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10
Court of Criminal Appeal 21 September 2018

Palmer v R

[2018] NSWCCA 205

Sexual offences
CRIME CONVICTION APPEAL UNREASONABLE VERDICTS CONVICTION APPEAL LEAVE TO APPEAL JURY DIRECTIONS

Citation: Palmer v R [2018] NSWCCA 205
Court: Court of Criminal Appeal, NSW
Date: 21 September 2018
Judges: Basten JA; McCallum J; Bellew J (all agreeing)

Background

The appellant was convicted in the District Court on one count of sexual intercourse without consent (s 61I, Crimes Act 1900 (NSW)), arising from an incident in which he digitally penetrated a female complainant. The incident occurred during a visit to a property he was renovating, on a Sunday morning in September 2015. The complainant and the appellant had an established prior relationship: he managed the property where she lived and had previously arranged a car purchase for her, giving him a degree of influence over her living and financial arrangements.

The indictment contained three counts in total, all arising from events on the same morning. The jury acquitted the appellant on count 1 (indecent assault involving touching of the complainant's breasts before she expressed any objection) and count 3 (a further indecent assault alleged to have occurred at a later point), but convicted him on count 2 (sexual intercourse without consent, being the digital penetration). The appellant challenged both the consistency of that verdict and the direction the trial judge gave concerning an apology he made during a police-recorded telephone call.

The appellant was sentenced to three years' imprisonment with a non-parole period of 18 months but had been granted bail pending the appeal and had served no time in custody by the time the Court of Criminal Appeal heard the matter.

  • Whether the conviction on count 2 was unreasonable or inconsistent with the acquittals on counts 1 and 3, such that no rational basis existed for the jury to distinguish between those counts.
  • Whether the trial judge erred in directing the jury that an apology made by the appellant in a recorded telephone call could be treated as an admission of guilt, and whether leave was required to raise that ground of appeal because no objection had been taken at trial.
  • Whether, if the directions ground had merit, leave to appeal should be granted.

Decision

Ground 2: Jury direction on the apology

During a police-facilitated "pretext call," the complainant confronted the appellant about the incidents and he made what was characterised as an apology. The trial judge directed the jury that the apology could be used as an admission. Because no objection was taken to this direction at trial, leave to appeal was required under Criminal Appeal Rules r 4. The Court considered whether the direction was correct and whether a substantial miscarriage of justice would result if leave were refused.

The Court held that, given the context of the prior relationship and the nature of the conversation, it was reasonably open to the jury to treat the apology as an admission relevant to the charges. The direction was therefore not wrong in law. Accordingly, leave to appeal on ground 2 was refused.

Ground 1: Consistency of the verdict

The Court granted leave to appeal on ground 1 because the inconsistency argument was reasonably arguable, but ultimately dismissed it. The Court applied the well-established test that an inconsistent verdict will only justify setting aside a conviction where there is no rational basis upon which a reasonable jury, properly directed, could have distinguished the counts. The fact that a jury acquits on one count and convicts on another is not by itself a basis for overturning the conviction.

In this case, the Court identified clear factual distinctions between the counts. The acquittal on count 1 was explicable by the absence of evidence of non-consent before the appellant touched the complainant's breasts: she had not resisted or protested at that point. The conviction on count 2 arose after she had expressly told him to stop, he had responded dismissively, placed his arm around her throat, and then digitally penetrated her. The acquittal on count 3 was similarly explicable on the evidence. A rational jury could therefore have distinguished the counts, and the verdict was not unreasonable. The appeal was dismissed.

Orders Made

  • Leave to appeal refused on ground 2 (jury direction on the apology).
  • Leave to appeal granted on ground 1 (inconsistency of verdicts).
  • Appeal dismissed.
  • Sentence varied to clarify that the three-year term of imprisonment (non-parole period of 18 months, balance of term 18 months) commences from the date of the Court of Criminal Appeal's orders, or the date on which the appellant is first taken into custody.
  • Earliest release date noted as 20 March 2020, or 18 months from the date of custody if different.

Key Takeaways

  • An inconsistent verdict ground will not succeed simply because a jury returned different verdicts on related counts. The appellant must show there was no rational basis upon which a properly directed jury could have distinguished the counts, applying the test confirmed in cases such as MacKenzie v The Queen (1996) 190 CLR 348 and ARS v R [2011] NSWCCA 266.
  • Where factual differences between counts are apparent from the evidence, including differences in the complainant's expressions of non-consent before each alleged act, a jury's differential verdicts can survive an inconsistency challenge.
  • A direction that an apology in a recorded conversation may be treated as an admission of guilt is not erroneous where the context makes that interpretation reasonably open on the evidence.
  • Failure to object to a jury direction at trial ordinarily requires leave to raise the issue on appeal under Criminal Appeal Rules r 4, and the Court will consider both whether the direction was correct and whether refusing leave would produce a substantial miscarriage of justice.
  • Bail pending appeal does not suspend the running of a sentence; the Court of Criminal Appeal varied the sentence to ensure the non-parole period commenced from the date custody actually began, reflecting time that had not yet been served.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), ss 2, 5, 11, 18
- Criminal Appeal Rules, rr 4, 20
- Bail Act 2013 (NSW), ss 22, 61, 62
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158

Cases
- MacKenzie v The Queen (1996) 190 CLR 348 (HCA)
- Black v The Queen (1993) 179 CLR 44 (HCA)
- SKA v The Queen (2011) 243 CLR 400 (HCA)
- ARS v R [2011] NSWCCA 266
- McCann v R [2014] NSWCCA 79
- Drysdale v The Queen [2015] NSWCCA 135
- Mansaray v R [2015] NSWCCA 40
- Shamoun v R [2015] NSWCCA 246
- Rolfe v The Queen [2007] NSWCCA 155
- Cottrell v R [2012] NSWCCA 117
- R v Sloane [2001] NSWCCA 421
- Zhang v R [2015] NSWCCA 82
- R v Kirkman (1987) 44 SASR 591