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Court of Criminal Appeal 6 May 2005

COTTER v R

[2005] NSWCCA 187

Sexual offencesAssault & violenceDomestic & family violence

Citation: R v Cotter [2005] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 6 May 2005
Judge(s): Grove J, Hulme J, Simpson J

Background

The appellant was charged with three offences arising from a single incident on 15 February 2002 involving his former de facto partner (referred to as TLH to comply with suppression requirements). The charges were sexual intercourse without consent, assault occasioning actual bodily harm, and common assault. The parties had lived together for approximately ten years and had three children.

At trial in the District Court before Coolahan DCJ, a jury acquitted the appellant on the sexual intercourse charge and the common assault charge, but convicted him on the assault occasioning actual bodily harm charge. The trial judge sentenced the appellant to a good behaviour bond for three years under section 9 of the Crimes (Sentencing Procedure) Act, with a condition that he accept supervision from the NSW Probation and Parole Service, and also made an apprehended violence order.

The appellant appealed both the conviction and the sentence to the Court of Criminal Appeal.

  • Whether the guilty verdict on the assault occasioning actual bodily harm count was unreasonable or could not be supported having regard to the evidence, particularly given the jury's acquittals on the two related counts
  • Whether the three-year good behaviour bond, with a condition requiring supervision by the Probation and Parole Service for as long as that service considered necessary, was manifestly excessive

Decision

On the conviction appeal, the Court applied the established principle that inconsistent verdicts do not automatically render a conviction unreasonable. The relevant test under section 6(1) of the Criminal Appeal Act is whether the conviction itself is unreasonable or cannot be supported having regard to the evidence. It is not sufficient simply to point out that a jury convicted on one charge but acquitted on others, even where those counts arose from substantially the same evidence.

The Court found that the assault occasioning actual bodily harm count had meaningful corroboration that the other counts lacked. Police officers observed injuries on TLH shortly after the incident, and a doctor who examined her approximately six hours later recorded additional physical findings. The appellant's own evidence, that TLH became aggressive after the intercourse and that he used a pillow to defend himself, did not adequately account for the injuries observed by independent witnesses. This independent evidence provided a rational basis for the jury to be satisfied beyond reasonable doubt on count 2, even while not being similarly satisfied on the other counts. The conviction was not unreasonable.

On the sentence appeal, the Court accepted that the appellant had psychological difficulties and had been receiving psychiatric treatment. The trial judge had imposed the supervision condition specifically to ensure this treatment continued. The Court held that in circumstances where the sentencing judge had relevant information about the appellant's mental health and ongoing treatment needs, it was within the proper exercise of sentencing discretion to attach a supervision condition to the bond. No error in that approach was demonstrated. The Court acknowledged that, given the appellant's apparently unblemished conduct in the two years between the offence and trial, a shorter bond period might have been open, but error in the selection of three years was not established.

Orders Made

  • The appeal against conviction is dismissed
  • Leave to appeal against sentence is granted, but the sentence appeal is also dismissed

Key Takeaways

  • Inconsistent jury verdicts do not, on their own, render a conviction unreasonable. The controlling question under section 6(1) of the Criminal Appeal Act is whether the conviction itself is unreasonable or unsupported by the evidence, assessed independently of any acquittal on companion counts.
  • A conviction on one count may survive acquittals on related counts where there is independent corroborating evidence supporting the count on which the jury convicted, even if the primary witness's account was the same across all counts.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that sentencing judges retain a broad discretion when tailoring conditions to a good behaviour bond, including supervision conditions directed at addressing an offender's mental health needs.
  • No error in the exercise of sentencing discretion is established merely because a shorter or less onerous sentence might also have been open to the sentencing judge. The appellate court requires demonstrated error before intervening.
  • Physical evidence observed by police and medical practitioners shortly after an alleged assault can provide the corroborative foundation necessary to distinguish between counts in a multi-count indictment, potentially supporting a conviction even where other counts fail.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act, section 9 (good behaviour bonds)
- Crimes Act 1900, section 562B(e) (apprehended violence orders)
- Criminal Appeal Act, section 6(1) (grounds for allowing an appeal against conviction)

Cases:
- McKenzie v R (1996) 190 CLR 348
- R v Markuleski [2001] 52 NSWLR 82
- MFA v R [2002] 213 CLR 606