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10
Court of Criminal Appeal 29 August 2011

Sami KURDI v REGINA

[2011] NSWCCA 179

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER VERDICTS DEMONSTRATE COMPROMISE CRIMINAL APPEAL ACT 1912 S 6(1)

Citation: Sami Kurdi v Regina [2011] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 29 August 2011
Judges: Bathurst CJ (principal judgment); Hall J and Harrison J (agreeing)

Background

The appellant was tried on 28 charges arising from his relationship with a complainant referred to as Ms AH. A jury convicted him on 13 of those charges and acquitted him on the remaining 15.

The appellant did not contest three of his convictions (Counts 4, 5 and 28). He challenged the remaining ten guilty verdicts, arguing they were unreasonable and could not be supported by the evidence.

The convictions in dispute included charges relating to events alleged to have occurred on 22 September 2008, among other dates. The jury had acquitted the appellant on separate counts (Counts 7, 8 and 9) involving the complainant's graphic accounts of sexual and other assaults alleged on that same date.

  • Whether the guilty verdicts on Counts 10, 11, 12, 13, 14, 15, 23, 24, 25 and 26 were unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912
  • Whether those verdicts were logically inconsistent with the acquittals returned by the same jury, with no reasonable basis for the inconsistency
  • Whether the pattern of verdicts demonstrated that the jury had reached a compromise rather than properly applying the law

Decision

Bathurst CJ reviewed the governing test from M v The Queen (1994) 181 CLR 487: an appellate court must consider whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt. The court must give full weight to the jury's role as primary fact-finder and to the advantage the jury had in seeing and hearing witnesses, but where the evidence itself contains discrepancies or inadequacies that cannot be explained by the manner of its delivery, a reasonable doubt experienced by the appellate court is one a reasonable jury ought also to have experienced.

On the question of mixed verdicts, Bathurst CJ applied principles from MacKenzie v The Queen (1996) 190 CLR 348 and R v Markuleski (2001) 52 NSWLR 82. An acquittal on one count does not automatically require an appellate court to conclude that the jury treated the complainant as wholly unreliable. Juries may accept a witness's evidence on some counts while retaining a reasonable doubt on others, and verdicts should be reconciled if a reasonable basis for them exists.

The Court dismissed the challenge to most of the contested convictions, finding that the jury's differentiated verdicts were explicable on the evidence and did not demonstrate either irreconcilable inconsistency or compromise. However, for Counts 23, 24 and 26, the Court identified specific and compounding inadequacies in the evidence: these offences were alleged on 22 September 2008, the very date on which the jury had acquitted the appellant of the more serious sexual and physical assaults described by the complainant. Having regard to the jury's rejection of that graphic evidence, Bathurst CJ concluded it was not open to the jury to be satisfied beyond reasonable doubt of the offences charged in those counts.

Count 25 also fell as a consequence of that reasoning. The appeal was otherwise dismissed in full, with the bulk of the convictions, including Counts 10 to 15, upheld.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Convictions on Counts 23, 24, 25 and 26 quashed; verdicts of acquittal entered in their place
  • Appeal dismissed in all other respects

Key Takeaways

  • The Court of Criminal Appeal confirmed the M v The Queen test: the appellate question is whether it was open to the jury to be satisfied beyond reasonable doubt, with full weight given to the jury's fact-finding role and its advantage in observing witnesses firsthand.
  • Mixed verdicts across multiple counts do not automatically undermine a complainant's credibility across all counts; appellate courts should seek a logical reconciliation of the verdicts before concluding they are inconsistent.
  • Where a jury acquits on counts involving a complainant's most serious allegations on a particular occasion, that acquittal can have direct consequences for the reasonableness of convictions on lesser counts arising from that same occasion.
  • Under the MacKenzie principle, inconsistency must be of a kind that no reasonable jury, properly directing its mind to the facts, could have produced; mere factual tension between verdicts does not meet that threshold.
  • Granting leave under the Criminal Appeal Act 1912 in the absence of a formal application was treated as appropriate in this case, though the Court noted that an appeal not confined to a question of law alone ordinarily requires leave to be sought.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6(1), 8

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- SKA v The Queen [2011] HCA 13; (2011) 85 ALJR 571
- Longman v The Queen [1989] HCA 60; (1989) 168 CLR 29
- R v Stone [1955] Crim LR 120