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6
Court of Criminal Appeal 27 February 2015

PA v R

[2015] NSWCCA 18

Sexual offences
CRIMINAL LAW CONVICTION APPEAL NO AUTHORITY IN NEW SOUTH WALES APPEAL DISMISSED.

Citation: PA v R [2015] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 27 February 2015
Judges: Hoeben CJ at CL, Johnson J, Hamill J

Background

The appellant was tried in the District Court at Parramatta on five counts of sexual assault against his daughter. The complainant made three recorded interviews over the course of the proceedings, and the trial involved extensive judicial directions on matters including delayed complaint, credibility, and the absence of corroboration.

The jury acquitted the appellant on two counts, the trial judge directed a not guilty verdict on a third, and the jury convicted the appellant on count 4 (an act of indecency on 4 April 2012, when the complainant was 13 years old). The jury could not reach a verdict on count 5, which concerned an allegation of sexual intercourse on the same occasion.

The appellant sought leave to appeal his conviction on count 4, raising two grounds: first, that the conviction was irreconcilable with the jury's failure to agree on count 5; and second, that the conviction was unreasonable and not supported by the evidence.

  • Whether a jury's failure to agree on a verdict (a hung jury) can be treated as analogous to a verdict of acquittal, so as to found an argument of inconsistent verdicts
  • Whether, if inconsistency could be established, the conviction on count 4 should be set aside
  • Whether the conviction on count 4 was unreasonable or unsupported by the evidence, having regard to credibility findings and the evidence of opportunity

Decision

Ground 1: Inconsistent verdicts. The Court examined the distinction between legal (or technical) inconsistency and factual inconsistency, drawing on MacKenzie v R and MFA v R. Legal inconsistency arises where two verdicts cannot stand together on their face; factual inconsistency arises where the different outcomes cannot be rationally explained by the evidence. The Court noted there is no NSW authority directly addressing whether a hung jury can be treated as equivalent to an acquittal for this purpose, and that authority in Queensland and Victoria is in conflict.

The Court held it was unnecessary to resolve that question definitively. Even if a failure to agree could be treated as analogous to an acquittal, the two counts were not factually inconsistent. Count 4 required proof of an act of indecency (touching of the complainant's breasts); count 5 required proof of sexual intercourse by penetration. The two counts alleged distinct acts. There was a rational basis on which a jury could be satisfied beyond reasonable doubt as to one but not the other, particularly given the different character of the conduct alleged and the evidentiary distinctions between the counts.

Ground 2: Unreasonable verdict. The Court applied the standard from M v R and SKA v The Queen, asking whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt. Hamill J, in separate reasons reaching the same conclusion, emphasised that the complainant's evidence on count 4 was supported by evidence of prompt complaint to multiple people shortly after the alleged events. By contrast, the allegations in counts 1 to 3 were entirely uncorroborated and had been disclosed much later. The jury was better placed than the Court of Criminal Appeal to assess credibility, having seen the recorded interviews and observed witnesses in cross-examination. The Court was not left with a reasonable doubt as to guilt on count 4.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the question of whether a jury's failure to agree can ground an inconsistent verdicts argument remains unresolved in NSW, with conflicting interstate authority in Queensland and Victoria.
  • A distinction exists between legal inconsistency (two verdicts that cannot coexist on the face of the record) and factual inconsistency (outcomes that cannot be rationally explained by the evidence); only the latter was in issue here.
  • Where two counts on the same indictment allege distinct physical acts, a conviction on one and a hung jury on the other will not necessarily be factually inconsistent, provided there is a rational evidentiary basis for the different outcomes.
  • In dismissing the unreasonable verdict ground, the Court reaffirmed that prompt complaint evidence can provide meaningful corroborative support for a complainant's account, distinguishing it from uncorroborated allegations made years later.
  • Applying M v R and SKA v The Queen, the Court confirmed that the jury's advantage in seeing and hearing evidence is capable of resolving doubt arising from challenges to witness credibility and disputed opportunity evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), s 165B

Cases
- Azzopardi v R [2001] HCA 25; 205 CLR 50
- Black v R [1993] HCA 71; 179 CLR 44
- Jones v R [1997] HCA 56; 191 CLR 439
- Liberato v R (1985) 159 CLR 507
- Longman v R [1989] HCA 60; 168 CLR 79
- M v R [1994] HCA 63; 181 CLR 487
- MacKenzie v R [1996] HCA 35; 190 CLR 348
- MFA v R [2002] HCA 53; 213 CLR 606
- Millar v The Queen [2003] WASCA 211
- OGD v R (1997) 45 NSWLR 744
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- Pillay and Ors v The Queen [2014] VSCA 249
- R v CBF [2012] QCA 294
- R v CX [2006] QCA 409
- R v DAL [2005] QCA 281
- R v Garrett [2009] QCA 300
- R v Gipp (1998) 194 CLR 106
- R v Markuleski (2001) 125 A Crim R 186
- R v R, GJ [2009] SASC 371; 105 SASR 506
- SKA v The Queen [2011] HCA 13; 243 CLR 400