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Court of Criminal Appeal 26 October 2010

DD v R

[2010] NSWCCA 237

Sexual offences
APPEAL APPEAL AGAINST CONVICTION VERDICTS CAPABLE OF BEING RECONCILED

Citation: DD v R [2010] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 26 October 2010
Judge(s): McClellan CJ at CL, Kirby J, Hoeben J

Background

The appellant faced trial in the Parramatta District Court on seven counts arising from an alleged sexual assault of a female neighbour at his business premises in Campsie on 28 May 2008. The counts included three charges of sexual intercourse without consent (digital penetration) and four charges of indecent assault (kissing, touching and licking the complainant's breasts).

The jury returned guilty verdicts on two counts of indecent assault (placing his tongue in the complainant's mouth, and touching her breasts) and not guilty verdicts on the remaining five counts, including all three digital penetration charges. The trial judge sentenced the appellant to a good behaviour bond and a fine. No appeal was brought against sentence.

The appellant challenged his convictions on two grounds: that the mixed verdicts were inconsistent and unreasonable, and that the trial judge should have directed the jury to disregard a Crown submission made in closing address about the appellant's alleged sexual frustration.

  • Whether the jury's guilty verdicts on two counts of indecent assault were inconsistent and unreasonable in light of the acquittals on five other counts, including three counts of the more serious offence of sexual intercourse without consent
  • Whether the trial judge erred in refusing to direct the jury that the Crown's submission in closing address, that the appellant acted out of sexual frustration, was not supported by the evidence

Decision

On the inconsistency ground, the Court of Criminal Appeal found the verdicts were capable of rational reconciliation. The Court applied the principle, drawn from the earlier decision in R v Markuleski, that a jury acting carefully may convict on some counts and acquit on others without that producing a logical inconsistency. The mixed outcome here was consistent with a jury that took seriously its obligation to assess each count individually, rather than one whose reasoning had miscarried. McClellan CJ at CL reiterated that inconsistent verdicts do not, of themselves, demonstrate that the decision-making process went wrong; they may instead reflect a conscientious jury accepting that the Crown proved some but not all allegations beyond reasonable doubt.

On the second ground, the Court found there was a sufficient evidentiary basis for the Crown's closing submission about sexual frustration. The complainant gave evidence that the appellant had spoken of being unhappy with his wife and that she "cannot do anything." The appellant's own words to police acknowledged some form of close contact. Additionally, medical evidence from the appellant's general practitioner indicated he had reported difficulty achieving an erection with his wife. Taken together, those pieces of evidence grounded the Crown's submission without requiring speculation. The Court also noted the submission was made briefly, forming only a small part of the Crown's address, and that no error arose from the trial judge declining to give the direction sought.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that mixed jury verdicts, convicting on some counts and acquitting on others, are not necessarily inconsistent or unreasonable; they may reflect a jury carefully discharging its duty to assess each count on its own merits.
  • In assessing whether verdicts are truly inconsistent, the relevant question is whether the verdicts are capable of being reconciled on any rational view of the evidence, not simply whether they appear contradictory at first glance.
  • A trial judge is not obliged to direct the jury to disregard a Crown submission in closing address where there is an evidentiary foundation for that submission, even if the evidence does not arise solely from expert testimony.
  • Sufficient evidence existed to support the Crown's submission about sexual frustration where the complainant's account of the appellant's own statements, combined with medical evidence, together provided a basis for the inference drawn.
  • In dismissing the appeal, the Court reinforced that a Crown submission made briefly and in passing carries less potential for prejudice than a sustained or central argument, a factor relevant to whether a corrective direction was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61L

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v Murray (1987) 11 NSWLR 12
- R v PMT [2003] VSCA 200; (2003) 8 VR 50
- R v Stone (unreported, 13 December 1954)
- R v TK [2009] NSWCCA 151