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Court of Criminal Appeal 14 March 2003

Bolamatu v R

[2003] NSWCCA 58

Assault & violencePublic order & justice offences
INCONSISTENT VERDICTS DIFFERENT INGREDIENTS AGGREGATION OR CUMULATION OF SENTENCES.

Citation: Bolamatu v R [2003] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 14 March 2003
Judge(s): Meagher JA, Dowd J, Barr J

Background

The appellant was tried in the Sydney District Court before Shadbolt DCJ on four counts arising from events on 25 November 2000 at Malabar. Two counts related to an assault on a private individual, resulting in one guilty and one not guilty verdict, which the appellant did not contest on appeal.

The remaining two counts concerned an incident involving a police officer, Constable Joanna Lincoln, who arrived to investigate a disturbance. The counts were charged in the alternative: one alleged use of a motor vehicle as an offensive instrument with intent to prevent a police officer from investigating a matter calling for investigation (maximum 12 years), and the other alleged assaulting a police officer in the execution of her duty occasioning actual bodily harm (maximum 7 years).

The officer had stood in front of the appellant's car, held up her hand, and called out for the driver to stop. The car did not stop and ran her over, causing serious injury. The appellant claimed he had not seen her, but the jury preferred the officer's account. The jury returned a not guilty verdict on the offensive instrument charge and a guilty verdict on the assault charge. The appellant appealed both conviction and sentence.

  • Whether the jury's verdicts of not guilty on the offensive instrument charge and guilty on the assault charge were legally inconsistent
  • Whether the sentencing judge was justified in imposing sentences close to the maximum for each offence
  • Whether the sentencing judge was justified in ordering the sentences to be served consecutively rather than concurrently

Decision

On the inconsistency question, the Court of Criminal Appeal applied the tests for consistency set out in R v Kirkman and MFA v The Queen. The Court found the verdicts were not inconsistent because the two charges contained different ingredients. The offensive instrument charge required proof of a specific intention to prevent a police officer from investigating a matter calling for investigation. That mental element was absent from the assault charge.

The Court reasoned that the jury could quite properly have found the Crown failed to prove that particular intent while still finding that the appellant deliberately ran the officer over. It was open to the jury to conclude, in effect, that the appellant's purpose was simply to escape rather than to obstruct an investigation. No inconsistency arose from that distinction.

On sentence, the appellant argued that neither offence warranted a sentence close to the maximum, and that making the sentences consecutive amounted to impermissible "aggregation." The Court rejected both arguments. Because the two offences were distinct in character, involved different victims, and each was found to be close to the most serious example of its kind, near-maximum sentences were open. Consecutive rather than concurrent terms were also appropriate in those circumstances.

Orders Made

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

Key Takeaways

  • Verdicts on alternative charges are not necessarily inconsistent where the charges contain different ingredients: an acquittal on a charge requiring specific intent does not contradict a conviction on a related charge that requires no such intent.
  • The Court of Criminal Appeal confirmed that a jury may acquit on a charge requiring proof of a particular purpose while convicting on a charge arising from the same facts but carrying a different mental element.
  • In dismissing the sentencing appeal, the Court affirmed that near-maximum sentences across multiple counts can be appropriate where each offence is close to the worst of its type, even if sentenced consecutively.
  • Consecutive (cumulative) sentences across distinct offences involving different victims are not necessarily excessive, particularly where the crimes are unrelated in character despite arising from the same incident.
  • Under the tests in R v Kirkman and MFA v The Queen, apparent inconsistency between verdicts must be assessed by reference to the specific legal elements required for each charge, not merely the factual circumstances from which both arose.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(1) (using offensive instrument to prevent police investigation)
- Crimes Act 1900 (NSW), s 60(2) (assaulting police officer in execution of duty occasioning actual bodily harm)

Cases:
- R v Kirkman (1987) 44 SASR 591
- MFA v The Queen [2002] HCA 53