Citation: PG v Regina [2010] NSWCCA 216
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2010
Judge(s): Beazley JA, James J, Hall J
Background
The appellant was convicted in the District Court of seven counts of child sexual assault involving two child complainants, his daughter and his stepdaughter. The offences spanned a range of conduct including sexual intercourse and indecent assault. The jury returned verdicts of guilty on seven of nine counts, acquitting the appellant on two counts (counts 5 and 7).
The sole ground of appeal was that the guilty verdicts were unreasonable and could not be supported, given that the jury had acquitted on counts 5 and 7. The appellant argued that the acquittals revealed the jury had rejected, or at least not accepted, the complainants' evidence on those counts, which in turn undermined the reliability of the guilty verdicts on the remaining counts.
A further specific challenge was directed at the guilty verdict on count 2, which alleged anal intercourse with the younger complainant. The defence relied on expert medical evidence from a specialist obstetrician and gynaecologist to contend that the lack of observed physical injury made the alleged penetration implausible.
Legal Issues
- Whether the acquittals on counts 5 and 7 were logically inconsistent with the guilty verdicts on the remaining counts, applying the principles in Jones v The Queen (1997) 191 CLR 439
- Whether a not-guilty verdict on a count where a particular complainant was the sole witness rendered it unreasonable for the jury to convict on other counts supported only by the same complainant
- Whether the guilty verdict on count 2 was unreasonable in light of competing medical expert evidence, specifically the defence expert's opinion that penetration would likely have produced observable injury
Decision
The Court rejected the argument that the acquittals on counts 5 and 7 necessarily demonstrated that the jury had disbelieved the relevant complainants entirely. James J (with Beazley JA and Hall J agreeing) noted that where a jury is properly directed to consider each count separately, different verdicts on different counts do not automatically reveal logical inconsistency. The acquittals were explicable on the basis that the jury may have simply harboured a reasonable doubt on those specific counts, not that it had formed a general view that the complainants were untruthful.
On the question of whether the not-guilty verdict on count 5 (where the complainant CG was the sole Crown witness) undermined the guilty verdicts on other counts relying on CG, the Court applied the approach in MFA v The Queen (2002) 213 CLR 606. It found that the jury was entitled to accept a witness's evidence on some counts while harbouring doubt on others. The judge had directed the jury to give separate consideration to each count, and no error in that direction was identified.
On the medical evidence issue concerning count 2, the Court found that it was open to the jury to prefer the evidence of the Crown's paediatrician, Dr Tzioumi, over that of the defence specialist, Dr Izzo. The defence expert's evidence was qualified in cross-examination, including concessions that observable injury would depend on factors such as the severity of injury and the attentiveness of the observer. The trial judge had accurately summarised the competing positions for the jury, and the jury's acceptance of one expert over the other did not constitute an error.
Having rejected all grounds advanced in support of the appeal, the Court dismissed the conviction appeal.
Orders Made
- The appeal against conviction is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that acquittals on some counts do not automatically render guilty verdicts on other counts inconsistent or unreasonable, provided the jury has been properly directed to consider each count separately.
- Where a jury returns mixed verdicts based on one complainant's evidence, the verdicts are not necessarily inconsistent: the jury is entitled to accept that complainant's evidence on some counts while entertaining a reasonable doubt on others.
- A conviction for sexual assault is not rendered unreasonable merely because the accused called medical expert evidence suggesting injury would have been observable. Where the defence expert made material concessions in cross-examination, the jury remained entitled to prefer the Crown's expert.
- The principles in Jones v The Queen (1997) 191 CLR 439 and MFA v The Queen (2002) 213 CLR 606 together confirm that logical inconsistency requires more than differing outcomes on counts heard at the same trial; a rational basis for distinguishing between counts will defeat such a challenge.
- No error was established in the trial judge's directions or in the jury's approach to the competing expert evidence on count 2.
Legislation and Cases Referenced
Cases:
- Jones v The Queen (1997) 191 CLR 439
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- R v TK (2009) 74 NSWLR 299
Legislation: No specific legislation was identified in the provided text.