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Court of Criminal Appeal 19 June 2015

TA v R

[2015] NSWCCA 151

Sexual offences
CRIMINAL LAW LEAVE TO APPEAL AGAINST CONVICTION WHETHER INCONSISTENT VERDICTS

Citation: TA v R [2015] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 19 June 2015
Judge(s): Ward JA (with Johnson J and Garling J agreeing)

Background

The appellant was convicted by a jury in August 2013 on two counts of sexual intercourse without consent against his wife (counts 6 and 8), relating to incidents occurring between April and August 2011. He was acquitted on the remaining counts, including a third count of sexual intercourse without consent (count 5) alleged to have occurred earlier, between December 2010 and March 2011.

The defence case at trial was that the complainant had fabricated or embellished her allegations, potentially to secure the return of children who had been removed from her care during the marriage. The appellant did not give evidence.

Facing a late application, the appellant sought both an extension of time and leave to appeal against his convictions on counts 6 and 8, arguing that those guilty verdicts were unreasonable in light of his acquittal on count 5.

  • Whether the convictions on counts 6 and 8 were unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912, given the jury's acquittal on count 5
  • Whether apparently inconsistent verdicts across counts on a single indictment required appellate intervention
  • Whether an extension of time for filing the notice of application for leave to appeal should be granted, given the absence of a satisfactory explanation for the overall delay

Decision

Ward JA applied the test from M v The Queen (1994) 181 CLR 487, asking whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt on counts 6 and 8. Her Honour also drew on MFA v The Queen (2002) 213 CLR 606, which confirmed this test applies when a conviction on some counts is challenged in light of acquittals on others.

Ward JA identified material factual differences between count 5 and counts 6 and 8. Count 5 involved an occasion where the appellant was reportedly wearing distinctive religious clothing that the complainant said prevented her from physically resisting. That detail was not replicated in the evidence relating to counts 6 and 8. Those later incidents, by contrast, involved the appellant waking the complainant from sleep and proceeding despite her protests, with the complainant's account being clearer and more direct as to non-consent.

These factual distinctions provided a rational explanation for the differential verdicts. Ward JA noted the caution appellate courts must exercise before concluding that a jury has acted contrary to its duty and the directions it received, and held that no such conclusion was warranted here. The sole ground of appeal was therefore found to have no merit.

On the extension of time question, Ward JA found the overall delay was not satisfactorily explained, though a partial explanation was offered. Because the proposed appeal lacked merit, refusing the extension would cause no injustice. Her Honour nonetheless granted the extension and proceeded to dismiss the application for leave to appeal on the merits.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 4 March 2015
  • Application for leave to appeal dismissed

Key Takeaways

  • Inconsistent verdicts across counts do not automatically render a guilty verdict unreasonable: the central question remains whether the guilty verdict was open to the jury on the whole of the evidence.
  • A rational explanation for differential verdicts can be found in factual differences between counts, even where all counts involve the same complainant and similar conduct over a continuous period.
  • The Court of Criminal Appeal confirmed the strong caution required before concluding that a jury departed from its duty, noting that the criminal justice system depends on confidence in juries following their directions.
  • Under the Criminal Appeal Act 1912, leave to appeal is required where the ground of appeal does not involve a question of law alone; an extension of time is assessed by reference to the interests of justice.
  • Where a proposed appeal is found to have no merit, refusal of an extension of time causes no injustice, though the Court here granted the extension and resolved the matter by dismissing the application for leave.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 61, 61I
- Criminal Appeal Act 1912 (NSW), ss 5, 6(1)
- Weapons Prohibition Act 1998 (NSW), s 7

Cases:
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439
- TK v R [2009] NSWCCA 151; (2009) 74 NSWLR 299
- Dungay v R; R v Dungay [2010] NSWCCA 82
- Osland v R [1998] HCA 75; (1998) 197 CLR 316
- O'Grady v R [2014] HCA 38; (2014) 252 CLR 621
- Rasic v R [2009] NSWCCA 202
- R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- Raumakita v R [2011] NSWCCA 126; (2011) 210 A Crim R 326
- Still v R [2010] NSWCCA 131