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Court of Criminal Appeal 25 November 2003

R v. GLEKIS

[2003] NSWCCA 348

Sexual offencesAssault & violence
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: R v Glekis [2003] NSWCCA 348
Court: New South Wales Court of Criminal Appeal
Date: 25 November 2003
Judge(s): Hodgson JA, Grove J, Howie J

Background

The appellant was tried in the Sydney District Court before Acting Judge Shillington QC and a jury on two charges arising from events at a sports club in Maroubra on 12 December 2001. The first count was assault with an act of indecency (section 61L of the Crimes Act 1900), relating to the appellant entering the women's change room and touching the complainant's back and bottom while she was showering. The second count was sexual intercourse without consent (section 61I), relating to alleged digital penetration in the club's sauna area.

The jury returned a split verdict: guilty on count one, not guilty on count two. The appellant was sentenced to one year's imprisonment, suspended under section 12 of the Crimes (Sentencing Procedure) Act 1999.

The appellant appealed to the Court of Criminal Appeal on a single ground, arguing that the guilty verdict on count one was unreasonable and illogical, particularly in light of the jury's acquittal on count two.

  • Whether the guilty verdict on count one was unreasonable or illogical having regard to all the evidence
  • Whether the split verdict (guilty on the indecency count, not guilty on the sexual intercourse count) was rationally explicable or whether it demonstrated an impermissible inconsistency

Decision

Hodgson JA, with whom Grove J and Howie J agreed, held that the verdict was not unreasonable or illogical. The Crown case rested substantially on the evidence of the complainant, supported by the evidence of her then-partner, the club's general manager, security footage, and club sign-in records. The security video confirmed the appellant had entered the club wearing a red t-shirt, consistent with the complainant's description of the person who entered the change room.

On the question of variations between the complainant's accounts, Hodgson JA found that the differences were explicable by language difficulties and understandable initial reticence. There was no suggestion that her accounts of the touching in the shower and the alleged digital penetration differed between her police statement (made four days after the incident) and her trial evidence. The variations in time estimates and one detail about screaming were not considered to significantly undermine her credibility.

As for the split verdict, Hodgson JA identified several rational explanations. The jury may have found the complainant's account of events in the sauna less reliable, given that some of that detail emerged for the first time at trial, whereas her account of the shower incident had remained consistent throughout. Her early description to her partner that she had been "nearly raped" could also indicate that events fell short of penetration. The court also noted that a jury may properly take a "merciful" view of the facts on one count without that rendering any other verdict unreasonable.

The fact that the trial judge gave a Black direction (a direction permitting a majority verdict after prolonged deliberation) did not indicate an unreasonable compromise. The direction was given after the jury had already deliberated for some time, and without any indication they were deadlocked.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a split verdict is not automatically unreasonable or illogical; it stands where a rational explanation for the different outcomes can be identified.
  • A jury's differing assessment of reliability across counts is a recognised rational basis for split verdicts, particularly where evidence on one count remained consistent from the outset while evidence on another count contained details that emerged only at trial.
  • Under the established authorities (including MacKenzie v R and MFA v R), a jury may take a "merciful" view of the facts on one count without that rendering a guilty verdict on a separate count unreasonable.
  • Language difficulties and understandable initial reticence about disclosing full details of a sexual assault can reasonably explain variations between earlier accounts and trial evidence without fatally undermining a complainant's credibility.
  • The giving of a Black direction does not, without more, suggest that a guilty verdict was the product of an unreasonable compromise, particularly where deliberations had been prolonged and no note of deadlock had been sent by the jury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- Black v The Queen (1993) 179 CLR 44
- MFA v R (2002) 193 ALR 184
- MacKenzie v R (1996) 190 CLR 348