AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 9 May 2014

McCann v R

[2014] NSWCCA 79

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SEXUAL ASSAULT INCONSISTENT VERDICTS

Citation: McCann v R [2014] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 9 May 2014
Judges: Leeming JA; Fullerton J; RA Hulme J

Background

The appellant was tried in the District Court on three counts: one count of indecent assault of a child under 10 years, and two counts of sexual intercourse with a child under 10 years, under the Crimes Act 1900 (NSW). The Crown case rested entirely on the testimony of the complainant, who gave evidence as an adult about events alleged to have occurred when she was aged five, approximately 15 years before she made a formal statement to police.

The two sexual intercourse counts (Counts 2 and 3) related to the same single incident. The complainant described being driven to a park at night, where the appellant performed cunnilingus on her (Count 2) and digitally penetrated her (Count 3). Her evidence described both acts as occurring at around the same time, during the one continuous episode.

After lengthy deliberations that exceeded the duration of the trial itself, the jury returned a unanimous verdict of not guilty on Counts 1 and 3, but guilty on Count 2. The trial judge, visibly concerned about the verdicts, continued the appellant's bail after sentencing. The appellant then appealed against the conviction on Count 2.

  • Whether the conviction on Count 2 was unreasonable, or could not be supported having regard to the evidence, under s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • Whether the jury's verdicts were irreconcilably inconsistent, given that Counts 2 and 3 arose from the same incident and rested on the same body of evidence
  • Whether the circumstances surrounding the jury's deliberations, including their duration and content of communications sent to the trial judge, supported an inference of jury compromise

Decision

The Court of Criminal Appeal quashed the conviction on Count 2 and entered a verdict of acquittal. The central problem was that Counts 2 and 3 related to the same occasion and depended on the same source of evidence: the complainant's account. The court found no rational basis on which the jury could have accepted her evidence as sufficient to convict on Count 2 while rejecting it as insufficient to convict on Count 3.

The Crown argued on appeal that the verdicts were reconcilable because the complainant's account of the digital penetration in Count 3 was inconsistent with her 2007 statement (which had not mentioned pain), while her account of the cunnilingus in Count 2 contained no such inconsistency. The Court rejected this reasoning. The complainant's evidence in chief described both acts as happening simultaneously, meaning the reliability of her evidence as to one act could not be meaningfully separated from the reliability of her evidence as to the other.

Two further considerations reinforced the conclusion. First, the jury's deliberations lasted longer than the trial itself, and the notes the jury sent to the trial judge during that period heightened concern about how the verdict was reached. The court acknowledged the general difficulty in drawing inferences about jury deliberations, but found this sequence strongly suggested a compromise rather than a principled application of the evidence to the counts. Second, those best placed to assess the quality of the verdict at the time, namely the trial judge and counsel for both parties, each reacted with visible concern. The judge's sentencing remarks, the unusual continuation of bail after a custodial sentence was imposed, and the Crown's non-opposition to bail all pointed in the same direction.

Applying MacKenzie v The Queen (1996) 190 CLR 348, the court held that the acquittal on Count 3 carried forward logically to Count 2. Because no proper reconciliation of the verdicts was available, the guilty verdict could not stand, and an acquittal was entered rather than a retrial ordered.

Orders Made

  • Leave to appeal granted to the extent necessary
  • Appeal allowed
  • Conviction on Count 2 quashed
  • Verdict of acquittal entered on Count 2
  • Second ground of appeal (failure to give a Markuleski direction) was not determined

Key Takeaways

  • Where two counts in an indictment arise from the same incident and rest on the same testimonial evidence, a conviction on one count and an acquittal on the other may be irreconcilably inconsistent, rendering the conviction unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • The principle from MacKenzie v The Queen (1996) 190 CLR 348 confirms that where no proper reconciliation of jury verdicts is available, and the inconsistency constitutes "an affront to logic and common sense," a conviction may be quashed and an acquittal entered.
  • Lengthy jury deliberations, combined with communications to the trial judge indicating an inability to reach agreement, can support an inference of jury compromise, though the Court acknowledged that drawing such inferences is generally uncertain.
  • Reactions of the trial judge and counsel immediately following the verdict, including the rare grant of bail after a custodial sentence was imposed, formed part of the Court of Criminal Appeal's overall assessment of verdict quality, even though the ultimate question remained one for the appellate court alone.
  • Under MacKenzie, where the logic of acquittals on related counts is inconsistent with a guilty verdict on another count, the appellate court may enter an acquittal rather than order a retrial, with the acquittal verdict said to "carry forward the logic" of the other acquittals.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- Black v The Queen (1993) 179 CLR 44
- Jones v The Queen (1997) 191 CLR 439
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v R [2002] HCA 53; 213 CLR 606
- Peiris v R [2014] NSWCCA 58
- R v Bonat [2004] NSWCCA 240
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v NEK [2001] NSWCCA 392