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Court of Criminal Appeal 17 August 2016

SM v R

[2016] NSWCCA 171

Sexual offences
CRIME CONVICTION APPEAL JURY DIRECTION WHETHER JURY DIRECTION ADEQUATE WHETHER VERDICTS INCONSISTENT SENTENCE APPEAL

Citation: SM v R [2016] NSWCCA 171
Court: Court of Criminal Appeal, NSW
Date: 17 August 2016
Judges: Bathurst CJ, Basten JA, Simpson JA

Background

The appellant, identified only as SM to protect the complainant's identity, was tried by jury in the District Court on two counts of sexual assault against a child under 16 years. The first count alleged that, on Christmas Eve 2011, he entered the complainant's bedroom, lay beside her, and held her breasts. The second count alleged that some months later he touched her vagina after applying ointment to her leg.

The jury convicted the appellant on the first count and acquitted him on the second. He was sentenced to a total term of two years and six months, comprising a non-parole period of one year and three months commencing 31 July 2015, followed by an additional term of equal length.

The appellant sought leave to appeal both conviction and sentence to the Court of Criminal Appeal.

  • Whether the trial judge's direction to the jury was adequate in explaining how a reasonable doubt on one count could affect the assessment of the complainant's credibility on the other count
  • Whether the jury's mixed verdicts (conviction on count 1, acquittal on count 2) were logically inconsistent, making the conviction on count 1 unreasonable
  • Whether the District Court, when sentencing, was required to have regard to the Local Court's jurisdictional sentencing limit as a benchmark

Decision

Ground 1: Adequacy of jury direction

The trial judge directed the jury to consider each count separately, and told them that a reasonable doubt on one charge entitled them to consider whether that doubt extended to the other. The judge also warned against any compromise or bargaining between the counts. The appellant argued this was insufficient, relying on the Court of Criminal Appeal's earlier decision in R v Markuleski, which indicated that, in appropriate cases, the jury should be told more specifically how doubt about a complainant's credibility on one count may affect their assessment of her evidence on another.

Basten JA examined the passages in Markuleski closely and concluded that the additional directions described there are fact-specific and not universally required. In this case, the two alleged incidents were separated in time, involved distinct circumstances, and there were differences in the complainant's evidence on each. The direction given was adequate for the circumstances of the trial, and no error was established.

Ground 2: Inconsistent verdicts and unreasonable conviction

The court rejected the argument that the verdicts were logically inconsistent. A jury is entitled to reach different conclusions on separate counts, particularly where the underlying facts differ. The existence of an acquittal on one count does not automatically render a conviction on another unreasonable. No basis was found to conclude that the guilty verdict on count 1 was unreasonable or could not be supported by the evidence.

Sentence appeal

The sole sentence ground was that the District Court failed to treat the Local Court's jurisdictional sentencing limit as a relevant benchmark, given that the offence was theoretically capable of being dealt with in the Local Court. Basten JA acknowledged the principle that a sentencing court may take such a limit into account as a reference point, but confirmed there is no requirement to do so. In the absence of a principle compelling reference to the Local Court limit, and without a ground that the sentence was manifestly excessive, there was no basis for appellate intervention.

Orders Made

  • Leave to appeal against conviction granted (to the extent necessary); appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal against sentence dismissed

Key Takeaways

  • The directions required by R v Markuleski on jury assessment of complainant credibility across multiple counts are fact-specific. Where the counts involve distinct circumstances and different evidence, a general direction that doubt on one count may inform consideration of the other can be sufficient.
  • A conviction on one count accompanied by an acquittal on another is not automatically inconsistent or unreasonable. Different factual circumstances on each count can rationally support different verdicts.
  • No general principle requires a District Court sentencing judge to treat the Local Court's jurisdictional limit as a benchmark when imposing sentence. A sentencing court may take that limit into account, but is not obliged to do so.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that, without a ground of manifest excess and without a binding principle requiring reference to the Local Court limit, there is no proper basis for appellate intervention in the sentence.
  • Simpson JA noted that Ground 1 (adequacy of jury direction) raises a question of law alone and therefore does not require leave under s 5(1)(a) of the Criminal Appeal Act 1912 (NSW).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 267, 294AA

Cases
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Baines v R [2016] NSWCCA 132
- R v Palmer [2005] NSWCCA 349