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Court of Criminal Appeal 11 August 2016

Darby v R

[2016] NSWCCA 164

Sexual offences
CRIMINAL LAW APPEAL CONVICTION APPEAL ALLOWED IN PART.

Citation: Darby v R [2016] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 11 August 2016
Judges: Gleeson JA, Rothman J, Bellew J

Background

The appellant was a mining company executive charged with nine counts arising from a single incident in which he and a female colleague, who worked in the same office building for a different company, had sexual contact in his office after leaving a bar together one evening. The sole issue at trial was consent. There was no dispute that the sexual contact occurred; the question was whether the Crown had proved beyond reasonable doubt that the complainant did not consent.

A jury of eleven convicted the appellant on four counts: one count of sexual intercourse without consent (Count 5, cunnilingus while the complainant was kneeling), one count of act of indecency (Count 6, masturbation using the complainant's hand), one count of sexual intercourse without consent (Count 7, digital penetration), and one count of indecent assault (Count 9, licking and touching the complainant's breasts). The jury acquitted on the remaining five counts, including four counts of sexual intercourse without consent and one further count of sexual intercourse without consent from behind.

The appellant appealed against all four convictions, arguing that the guilty verdicts were inconsistent with, or unreasonable in light of, the acquittals on the other counts.

  • Whether the jury's verdicts of guilty on Counts 5, 6, 7, and 9 were inconsistent with the acquittals on Counts 1, 2, 3, 4, and 8
  • Whether, when assessing the reasonableness of a guilty verdict, an appellate court must take into account the jury's acquittals on related counts
  • Whether the conviction on Count 9 (indecent assault, licking and touching the breasts) was unreasonable in light of the acquittals on the earlier, more serious sexual intercourse counts
  • Whether the convictions on Counts 5, 6, and 7 were unreasonable when considered alongside those acquittals

Decision

Rothman J (with whom Gleeson JA and Bellew J agreed) held that the correct framework for this appeal was not pure inconsistency between verdicts, but rather the unreasonableness of the guilty verdicts when assessed against the entirety of the evidence, including the fact of the acquittals. The applicable test derives from M v The Queen (1994) 181 CLR 487 and subsequent High Court authority: a verdict is unreasonable if a properly instructed jury, acting rationally, could not have been satisfied beyond reasonable doubt of guilt. Crucially, acquittals form part of the evidential landscape against which that question must be answered.

The court examined the chronology of events carefully. The conduct underlying Count 9 (licking and touching the breasts) most probably occurred during the same timeframe as Counts 1 to 4, in respect of which the jury had acquitted. Since the jury found that the complainant consented to, or that the Crown failed to disprove consent in relation to, the digital and oral sexual conduct in Counts 1 to 4, a rational jury could not simultaneously have been satisfied that the complainant did not consent to the breast touching in Count 9, which occurred at the same time and in the same circumstances. The court held the conviction on Count 9 was therefore unreasonable and quashed it.

The convictions on Counts 5, 6, and 7 were treated differently. Those counts related to conduct that occurred after the acts underlying Counts 1 to 4, in a changed physical setting (the complainant moved from sitting on a table to kneeling on the ground). The court found it was open to the jury, acting rationally, to draw a distinction between the earlier conduct (acquittals) and the later conduct (convictions), on the basis that a jury could have found the complainant did not consent to, or was not in a position to consent to, the later conduct even if they were not satisfied consent was absent earlier. The convictions on Counts 5, 6, and 7 were upheld as reasonable.

The court resentenced the appellant on the remaining three counts, imposing a revised aggregate sentence of three years and six months' imprisonment with a non-parole period of one year and nine months.

Orders Made

  • Appeal allowed in part
  • Conviction on Count 9 (indecent assault, s 61L of the Crimes Act 1900) set aside and quashed
  • Verdict and judgment of acquittal entered on Count 9
  • Original sentence set aside; in lieu, an aggregate sentence of three years and six months' imprisonment imposed, with a non-parole period of one year and nine months
  • Sentence to commence 11 August 2016; non-parole period to conclude 10 May 2018; head sentence to conclude 10 February 2020

Key Takeaways

  • Where a jury returns mixed verdicts on related counts, an appellate court assessing the reasonableness of guilty verdicts must take the acquittals into account as part of the overall evidence, not evaluate the convictions in isolation.
  • A conviction is unreasonable within the meaning of M v The Queen if a properly instructed jury, acting rationally, could not have been satisfied beyond reasonable doubt of guilt having regard to all the evidence, including acquittals on closely related counts.
  • The Court of Criminal Appeal confirmed that the distinction between "inconsistency" and "unreasonableness" matters: the question is not whether verdicts are logically incompatible in the abstract, but whether the guilty verdicts can stand as rational conclusions on the whole of the evidence.
  • Timing and context within a single incident can justify differentiated verdicts. The court found the jury was entitled to distinguish between an earlier phase of conduct (for which it acquitted) and a later phase in a changed setting (for which it convicted), provided that distinction is rationally supportable.
  • Where the conduct underlying a conviction most probably occurred simultaneously with conduct for which the accused was acquitted, and the sole issue is consent, a guilty verdict on the former cannot rationally coexist with acquittals on the latter.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L, 61N(2), 61HA
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- Black v The Queen [1993] HCA 71; (1993) 179 CLR 44
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
- Banditt v R [2005] HCA 80; (2005) 224 CLR 262
- TK v R [2009] NSWCCA 151; (2009) 74 NSWLR 299
- PA v R [2015] NSWCCA 18
- R v Murray (1987) 11 NSWLR 12
- R v Zorad (1979) 2 NSWLR 764
- R v Hemsley (1988) 36 A Crim R 334
- R v O'Meagher (1997) 101 A Crim R 196
- R v Randall (1991) 53 A Crim R 380