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7
Court of Criminal Appeal 23 June 2010

Still v R

[2010] NSWCCA 131

Sexual offencesTheft & property
CRIMINAL LAW CONVICTION APPEAL WHETHER INCONSISTENT VERDICTS INCONSISTENCY NOT ESTABLISHED HELD THERE WAS A CASE TO ANSWER GROUND NOT ESTABLISHED

Citation: Still v R [2010] NSWCCA 131
Court: New South Wales Court of Criminal Appeal
Date: 23 June 2010
Judge(s): Basten JA, Johnson J, Rothman J

Background

The appellant was a taxi driver in the Newcastle area who was charged with several offences arising from an incident on 22 March 2008 involving a heavily intoxicated female passenger. The charges included aggravated detaining a person for advantage (with actual bodily harm), indecent assault, an alternative charge of committing an act of indecency, and stealing items of clothing and a mobile phone belonging to the complainant.

At trial in the Newcastle District Court before Hock DCJ and a jury, the appellant was acquitted of the aggravated detention charge but convicted of indecent assault and stealing. The Crown case on the indecent assault count was that the appellant removed the complainant's clothing for sexual purposes while she was in the taxi, an act culminating in his semen being deposited on her clothing.

The appellant appealed against his conviction on the indecent assault count only. He did not challenge the stealing conviction or the sentences imposed on either count.

  • Whether the guilty verdict on indecent assault was inconsistent with the acquittal on the aggravated detention charge, rendering the conviction unsafe
  • Whether the conviction for indecent assault was unreasonable and unable to be supported by the evidence, particularly in light of the acquittal on the detention charge
  • Whether the trial judge should have directed the jury to acquit on the indecent assault count at the close of the Crown case, on the basis that there was no case to answer
  • Whether, taking all circumstances together, the indecent assault conviction was unsafe, unsatisfactory, and a miscarriage of justice

Decision

The Court of Criminal Appeal granted leave to appeal on three of the four grounds (Grounds 1, 2, and 4), noting those grounds did not raise questions of law alone and required leave under s 5(1) of the Criminal Appeal Act 1912. Ground 3, concerning the no-case submission, was treated as raising a question of law and therefore required no leave.

On the inconsistent verdicts grounds (Grounds 1 and 2), the court held that the acquittal on the aggravated detention charge and the conviction for indecent assault were not logically inconsistent. The elements of the two offences were distinct, and it was open to the jury to be satisfied of guilt on the indecent assault count while remaining unpersuaded of the elements required for the detention charge.

On the no-case ground (Ground 3), the court held that the evidence at the close of the Crown case was sufficient to require an answer. There was evidence capable of supporting a finding that the appellant had physically handled the complainant in a sexual manner without her consent, providing a proper basis for the indecent assault count to go to the jury.

On the general unreasonableness ground (Ground 4), the court found it was clearly open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. The complainant's heavy intoxication, the forensic evidence, and the appellant's evasive and untruthful conduct were matters the jury could weigh together. The court found no significant possibility that an innocent person had been convicted.

Orders Made

  • Leave to appeal granted in relation to Grounds 1, 2, and 4
  • Appeal against conviction dismissed

Key Takeaways

  • An acquittal on one count does not automatically render a conviction on a related but distinct count inconsistent; the court examines whether the two verdicts are logically irreconcilable by reference to the elements of each offence.
  • Where counts arise from the same factual incident but require proof of different elements, a jury is entitled to return mixed verdicts without those verdicts being treated as inconsistent.
  • Sufficient evidence existed at the close of the Crown case to require the appellant to answer the indecent assault charge, and the trial judge was correct not to withdraw that count from the jury.
  • In assessing whether a conviction is unreasonable, the Court of Criminal Appeal considers the totality of the evidence, including the complainant's level of intoxication, forensic findings, and the defendant's credibility as a witness.
  • A defendant's evasive and untruthful account at trial can properly be taken into account by a jury when assessing whether guilt has been established beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61L, 61N(2), 86(2)(b), 117
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases:
- R v EJ Smith [1982] 2 NSWLR 608
- R v Ion (1996) 89 A Crim R 81
- Rasic v R [2009] NSWCCA 202
- R v R (1989) 18 NSWLR 74
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220
- Dungay v R [2010] NSWCCA 82
- Jovanovski v Director of Public Prosecutions (NSW) [2009] NSWCCA 284
- R v TK [2009] NSWCCA 151; 74 NSWLR 299
- R v Serratore [1999] NSWCCA 377; 48 NSWLR 101
- R v Sorlie (1925) 25 SR 532
- Fitzgerald v Kennard (1995) 3 NSWLR 184
- Toalepai v R [2009] NSWCCA 270