charges arise from the same incident.
  • Under the Crimes Act 1900, the subjective mental element (whether an accused actually knew the complainant was not consenting, or honestly believed she was) is assessed individually for each accused, so different outcomes for co-accused are legally coherent.
  • In dismissing the appeal, the Court affirmed that a specific direction to consider an acquittal on one count when assessing general credibility is not mandatory in every multi-count or multi-accused trial; the adequacy of the summing-up must be assessed in context.
  • No error was established in the trial judge's directions where the jury was already instructed to scrutinise the complainant's evidence with great care, and where the overall directions correctly distinguished between honest (though mistaken) belief and guilty knowledge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61IJ(1), 61IJ(2)(c)

Cases:
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- Osland v The Queen (1998) 197 CLR 316
- R v Markuleski (2001) 52 NSWLR 82
- R v Robinson (2000) 111 A Crim R 388