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Court of Criminal Appeal 10 June 2015

Drysdale v R

[2015] NSWCCA 135

Sexual offences
CRIMINAL LAW INCONSISTENT VERDICTS WHETHER GUILTY VERDICT UNREASONABLE TRIAL JUDGE’S OPINION ON VERDICTS APPELLANT SENTENCED TO S.10 BOND LENGTH OF JURY DELIBERATIONS

Citation: Drysdale v R [2015] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 10 June 2015
Judge(s): Ward JA, Simpson J, Davies J (all agreeing)

Background

The appellant and the complainant were casual employees of a children's entertainment company who met for the first time on 18 November 2012. After a photo shoot and coffee, the appellant invited the complainant to his home to assist with audition monologues. The complainant alleged that a series of sexual assaults occurred there that afternoon.

The appellant was charged on eight counts: one count of indecent assault (count 1), attempted sexual intercourse without consent (count 2), assault with an act of indecency as an alternative to count 2 (count 3), two counts of sexual intercourse without consent (counts 4 and 5), and three further counts of indecent assault (counts 6, 7 and 8). All counts arose from a single encounter of short duration and were charged in the order in which the alleged acts occurred.

The jury returned not guilty verdicts on all counts except count 3, the alternative charge of assault with an act of indecency. The trial judge did not record a conviction and instead sentenced the appellant to a two-year bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appellant then sought leave to appeal on the ground that the guilty verdict on count 3 was unreasonable given the acquittals on all other counts.

  • Whether the guilty verdict on count 3 was unreasonable, or could not be supported, having regard to the acquittals returned on all seven other counts arising from the same encounter
  • Whether the verdicts were irreconcilably inconsistent such that no rational explanation could account for them
  • Whether the Court of Criminal Appeal had jurisdiction to hear the appeal given that no formal conviction was recorded, the sentence being a s 10 bond

Decision

Davies J (with Ward JA and Simpson J agreeing) found that the verdicts were irreconcilably inconsistent. Count 3 was charged as a direct alternative to count 2 and covered conduct that was part of a continuous sequence with the acts underlying counts 1, 4, 5, 6, 7 and 8. The acquittals on those surrounding counts left no rational basis on which the jury could have accepted the complainant's evidence for count 3 while rejecting it for every other count in the same sequence.

The court noted the absence of any objective or other evidence that could explain the guilty verdict in isolation. Applying the test from MFA v The Queen (2002) 213 CLR 606, a guilty verdict is unreasonable where, upon the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt. The court concluded that standard was met here.

Two further matters reinforced the conclusion that the verdicts reflected a compromise rather than a rational assessment of the evidence. First, the trial judge's own remarks on sentence and his decision to impose a s 10 bond (manifestly lenient for an offence of the kind described by the complainant) suggested he too was troubled by the verdict. Second, the jury deliberated for five days in a trial that lasted only four days, a disproportion consistent with compromise verdicts. Both factors were treated as permissible considerations following McCann v R [2014] NSWCCA 79.

On jurisdiction, the court confirmed that s 10(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) preserves a right of appeal equivalent to that following a formal conviction, notwithstanding that no conviction was recorded. Jurisdiction under the Criminal Appeal Act 1912 (NSW) was therefore established.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Verdict of the jury on count 3 set aside; verdict of acquittal entered

Key Takeaways

  • Where multiple counts arise from a single, continuous encounter and a jury acquits on all but one, the Court of Criminal Appeal may set aside the lone guilty verdict if no rational explanation exists for its departure from the pattern of acquittals.
  • Inconsistent verdicts do not automatically warrant appellate intervention; the question is whether the guilty verdict was unreasonable on the whole of the evidence, applying the test from MFA v The Queen (2002) 213 CLR 606.
  • A trial judge's sentencing remarks, and in particular a sentence that appears manifestly lenient for the offence as described, can be taken into account as evidence that the verdict itself was problematic.
  • Prolonged jury deliberations relative to the length of the trial are a permissible factor supporting an inference of compromise, as confirmed in McCann v R [2014] NSWCCA 79.
  • Under s 10(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a person who receives a s 10 bond without a formal conviction recorded retains the same right of appeal against the finding of guilt as a convicted person would have.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(b), 10(5)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6

Cases
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- McCann v R [2014] NSWCCA 79
- Osland v R [1998] HCA 75; (1998) 197 CLR 316
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Dungay v R [2010] NSWCCA 82