Citation: Jones v R [2010] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 4 June 2010
Judge(s): McClellan CJ at CL, Simpson J, RA Hulme J
Background
The appellant was convicted by a jury in the District Court at Campbelltown on two counts: sexual intercourse without consent (occurring between 17 and 20 February 2007) and larceny of $100 (on 19 February 2007). He was acquitted on a third count of attempted sexual intercourse without consent. He was subsequently sentenced to imprisonment.
The prosecution case was that the complainant, WA, met the appellant at a liquor store in Merrylands and accepted an invitation to return to his boarding house room to drink. She consumed large quantities of vodka, was affected by prescribed medications that enhanced the effects of alcohol, and lapsed in and out of consciousness over approximately two days until an ambulance was called.
The appellant did not give evidence at trial, but relied on answers given in a police interview. His case was that sexual intercourse had occurred with WA's consent during a period in which she was sober, and that she had initiated it. On the larceny count, WA alleged that while she had authorised the appellant to withdraw money using her bank card to purchase vodka, he had withdrawn an additional $100 without her consent.
Legal Issues
- Whether the jury's verdicts of guilty on the sexual assault and larceny counts were unreasonable, or could not be supported having regard to the evidence, within the meaning of s 5(1)(b) of the Criminal Appeal Act 1912
Decision
Hulme J (with whom McClellan CJ at CL and Simpson J agreed) conducted a detailed review of WA's evidence and identified numerous discrepancies and inadequacies. These included inconsistencies in her account of events, conflicts between her evidence and that of other witnesses, and aspects of her testimony that were difficult to reconcile with other established facts.
One specific matter that Hulme J regarded as particularly significant was a conflict between WA's evidence and that of a witness named Mr Drennan concerning the nature of WA's behaviour toward the appellant. This conflict went directly to the issue of consent.
Hulme J also identified a potentially confusing element in the Crown's address to the jury. The Crown had invited the jury to consider WA's incapacitated state in the afternoon of the second day as support for a finding that she was incapable of giving consent. However, WA's own evidence was not that she was incapable of consenting; rather, it was that she was conscious of the appellant initiating sexual activity and actively communicated her refusal. Hulme J noted that the jury may have found the appellant guilty on a basis entirely inconsistent with WA's actual evidence.
Considering the cumulative weight of the discrepancies and inadequacies in WA's evidence, Hulme J concluded that a reasonable doubt existed about the appellant's guilt and that the jury ought also to have experienced such a doubt. That disquiet extended to the larceny count, where WA's poor recollection meant no confidence could be placed in her evidence about what withdrawal arrangement she had authorised. The court found that a miscarriage of justice had occurred.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Convictions quashed
- Verdicts of acquittal entered
Key Takeaways
- The Court of Criminal Appeal confirmed that it will intervene and substitute verdicts of acquittal where the cumulative effect of discrepancies and inadequacies in a complainant's evidence gives rise to a reasonable doubt that the jury ought itself to have experienced.
- A conviction may be unreasonable or unsupported by the evidence even where individual discrepancies in the complainant's account are each susceptible to argument; it is the cumulative weight of those matters that may be decisive.
- Where the basis on which the Crown invites a jury to convict is inconsistent with the complainant's own evidence, that inconsistency may contribute to a finding that the verdict was unreasonable.
- The same evidentiary concerns that undermine a sexual assault conviction may, depending on the facts, also render a related larceny conviction unsupportable, particularly where the complainant's recollection of the relevant arrangement was demonstrably poor.
- No question of principle was identified; the decision turned entirely on the particular facts and the quality of the evidence in this case.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases
- Dodds v R [2009] NSWCCA 78
- R v Appellant W, Court of Criminal Appeal, 9 March 1990, unreported
- R v Sloane [2001] NSWCCA 421; 126 A Crim R 188
Other
- McClellan CJ at CL, "Who is telling the truth? Psychology, common sense and the law" (2006) 80 Australian Law Journal 655