Citation: R v Fangupo [2003] NSWCCA 61
Court: NSW Court of Criminal Appeal
Date: 17 March 2003
Judge(s): Meagher JA, Dowd J, Barr J
Background
The appellant was the stepfather of the complainant and her younger sister. He faced two counts of sexual intercourse without consent: the first alleging digital penetration of the complainant when she was seven years old (between 1993 and 1994), and the second alleging penile penetration when she was thirteen years old and in his care during her mother's absence overseas in 1999.
The complainant was the sole witness to both alleged offences. Medical evidence, obtained in 2001, revealed healed hymeneal transections consistent with penetration, but nothing could be said about the timing of those injuries beyond that they were not recent. The evidence was therefore consistent with penetration on either or both occasions.
The jury acquitted the appellant on the first count and convicted him on the second. He appealed the conviction, arguing that the guilty verdict was unreasonable and could not be supported on the evidence.
Legal Issues
- Whether the verdict of guilty on the second count was unreasonable and could not be supported on the whole of the evidence, applying the test in M v The Queen (1994) 181 CLR 487
- Whether the acquittal on the first count rendered the guilty verdict on the second count unreasonable, given that the two counts rested substantially on the same complainant's credibility and the same medical evidence
Decision
Barr J (with whom Meagher JA and Dowd J agreed) applied the test from M v The Queen: whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty. The question was not simply whether there was some evidence capable of supporting the verdict, but whether the verdict was one a reasonable jury could properly reach.
The court addressed the evidence of the complainant's younger sister, who had told police in a recorded interview that she witnessed the complainant and the appellant enter the mother's bedroom together and lock both the hall and bedroom doors. The complainant's account had placed her sister away from the house at a birthday party. Barr J accepted that this discrepancy showed the complainant was mistaken about her sister's whereabouts, but found that this error was peripheral to the central question of whether the offence occurred. The jury could rationally accept that the complainant had mistakenly incorporated details about the birthday party while remaining truthful about the assault itself.
On the apparent inconsistency between the acquittal and conviction, Barr J found the two verdicts were reconcilable. The complainant's description of the first incident was imprecise and internally inconsistent, moving between descriptions that fell short of penetration and one that described penetration. Given her young age at the time, her stated lack of understanding of what was occurring, and the imprecision of her account, the jury was entitled to conclude she had been truthful but possibly mistaken about whether digital penetration had actually occurred. Her account of the second incident, by contrast, was clear and detailed. The two verdicts therefore reflected a legitimate distinction the jury could draw between the quality and precision of the evidence on each count.
Orders Made
- Appeal dismissed
Key Takeaways
- The governing test for an unreasonable verdict, drawn from M v The Queen (1994) 181 CLR 487, asks whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt of guilt, not merely whether some evidence existed capable of supporting conviction.
- Inconsistencies between a complainant's account and other evidence do not automatically render a verdict unreasonable, particularly where the inconsistencies relate to peripheral rather than central facts.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that inconsistent verdicts across multiple counts do not necessarily indicate jury error, provided a rational basis exists to distinguish the evidentiary quality of the two counts.
- A jury is entitled to accept that a witness was honest but mistaken on a particular count, especially where that count involved events from many years earlier and the witness was very young at the time.
- No error was established in the jury's approach to the complainant's credit simply because the medical evidence was neutral as between the two alleged incidents.
Legislation and Cases Referenced
Cases:
- M v The Queen (1994) 181 CLR 487
- McKenzie v The Queen (1996) 190 CLR 348
- R v Markuleski (2001) 52 NSWLR 82