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Court of Criminal Appeal 19 August 2003

Regina v G.A.R.

[2003] NSWCCA 224

Sexual offences
EVIDENCE OF COMPLAINT IN SEXUAL CASES INCONSISTENT VERDICTS

Citation: Regina v G.A.R. [2003] NSWCCA 224
Court: NSW Court of Criminal Appeal
Date: 19 August 2003
Judge(s): Spigelman CJ, Bell J, Miles AJ

Background

The appellant, a man in his fifties, was tried in the District Court on two counts arising from events at a Doonside home on 13 to 14 January 2002. The home was occupied by his former wife (the complainant) and their daughter. The couple had divorced just days before the events in question.

The prosecution alleged that the appellant unlawfully detained the complainant at the premises throughout the day of 13 January, and that he then sexually assaulted her in the early hours of 14 January. The complainant gave evidence of a prolonged and threatening confrontation followed by forcible intercourse. Medical evidence recorded observable scratches and bruising, and DNA evidence placed the appellant at the scene.

The appellant's case was that any intercourse was consensual, having occurred after the parties reconciled during the day, and that he had not restricted the complainant's movements. The jury acquitted on the detention count and convicted on the sexual assault count. The appellant was sentenced to six years' imprisonment with a non-parole period of four and a half years.

  • Whether the jury's verdicts were legally inconsistent, given the acquittal on detention and conviction on sexual assault
  • Whether the trial judge erred in failing to direct the jury that reasonable doubt about the complainant's evidence on one count must inform their assessment of her evidence on the other count
  • Whether the trial judge's directions on complaint evidence, the complainant's credit, the daughter's credit, concoction, and bias were adequate
  • Whether a warning against convicting on the complainant's or daughter's uncorroborated evidence was required
  • Whether the trial judge should have given a direction (known as a Jones v Dunkel direction) regarding the Crown's failure to call a particular witness
  • Whether the sentence of six years was within the proper range

Decision

Inconsistent verdicts: The Court of Criminal Appeal found no logical inconsistency between the two verdicts. Applying the test from McKenzie v The Queen, inconsistency must be established as a matter of logic and reasonableness. The acquittal on the detention count was explicable on the basis that the jury may have been satisfied about the sexual assault without being satisfied that the appellant's conduct during the day crossed the legal threshold for unlawful detention.

Directions on evidence and credit: The Court found no error in the trial judge's directions on complaint evidence, the credit of the complainant and her daughter, or the issues of concoction and bias. The trial judge was not required in the circumstances to deliver the specific cross-count direction urged by the appellant, nor to give a Longman-style warning that it was dangerous to convict on the complainant's evidence alone.

Uncalled witness direction: The appellant argued that the jury should have been directed to draw an inference from the Crown's failure to call a man referred to as RM. The Court rejected this ground. A Jones v Dunkel direction allows a jury to infer only that an uncalled witness would not have assisted the party that failed to call them; it does not permit an inference that the witness would have actively harmed the Crown case. The Court noted that unchallenged evidence had been given that it had proved impossible to obtain statements from that witness, which may itself have explained the omission.

Sentence: The Court found the sentence of six years with a four-and-a-half-year non-parole period was well within the sentencing judge's discretion. The Court noted the appellant's extensive criminal history and the callousness with which the offence was committed. It declined to treat the complainant's lengthy marriage to the appellant as any form of mitigating factor.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • Verdicts of not guilty and guilty on related counts are not legally inconsistent simply because they arise from the same factual episode; inconsistency must be established as a matter of logic and reasonableness, applying McKenzie v The Queen.
  • A Jones v Dunkel direction permits a jury to infer only that an uncalled witness would not have assisted the party that failed to call them, not that the witness would have positively undermined that party's case.
  • No cross-count direction requiring doubt about a complainant's evidence on one count to be carried across to another count was necessary in the circumstances of this case.
  • In refusing leave to appeal against sentence, the Court of Criminal Appeal confirmed that a prior marital relationship between offender and victim does not constitute a mitigating factor.
  • Sufficient evidence of force, including medical observations of scratches and bruising and DNA confirmation of intercourse, supported the jury's guilty verdict on the sexual assault count.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- McKenzie v The Queen (1996) 190 CLR 348
- Jones v Dunkel (1959) 101 CLR 298
- Longman v The Queen (1989) 168 CLR 79
- Bromley v The Queen (1986) 161 CLR 319
- Buckland v R [1977] 2 NSWLR 452
- Carr v The Queen (1988) 165 CLR 314
- Crampton v The Queen (2000) 206 CLR 161
- Doggett v The Queen (2001) 208 CLR 343
- Dyers v The Queen (2002) 192 ALR 191
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53
- R v BWT [2002] NSWCCA 60
- R v GS [2003] NSWCCA 73
- R v Markuleski (2001) NSWCCA 290; 52 NSWLR 62