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Court of Criminal Appeal 18 December 2007

R v KRL

[2007] NSWCCA 354

Sexual offences

Citation: R v KRL [2007] NSWCCA 354
Court: NSW Court of Criminal Appeal
Date: 18 December 2007
Judge(s): Mason P, Barr J, Bell J

Background

The appellant, a man aged 74 at the time of sentencing, was tried in the Sydney District Court in October 2006 on six counts of sexual offending alleged to have been committed against his daughter in 1965 and 1966, when she was aged 10 or 11 years. The complainant was 51 years old at the time of the trial. The offences fell across two separate episodes, each involving allegations of indecent assault, carnal knowledge, and buggery.

The jury acquitted the appellant on counts two to six but convicted him on count one, an indecent assault alleged to have occurred in November 1965. The trial judge sentenced the appellant to three years' imprisonment with a non-parole period of nine months, commencing 13 December 2006. The appellant was admitted to bail pending the appeal.

The appellant challenged his conviction in the Court of Criminal Appeal on a single ground: that the verdict was unreasonable and not supported by the evidence. No appeal was brought against the sentence.

  • Whether the jury's verdict on count one was unreasonable or not supported by the evidence, having regard to the acquittals on counts two to six
  • Whether the partial verdict (one conviction alongside five acquittals) was logically inconsistent or amounted to a compromise verdict
  • Whether the complainant's evidence, relating to events some 40 years before trial, was adequate to sustain the conviction

Decision

Bell J (with whom Mason P and Barr J agreed) dismissed the appeal, finding that the conviction was open on the evidence and did not constitute an affront to logic or reason.

The court examined whether the acquittals on counts two to six rendered the conviction on count one logically inconsistent. It concluded they did not. The jury was entitled to accept the complainant's evidence in relation to count one while declining to be satisfied beyond reasonable doubt on the remaining counts. The court noted that the history of jury deliberation, including a majority verdict direction given after the jury indicated it was deadlocked on a remaining count, did not suggest the conviction was a compromise.

The court found no inconsistency or other inadequacy in the complainant's evidence when the trial transcript was examined. It acknowledged that the evidence related to events many years before the trial, but noted that this was the subject of detailed directions to the jury. The jury had heard the complainant's evidence, other Crown witnesses, and the evidence of the appellant himself.

The court concluded that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on count one.

Orders Made

  • Appeal dismissed.
  • Pursuant to sections 18 and 28A of the Criminal Appeal Act 1912, the non-parole period directed to commence on 18 December 2007, expiring 17 September 2008.
  • Balance of sentence of two years and three months, expiring 17 December 2010.
  • Appellant to be released on parole at the expiration of the non-parole period.

Key Takeaways

  • A conviction on one count is not necessarily unreasonable merely because the jury acquitted on related counts arising from the same alleged episode; partial verdicts may reflect permissible assessments of the evidence rather than logical inconsistency.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the applicable test requires the verdict to constitute an affront to logic and reason before it will be set aside as unreasonable.
  • Where a complainant's evidence is uncorroborated and relates to events decades earlier, those circumstances go to jury directions rather than to the admissibility or sufficiency of the evidence as a matter of law.
  • No error was established in the trial judge's conduct of the majority verdict process; the history of deliberations did not, of itself, indicate that the conviction was a compromise verdict.
  • The Court of Criminal Appeal exercised its power under the Criminal Appeal Act 1912 to reset the commencement date of the non-parole period to the date of the appeal judgment, reflecting the period the appellant had been at liberty on bail.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 73, 76, 79 (as they stood in 1965-1966)
- Criminal Appeal Act 1912 (NSW), ss 18 and 28A

Cases:
- Black v R (1993) 179 CLR 44 (majority verdict directions)