Citation: Jovanovski v Director of Public Prosecutions (NSW) [2009] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 27 November 2009
Judge(s): Basten JA, RS Hulme J, Johnson J
Background
The applicant was charged with seven offences arising from a relationship with a young woman that began when she was approximately 17 years old and lasted about four years. The complainant alleged the applicant became physically and mentally abusive during the relationship. The seven counts included unlawful detention, assault, actual bodily harm, intimidation, and theft of a motor vehicle.
The applicant was convicted on three counts: two counts of detaining the complainant without consent with intent to intimidate her (counts 1 and 4), and one count of intimidating her with intent to cause fear of physical harm (count 7). He was acquitted on the remaining four counts, which included two assault charges (one occasioning actual bodily harm), a further detention charge involving actual bodily harm, and theft of a motor vehicle.
Apart from count 7, the prosecution case rested entirely on the uncorroborated evidence of the complainant. The applicant challenged the convictions on the basis that the inconsistency between the convictions and acquittals rendered those convictions unreasonable or incapable of being supported by the evidence.
Legal Issues
- Whether the verdicts on the various counts were inconsistent with one another.
- Whether any inconsistency between the convictions and acquittals provided a rational basis for setting aside the convictions.
- Whether the convictions on counts 1, 4 and 7 were unreasonable or unsupportable having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
- Whether the Court of Criminal Appeal should intervene where a jury convicts on some counts but acquits on others arising from a complainant's largely uncorroborated evidence.
Decision
By majority (Basten JA and Johnson J), the Court granted leave to appeal but dismissed the appeal on the three conviction counts. Basten JA emphasised that the test for assessing inconsistent verdicts arising from different factual circumstances differs from the test for assessing whether a particular verdict is supported by the evidence. Where evidence existed to support a conviction, appellate courts must exercise great caution before presuming that a jury acted inappropriately in convicting on some counts while acquitting on others.
Basten JA identified a principled distinction between the counts on which the applicant was convicted and those on which he was acquitted. The counts resulting in conviction did not involve the infliction of visible injury, while those resulting in acquittal predominantly involved allegations of assault occasioning actual bodily harm. There was no necessary inconsistency between a jury declining to be satisfied that the applicant caused actual bodily harm, and a jury being satisfied that he detained the complainant with intent to intimidate her or acted so as to cause her to fear physical harm.
On count 7, the complainant's evidence was substantially corroborated by her mother's evidence, providing an independent basis for the conviction that distinguished it from the other counts. Johnson J agreed with Basten JA's reasoning and conclusions, noting that an appellate court should be slow to conclude that a properly instructed jury acted contrary to its duty.
RS Hulme J dissented. In his Honour's view, no rational basis had been shown upon which the jury could have acquitted on counts 2, 3 and 5 yet convicted on counts 1 and 4. The acquittals necessarily indicated reservations about the complainant's credibility, which, in Hulme J's assessment, must logically have extended to her evidence supporting the convictions on counts 1 and 4. Hulme J would have allowed the appeal on those counts, leaving only the conviction on count 7 undisturbed, with a non-custodial sentence.
Orders Made
- Leave to appeal granted in respect of convictions on counts 1, 4 and 7, but the appeal dismissed on each count.
- Application for leave to appeal against sentence refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that assessing allegedly inconsistent verdicts involves a different analytical framework from assessing whether a particular verdict is supported by the evidence. Where evidence supports a conviction, greater caution is required before inferring that the jury acted improperly.
- A distinction between counts producing convictions and those producing acquittals can provide a rational basis for apparently inconsistent outcomes. Here, the majority found the absence of visible injury on the convicted counts distinguished them meaningfully from the assault counts resulting in acquittal.
- Corroborating evidence on a specific count can independently sustain a conviction on that count even where other counts rest on uncorroborated complainant evidence alone.
- In dissent, Hulme J applied a different view of the logical relationship between the acquittals and convictions, illustrating that the inconsistent verdicts doctrine remains an area where reasonable minds can differ on its application to specific facts.
- Appellate intervention on the basis of inconsistent verdicts is available but requires a high threshold: the inconsistency must be such that no rational explanation exists for the jury's differentiation between counts.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Appeal Act 1968 (UK), s 2
Cases:
- Hargan v The Queen [1919] HCA 45; 27 CLR 13
- Whitehorn v The Queen [1983] HCA 42; 152 CLR 657
- Chidiac v The Queen [1991] HCA 4; 171 CLR 432
- M v The Queen [1994] HCA 63; 181 CLR 487
- Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
- Jones v The Queen [1997] HCA 12; 191 CLR 439
- Gipp v The Queen [1998] HCA 21; 194 CLR 106
- Fleming v The Queen [1998] HCA 68; 197 CLR 250
- Lajciak v The Queen [1999] NTSC 82
- Gilbert v The Queen [2000] HCA 15; 201 CLR 414
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- TK v R [2009] NSWCCA 151
- R v Kirkman (1987) 44 SASR 591
- Regina v Cooper (Sean) [1969] 1 QB 267