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Court of Criminal Appeal 3 December 2014

Wingrove-Pryce v R

[2014] NSWCCA 290

Sexual offences
CRIMINAL LAW CONVICTION APPEAL WHETHER JURY VERDICTS WERE INCONSISTENT ISSUE OF CONSENT CORROBORATION FOR VICTIM'S COMPLAINT APPEAL DISMISSED.

Citation: Wingrove-Pryce v R [2014] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 3 December 2014
Judge(s): Hoeben CJ at CL; Adams J; R A Hulme J

Background

The appellant was a Royal Australian Navy trainee who was tried in the District Court at Sydney before a jury in May 2013. The charges arose from a series of incidents on 5 February 2012 at a naval training establishment at Watsons Bay. Three counts were alleged, all involving the same complainant, who was also a naval trainee.

Count 1 alleged an attempted indecent assault by way of a non-consensual kiss. Count 2 alleged non-consensual sexual intercourse. Count 3 alleged a further attempted indecent assault, specifically that the appellant attempted to insert his hand inside the complainant's swimwear while the two were in the water at a beach later that afternoon.

The jury acquitted the appellant on Counts 1 and 2 but found him guilty on Count 3. The sentencing judge dismissed the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, meaning no conviction was formally recorded. The appellant nonetheless sought leave to appeal against the guilty finding on Count 3.

  • Whether the guilty verdict on Count 3 was unreasonable or unable to be supported by the evidence, having regard to the acquittals on Counts 1 and 2, pursuant to section 6 of the Criminal Appeal Act 1912.
  • Whether the jury's verdicts across the three counts were logically inconsistent with one another such that the guilty verdict on Count 3 could not stand.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Hoeben CJ at CL (with whom Adams J and Hulme J agreed) applied the established test from MacKenzie v R and MFA v R: verdicts across multiple counts are not necessarily inconsistent simply because they differ, provided they can be explained by logic and reasonableness having regard to the evidence on each count.

The Court identified meaningful evidentiary differences that rationally distinguished Count 3 from Counts 1 and 2. On Count 3, the complainant's non-consent was explicit and externally observable: she repeatedly attempted to push the appellant away in the water and ultimately left the water to escape him. She also made an immediate complaint to fellow trainees upon leaving the water. This provided corroboration for her account of the beach incident that was absent in relation to the earlier counts.

By contrast, on Count 2 (sexual intercourse), the relevant events occurred at night in a darkened room with no witnesses awake. There was also a material discrepancy in the evidence: the complainant said she was not dressed when others awoke, whereas multiple other witnesses said she appeared to be asleep and fully clothed when they woke. That discrepancy gave the jury a rational basis for doubt. On Count 1, the contested issue was consent rather than conduct, and the evidence was less clear-cut.

Applying the logic and reasonableness test from Markuleski, the Court held the jury's differentiated verdicts were well open to them. The evidence on Count 3 adequately supported the guilty finding independently of the other counts, and no inconsistency in the legal sense was established.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that differentiated jury verdicts across multiple counts are not automatically inconsistent. The applicable test, drawn from MacKenzie v R and Markuleski, asks whether the verdicts can be explained by logic and reasonableness when the evidence on each count is examined separately.
  • Where the evidence on individual counts differs materially, acquittal on some counts and conviction on another can rationally coexist. The court will examine the specific evidence bearing on each count rather than treating verdicts as a set that must rise or fall together.
  • Corroboration of a complainant's account, such as an immediate complaint to bystanders, can serve as a meaningful evidentiary distinction between counts and help explain why a jury was satisfied on one count but not others.
  • A significant factual discrepancy in a complainant's evidence, when contradicted by multiple other witnesses, can provide a rational basis for the jury to have a reasonable doubt on that particular count without undermining findings on separate counts.
  • In dismissing the appeal, the Court also noted that where consent is disputed and the events occur in a darkened room without witnesses, the jury may be unable to draw the necessary inculpatory inferences beyond reasonable doubt, even where some evidence of non-consent exists.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- MacKenzie v R [1996] HCA 35; 190 CLR 348
- MFA v R [2002] HCA 53; 213 CLR 606
- Regina v Markuleski [2001] NSWCCA 290; 52 NSWLR 82