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Court of Criminal Appeal 2 May 2017

Lepine v R

[2017] NSWCCA 83

Sexual offences
CRIMINAL PROCEDURE WHERE EXTENSION OF TIME REQUIRED WHERE PROPOSED APPEAL HAS NO MERIT APPLICATION DISMISSED CRIMINAL LAW APPEAL AGAINST CONVICTION UNREASONABLE VERDICTS

Citation: Lepine v R [2017] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 2 May 2017
Judge(s): Hoeben CJ at CL; Walton J; R A Hulme J

Background

The applicant had been convicted by a jury in the District Court at Sydney on three counts of indecent assault upon a person under the age of 16 years, contrary to s 61E(1) of the Crimes Act 1900 (NSW). The jury simultaneously acquitted him on four counts of sexual intercourse with a child aged between 10 and 16. The offences were alleged to have occurred during the complainant's visits to the applicant's family home in the Blue Mountains between 1985 and 1990, when the complainant was aged between 8 and 12. The applicant was the complainant's older cousin.

Following sentencing in July 2014, the applicant received no conviction on Count 1 and no penalty on Counts 2 and 3, both pursuant to the sentencing court's discretion under the Crimes (Sentencing Procedure) Act 1999 (NSW). He nonetheless sought to challenge the guilty verdicts, apparently motivated by contact from police about registration on the Child Protection Register.

The application required an extension of time, as the Notice of Application for Leave to Appeal was not filed until November 2016, roughly two and a half years after sentencing. The applicant's explanation pointed to a negative advice from senior counsel in May 2015, a subsequent positive advice from junior counsel, and then a year spent raising legal fees.

  • Whether an extension of time should be granted, given the lengthy and inadequately explained delay
  • Whether the guilty verdicts on the indecent assault counts were unreasonable in all the circumstances
  • Whether the guilty verdicts were inconsistent with the acquittals on the sexual intercourse counts, such that they should be set aside
  • Whether the complainant's evidence lacked sufficient credibility to support the conviction counts
  • Whether the verdicts could be characterised as compromise verdicts

Decision

The Court refused the extension of time on two independent bases: the explanation for the delay was unsatisfactory, and the proposed appeal had no merit. On delay, the applicant had allowed his Notice of Intention to lapse without applying for an extension, waited a year to raise legal fees, and filed his appeal application more than two years after the Notice of Intention was filed. The Court was not persuaded that the interests of justice favoured granting more time.

On the merits, the Court identified a clear and logical basis for differentiating the conviction counts from the acquittal counts. The Crown case included a recorded pretext telephone conversation in which the applicant failed to deny most of the complainant's allegations and made statements capable of supporting her account of the indecent assaults charged in Counts 1 to 3. The applicant's unequivocal denial related only to penis-to-vagina sexual intercourse, the conduct underlying the acquittal counts.

The complaint evidence was also assessed as capable of supporting the indecent assault charges but not the sexual intercourse charges. Because the jury had corroborating material going to the conviction counts that was absent for the acquittal counts, the differing verdicts reflected a rational and discriminating assessment of the evidence rather than any irreconcilable inconsistency or compromise.

The Court concluded that the verdicts were neither unreasonable nor inconsistent. The acquittals did not reflect a rejection of the complainant as a witness of truth; they reflected an absence of supporting evidence for those particular charges.

Orders Made

  • Application for extension of time to seek leave to appeal against conviction refused.

Key Takeaways

  • Inconsistent verdicts do not automatically arise where a jury convicts on some counts and acquits on others; a reasonable basis for differentiating between the counts is sufficient to sustain the mixed result.
  • Admissions or partial concessions made during a pretext telephone call can constitute supporting evidence capable of buttressing a complainant's account on specific charges, even where no admission is made to the precise conduct charged.
  • Complaint evidence may be capable of corroborating some charges but not others within the same trial, providing a principled basis for differentiated verdicts.
  • In dismissing the application, the Court of Criminal Appeal confirmed that an unsatisfactory explanation for substantial delay weighs against granting an extension of time, particularly where the appeal itself lacks merit.
  • A jury's acquittal on the more serious counts does not, of itself, indicate that the complainant was disbelieved generally; it may instead reflect the jury's careful application of the beyond-reasonable-doubt standard to each count on its own evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A
- Criminal Appeal Act 1912 (NSW), s 10
- Criminal Appeal Rules, rr 3A, 3B

Cases:
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- MG v R [2017] NSWCCA 14
- Peiris v R [2014] NSWCCA 58; 240 A Crim R 114
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- TK v R [2009] NSWCCA 151; 74 NSWLR 299