Citation: Fallah v The Queen [2010] NSWCCA 212
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2010
Judge(s): Basten JA; Hall J; Price J
Background
The appellant was charged on an indictment containing five counts across three separate incidents involving the same complainant. The jury convicted him on one count of assault occasioning actual bodily harm (count 1), arising from an incident in approximately September 2006. The jury acquitted him on the remaining four counts, which included a charge of sexual intercourse without consent arising out of the same September 2006 incident (count 2), as well as charges related to two subsequent incidents.
Following conviction, the appellant was placed on a good behaviour bond for 12 months under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The bond had already expired by the time the appeal was lodged. No challenge was made to the sentence.
The appeal raised two grounds: first, that the verdict of guilty on count 1 was unreasonable given the acquittals on the other counts, and second, that the trial judge failed to put the defence case adequately in the summing-up to the jury.
Legal Issues
- Whether the guilty verdict on count 1 was unreasonable or inconsistent with the acquittals on the remaining four counts, including count 2 which arose from the same incident.
- Whether an acquittal on a companion count necessarily demonstrates that the jury rejected the complainant's credibility, such that a conviction on a related count could not stand.
- Whether the trial judge's summing-up adequately presented the defence case in relation to count 1.
- Whether leave to appeal was required for each ground, given that neither raised a question of law alone under section 5 of the Criminal Appeal Act 1912 (NSW).
Decision
Leave to appeal and the unreasonable verdict ground
The Court confirmed that neither ground of appeal involved a question of law alone, so leave to appeal was required under section 5 of the Criminal Appeal Act 1912 (NSW). Leave was granted because the matters were reasonably arguable, but the appeal was ultimately dismissed.
On the unreasonable verdict ground, the appellant argued that the jury's acquittal on count 2 (sexual intercourse without consent, arising from the same incident as count 1) must have reflected a doubt about the complainant's credibility, which should equally have led to an acquittal on count 1. Basten JA accepted that this line of reasoning is available in appropriate cases, drawing on Jones v The Queen [1997] HCA 56, but held that whether an acquittal on one count actually demonstrates a view about credibility sufficient to undermine a conviction on another count requires careful analysis of all the circumstances.
The Court noted a critical distinction: the assault charge in count 1 did not depend on any finding about the appellant's state of mind, whereas the sexual intercourse without consent charge in count 2 involved a contested mental element. The acquittal on count 2 could therefore be explained by the jury's uncertainty about the appellant's knowledge of non-consent, rather than a wholesale rejection of the complainant's account. This reasoning, consistent with Mackenzie v The Queen [1996] HCA 35 and R v Markuleski [2001] NSWCCA 290, provided a proper basis for reconciling the verdicts.
The summing-up ground
On the second ground, the Court acknowledged that more comprehensive directions could have been given on the defence case in relation to count 1. However, no further directions had been sought at trial. Under Rule 4 of the Criminal Appeal Rules, that omission required the appellant to obtain leave before raising the issue on appeal. The Court declined to grant leave, noting that trial counsel had made a competent forensic choice not to seek further directions and that the essential issues would have been clear to the jury entering deliberations.
Orders Made
- Leave to appeal against the conviction on the first count on the indictment of 2 February 2009 granted.
- Appeal dismissed.
Key Takeaways
- An acquittal on one count does not automatically render a guilty verdict on a related count unreasonable. Reconciling apparently inconsistent verdicts requires examination of the full circumstances, including the distinct elements of each offence and any differences in the evidence required to support each charge.
- Where a companion count involves a contested mental element (such as knowledge of non-consent), an acquittal may reflect uncertainty about the accused's state of mind rather than a rejection of the complainant's credibility more broadly.
- Under Rule 4 of the Criminal Appeal Rules, an appellant cannot raise on appeal a complaint about inadequate jury directions without first obtaining leave, where no further direction was sought at trial.
- A claim that a verdict is unreasonable, or that directions to the jury were inadequate, does not raise a "question of law alone" within the meaning of section 5 of the Criminal Appeal Act 1912 (NSW), and leave to appeal is therefore required.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that where a proper basis for reconciling verdicts exists, that reconciliation will generally be accepted, consistent with the principle in Mackenzie v The Queen.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules, r 4
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases
- Alford v Magee [1952] HCA 3; 85 CLR 437
- Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332
- Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
- Jones v The Queen [1997] HCA 56; 191 CLR 439
- Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- RPS v The Queen [2000] HCA 3; 199 CLR 620
- Smith v Regina [2007] NSWCCA 156
- TK v R [2009] NSWCCA 151; 74 NSWLR 299