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13
Court of Criminal Appeal 24 February 2017

MG v R

[2017] NSWCCA 14

Sexual offences
CRIMINAL LAW CONVICTION APPEAL 14 COUNTS OF SEXUAL ASSAULT WHETHER INCONSISTENT VERDICTS AMPLE EVIDENCE TO SUPPORT CONVICTIONS APPEAL AGAINST CONVICTION DISMISSED.

Citation: MG v R [2017] NSWCCA 14
Court: Court of Criminal Appeal, NSW
Date: 24 February 2017
Judge(s): Hoeben CJ at CL (with Johnson J and Latham J agreeing)

Background

The applicant was tried in the District Court in May 2015 on 14 counts of child sexual assault and related offences involving three sisters, referred to by pseudonyms as Elizabeth, Mary, and Helen. The applicant had been in a domestic relationship with the complainants' older half-sister, and the offending was alleged to have occurred between 2009 and 2011 when the complainants were aged between 12 and 15 years. The offences charged included sexual intercourse with children under 14 and under 16, and aggravated indecent assault.

The jury returned a split verdict: guilty on seven counts and not guilty on the remaining seven. The convicted counts related to offences against all three complainants, while acquittals covered other alleged incidents involving Mary and Elizabeth. The applicant was sentenced to 7 years and 6 months imprisonment with a non-parole period of 4 years. He did not appeal against sentence.

The applicant sought leave to appeal his convictions, arguing that the guilty verdicts were unreasonable and could not be supported by the evidence, particularly when viewed against the not guilty verdicts on the other counts.

  • Whether the seven guilty verdicts were unreasonable or unsupported by the evidence, warranting a ground of appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW)
  • Whether the not guilty verdicts on the remaining seven counts were logically inconsistent with the guilty verdicts, such that the convictions should be set aside

Decision

Hoeben CJ at CL conducted a careful count-by-count analysis of the evidence and the jury's verdicts. His Honour found that the guilty verdicts were supported by ample evidence. In relation to the counts involving Mary (counts 1, 2, and 3), the complainant's evidence was largely consistent and corroborated in material respects, notwithstanding some gaps in her recollection under cross-examination. The acquittal on count 4 (penile-vaginal intercourse during the same incident) was explicable: Mary's cross-examination had exposed specific uncertainties about that particular act, giving the jury a rational basis for doubt on that count alone without undermining her credibility generally.

Regarding the acquittals on counts 6 and 7 involving Elizabeth, Hoeben CJ at CL noted that Elizabeth's evidence on those counts lacked the corroborating elements present in relation to the counts on which the applicant was convicted (counts 5, 12, and 13). This provided a reasonable and logical explanation for why the jury may not have been satisfied beyond reasonable doubt on those counts, without necessarily disbelieving Elizabeth. The analysis therefore showed that the split verdicts reflected discriminating fact-finding, not logical inconsistency.

The court applied the principle that for verdicts to be genuinely inconsistent, there must be no rational or logical explanation for the difference in outcomes. Here, differences in the quality and corroboration of evidence across counts provided precisely such an explanation. The court concluded that, looking at the totality of the evidence, there was no reasonable basis for the jury to have experienced a reasonable doubt on the counts where guilty verdicts were returned.

All three judges agreed that leave to appeal should be granted but that the appeal should be dismissed.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal against conviction dismissed

Key Takeaways

  • Split verdicts in a multi-count sexual assault trial are not automatically inconsistent: where there is a rational and logical explanation for the different outcomes across counts, the verdicts will not be characterised as legally inconsistent.
  • A conviction will not be set aside as unreasonable under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) where there is ample evidence to support the guilty findings and the differences between convicted and acquitted counts are explicable by variations in the quality or corroboration of the evidence.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that a jury may acquit on some counts without necessarily disbelieving the complainant on those counts; the absence of corroborating circumstances on particular counts can rationally explain a not guilty verdict.
  • The principle from R v Markuleski [2001] NSWCCA 290 and related authorities was applied: the court undertakes a count-by-count analysis to identify whether any rational explanation exists for the divergent verdicts before concluding that inconsistency has been established.
  • Corroborating evidence, such as the evidence of a separate complainant whose account closely parallels another complainant's, can strengthen the overall evidentiary foundation for guilty verdicts on related counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1), 66C(3)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- TK v R [2009] NSWCCA 151; 74 NSWLR 299
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- Wingrove-Pryce v R [2014] NSWCCA 290