AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 19 July 2004

R v Bonat

[2004] NSWCCA 240

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER INCONSISTENT VERDICTS WHETHER VERDICTS OF GUILTY UNREASONABLE

Citation: Bonat v R [2004] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 19 July 2004
Judge(s): Sheller JA, Sperling J, Adams J

Background

The appellant was convicted in the District Court before Norrish DCJ and a jury on six of ten counts of sexual offences against his step-daughter, alleged to have occurred over a period spanning roughly 1984 to 1989. The complainant was between 9 and 15 years of age across the period of the alleged offending. The first complaint to police was made in April 2000, more than a decade after the last alleged offence.

The jury returned a mixed verdict, acquitting the appellant on four counts and convicting him on six. The offences covered conduct alleged to have occurred at two properties in regional New South Wales. The only evidence supporting the convictions was the complainant's own account, which was uncorroborated.

The appellant appealed against his convictions, arguing that the verdicts were factually inconsistent and that the guilty verdicts were unreasonable in all the circumstances.

  • Whether the jury's mixed verdicts were factually inconsistent with one another, such that the convictions could not stand
  • Whether the verdicts of guilty were unreasonable having regard to the totality of the evidence
  • Whether, if the convictions were set aside, the appropriate remedy was a direction to enter acquittals or an order for a new trial

Decision

Sperling J (with whom Sheller JA and Adams J agreed) found that the guilty verdicts were factually inconsistent with the not-guilty verdicts in a number of respects. The counts on which the jury convicted and acquitted overlapped in time and factual context, and the court found it impossible to reconcile the two sets of verdicts on any rational basis.

Beyond the inconsistency issue, the court also found that the guilty verdicts were unreasonable when assessed against the full body of evidence. The complainant's evidence was wholly uncorroborated. The court identified discrepancies in her account and noted that the lengthy delay before complaint was only partly explained. The unexplained delay from approximately 1993, when the complainant moved to Western Australia, until the first complaint in 2000 bore on her credit.

The court further noted that the appellant had denied all the allegations in his electronically recorded interview and on oath, and had not been shaken in cross-examination. The combination of factually inconsistent verdicts, uncorroborated evidence, discrepancies, unexplained delay, and unshaken denials led the court to conclude that the convictions did not meet the test of logic and reasonableness required by the authorities.

Having reached that conclusion, the court determined that verdicts of acquittal should be entered rather than a new trial ordered. The second ground of appeal, relating to the adequacy of the trial judge's summing up, was not addressed in detail given the outcome on the first ground, though Sperling J noted in passing that the alleged inadequacy did not appear to have been made out.

Orders Made

  • Appeal allowed
  • Convictions under counts 2, 4, 6, 8, 9 and 10 set aside
  • Verdicts of acquittal directed to be entered in lieu of those convictions

Key Takeaways

  • Factually inconsistent verdicts can provide a basis for setting aside convictions on appeal where the inconsistency cannot be reconciled on any rational view of the evidence.
  • A conviction resting wholly on uncorroborated evidence is not automatically flawed, but the combination of uncorroborated testimony, significant discrepancies, and unexplained delay in complaint can render a guilty verdict unreasonable in all the circumstances.
  • Where the delay in complaint is only partially explained, the unexplained portion is a legitimate factor going to the complainant's credibility and the reasonableness of the verdict.
  • An appellant's unshaken denial, given on oath and in a prior recorded interview, is a factor the Court of Criminal Appeal will weigh when assessing whether a verdict is reasonable.
  • Where the Court of Criminal Appeal finds a verdict unreasonable, the appropriate remedy is not always a retrial. In this case, the court directed acquittals to be entered rather than ordering a new trial.

Legislation and Cases Referenced

Legislation:
- Supreme Court Rules 1970 (NSW)

Cases:
- Crisologo (1997) 99 ACrimR 178
- Hayes (1973) 47 ALJR 603
- Jones (1997) 191 CLR 439
- Lebler [2003] NSWCCA 362
- Lee [2004] NSWCCA 113
- M (1994) 181 CLR 487
- MacKenzie (1996) 190 CLR 348
- Markuleski (2001) 52 NSWLR 82
- MFA (2002) 193 ALJR 184
- Nek [2001] NSWCCA 392
- Parbury [2003] NSWCCA 120
- Plomp (1963) 110 CLR 234
- Raspor (1958) 99 CLR 346
- Robinson (2000) 111 ACrimR 388
- SBD [2003] NSWCCA 235