AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 3 November 2017

Artery v R

[2017] NSWCCA 259

Sexual offences
CRIMINAL LAW WHETHER VERDICTS INCONSISTENT

Citation: Artery v R [2017] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 3 November 2017
Judges: Payne JA, Johnson J, Adamson J

Background

The applicant faced two counts on indictment arising from incidents alleged to have occurred in 1985 involving an 11-year-old complainant. Count 1 charged indecent assault; Count 2 charged sexual intercourse without consent. The applicant had been in a relationship with the complainant's mother and stayed at the family home during that period.

The jury acquitted the applicant on Count 2 (digital penetration) but convicted him on Count 1 (pinching the complainant's nipples). The applicant was sentenced under a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He did not seek leave to appeal his sentence.

The applicant sought leave to appeal against his conviction, arguing that the two verdicts were logically inconsistent and that the guilty verdict on Count 1 was therefore unreasonable.

  • Whether the jury's acquittal on Count 2 (sexual intercourse without consent) rendered its conviction on Count 1 (indecent assault) unreasonable due to alleged inconsistency between the verdicts
  • Whether an acceptable explanation for the differentiation between the two verdicts existed as a matter of logic and reasonableness

Decision

Adamson J, with whom Payne JA and Johnson J agreed, dismissed the appeal. The central question was whether there was a rational basis on which the jury could have differentiated between the two counts. The applicable test, drawn from the authorities summarised in Nguyen v R [2017] NSWCCA 145, asks whether an acceptable explanation for the different verdicts exists as a matter of logic and reasonableness. A verdict of not guilty does not necessarily mean the jury disbelieved the complainant; it may simply reflect the jury exercising appropriate caution before being satisfied beyond reasonable doubt.

The court identified a concrete and rational explanation for the jury's differentiation. In relation to Count 1, the complainant had made a complaint to her mother before the Count 2 incident occurred, and that complaint was consistent with the conduct alleged in Count 1. In relation to Count 2, however, neither the complaint to her mother, the complaints made to friends, nor the applicant's pretext telephone call in 2012 included any reference to digital penetration. The jury's complaints about Count 2 corresponded only to the applicant placing his hand inside her underpants, which was the extent of what the complainant raised with the applicant directly.

The court also noted that the jury's conduct during deliberations was consistent with this analysis. The jury reached a unanimous verdict on Count 1 with apparent ease, but experienced difficulty with Count 2 and asked questions reflecting concern about whether the Crown had proved that count beyond reasonable doubt. It was therefore open to the jury to be satisfied beyond reasonable doubt as to Count 1 while retaining a reasonable doubt about the penetration element of Count 2, given the absence of any complaint evidence referencing penetration.

Payne JA added that, while the written submissions appeared to raise a broader argument about the reasonableness of the conviction on the whole of the evidence, counsel for the applicant clarified at oral argument that the sole complaint was one of inconsistent verdicts. The appeal therefore proceeded on that narrower basis only.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An acquittal and a conviction arising from the same indictment are not necessarily inconsistent: the relevant question is whether there is an acceptable explanation for the differentiation as a matter of logic and reasonableness.
  • A not-guilty verdict does not compel the conclusion that the jury disbelieved a complainant entirely; it may reflect a cautious approach to the standard of proof on a particular count where supporting evidence is weaker or absent.
  • The Court of Criminal Appeal confirmed that the absence of complaint evidence corroborating a specific element of an offence (here, digital penetration) can provide a rational basis for a jury to acquit on that count while convicting on another count where the complaint evidence was consistent with the conduct alleged.
  • Jury conduct during deliberations, including questions sent to the trial judge, can shed light on the basis for differentiated verdicts and is a relevant consideration in assessing whether verdicts are truly inconsistent.
  • In dismissing the appeal, the court applied the principles summarised in Nguyen v R [2017] NSWCCA 145, which draws together the authorities on inconsistent verdicts derived from MFA v The Queen (2002) 213 CLR 606.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes Act 1900 (NSW), ss 61D(1), 61E(1)

Cases
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Nguyen v R [2017] NSWCCA 145