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Court of Criminal Appeal 4 December 2006

Atkinson v Regina

[2006] NSWCCA 366

Sexual offencesAssault & violencePublic order & justice offences
CRIMINAL LAW CONVICTION APPEAL

Citation: Atkinson v Regina [2006] NSWCCA 366
Court: NSW Court of Criminal Appeal
Date: 4 December 2006
Judge(s): Grove J, Kirby J, Hislop J (Hislop J writing; Grove and Kirby JJ agreeing)

Note: These proceedings are subject to the publication and broadcasting limitations imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987.

Background

The appellant was in a relationship with a 16-year-old complainant ("A") when the alleged offences occurred in January and February 2005. He was 28 at the time. The pair were living together at his unit in Camperdown for much of the relevant period.

The appellant was tried in the District Court on five counts: intimidation (Count 1), assault (Count 2), two counts of aggravated sexual intercourse without consent (Counts 3 and 4), and maliciously wounding (Count 5). The jury returned guilty verdicts on Count 1 (intimidation) and on the statutory alternative to Count 3 (sexual intercourse without consent, without the aggravating element), acquitted on Counts 2 and 4, and was discharged on Count 5 after failing to reach a verdict.

The appellant challenged his convictions on Count 1 and the alternative to Count 3, arguing the guilty verdicts were unreasonable when read alongside the acquittals and the jury's inability to agree on Count 5.

  • Whether the guilty verdicts on Count 1 and the statutory alternative to Count 3 were unreasonable having regard to the totality of the evidence and the other outcomes returned by the jury.
  • Whether a rational basis existed to differentiate the guilty verdicts from the not-guilty verdicts and the hung count.

Decision

Hislop J (with whom Grove and Kirby JJ agreed) dismissed the appeal. The court found that the guilty verdicts were not unreasonable and that there was a rational basis to explain the different outcomes across the counts.

On Count 1 (intimidation on 14 January 2005), the conviction was well supported. The complainant's account of threatening phone calls and the appellant's attendance at her father's flat was corroborated by her father's evidence, telephone records, contemporaneous police complaints, and to some degree by the appellant's own admissions. The court observed that the acquittal on Count 2 (assault on 13 January) was explicable: A's evidence had shifted between examination-in-chief and cross-examination, and she acknowledged she may have been mistaken about some details of the physical contact.

On the alternative to Count 3 (sexual intercourse without consent on 19 February 2005), the court found the conviction supported by A's early complaint to the triple-zero operator and police, her distressed presentation at a nearby service station shortly after the events, and the independent evidence of the service station attendant. The acquittal on the aggravated version of Count 3 was unsurprising given there was no corroborating evidence of a knife at that time. The acquittal on Count 4, involving the other act of intercourse alleged that night, reflected inconsistencies in A's account about the sequence of events. The jury's failure to agree on Count 5 (the wounding) was consistent with uncertainty about the number of cuts inflicted, and the court regarded that outcome as neutral on the credibility question.

The court concluded that each outcome could be explained by the varying quality and consistency of the evidence specific to each count, and that the convictions were not unreasonable within the principles established by the High Court authorities.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A conviction appeal on the ground of unreasonable verdict will not succeed where a rational basis exists to differentiate guilty verdicts from acquittals returned by the same jury in the same trial.
  • Inconsistencies in a complainant's evidence about some counts do not necessarily undermine convictions on other counts where those convictions are independently corroborated.
  • Corroborating evidence from independent witnesses, telephone records, and early consistent complaints to police can provide a sufficient foundation for a jury's guilty verdict, even where other related counts were not proven.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a jury's inability to agree on one count is a neutral factor, not automatically destructive of guilty verdicts on related counts.
  • Where a complainant's evidence shifts between examination-in-chief and cross-examination, a jury is entitled to convict on some counts and acquit on others based on its assessment of the evidence specific to each charge.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 11(1)
- Crimes Act 1900 (NSW), ss 35(1)(a), 61, 61J(1), 562AB(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- Weiss v The Queen (2005) 80 ALJR 444