Citation: R v John William Parbery [2003] NSWCCA 120
Court: New South Wales Court of Criminal Appeal
Date: 2 May 2003
Judge(s): Ipp JA, Buddin J, Smart AJ
Background
The appellant stood trial in the District Court in July 2002 on an indictment containing seven counts of sexual offences against a young male. The counts comprised four charges of aggravated indecent assault and three charges of aggravated sexual assault. The complainant's allegations were uncorroborated and had been made after a delay.
The jury returned a mixed verdict. It convicted the appellant on three counts of aggravated sexual assault and one count of aggravated indecent assault (counts 3, 5, 6 and 7), acquitted him on two counts of aggravated indecent assault (counts 1 and 2), and was unable to reach a verdict on the remaining count (count 4). The appellant was sentenced to concurrent four-year terms with two-year non-parole periods for the sexual assault convictions, plus a concurrent fixed term of 12 months for the indecent assault conviction.
The appellant appealed against conviction on four grounds, arguing chiefly that the guilty verdicts were unreasonable and inconsistent with the acquittals on counts 1 and 2.
Legal Issues
- Whether the convictions on counts 3, 5, 6 and 7 were unreasonable in the sense that, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt
- Whether the guilty verdicts were factually inconsistent with the jury's acquittals on counts 1 and 2 and its inability to agree on count 4
- Whether the trial judge's directions to the jury adequately addressed how reasonable doubt on one count should affect its assessment of the complainant's evidence on other counts (ground 3)
- Whether the trial judge erred in his directions on the absence of consent for counts 5, 6 and 7 (ground 4)
Decision
The Court applied the test from M v The Queen (1994) 181 CLR 487, which requires a court of criminal appeal to consider whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. Crucially, this test requires the appellate court to pay full regard to the jury's role as the primary fact-finder and to the advantage the jury had in seeing and hearing witnesses. However, where the evidence is so deficient that there is a significant possibility an innocent person has been convicted, the court is bound to act.
Buddin J applied principles from MFA v The Queen and R v Markuleski to the question of inconsistent verdicts. His Honour accepted that acquittals do not necessarily mean a complainant was disbelieved, and that jurors may properly convict on some counts while acquitting on others for reasons unrelated to the complainant's overall credibility. However, the court found that those explanations did not apply here. The acquittals on counts 1 and 2 indicated that the jury had "looked with real disfavour upon the credibility of the complainant," and the evidence supporting the guilty verdicts was not materially different in quality from the evidence on the counts resulting in acquittals.
The Crown argued that counts 3, 5, 6 and 7 were distinguishable because those alleged offences occurred away from the sight of other family members, while counts 1 and 2 did not. The Court rejected that distinction. The offences on all counts were said to have occurred in a confined area, and the incidents underlying counts 3 and 5 took place in close proximity to other family members. There was no meaningful evidential difference between the counts to justify divergent verdicts.
Having found the convictions unreasonable, the Court found it unnecessary to consider grounds 3 and 4, both of which would have yielded only a new trial rather than acquittals. The Court also declined to deal with the application for leave to appeal against sentence.
Orders Made
- Convictions on counts 3, 5, 6 and 7 set aside
- Verdicts and judgments of acquittal entered on counts 3, 5, 6 and 7
Key Takeaways
- Where a jury acquits on some counts and convicts on others based on evidence from the same complainant, and the evidence across those counts is not materially different in quality, the convictions may be set aside as unreasonable under the M v The Queen test.
- Acquittals do not automatically signal disbelief of a complainant. However, where acquittals on certain counts indicate that the jury viewed the complainant's credibility with "real disfavour," guilty verdicts on closely related counts using substantially similar evidence may not be supportable.
- A factual distinction between counts (such as whether the alleged offence occurred within sight of others) will only justify divergent verdicts if it is a genuine and meaningful difference in the quality or character of the evidence, not merely a superficial one.
- Grounds of appeal that would entitle an appellant only to a new trial need not be decided if the court has already determined that verdicts of acquittal are appropriate.
- The Court of Criminal Appeal confirmed the framework for assessing inconsistent jury verdicts in multi-count sexual offence trials, drawing on M v The Queen, MFA v The Queen, and R v Markuleski.
Legislation and Cases Referenced
Cases:
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2001) 193 ALR 184
- R v Markuleski (2001) 52 NSWLR 82
Legislation: No specific legislation was cited in the provided text.