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5
Court of Criminal Appeal 23 November 2017

MC v R

[2017] NSWCCA 274

Sexual offences
CRIMINAL LAW CONVICTION APPEAL POSITION OF ADVANTAGE OF JURY AMPLE EVIDENCE TO SUPPORT CONVICTION APPEAL DISMISSED.

Citation: MC v R [2017] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 23 November 2017
Judges: Hoeben CJ at CL; Davies J; Bellew J

Background

The applicant, the paternal grandfather of the complainant, was tried in the Wagga Wagga District Court on seven charges: six counts of aggravated indecent assault on a child under ten years and one count of sexual intercourse with a child under ten years, contrary to ss 61M(2) and 66A of the Crimes Act 1900 (NSW) respectively.

The charges arose from three separate incidents alleged to have occurred at the applicant's home between 1999 and 2003, when the complainant was aged between five and eight. The prosecution case rested substantially on the complainant's evidence. The applicant did not give evidence at trial but relied on denials made in a recorded police interview. His wife was the only defence witness.

The jury convicted the applicant on four counts (Counts 1 to 4, relating to a single day during the Christmas holiday period) and acquitted him on three counts (Counts 5 to 7, relating to two other alleged incidents). He was sentenced to imprisonment with a non-parole period of 18 months. He had been released to parole by the time the appeal was heard.

  • Whether the guilty verdicts on Counts 1 to 4 were unreasonable or could not be supported having regard to the evidence, pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether the guilty verdicts on Counts 1 to 4 were inconsistent with the acquittals on Counts 5 to 7 in a way that rendered those convictions unsafe.

Decision

The applicant argued that, because the jury acquitted him on Counts 5 to 7, the convictions on Counts 1 to 4 could not stand. The court rejected this argument. Hoeben CJ at CL conducted an independent assessment of the evidence, as required when unreasonableness is alleged, and identified logical reasons why the jury could have reached different verdicts on different counts.

The three incidents giving rise to the charges involved distinct circumstances. The acquittals on Counts 5 to 7 could rationally be explained: Count 7 was directly contradicted by the evidence of the applicant's wife, who denied the incident occurred; Count 5 involved a third party (a cousin, K) who was not called to give evidence; and Count 6 arose from the same incident as Count 5. The jury was entitled to treat each count separately and to weigh the corroborating or contradicting material applicable to each.

The court confirmed that an acquittal on some counts does not compel the conclusion that the jury rejected the complainant as a witness generally. The jury retained the ability to find her truthful and reliable in relation to Counts 1 to 4, even where it gave the applicant the benefit of the doubt on others. The court noted the jury's significant advantage in having seen and heard all witnesses, including the complainant's demeanour and the conflicting testimony of the applicant's wife.

Davies J and Bellew J both agreed with Hoeben CJ at CL's reasoning and conclusions. The court unanimously found that the verdicts were not unsafe, unsound, or unreasonable, and dismissed the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mixed jury verdicts (guilty on some counts, not guilty on others) are not automatically inconsistent: there must be a logical reason for the difference, and the court will look to the distinct circumstances of each count.
  • An acquittal on some counts does not compel the inference that a jury rejected a complainant's credibility altogether; juries may accept a witness's evidence in respect of some incidents while giving the accused the benefit of the doubt on others.
  • Where an appeal is brought on the ground of unreasonableness under s 6(1) of the Criminal Appeal Act 1912 (NSW), the appellate court must conduct its own independent assessment of the evidence, while recognising the jury's advantage of having observed witnesses firsthand.
  • Sufficient evidence existed in this case to support the guilty verdicts, particularly where the acquitted counts involved contradicting evidence from a defence witness or the absence of a potential corroborating witness, factors that did not apply to the convicted counts.
  • The test is not whether the jury might have had a doubt, but whether it must (as distinct from might) have entertained a reasonable doubt about the applicant's guilt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen [1994] HCA 63; 181 CLR 487
- Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
- MFA v R [2002] HCA 53; 213 CLR 606
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- SKA v The Queen [2011] HCA 13; 243 CLR 400
- R v Nguyen [2010] HCA 38; 242 CLR 491
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- TK v R [2009] NSWCCA 151; 74 NSWLR 229
- Peiris v R [2014] NSWCCA 58; 240 A Crim R 114
- Hawi v R [2014] NSWCCA 83; 224 A Crim R 169
- Gilham v R [2012] NSWCCA 131; 224 A Crim R 22
- Elwood v R [2016] NSWCCA 18
- MG v R [2017] NSWCCA 14
- Allan v R [2017] NSWCCA 6
- Lepine v R [2017] NSWCCA 83
- Nguyen v R [2017] NSWCCA 145
- Abbey v R [2017] NSWCCA 109
- Atai v R [2014] NSWCCA 210