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14
Court of Criminal Appeal 23 June 2017

Nguyen v R

[2017] NSWCCA 145

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW WHETHER VERDICTS INCONSISTENT

Citation: Nguyen v R [2017] NSWCCA 145
Court: Court of Criminal Appeal
Date: 23 June 2017
Judge(s): Macfarlan JA; Adamson J; Campbell J

Background

The applicant was tried in the District Court on charges arising from an incident on 29 December 2013 involving his then partner. The charges included, among others, aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW). During the trial, the Crown amended the relevant count to charge the substantive offence rather than an attempt, reflecting the complainant's evidence that penetration had occurred. The jury was also directed that it could convict on the statutory alternative of attempt under s 61P if it was not satisfied of the substantive offence.

The jury acquitted the applicant of the aggravated sexual intercourse charge but convicted him of the attempt. It also convicted him of intentionally damaging property and two assault charges.

The applicant sought leave to appeal against the attempt conviction, arguing the verdicts were inconsistent and could not both stand, or alternatively that they reflected an impermissible compromise by the jury.

  • Whether the jury's acquittal on the substantive charge of aggravated sexual intercourse without consent was logically inconsistent with its conviction on the alternative charge of attempting to commit that offence.
  • Whether the verdicts indicated that the jury reached an impermissible compromise rather than properly discharging its function.
  • Whether the conviction on the attempt charge was unreasonable or could not be supported having regard to the evidence, for the purposes of s 6 of the Criminal Appeal Act 1912 (NSW).

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. The central question was whether the two verdicts could be reconciled on a logical and reasonable basis, applying the test from Mackenzie v The Queen (1996) 190 CLR 348.

Macfarlan JA, with whom Adamson and Campbell JJ agreed, held that the verdicts were not inconsistent. The complainant's evidence on the question of penetration was uncertain and qualified in several respects, including references to "wanting to put it in" and "I think" when asked whether penetration had occurred. These portions of her evidence, together with the acknowledged interpretation difficulties during the trial, provided a rational basis for the jury to entertain a reasonable doubt about actual penetration while remaining satisfied beyond reasonable doubt that an attempt had taken place.

Adamson J added that it is impermissible to infer from a "not guilty" verdict that the jury positively rejected the complainant's evidence. A not-guilty finding means only that the jury was not satisfied to the requisite standard. The jury may well have accepted that an attempt probably occurred as described, while retaining a reasonable doubt about penetration specifically.

The Court distinguished Jones v The Queen (1997) 191 CLR 439, where an acquittal on one count had necessarily undermined the credibility basis for convictions on other counts involving the same complainant. Here, the not-guilty verdict on the substantive charge did not carry that consequence, because the attempt conviction required no finding of penetration. The different verdicts reflected a permissible, factually distinct conclusion on each charge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury's acquittal on a charge of sexual intercourse without consent does not automatically require an acquittal on a statutory alternative charge of attempting to commit that same offence, provided there is a logical and reasonable basis on which the verdicts can be reconciled.
  • The principle in Jones v The Queen that an acquittal can undermine credibility across related counts is fact-specific. It applies where the quality of the complainant's evidence on the acquitted charge is no higher than on the convicted charge, and where no rational distinction between the findings is available.
  • Under s 6 of the Criminal Appeal Act 1912 (NSW), an appellate court must make an independent assessment of the sufficiency and quality of the evidence when a conviction is challenged as unreasonable, but should not too readily conclude that jury verdicts cannot be reconciled.
  • A not-guilty verdict cannot be read as a positive rejection of a witness's evidence. It establishes only that the jury was not satisfied beyond reasonable doubt on that particular element or charge, leaving open the possibility that the jury accepted the complainant's account in other respects.
  • Where a complainant's evidence contains qualifications or ambiguity on a specific element, such as whether penetration occurred, the jury is entitled to treat those portions differently from evidence going to other elements of an alternative charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61J, 61P
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Holloway v R [2017] NSWCCA 17
- MG v R [2017] NSWCCA 14
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Stinson v R [2006] NSWCCA 191