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Court of Criminal Appeal 3 July 2015

Swain v R

[2015] NSWCCA 176

Sexual offences
CRIMINAL LAW CONVICTION APPEAL NO INCONSISTENCY APPEAL DISMISSED.

Citation: Swain v R [2015] NSWCCA 176
Court: NSW Court of Criminal Appeal
Date: 3 July 2015
Judge(s): Hoeben CJ at CL, R A Hulme J, Fagan J

Background

The applicant was a family friend and work colleague of the complainant's father. The two families lived on the same street and socialised regularly. The applicant was charged with six counts of sexual offences against the complainant, who was 14 and 15 years old at the time of the alleged conduct.

The six counts related to two separate incidents. Counts 1 to 3 arose from what the Court described as the "shower incident," alleged to have occurred at the complainant's home in August or September 2011 when she was alone after school. Counts 4 to 6 related to a subsequent "Boxing Day sleep over incident" said to have occurred at the applicant's home in late December 2011.

The jury convicted the applicant on counts 1 to 3 (the shower incident) but acquitted him on counts 4 to 6 (the Boxing Day incident). He was sentenced to an aggregate term of 5 years and 4 months imprisonment, with a non-parole period of 3 years and 2 months. He appealed against conviction only.

  • Whether the guilty verdicts on counts 1 to 3 were inconsistent with the not guilty verdicts on counts 4 to 6
  • Whether the guilty verdicts on counts 1 to 3 were unreasonable or incapable of being supported by the evidence

(A third ground concerning directions on delayed complaint was not pressed at the hearing.)

Decision

On the inconsistency ground, the Court found there was a rational and explicable basis for the jury returning different verdicts across the two sets of counts. The evidence relating to each incident was distinct in character. The shower incident involved a single, clearly identified occasion at a specific location, while the Boxing Day incident involved more complex circumstances. The jury was entitled to approach each count separately and to assess the evidence supporting each incident on its own merits.

The Court observed that an inconsistency argument requires more than a mere difference in outcome across counts. The applicant needed to show that no reasonable jury could have arrived at the combination of verdicts on the evidence. The Court was satisfied that a reasonable basis for the different outcomes existed and rejected the ground.

On the unreasonableness ground, the Court examined the evidence carefully, including the applicant's alibi evidence from his wife and mother-in-law, which sought to establish he could not have been at the complainant's home during the relevant window. The Court noted that this evidence was not of an objective or independent kind and depended on the jury accepting the accounts of witnesses whose evidence contained some inconsistencies and prevarication. The jury was not obliged to accept that evidence, and had the benefit of seeing and hearing all witnesses firsthand, an advantage the appellate court did not share.

The Court concluded the jury's guilty verdicts on counts 1 to 3 were open on the whole of the evidence. The complainant's evidence was described as compelling in relation to those counts, and the matters raised in support of the appeal were capable of being resolved by the jury using their assessment of witness credibility. All three judges agreed the appeal should be dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conviction appeal based on inconsistent verdicts will not succeed merely because a jury convicted on some counts and acquitted on others. The applicant must demonstrate there was no rational basis on which the jury could have reached the different verdicts.
  • Where counts in an indictment relate to separate incidents with distinct evidentiary foundations, a jury is entitled to differentiate between them, and different outcomes on each group of counts will not necessarily be inconsistent.
  • Alibi evidence from family members, even if not inherently implausible, does not oblige a jury to accept it. The jury retains the function of assessing witness credibility, including whether apparent inconsistencies or prevarication affect the reliability of such evidence.
  • On an unreasonableness ground under the criminal appeal framework, the appellate court must consider whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. It is not enough to identify possible doubts; those doubts must be ones the jury was not reasonably entitled to resolve against the applicant.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed the importance of the jury's forensic advantage in seeing and hearing witnesses, which an appellate court assessing a record does not possess.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- M v R [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Anderson [2001] NSWCCA 115
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- W v R [2014] NSWCCA 110