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Court of Criminal Appeal 25 September 2002

Regina v RCC

[2002] NSWCCA 347

Also reported as (2002) 133 A Crim R 352
Sexual offencesAssault & violence
INCONSISTENT VERDICTS

Citation: Regina v RCC [2002] NSWCCA 347
Court: NSW Court of Criminal Appeal
Date: 25 September 2002
Judge(s): Wood CJ at CL, Sully J, Dowd J

Background

The appellant was charged with six counts arising from alleged conduct against a complainant: three counts of assault occasioning actual bodily harm, one count of attempted sexual intercourse without consent, and two counts of sexual intercourse without consent. He pleaded not guilty to all counts and was tried before a jury in the District Court at Tamworth.

The jury acquitted the appellant on five of the six counts, including all three sexual assault counts and two of the assault counts. It returned a single guilty verdict on the sixth count, also an assault occasioning actual bodily harm, relating to events on 12 June 1999. The sentencing judge imposed a four-year good behaviour bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999.

The appellant appealed against his conviction on two grounds: first, that the guilty verdict on count 6 was inconsistent with the acquittals on the related counts; and second, that the trial judge failed to give an adequate warning to the jury about the uncorroborated nature of the complainant's evidence.

  • Whether the guilty verdict on count 6 was inconsistent with the jury's acquittals on counts 2, 3, 4 and 5, given that the underlying evidence was materially similar across all counts
  • Whether the trial judge was required to give a warning along the lines of Longman v The Queen (1989) 168 CLR 79 in circumstances where the appellant was ultimately convicted only of a non-sexual assault offence

Decision

The Court of Criminal Appeal was divided on the first ground. Sully J, with whom Wood CJ at CL agreed, held that the guilty verdict on count 6 could not stand alongside the acquittals on the other counts. His Honour reasoned that the evidence underlying count 6 was structurally identical to the evidence underpinning counts 3, 4 and 5: all involved clear, uncomplicated allegations of violence on the same date, all were denied comprehensively by the appellant, and all were uncorroborated except by evidence of bruising.

Sully J identified that sustaining the conviction on count 6 required some feature of the evidence on that count distinguishing it from the counts on which the acquittals were entered. After examining the bruising evidence in detail, his Honour concluded that the corroborative value of that evidence was significantly undermined by inconsistencies in the witnesses' accounts, imprecise dating, and the complainant's own evidence that some bruising was caused by the sexual assaults of which the appellant was acquitted. Applying the principle from M v The Queen (1994) 181 CLR 487, his Honour concluded there was a significant possibility that an innocent person had been convicted, and the verdict on count 6 had to be quashed.

Dowd J, by contrast, would have dismissed the appeal on the first ground. His Honour considered that the bruising evidence provided a basis on which the jury could rationally distinguish count 6 from the other counts, and that the verdict was not necessarily unreasonable. On the second ground, both Dowd J and Sully J agreed that no Longman warning was required. The conviction was for a non-sexual assault offence, which carries no requirement for corroboration warnings, and extending Longman to that context would be an unwarranted expansion of the principle.

Because the majority upheld the first ground, it was unnecessary for the Court to disturb the sentence or consider the second ground further.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction of the appellant on count 6 of the indictment quashed
  • Judgment of acquittal entered in lieu

Key Takeaways

  • Where a jury acquits on multiple counts and the evidence underlying those counts is materially indistinguishable from the evidence supporting a single conviction, the conviction may be quashed on the basis of inconsistent verdicts if no rational basis for the distinction can be identified.
  • The principle from M v The Queen (1994) 181 CLR 487 permits a court of criminal appeal to set aside a verdict where the evidence, assessed in full, discloses a significant possibility that an innocent person has been convicted, even after making full allowance for the advantages enjoyed by the jury at trial.
  • Bruising evidence relied upon as corroboration may be undermined where witness accounts of its nature and timing are inconsistent, where the dating is imprecise, and where the complainant links part of that bruising to offences of which the accused was acquitted.
  • No Longman-style corroboration warning is required in respect of a non-sexual assault offence, even where sexual offences were tried on the same indictment and ultimately resulted in acquittals.
  • Inconsistent verdicts carry a particular risk of reflecting jury compromise rather than a legitimate differential assessment of the evidence, a risk the Court of Criminal Appeal will scrutinise carefully.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61I, 61P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9(1)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1906 (WA)

Cases:
- 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 Murray (1987) 11 NSWLR 11
- R v RAT [2000] 111 A Crim R 360
- R v Carbone [2000] NSWCCA 387
- R v Dixon [2001] NSWCCA 39
- R v S [2001] NSWCCA 204
- R v Markuleski [2001] NSWCCA 290