AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 29 February 2012

LYSLE v R

[2012] NSWCCA 20

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT INCONSISTENCY OF VERDICTS RULE IN BROWNE V DUNN

Citation: LYSLE v R [2012] NSWCCA 20
Court: Court of Criminal Appeal, NSW
Date: 29 February 2012
Judges: Basten JA, RS Hulme J, Schmidt J

Background

The appellant stood trial in early 2010 on three counts of indecent assault on a female under the age of 16. All three counts related to alleged offences committed in early 1981, when the complainant was eight years old. The complainant and her family had been living in a caravan beside the appellant's house, and the alleged offences occurred on Monday nights when the complainant's mother and the appellant's wife attended Bingo together.

The complainant gave evidence of three separate incidents in which the appellant took her into his lounge room and committed acts of sexual touching. The jury convicted the appellant on the first two counts but acquitted him on the third. The first incident involved the appellant using the complainant's hand to touch his thigh and testicles; the second involved the appellant touching her inner thigh and vagina over her underwear; the third involved the appellant placing his hand on her leg and beginning to move it toward her vagina before the complainant told him to stop.

The appellant challenged both the convictions and the conduct of the trial. He argued that the guilty verdicts on counts one and two were inconsistent with the acquittal on count three, and that the Crown Prosecutor had asked impermissible questions that caused a miscarriage of justice.

  • Whether the convictions on counts one and two were unreasonable or unsupported by the evidence, given they were inconsistent with the acquittal on count three, and whether there was any reasonable basis for that inconsistency.
  • Whether impermissible questions asked by the Crown Prosecutor regarding the rule in Browne v Dunn caused a miscarriage of justice.

Decision

Ground 1: Inconsistency of verdicts

RS Hulme J (Basten JA and Schmidt J agreeing) applied the principles from MFA v R, TK v R, and Dungay v R, which recognise that an acquittal on one count does not necessarily undermine convictions on others. A jury may acquit out of mercy, by compromise, or because it entertained doubt on one particular incident while remaining satisfied beyond reasonable doubt on others. The mere fact of an inconsistency does not render the convictions unreasonable.

The court identified a rational basis for the different outcome on count three. In that incident, the appellant stopped touching the complainant after she told him to stop, and no act of indecency may have been completed to the jury's satisfaction. By contrast, the first two counts involved completed acts of touching. The jury's differentiated verdicts were explicable and did not lead to the conclusion that the convictions were unreasonable.

Ground 2: Browne v Dunn and the Crown Prosecutor's conduct

The Crown Prosecutor made submissions at trial suggesting that certain matters had not been put to the complainant, her mother, or her sister in cross-examination, and that the jury therefore had no opportunity to assess their response. The rule in Browne v Dunn (1893) requires a party to put to a witness, during cross-examination, any matter it intends to contradict that witness on. The appellant argued these submissions were impermissible and damaging to his credibility.

RS Hulme J found that some of the Crown's submissions were directed more at the absence of witness responses on particular topics than at the appellant's credibility directly, which limited their sting. One aspect of the submission, regarding evidence given by the appellant's wife, was understandable in circumstances where defence counsel may not have had advance notice of her evidence. While the conduct was described as something that "would have been preferable" to avoid, the court was satisfied the errors were minor and inconsequential, and had no significant impact on the jury's assessment of the appellant's credibility. No miscarriage of justice was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Inconsistent jury verdicts do not automatically render convictions unreasonable. Where a rational explanation exists for different outcomes on different counts, the convictions will not be set aside on that basis alone.
  • The Court of Criminal Appeal confirmed that a jury may acquit on one count for reasons including mercy, compromise, or a specific doubt about one incident, without those reasons infecting convictions on other counts.
  • A qualitative difference between counts, such as whether an act of indecency was completed before the complainant intervened, can provide a sufficient rational basis for a jury to differentiate between verdicts.
  • Breaches of the rule in Browne v Dunn may not constitute a miscarriage of justice where the impugned submissions are limited in scope, directed at the absence of witness responses rather than directly at the accused's credibility, and where any unfairness is inconsequential in context.
  • Sufficient evidence existed in this case to support the two convictions, notwithstanding the acquittal on the third count, given the complainant's account and corroborating evidence from family witnesses.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- Browne v Dunn (1893) 6 R 67
- MFA v R (2002) 213 CLR 606
- TK v R [2009] NSWCCA 151
- Dungay v R [2010] NSWCCA 82
- R v Birks (1990) 19 NSWLR 677
- MWJ v R [2005] HCA 74; (2006) 80 ALJR 329
- Llewellyn v R [2011] NSWCCA 66
- RWB v R [2010] NSWCCA 147
- Picker v R [2002] NSWCCA 78
- R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46
- R v Banic [2004] NSWCCA 322
- R v Dennis [1999] NSWCCA 23
- R v Scott [2004] NSWCCA 254