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Court of Criminal Appeal 16 June 2008

Carney v R

[2008] NSWCCA 140

Sexual offences
CRIMINAL LAW JURY VERDICT UNREASONABLE OR INSUPPORTABLE VERDICT INCONSISTENCY BETWEEN MULTIPLE COUNTS

Citation: Carney v R [2008] NSWCCA 140
Court: New South Wales Court of Criminal Appeal
Date: 16 June 2008
Judge(s): Spigelman CJ, Hidden J, Latham J

Background

The appellant stood trial in the Dubbo District Court on an indictment containing six sexual assault charges, all involving a single complainant. The charges arose from two separate occasions at a rural property in January 2006. The complainant was 16 years old at the time; the appellant was 23.

The jury returned a mixed verdict. It acquitted the appellant on three counts and convicted him on three others: one count of sexual intercourse without consent and two counts of indecent assault under the Crimes Act 1900. The appellant did not give evidence at trial but had participated in a police interview in which he admitted most of the sexual activity, denying only one specific act, and claimed the complainant had consented and had in fact initiated the contact.

The appellant appealed against the three convictions, arguing that the jury's mixed verdicts were irreconcilably inconsistent and that the convictions could not stand alongside the acquittals.

  • Whether the guilty verdicts were unreasonable or could not be supported by the evidence, given the acquittals on the remaining three counts.
  • Whether the inconsistency between the mixed verdicts was so significant as to indicate jury compromise or error, warranting intervention by the Court of Criminal Appeal.

Decision

Spigelman CJ (with whom Hidden J and Latham J agreed) found no relevant inconsistency between the verdicts and dismissed the appeal. The Chief Justice began from the established principle, drawn from MacKenzie v The Queen, that an appellate court will accept a reconcilable explanation for mixed verdicts and should respect the jury's primary responsibility to determine guilt.

The acquittal on one of the first-occasion counts (digital penetration) was easily explained: the appellant had denied that act in his police interview, while admitting all other sexual contact. The jury therefore had a direct and material difference in the evidence to justify treating that count separately.

The more difficult question concerned the four remaining counts where the only issue was consent. The Chief Justice found that the two acquittals on those counts could be distinguished from the three convictions by reference to the element of the appellant's knowledge of non-consent. The acts leading to acquittals both involved the appellant masturbating the complainant to ejaculation, and the evidence of non-consent communicated during those acts was either equivocal or of insufficient reliability. By contrast, the counts on which the appellant was convicted involved the complainant being forced to masturbate the appellant, and a separate act of digital penetration where the complainant gave clear and unequivocal evidence of physically resisting.

Spigelman CJ placed particular weight on the fact that the two masturbation acts continued until ejaculation. A jury could reasonably conclude, on that basis, that the Crown had not established beyond reasonable doubt that the appellant knew the complainant was not consenting during those specific acts. This provided a rational and principled basis for the distinction between the verdicts, and the test for unreasonableness from M v The Queen was not satisfied.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A verdict of not guilty does not necessarily mean a jury disbelieved the complainant. As affirmed by reference to MFA v The Queen, jurors may accept that an event probably occurred but still decline to convict if they are not satisfied beyond reasonable doubt, particularly in the absence of corroborating evidence.
  • Inconsistent verdicts will not automatically be treated as irreconcilable. Where an appellate court can identify a proper basis for distinguishing between counts on the evidence, it will generally uphold the verdicts and decline to interfere.
  • The element of knowledge of non-consent is capable of being established to different degrees across different counts, even within the same trial and involving the same complainant. Differences in the nature of each act, and differences in how non-consent was communicated, can provide a rational basis for different outcomes on separate counts.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mixed verdicts on a multi-count sexual assault indictment are not inherently problematic provided a principled reconciliation is available on the evidence.
  • No relevant inconsistency was established on the facts: the acquittals were explicable by the combined effect of equivocal resistance evidence and the continuation of those acts to ejaculation, which a jury could reasonably view as undermining the Crown's proof of the appellant's knowledge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- M v The Queen (1997) 181 CLR 487