Citation: TK v R [2009] NSWCCA 151
Court: New South Wales Court of Criminal Appeal
Date: 26 May 2009
Judges: McClellan CJ at CL; Simpson J; Latham J
Background
The appellant was convicted in the District Court of multiple offences against a complainant, including sexual intercourse without consent, using an offensive weapon with intent to commit an indictable offence, intimidation with intent to cause fear of physical or mental harm, and common assault. The trial was presided over by Knox DCJ. The jury returned a mixed verdict, convicting the appellant on some counts but acquitting on others.
The appellant appealed against the convictions to the Court of Criminal Appeal. Two principal grounds were advanced: first, that the mixed verdicts were inconsistent or the product of compromise, rendering the convictions unreasonable or unsafe; and second, that the trial judge erred by refusing to direct the jury, as requested by defence counsel, that jurors should not engage in intimidating or overbearing conduct toward one another during deliberations.
Legal Issues
- Whether the convictions were unreasonable or could not be supported having regard to the evidence, applying the test in M v The Queen (1994)
- Whether mixed verdicts indicated the jury had compromised rather than properly applying the law to each count
- Whether the acquittals on some counts so undermined the complainant's credibility that it was not open to the jury to convict on the remaining counts
- Whether the trial judge erred by declining to direct the jury to avoid intimidatory or overbearing conduct in the jury room, and whether any such error caused a miscarriage of justice
Decision
On the mixed verdicts ground, the Court confirmed there are two distinct pathways through which mixed verdicts can warrant intervention. The first concerns whether the jury actually applied its mind to each count according to the trial judge's directions (the "compromised verdict" question). The second asks whether, having regard to the whole of the evidence, the appellate court itself has a reasonable doubt about guilt on the convicted counts. These two questions are conceptually separate and require different analyses.
The Court applied the principles from Markuleski v R (2001) and MFA v The Queen (2002), confirming that mixed verdicts do not automatically raise a presumption that guilty verdicts are unreasonable. Jurors may decline to convict on particular counts for many reasons, including inaccuracies or embellishments in a complainant's account of specific incidents, without that conclusion undermining the complainant's overall reliability across other counts. The Court emphasised that the law presumes the jury faithfully followed the trial judge's directions and that the burden of establishing a miscarriage rests on the appellant. No such miscarriage was established here.
On the jury directions ground, Simpson J (with whom Latham J agreed) found that the trial judge's handling of the jury tension was ill-advised. Rather than directing the jury to treat each other with calm and rational respect as requested, the judge told the foreman that judges themselves sometimes "have full scale brawls" when they disagree, remarks the Court described as both inappropriate and factually incorrect in the experience of the bench. Nonetheless, the Court found this did not contribute to the convictions, deflect the jury from its task, or render an otherwise fair trial unfair. The ground was therefore rejected.
Orders Made
- Appeal against conviction dismissed
Key Takeaways
- Mixed verdicts in sexual assault trials do not automatically render guilty verdicts unreasonable. An appellate court must separately assess whether the verdict was the product of compromise and whether, on the whole of the evidence, it was open to the jury to convict.
- The Court of Criminal Appeal confirmed, following Markuleski and MFA, that acquittals on some counts do not raise a presumption that convictions on other counts are unsafe, particularly where credibility of the complainant is the central issue.
- Under the applicable appellate standard, courts must allow for the jury's advantage of observing witnesses give evidence and must begin from the presumption that the jury faithfully applied the trial judge's directions.
- A trial judge's failure to give a requested direction about conduct in the jury room will not necessarily result in a conviction being quashed. The appellant must demonstrate that the omission contributed to the convictions or rendered the trial unfair.
- In dismissing the appeal, the Court noted that judicial remarks to a jury about the manner in which judges themselves disagree were ill-advised, even though they ultimately caused no appellate consequence in this case. Special leave to appeal to the High Court was refused on 3 November 2009.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules 1968 (NSW), r 4
- Jury Act 1977 (NSW)
Cases:
- Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- M v The Queen [1994] HCA 63; 181 CLR 487
- HML v R [2008] HCA 16; (2008) 245 ALR 204
- Gilbert v R (2000) 201 CLR 414
- Black v The Queen [1993] HCA 71; 179 CLR 44
- Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
- Gassy v The Queen [2008] HCA 18
- Longman v The Queen [1989] HCA 60; 168 CLR 79
- Chidiac v The Queen [1991] HCA 4; 171 CLR 432
- Davies & Cody v The King [1937] HCA 27; 57 CLR 170
- R v KT (Supreme Court of Victoria, Court of Appeal, 8 October 1998, unreported)
- R v Kaboni [2000] NSWCCA 387
- R v Crisologo (1997) 99 A Crim R 178
- Norris v R [2007] NSWCCA 235
- R v Landsell (NSWCCA, unreported, 22 May 1995)