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Court of Criminal Appeal 8 April 2016

Parkinson v R

[2016] NSWCCA 49

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION

Citation: Parkinson v R [2016] NSWCCA 49
Court: Court of Criminal Appeal, New South Wales
Date: 8 April 2016
Judge(s): Hoeben CJ at CL, Price J, Button J (unanimous)

Background

The appellant was convicted by a jury in the District Court at Newcastle of six counts of child sexual assault offences against a complainant aged between 13 and 14 years at the relevant times. The offences occurred across a series of occasions in 2012 and 2013, when the complainant's family socialised with the appellant's household and, on some occasions, stayed overnight at his home.

The Crown case centred on contemporaneous diary entries made by the complainant on an iPod she received as a Christmas gift in 2012. Those entries were discovered by the complainant's mother in October 2013, leading to a police investigation. The complainant was interviewed by police on three separate occasions, and those recorded interviews formed the bulk of her evidence-in-chief at trial.

At trial, the defence argued that the diary entries were fantasies and that the complainant, due to a combination of mental health conditions and prescription medication, was prone to hallucinations. The appellant denied all offending and adduced character evidence of no prior convictions. The jury returned guilty verdicts on six of the sixteen counts and acquitted on the remaining ten.

  • Whether the trial judge misdirected the jury regarding evidence of complaint in the summing-up (requiring leave to appeal, as no redirection was sought at trial)
  • Whether the guilty verdicts were rationally inconsistent with the acquittals returned on the same indictment
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence as a whole

Decision

Ground one: misdirection on complaint evidence. Leave to appeal was granted on this ground, but the Court found the ground was not established. Button J, with whom the other judges agreed, concluded that any alleged deficiency in the directions did not give rise to a miscarriage of justice on the facts.

Ground two: unreasonable verdicts or rational inconsistency. Leave to appeal on this ground was refused. The Court examined the evidence in considerable detail, noting an unusual complication: the timestamps on iPod diary entries reflected Coordinated Universal Time (UTC) rather than NSW local time, a point neither party raised at trial. This discrepancy of approximately ten to eleven hours affected assessments of when entries were made relative to alleged offences, but the Court found this did not undermine the convictions.

On the question of rational inconsistency between the guilty and not guilty verdicts, the Court applied the principle that a jury is entitled to take a cautious approach and acquit where it has a reasonable doubt, even where it convicts on other counts. The mixed verdicts were therefore not irrational. Button J noted that the Crown case had real weaknesses, most obviously illustrated by the number of acquittals, but concluded the jury was entitled to be satisfied beyond reasonable doubt on the counts for which guilty verdicts were returned, particularly as to the authenticity of the iPod diary entries.

The Court placed weight on the advantages a jury holds over an appellate court in assessing witness credibility and demeanour, and declined to substitute its own assessment. No ground was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal on ground two (unreasonable verdicts) refused
  • Leave to appeal on ground one (misdirection) granted
  • Appeal dismissed

Key Takeaways

  • Mixed jury verdicts, where a jury convicts on some counts and acquits on others from the same indictment, are not automatically irrational. A jury may acquit where it has a reasonable doubt on particular counts while remaining satisfied beyond reasonable doubt on others.
  • Under r 4 of the Criminal Appeal Rules (NSW), a ground of appeal based on an alleged misdirection in the summing-up requires leave where no redirection was sought by defence counsel at trial.
  • Appellate courts reviewing unreasonable verdict grounds apply a deferential standard that fully recognises the jury's advantage in observing witness demeanour and the atmosphere of the trial, consistent with M v The Queen (1994) 181 CLR 487.
  • Evidentiary complications arising from technical matters, such as the UTC timestamp issue with the iPod entries in this case, do not necessarily result in convictions being set aside if they were not raised at trial and do not fundamentally undermine the jury's findings.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the existence of real weaknesses in a Crown case does not compel an acquittal, provided there is a rational basis upon which the jury could have been satisfied beyond reasonable doubt on the counts of conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61N(1), 61N(2), 66C(1), 66C(3), 66EB(3)
- Criminal Appeal Rules (NSW), r 4

Cases:
- Filippou v The Queen [2015] HCA 29
- Glover v R; Stuart v R [2015] NSWCCA 285
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348