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5
Court of Criminal Appeal 6 August 2007

NORRIS v REGINA

[2007] NSWCCA 235

Also reported as (2007) 176 A Crim R 42
Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTIONS UNREASONABLE AND INSUPPORTABLE VERDICTS CREDIBILITY OF COMPLAINANT DELAY S.6(1), CRIMINAL APPEAL ACT 1912

Citation: Norris v Regina [2007] NSWCCA 235
Court: New South Wales Court of Criminal Appeal
Date: 6 August 2007
Judge(s): McClellan CJ at CL; Howie J; Hall J

Background

The appellant was tried in the District Court on an indictment containing four counts of sexual offences, all involving a single complainant. The jury returned guilty verdicts on Counts 1 and 2 and acquitted the appellant on Counts 3 and 4. Nicholson DCJ presided at the original trial, which concluded on 11 April 2006.

The prosecution case rested substantially, if not entirely, on the direct evidence of the complainant. There was no corroborating physical or forensic evidence. The complainant alleged that the offences in Counts 1 and 2 occurred at night, shortly after she awoke in the appellant's home.

A significant feature of the case was a lengthy delay between the alleged offending and the formal complaint to police. The complainant offered no sufficient explanation for that delay, which the majority of the Court of Criminal Appeal treated as a material consideration when assessing the reasonableness of the guilty verdicts.

  • Whether the guilty verdicts on Counts 1 and 2 were unreasonable or could not be supported by the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • What significance, if any, the jury's acquittals on Counts 3 and 4 carried when assessing the reasonableness of the guilty verdicts on Counts 1 and 2
  • How the court should approach verdicts on a multi-count indictment where all counts depend on the credibility of a single complainant
  • What weight should be given to the complainant's unexplained delay in reporting the alleged offences

Decision

The Court of Criminal Appeal allowed the appeal by majority, with McClellan CJ at CL dissenting. The majority (Howie and Hall JJ) concluded that the guilty verdicts on Counts 1 and 2 were unreasonable and constituted a miscarriage of justice.

The court confirmed the established test: on an appeal under s 6(1), the appellate court must ask whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The majority applied the principles from M v The Queen, MFA v The Queen, and MacKenzie v The Queen, noting that inconsistent verdicts on a multi-count indictment do not automatically render the guilty verdicts unreasonable. A jury may acquit on some counts while convicting on others without that reflecting a wholesale rejection of the complainant's credibility.

However, the majority reasoned that, in the specific circumstances of this case, the acquittals on Counts 3 and 4 could only be rationally explained in one of two ways: either the jury concluded the events alleged were improbable, or the jury was not prepared to convict on the complainant's evidence alone without more. On either explanation, the majority found it logically inconsistent for the same jury to have convicted on Counts 1 and 2, which also depended entirely on the complainant's uncorroborated evidence.

Hall J also placed considerable weight on the delay in reporting and the absence of a satisfactory explanation for that delay. In the context of no corroboration and the acquittals on the remaining counts, that delay further supported the conclusion that convicting on Counts 1 and 2 was unsafe and unsatisfactory. McClellan CJ at CL dissented, emphasising that disparate verdicts frequently reflect careful deliberation by juries applying the required standard of proof to individual counts, and that this does not in itself demonstrate unreasonableness.

Orders Made

  • The appeal was upheld.
  • The convictions on Counts 1 and 2 were set aside.

Key Takeaways

  • Inconsistent verdicts on a multi-count indictment are not, by themselves, grounds for setting aside a conviction. The Court of Criminal Appeal confirmed that a jury may convict on some counts and acquit on others without necessarily rejecting a complainant's credibility, reflecting instead the cautious discharge of the burden of proof.
  • Where a prosecution depends entirely on a single complainant's uncorroborated evidence, the significance of acquittals on related counts must be assessed on the particular facts. In some cases, rational analysis of those acquittals will render guilty verdicts on other counts logically unsupportable.
  • The applicable test under s 6(1) of the Criminal Appeal Act 1912 (NSW) is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt. An appellate court is not required to defer to a jury verdict it finds, on that analysis, to be unreasonable.
  • Delay in reporting an alleged sexual offence remains a relevant factor when an appellate court evaluates the reasonableness of a verdict, even where no criticism is made of the trial judge's directions on delay.
  • A verdict of not guilty does not necessarily imply that a complainant was disbelieved. It may reflect a juror's caution in the face of a heavy burden of proof, uncertainty about detail, or the absence of supporting evidence on a particular count.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- MacKenzie v The Queen (1997) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- Morris v The Queen (1987) 163 CLR 454
- Hayes v The Queen (1973) 47 ALJR 603
- Regina v Markuleski (2001) 52 NSWLR 82
- Regina v Workman (2004) 60 NSWLR 471
- Regina v R (1989) 18 NSWLR 74
- Regina v Maddox (Queensland Court of Appeal, McPherson J)