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Court of Criminal Appeal 4 February 2011

HARB v R

[2011] NSWCCA 9

Sexual offences

Citation: HARB v R [2011] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 4 February 2011
Judges: Whealy JA, RS Hulme J, Harrison J

Background

The appellant was tried before a District Court jury on three charges arising from events on 27 May 2008. All three charges involved the same complainant and occurred in close succession: indecent assault by touching the complainant's breasts, sexual intercourse by digital penetration of her vagina, and sexual intercourse by penile penetration of her vagina.

The appellant did not deny that the acts occurred. The central contest at trial was consent. The complainant gave evidence that she had resisted throughout, telling the appellant to stop and trying to push him away. The appellant gave evidence that the complainant had agreed to have sex beforehand and actively cooperated.

The jury acquitted the appellant on the first two counts (indecent assault and digital penetration) but convicted him on the third count (penile intercourse). The appellant appealed on the sole ground that the conviction on the third count was unreasonable given the acquittals on the first two.

  • Whether the jury's acquittals on counts one and two so undermined the complainant's credibility that a conviction on count three was not open on the evidence
  • Whether a rational explanation existed for the apparent inconsistency between the acquittals and the conviction
  • Whether additional matters raised at hearing, including the complainant's failure to mention a condom in her police interview, rendered the conviction unsafe

Decision

The Court (Hulme J, with Whealy JA and Harrison J agreeing) dismissed the appeal. The central question was whether there was a rational explanation for the inconsistency, applying the framework from MacKenzie v The Queen and related authorities. The Court held that one such explanation was available and credible.

Hulme J acknowledged that no satisfactory explanation could be found in the transcript or exhibits that would justify differentiation between the appellant's state of mind at different stages of the events. The Crown's submission that the jury may have had a reasonable doubt about the appellant's knowledge of non-consent during the earlier acts but not the later one was rejected as having no rational basis on the evidence.

The more compelling explanation, Hulme J found, was that the jury had effectively decided that convicting on the most serious charge sufficiently reflected the appellant's culpability, and had acquitted on the lesser counts accordingly. While this approach was inconsistent with the jury's obligations under oath, the Court noted that courts have long recognised juries sometimes prefer to do justice as they see it rather than follow the law to the letter. In the particular circumstances, including the severity of the penile intercourse charge relative to the others, this explanation was far more plausible than an inference that the jury disbelieved the complainant's evidence about lack of consent.

The additional argument about the condom, raised in oral submissions but outside the formal ground of appeal, also failed. The fact that the complainant had not mentioned the condom in her police interview was a matter properly argued before the jury. Hulme J found nothing in that evidence, whether considered alone or together with the verdict inconsistency, that rendered the conviction unsafe.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • A conviction is not automatically unreasonable simply because a jury returns inconsistent verdicts on closely related charges arising from the same incident.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the applicable test is whether a rational explanation exists for the inconsistency, not whether the verdicts are logically reconcilable in every respect.
  • Where a jury convicts on the most serious of several related charges and acquits on the lesser, an inference of jury lenience or a preference to reflect overall culpability can constitute a rational explanation for the inconsistency.
  • The Crown's failure to demonstrate on the transcript any specific evidentiary basis for differentiating between the appellant's knowledge at different stages of events was fatal to its proposed alternative explanation.
  • Matters not raised as formal grounds of appeal but argued orally, such as alleged inconsistencies in a complainant's police interview, will not ground a finding of unsafe conviction without specific evidentiary support capable of undermining the verdict.

Legislation and Cases Referenced

Cases:
- MacKenzie v The Queen (1997) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- R v Markuleski (2001) 52 NSWLR 82
- R v Kirkman (1987) 44 SASR 591
- R v P [2000] Qd R 401