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Court of Criminal Appeal 27 July 2018

White v R

[2018] NSWCCA 156

Sexual offences
CRIMINAL LAW CONVICTION APPEAL CHILD SEXUAL ASSAULT DETAILED ANALYSIS OF EVIDENCE APPEAL DISMISSED

Citation: White v R [2018] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 27 July 2018
Judges: Beazley P, Button J, Fagan J

Background

The appellant stood trial in the District Court at Dubbo on an indictment containing 11 counts of sexual offences alleged to have been committed against a complainant (referred to by the pseudonym "Cathy") who was aged 12 or 13 at the relevant times. The counts related to several separate incidents, including a camping trip and three separate incidents at the appellant's car detailing workshop in Wagga Wagga.

The jury acquitted the appellant on all counts except count 7, which alleged penile/vaginal sexual intercourse with Cathy without her consent, knowing she was not consenting, in circumstances aggravated by her age (under s 61J(1) of the Crimes Act 1900 (NSW)). The appellant was subsequently sentenced to imprisonment.

The appeal was heard in May 2018, only three months before the non-parole period was due to expire.

  • Whether the guilty verdict on count 7 was unreasonable or could not be supported having regard to the evidence, particularly in light of the acquittals on all other counts
  • Whether the evidence was capable of satisfying the jury that the sexual intercourse occurred without the complainant's consent and that the appellant knew of her non-consent
  • Whether there was a rational and logical basis upon which the jury could differentiate count 7 from the other counts, including counts 4 and 9, which also alleged penile/vaginal penetration

Decision

Button J (with whom Beazley P and Fagan J agreed) granted leave to appeal, given the importance of the question whether a single conviction among multiple acquittals was sustainable. However, the court dismissed the appeal after a detailed analysis of all the evidence, including the complainant's police interviews, her evidence-in-chief, and her cross-examination.

The court found that there was a rational and logical basis upon which the jury could differentiate count 7 from the other counts. Count 7 was distinguished from counts 4 and 9 (the other penile/vaginal penetration counts) by the greater consistency and detail in the complainant's evidence regarding that incident, including her clear statement to the appellant during the act that she did not like it, that she was too young, and that it was not okay. This evidence directly supported both the absence of consent and the appellant's knowledge of that state of mind.

Critically, forensic evidence corroborated count 7 in a way it could not corroborate the other counts. A single used condom bearing the appellant's semen on the inside and the complainant's DNA on the outside was found at the scene. The court held that the jury were entitled to assign this powerful piece of corroboration to count 7, which was the count most extensively and consistently supported by the evidence. The other counts not involving penile/vaginal penetration were simply incapable of corroboration by that physical evidence.

Button J concluded that the verdict of guilty on count 7 was not only open to the jury but consistent with the acquittals on the remaining counts. His Honour stated that, on his own analysis, he experienced no reasonable doubt as to the correctness of the conviction.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty verdict on a single count is not rendered unreasonable merely because the jury acquitted on all other counts; what matters is whether a rational and logical basis for differentiation exists on the evidence.
  • The Court of Criminal Appeal confirmed that forensic physical evidence, such as DNA on a condom, can provide a rational basis for a jury to distinguish one count of penile/vaginal penetration from other similar counts where no equivalent corroboration exists.
  • Where a complainant's evidence is more consistent and detailed in relation to one particular count, a jury is entitled to find that count proven while entertaining doubt about others arising from the same course of alleged conduct.
  • In dismissing the appeal, the court applied the well-established principle that an appellate court must conduct its own analysis of the evidence and ask whether the jury, acting reasonably, could have been satisfied of guilt beyond reasonable doubt, not simply defer to the jury's conclusion.
  • Sufficient evidence of both non-consent and the appellant's knowledge of non-consent existed to support the aggravated form of the offence under s 61J(1) of the Crimes Act 1900 (NSW), where the complainant communicated her objection to the appellant during the act itself.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 66C(1), 66EB(3), 91G(1)(b)

Cases:
- Haines v R [2018] NSWCCA 11
- Irwin v The Queen [2018] HCA 8
- M v The Queen [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- The Queen v Baden-Clay [2016] HCA 25; (2016) 258 CLR 308