AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 8 February 2017

Allan v R

[2017] NSWCCA 6

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT MISHANDLING AND CONTAMINATION OF DNA WHETHER INCONSISTENT VERDICT

Citation: [2017] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 8 February 2017
Judges: Gleeson JA, Harrison J, Campbell J

Background

The appellant was tried in the District Court at Sydney in June 2014 on three charges arising from an incident on 16 November 2012. The complainant was a sex worker who alleged the appellant agreed to pay for oral sex but then forced her into non-consensual vaginal intercourse, attempted to digitally penetrate her anally without consent, and later threatened her with a knife when she pursued him for payment.

The appellant denied the vaginal intercourse and the attempted anal penetration occurred at all. He admitted to consensual oral sex and acknowledged possessing a knife, though he maintained he had merely threatened to produce it, rather than brandished it, to stop the complainant from following him.

The jury acquitted the appellant on Count 1 (sexual intercourse without consent) but convicted him on Count 2 (attempted sexual intercourse without consent by digital-anal penetration) and Count 3 (being armed with a knife with intent to commit assault). He was sentenced to 2 years imprisonment with a 17-month non-parole period for Count 2, and a concurrent fixed term of 6 months for Count 3.

  • Whether the conviction on Count 2 was unreasonable or unsupported by the evidence, particularly given alleged mishandling and contamination of DNA evidence
  • Whether the jury's assessment of the scientific evidence was compromised because inaccurate medical records shown in a voir dire were not placed before the jury
  • Whether the guilty verdict on Count 2 was legally inconsistent with the acquittal on Count 1, given that the attempted anal penetration was said to have occurred during the same episode as the alleged vaginal intercourse
  • Whether the trial judge erred under s 293 of the Criminal Procedure Act 1986 in excluding evidence of the complainant's previous accusations of sexual assault, thereby preventing the jury from properly assessing her credibility
  • Whether the conviction on Count 3 was unreasonable or unsupported given inconsistencies between the complainant's description of the knife and the knife found on the appellant at arrest

Decision

Grounds 1 and 2 (DNA evidence): Harrison J found no basis to conclude the verdict was unreasonable. The DNA evidence, though the subject of some contamination concerns, was one piece of a broader evidential picture. The medical records not placed before the jury had been the subject of a voir dire, and there was no proper basis to conclude their absence deprived the jury of a fair assessment of the scientific evidence. The court reaffirmed the applicable test: a verdict is unreasonable only where the jury, acting on the whole of the evidence, could not rationally have been satisfied beyond reasonable doubt of the appellant's guilt.

Ground 3 (inconsistent verdicts): Harrison J, and Campbell J in a short addendum, addressed the concern that the acquittal on Count 1 was logically incompatible with the conviction on Count 2, since the complainant's account placed both acts within the same episode. The court found the verdicts were not legally inconsistent. The DNA evidence specifically corroborated the complainant's account of the digital-anal attempt. Juries are entitled to accept part, but not all, of a witness's evidence, and a doubt about one count does not compel a doubt about another where separate corroborating evidence exists.

Ground 4 (previous accusations): The trial judge had excluded, under s 293 of the Criminal Procedure Act, evidence that the complainant had previously made allegations of sexual assault. The appellant argued this prevented the jury from assessing her credibility. Harrison J held that the statutory exception in s 293(6) did not apply, and the exclusion was correct. Campbell J added that established authority under the predecessor provision confirms that evidence a complainant lied or fantasised about previous sexual experiences falls within the scope of the exclusion.

Ground 5 (knife description inconsistencies): The court found that discrepancies between the complainant's description of the knife and the knife recovered from the appellant were not of a character that rendered the verdict on Count 3 unreasonable. The jury was entitled to accept the complainant's evidence and conclude the appellant produced a knife to threaten her.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty verdict on one count is not legally inconsistent with an acquittal on a related count arising from the same incident, particularly where separate corroborating evidence supports the conviction count independently.
  • Under s 293 of the Criminal Procedure Act 1986, evidence that a complainant previously made false or fabricated sexual assault allegations remains subject to the general exclusion; the s 293(6) exception has a narrow operation confirmed by both the current and predecessor provisions.
  • Alleged contamination or mishandling of forensic evidence does not automatically render a conviction unreasonable; the court assesses the whole of the evidence, including lay testimony and any corroboration.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed the standard from M v The Queen (1994): a verdict is unreasonable only where no rational jury, acting on the whole of the evidence, could have been satisfied beyond reasonable doubt.
  • Minor inconsistencies between a complainant's description of a physical object and the object later recovered by police do not necessarily undermine the reasonableness of a conviction, where the jury had the benefit of assessing all witnesses and the evidence overall.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I, 61P, 114(1)(a)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 293
- Evidence Act 1995 (NSW)

Cases:
- M v The Queen (1994) 181 CLR 487
- SKA v The Queen (2011) 243 CLR 400
- Mackenzie v The Queen (1996) 190 CLR 348
- R v Markuleski (2001) 52 NSWLR 82
- R v Whalen (2003) 56 NSWLR 454
- R v Clout (1995) 41 NSWLR 312
- R v Lowe (1997) 98 A Crim R 300
- Elwood v R [2016] NSWCCA 18
- Wingrove-Pryce v R [2014] NSWCCA 290