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Court of Criminal Appeal 5 April 2012

Zany WONG v R

[2012] NSWCCA 39

Sexual offences
CRIMINAL LAW APPEAL UNREASONABLE VERDICT ALLEGATION INCONSISTENT VERDICT ALLEGED APPEAL DISMISSED.

Citation: Wong v R [2012] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 5 April 2012
Judge(s): Meagher JA, Hoeben J, Rothman J

Background

The appellant was convicted by a unanimous jury on two counts of sexual offences against a complainant who was 12 years old at the relevant time. Count 1 was aggravated sexual assault (alleged to have occurred in 2002), and Count 2 was indecent assault (also alleged in 2002). The jury acquitted the appellant on a third count of aggravated sexual assault, which was alleged to have occurred in 2004.

The complainant and the appellant were members of two Chinese-Burmese families who had become friendly after the complainant arrived in Australia. The counts arose from a series of separate incidents spanning 2002. The complainant's evidence was presented to the jury by audiovisual recording from an earlier aborted trial, rather than by live testimony at the second trial.

The appellant appealed against the convictions on the sole ground that the verdicts of guilty were unreasonable and could not be supported by the evidence. He did not allege that the verdicts were inconsistent in the strict legal sense.

  • Whether the guilty verdicts on Counts 1 and 2 were unreasonable or unsupported by the evidence, having regard to the complainant's credibility as the central witness
  • Whether the jury's acquittal on Count 3 indicated that the jury had rejected the complainant's evidence generally, thereby undermining the reliability of the guilty verdicts on the remaining counts

Decision

The Court considered the appellant's two related arguments: that the convictions depended almost entirely on the complainant's testimony against the appellant's denial, and that the acquittal on Count 3 showed the jury had rejected at least some of her evidence.

On the acquittal for Count 3, the Court found a straightforward explanation that did not undermine the guilty verdicts. Independent evidence established that the appellant was not licensed to drive taxis until 2005, after the period charged in Count 3 (which related to 2004). The complainant had described the appellant as wearing a taxi uniform during the Count 3 incident. The Court concluded that the jury accepted her account of the incident but was unable to be satisfied beyond reasonable doubt that it had occurred within the charged timeframe, as required by the trial judge's direction.

The Court found that the verdicts were not inconsistent and that the guilty verdicts on Counts 1 and 2 were supported by the evidence. Rothman J noted that the jury's advantage in observing the audiovisual evidence of the complainant, and the presence of an apology by the appellant which suggested a lack of truthfulness in his denial, provided a proper foundation for the convictions. The appellant's wife, while supporting aspects of his account, also corroborated parts of the complainant's evidence. The Court concluded that no reasonable doubt existed that would warrant interference with the jury's verdicts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An acquittal on one count does not automatically render guilty verdicts on related counts unreasonable, particularly where independent evidence provides a rational explanation for the different outcomes.
  • Where a complainant's account is presented by audiovisual recording rather than live testimony, the jury retains the advantage of observing and assessing that evidence, which remains a relevant factor in appellate review of verdict reasonableness.
  • The Court of Criminal Appeal confirmed the test from M v The Queen (1994) 181 CLR 487: an appellate court may only set aside a verdict as unreasonable if, having reviewed the evidence as a whole, it concludes that the jury must have had a reasonable doubt.
  • In dismissing the appeal, the Court found that an apology by the appellant, combined with aspects of the wife's evidence that corroborated the complainant, provided sufficient basis for the jury's conclusions on Counts 1 and 2.
  • Where an element of an offence includes a specific date range, a jury acquittal based on the Crown's failure to prove timing does not necessarily indicate disbelief of the complainant's account of the underlying conduct.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J (aggravated sexual assault), 61L (indecent assault)
- Criminal Appeal Act 1912 (NSW)

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Jones v The Queen (1997) 191 CLR 439
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318
- Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
- Brendon Singh v The Queen [2011] NSWCCA 100