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Court of Criminal Appeal 29 October 2018

Jafary v R

[2018] NSWCCA 243

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEAL DISMISSED

Citation: Jafary v R [2018] NSWCCA 243
Court: Court of Criminal Appeal, NSW
Date: 29 October 2018
Judge(s): Leeming JA; Walton J; Wilson J

Background

The appellant was tried in the District Court at Sydney on seven counts of sexual offences against a 15-year-old complainant. The alleged conduct occurred during a single afternoon in December 2012 on the Northern Beaches of Sydney, after the appellant and the complainant had made contact through Facebook the previous day. The appellant was 29 years old at the time; he had told the complainant he was 18.

The jury found the appellant guilty on two counts (count 2, sucking the complainant's breast in a car park, and count 5, touching her breasts with his hands at a second location), and not guilty on the remaining five counts. Those five counts included charges of indecent assault, digital penetration, and inciting an act of indecency.

The appellant was sentenced to a total of one year and nine months with a non-parole period of nine months. He subsequently sought leave to appeal out of time against the two convictions, arguing that the guilty verdicts were unreasonable given both the quality of the complainant's evidence and the jury's acquittals on the other five counts.

  • Whether the two guilty verdicts were unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW), having regard to the nature and quality of the evidence
  • Whether the jury's verdicts were logically inconsistent, in that acquittals on five counts could not rationally be reconciled with convictions on the remaining two
  • Whether the complainant's evidence was capable of sustaining the convictions on counts 2 and 5

Decision

The Court of Criminal Appeal granted leave to appeal out of time, noting the delay was adequately explained by difficulties in locating the appellant after his release and delays in the legal aid and briefing process. The Court accepted the argument was not without substance, warranting a full hearing.

On the central ground of appeal, the Court found the verdicts were not inconsistent. A jury's mixed verdicts do not automatically undermine the convictions; the question is whether there is a rational explanation for the acquittals that does not require rejecting the evidence supporting the guilty verdicts. The Court found such an explanation existed here: the acquittals could be attributed to uncertainties and inconsistencies in the complainant's evidence on those specific counts, without those doubts necessarily infecting her evidence on counts 2 and 5.

The Court also considered the DNA evidence. A DNA profile consistent with the appellant's was found on the inside of the complainant's bra. While defence counsel raised alternative explanations, including indirect transference, the Court held these were matters properly left to the jury's assessment. The jury was entitled to treat the DNA evidence as supporting the complainant's account on one or both of the counts for which convictions were returned.

The Court concluded that the complainant's evidence, considered alongside the DNA evidence and the text messages in evidence, was capable of sustaining the guilty verdicts. No error was established, and the appeal was dismissed.

Orders Made

  • Time to appeal extended to 29 June 2018
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Mixed verdicts from a jury do not automatically render convictions unreasonable; the relevant question is whether a rational explanation for the acquittals exists that is consistent with the guilty verdicts remaining intact.
  • The Court of Criminal Appeal confirmed the approach in MacKenzie v The Queen (1996) 190 CLR 348 and R v Markuleski (2001) 52 NSWLR 82: apparent inconsistency in jury verdicts will not invalidate convictions where a rational explanation for the different outcomes can be identified.
  • Where a complainant's evidence contains specific inconsistencies on particular counts, a jury acts rationally in acquitting on those counts while still accepting the complainant's evidence on other counts supported by corroborating material.
  • DNA evidence that admits of alternative explanations is not thereby rendered worthless; a jury retains the function of weighing those explanations against the totality of the evidence, including testimonial accounts.
  • In granting the extension of time to appeal, the Court treated documented administrative and logistical delays in obtaining transcripts, briefing counsel, and dealing with Legal Aid as a sufficient explanation, particularly where the grounds of appeal had arguable merit.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(2), 61N, 66C(3)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)

Cases
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- MG v R [2017] NSWCCA 14
- Morris v The Queen (1987) 163 CLR 454
- R v Baden-Clay (2016) 258 CLR 38
- R v Markuleski (2001) 52 NSWLR 82
- R v Stone, unreported, 13 December 1954
- SKA v The Queen (2011) 243 CLR 400
- TK v R (2009) 74 NSWLR 299