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Court of Criminal Appeal 24 December 2002

R v SIMMONS

[2002] NSWCCA 522

Sexual offences

Citation: R v Simmons [2002] NSWCCA 522
Court: NSW Court of Criminal Appeal
Date: 24 December 2002
Judge(s): Heydon JA, Hulme J, Carruthers AJ

Background

The appellant was charged with seven sexual offences against a 13-year-old complainant, all allegedly committed over the Christmas and New Year period of 1999 to 2000. The complainant was the appellant's niece by marriage, visiting Sydney from interstate. The offences were said to have occurred across a series of family gatherings and outings.

The appellant pleaded guilty to two counts (counts one and six) and was acquitted by the jury on four others. He was convicted on count two, which alleged assault with an act of indecency during a walk in nearby bushland on Christmas Eve. That count related to allegations that the appellant had undressed the complainant, fondled parts of her body, and attempted sexual intercourse.

The appellant appealed against the count two conviction on two grounds: first, that the guilty verdict was inconsistent with the four acquittals; and second, that the verdict was unreasonable or unsupported by the evidence.

  • Whether the guilty verdict on count two was inconsistent with the jury's verdicts of not guilty on the remaining contested counts
  • Whether the conviction on count two was unreasonable or could not be supported having regard to the whole of the evidence
  • Whether the appellant's own admissions in a recorded interview and from the witness box could independently support the conviction on that count

Decision

Hulme J (with Heydon JA and Carruthers AJ agreeing) applied the test in section 6 of the Criminal Appeal Act, as explained by the High Court in M v R (1994): whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the accused was guilty. The court acknowledged that where multiple not-guilty verdicts are returned, it is necessary to examine whether the surrounding circumstances explain the differences between verdicts before applying that ultimate test.

The Crown case rested principally on the complainant's evidence, with limited supporting material including evidence from her mother and the appellant's admissions in an electronically recorded interview (ERISP). In the ERISP and from the witness box, the appellant admitted to some indecent touching of the complainant's genitalia, but described the conduct as occurring in a location and manner different from what was charged. The question became whether those admissions could support both the charged indecency and the complainant's broader account of being undressed and touched across other parts of her body.

Hulme J concluded they could not. In the unusual circumstances of this case, the court found no principled basis for accepting the appellant's admission of indecent touching while simultaneously rejecting his account of where on the complainant's body that touching occurred. Given the jury's evident lack of confidence in the complainant, as demonstrated by four acquittals, the guilty verdict on count two could not stand.

The court allowed the appeal, quashed the conviction and the 18-month periodic detention sentence imposed on count two, and directed a verdict of acquittal. Hulme J expressly noted that the appellant's own admissions demonstrated guilt of an indecent assault, albeit not in the form charged, and observed that the Director of Public Prosecutions may wish to consider whether to lay a charge reflecting what the appellant actually admitted.

Orders Made

  • Appeal allowed in respect of the count two conviction entered on 26 February 2002
  • Conviction and sentence on count two quashed
  • Verdict of acquittal directed on count two
  • Sentences on counts one and six (12-month good behaviour bonds each) remained undisturbed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the ultimate test for an unreasonable verdict remains the question posed by section 6 of the Criminal Appeal Act, as explained in M v R: whether it was open to the jury to be satisfied beyond reasonable doubt of guilt on the whole of the evidence.
  • Where a substantial part of an appeal argument turns on multiple acquittals returned alongside a single conviction, the court must examine whether the facts and circumstances offer any rational explanation for the difference in verdicts before applying the section 6 test.
  • An accused's admissions in a recorded interview may support a conviction only to the extent that their content is consistent with the charge as laid; admissions of a differently characterised act cannot simply be adopted in part and discarded in part without a principled basis for doing so.
  • Four acquittals on related counts, all dependent on the same complainant's evidence, can indicate a level of jury doubt about that complainant's reliability sufficient to render a lone guilty verdict on a closely related count unreasonable.
  • Quashing a conviction does not preclude further proceedings: the Court of Criminal Appeal noted that the appellant's own admissions may warrant separate charges more accurately reflecting the conduct he conceded.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), section 6

Cases
- R v Markuleski (2001) 52 NSWLR 82 (NSW Court of Criminal Appeal)
- MFA v R [2002] HCA 53 (High Court of Australia)
- M v R (1994) 181 CLR 487 (High Court of Australia)
- R v Kirkham (1987) 44 SASR 591 (South Australian Supreme Court)
- MacKenzie v R (1996) 190 CLR 348 (High Court of Australia)