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Court of Criminal Appeal 4 June 2012

Burrows v R

[2012] NSWCCA 113

Sexual offences
CRIMINAL LAW APPEAL

Citation: Burrows v R [2012] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 4 June 2012
Judge(s): Whealy JA, Hidden J, Schmidt J (judgment delivered by Schmidt J, with whom Whealy JA and Hidden J agreed)

Background

The applicant was convicted by a jury on three counts arising from events on 31 October 2009, when he was a guest at the home of a complainant aged seven years. The charges included indecent assault and sexual intercourse with a child under ten years, contrary to the Crimes Act 1900. The jury acquitted the applicant on one count of sexual intercourse (count 2) but convicted him on counts 1, 3 and 4, which related to two separate incidents alleged to have occurred that night.

The prosecution case rested on the complainant's evidence, corroborated by the evidence of her parents, medical findings of two lacerations to the complainant's anus, and DNA evidence. The DNA recovered from the inside of the complainant's underpants produced a major profile matching the applicant, alongside a positive test for saliva.

The applicant sought leave to appeal his convictions on two grounds: that the verdicts were unreasonable and unsupportable on the evidence, and that the acquittal on count 2 was logically inconsistent with the convictions on counts 3 and 4.

  • Whether the jury's verdicts were unreasonable or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912
  • Whether the conviction on the second sexual intercourse count (count 4) was inconsistent with the acquittal on the first sexual intercourse count (count 2), such that the verdicts as a whole constituted a miscarriage of justice

Decision

Ground 1: Unreasonable verdict

Schmidt J applied the test from MFA v R (2002) 213 CLR 606, which requires the appellate court to examine whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of the applicant's guilt. The court found that the jury was entitled to accept the complainant's evidence together with the medical and DNA evidence. On the narrow factual question of whether penetration of the complainant's anus had occurred, the combination of the laceration findings and the DNA evidence provided a sufficient basis for the jury's conclusion. This ground was not established.

Ground 2: Inconsistent verdicts

The applicant argued that, because the jury acquitted on count 2 (the first sexual intercourse charge), it was logically inconsistent to convict on count 4 (the second sexual intercourse charge), given the evidence was said to be substantially similar for both. Schmidt J rejected this submission. The court found a rational explanation existed for the difference in verdicts: the jury, directed to consider each count separately, may reasonably have given the applicant the benefit of the doubt in respect of the first incident while being satisfied beyond reasonable doubt of penetration during the second.

Schmidt J reasoned that the nature and location of the lacerations, the quantity of the applicant's DNA found in the underpants, and the presence of saliva, all provided a cogent basis for concluding that penetration occurred on only one occasion and that it was most likely during the second incident. The court noted that the applicant's hands were described as wet during the first incident, which could rationally support a finding that saliva was involved only in the second. These were not verdicts that no reasonable jury could have returned, and the ground failed accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An acquittal on one count does not automatically render convictions on related counts inconsistent or unreasonable; what matters is whether a rational explanation for the difference in verdicts exists on the evidence as a whole.
  • The Court of Criminal Appeal confirmed the test from MFA v R: a verdict will only be set aside as unreasonable where it was not open to a jury, acting rationally, to be satisfied beyond reasonable doubt of guilt.
  • Where a jury is directed to consider counts separately, differing verdicts may reflect the jury giving an accused the benefit of the doubt on one charge while remaining satisfied on another, rather than any logical contradiction.
  • Medical and forensic evidence (here, lacerations and DNA profiles) can provide sufficient independent corroboration to sustain a conviction even where the complainant is a young child and the incident is contested on its precise nature.
  • In dismissing the appeal, the court observed that the convictions, properly analysed against the evidence, might even have reflected a merciful outcome for the applicant given the overall state of the evidence.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)

Cases
- MFA v R [2002] HCA 53; (2002) 213 CLR 606
- MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348
- FB v Regina; Regina v FB [2011] NSWCCA 217