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Court of Criminal Appeal 27 November 2017

Marland v R

[2017] NSWCCA 277

Sexual offences
CRIME APPEAL AGAINST CONVICTION

Citation: Marland v R [2017] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 27 November 2017
Judge(s): Macfarlan JA; Button J; Hamill J

Background

The applicant, a man aged 28 to 29 at the relevant times, was tried in the District Court in June 2015 on 14 charges of sexual misconduct with a 15-year-old girl. The alleged conduct was consensual and occurred over approximately 10 months between July 2004 and April 2005. The central factual issue was whether the applicant knew, or had reasonable grounds to believe, that the complainant was under 16 years of age.

The complainant gave evidence that she told the applicant her age from the moment they met, and that both she and the applicant had discussed waiting until she turned 16 before having sexual intercourse. That agreed-upon limit was not observed. Her mother and a mutual friend also gave evidence that the applicant had been made aware the complainant was underage.

The jury convicted the applicant on 10 counts but acquitted him on counts 10 and 13 (and by direction on counts 3 and 4). The applicant was sentenced to 5 years and 3 months imprisonment with a non-parole period of 2 years and 9 months. He sought leave to appeal against his convictions on the guilty counts, arguing the verdicts were irreconcilable and unreasonable.

  • Whether the jury's differential verdicts, convicting on some counts while acquitting on others spanning the same period and complainant, could be reconciled on a rational and logical basis.
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence, having regard to the applicant's claim that he honestly and reasonably believed the complainant was 16 or older.
  • Whether leave to appeal on a question of fact only should be granted, and whether an extension of time for filing the notice of appeal was warranted.

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, accepting that the proposed appeal was arguable and that the delay had been adequately explained. However, the Court unanimously dismissed the appeal.

On the central question of whether the verdicts were irreconcilable, Macfarlan JA held that the jury's differential outcomes could be explained on a rational basis. As the relationship progressed in time, the question of the applicant's knowledge of the complainant's age became more nuanced. In particular, the acquittal on count 13 was explained by Hamill J as a logical application of the presumption of innocence: by the time of that later encounter, the complainant was approaching her 16th birthday, and the jury may reasonably have entertained a doubt about whether the prosecution had proved beyond reasonable doubt that the applicant then knew she remained under 16.

Macfarlan JA conducted an independent review of the evidence, both as to sufficiency and quality, and concluded it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on the convicted counts. The complainant's evidence provided an ample foundation for that satisfaction. Button J and Hamill J each agreed with those conclusions.

The Court noted that the relevant offences, under sections 61M(1), 61N(1), and 66C(3) of the Crimes Act 1900 (NSW), carried a defence of honest and reasonable mistaken belief as to age, following the High Court's decision in CTM v The Queen (2008) 236 CLR 440. Once the applicant raised that belief evidentially, the prosecution bore the burden of disproving it beyond reasonable doubt. The jury's verdicts indicated it was satisfied the prosecution had discharged that burden for the convicted counts, but not necessarily for all counts.

Orders Made

  • Time to apply for leave to appeal extended to the date the Application for Leave to Appeal was filed.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A conviction for sexual offences under ss 61M(1), 61N(1), and 66C(3) of the Crimes Act 1900 (NSW) requires the prosecution to disprove beyond reasonable doubt any honest and reasonable mistaken belief by the accused as to the complainant's age, once the accused has raised that belief evidentially (following CTM v The Queen).

  • Differential jury verdicts across related counts are not necessarily irreconcilable; where the issue is the accused's knowledge of the complainant's age, acquittals on later counts may reflect the jury rationally applying the standard of proof as circumstances evolved over time.

  • In dismissing the appeal, the Court confirmed that an appellate court undertaking an unreasonableness review must conduct an independent assessment of the evidence for both sufficiency and quality, in accordance with the principles in M v The Queen (1994) 181 CLR 487 and SKA v The Queen (2011) 243 CLR 400.

  • Under s 91HA(1) of the Crimes Act, the defence to a child abuse material charge under s 91H(2) places the onus on the defendant to establish, on the balance of probabilities, that they did not know and could not reasonably have been expected to know the material constituted child abuse material.

  • Sufficient evidence existed, including the complainant's own account, her mother's warnings to the applicant, and admissions by the applicant to a friend, to support the jury's guilty verdicts on the convicted counts, notwithstanding the acquittals on other counts in the same indictment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M, 61N, 66C, 77, 91H, 91HA
- Criminal Appeal Act 1912 (NSW): ss 5(1), 6(1)

Cases
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Holloway v R [2017] NSWCCA 17
- MG v R [2017] NSWCCA 14
- Nguyen v The Queen [2017] NSWCCA 145