Citation: Anthony Boulattouf v Regina [2007] NSWCCA 102
Court: NSW Court of Criminal Appeal
Date: 12 April 2007
Judge(s): Simpson J, Barr J, Howie J
Background
The appellant was a domestic renovation contractor who, in April 2004, was working on the renovation of an apartment where a seven-and-a-half-year-old girl lived with her mother and adult brother. On 15 April 2004, while the child's mother was unwell in bed, the appellant led the complainant into a bedroom, claiming he would give her a massage and telling her he was a doctor. The complainant alleged he digitally penetrated her vagina.
The matter went to trial in the District Court before Geraghty DCJ. The indictment contained three counts: sexual intercourse with a child under ten years (count one), aggravated indecent assault as an alternative to count one (count two), and a separate aggravated indecent assault count relating to an earlier period (count three). The jury acquitted on count one and count three (the latter at the trial judge's direction), but convicted on count two. The appellant was sentenced to a total term of 28 months imprisonment, with a non-parole period of 21 months.
The appellant appealed against both the conviction and the sentence.
Legal Issues
- Whether the trial judge's direction, which invited the jury to consider whether the complainant had a motive to lie and whether she and her mother had conspired to lie, was erroneous, and if so whether it was capable of correction and whether the corrective direction given was adequate.
- Whether the jury's verdicts were inconsistent, in that the jury acquitted on the more serious count of sexual intercourse with a child under ten while convicting on the alternative count of aggravated indecent assault.
Decision
The misdirection ground: The trial judge gave a direction that invited the jury to consider whether the complainant had a motive to lie and whether she and her mother had conspired to fabricate the account. The Court of Criminal Appeal found this direction was erroneous because it placed an inappropriate burden on the prosecution: the absence of a demonstrated motive to lie is not a prerequisite for a conviction, and such a direction risked deflecting the jury from the proper question of whether they were satisfied beyond reasonable doubt of the appellant's guilt. The Court accepted that the direction was capable of correction and proceeded to assess whether the trial judge's subsequent corrective direction adequately remedied the error.
The Court found that the corrective direction was sufficient in the circumstances. The trial judge had redirected the jury to the correct standard and had addressed the problem created by the earlier misdirection. While the original error was real, it did not give rise to a miscarriage of justice given the effective correction that followed.
The inconsistent verdicts ground: The appellant argued that the jury's acquittal on the count of sexual intercourse with a child under ten was logically inconsistent with the conviction on the alternative count of aggravated indecent assault, both counts arising from the same event. The Court rejected this argument. It accepted that, on a strict logical analysis, the two outcomes were difficult to reconcile, but the more probable explanation was that the jury, having believed the complainant, exercised a degree of leniency toward the appellant by convicting on the lesser alternative rather than the more serious count. Because the jury received no direction distinguishing how to choose between the two alternative counts, and because the trial was not conducted on any basis that would allow such a distinction to be drawn, the jury likely regarded themselves as free to convict on either. The Court was satisfied the verdict reflected mercy rather than any irreconcilable contradiction.
The sentence appeal: No substantive submissions were advanced in support of the sentence appeal. The Court noted that the sentence of 28 months with a 21-month non-parole period was unremarkable given the maximum penalty of ten years and the standard non-parole period of five years. No error was identified.
Orders Made
- The appeal against conviction is dismissed.
- Leave is granted to appeal against the sentence, but the appeal against sentence is dismissed.
Key Takeaways
- A direction inviting the jury to consider whether a complainant had a motive to lie can constitute a misdirection, because the absence of a proven motive to lie is not a condition precedent to conviction and such a direction may distract the jury from the correct standard of proof.
- Where such a misdirection occurs, it is capable of being corrected by an adequate redirecting direction from the trial judge, provided the correction sufficiently refocuses the jury on the proper question.
- Inconsistent verdicts do not automatically result in a conviction being set aside. The Court of Criminal Appeal will consider whether there is a rational explanation for the verdicts, including the possibility that the jury exercised leniency by convicting on a lesser alternative count rather than the more serious primary count.
- Where alternative counts are left to the jury without any direction as to how to distinguish between them, the jury is not necessarily in error if it convicts on the lesser alternative, particularly where no such distinction could logically be drawn from the evidence.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that a sentence of 28 months (non-parole period of 21 months) for aggravated indecent assault on a child fell within an unremarkable range given the applicable maximum and standard non-parole period.
Legislation and Cases Referenced
Legislation:
- Evidence (Children) Act 1997 (NSW), s 14
Cases:
- McKinney v The Queen (1991) 171 CLR 468
- R v Lansdell, Court of Criminal Appeal, New South Wales, 22 May 1995
- R v Jovanovic (1997) 42 NSWLR 520
- R v Fuge (2001) 123 A Crim R 310
- R v Smith [2000] NSWCCA 468
- R v Marsland, Court of Criminal Appeal, New South Wales, 17 July 1991 (unreported)
- Gilbert v The Queen [2007] HCA 15
- Palmer v The Queen (1998) 193 CLR 1