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Court of Criminal Appeal 7 November 2018

Stanford v R

[2018] NSWCCA 249

Sexual offences
CRIMINAL LAW APPEAL WHETHER VERDICTS UNREASONABLE APPEAL WHETHER VERDICTS UNREASONABLE

Citation: Stanford v R [2018] NSWCCA 249
Court: New South Wales Court of Criminal Appeal
Date: 7 November 2018
Judge(s): Simpson AJA (with Walton J agreeing); Wilson J dissenting

Background

The appellant was tried in the District Court at Tamworth on an indictment charging three counts of sexual intercourse with a child under the age of ten. All offences were alleged to have occurred on a single day in 2007 or 2008. The complainant, who had a moderate intellectual disability, had been in foster care and was approximately eight years old at the time of the alleged offending. She came forward approximately seven years later, during a school class, and subsequently participated in a recorded police interview.

The jury returned guilty verdicts on the first and second counts but acquitted the appellant on the third count. The appellant did not seek leave to appeal his sentences but appealed against the two convictions on grounds relating to jury directions and the reasonableness of the verdicts.

  • Whether the trial judge erred by failing to give the jury a warning under s 165 of the Evidence Act 1995 that the complainant's evidence may have been unreliable
  • Whether the guilty verdicts on counts one and two were unreasonable, or could not be supported, having regard to the evidence as a whole
  • Whether the acquittal on count three undermined the reliability of the complainant's evidence sufficiently to render the guilty verdicts on counts one and two unavailable
  • Whether there was a rational basis for the jury's differentiated verdicts across the three counts

Decision

Ground one (s 165 warning): Simpson AJA addressed the failure to give a reliability warning under s 165 of the Evidence Act 1995, but the central analysis and the outcome of the appeal turned on the second ground.

Ground two (unreasonableness of the verdicts): Simpson AJA, with Walton J agreeing, granted leave and allowed the appeal. The applicable test asks whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. While an appellate court must not discount the jury's advantage in observing witnesses, where evidence lacks credibility for reasons not explained by the manner in which it was given, a reasonable doubt experienced by the appellate court is a doubt a reasonable jury ought to have experienced.

The majority concluded that the complainant's evidence contained numerous inconsistencies and that her account, particularly regarding the opportunity for the offences to have occurred, was not supported by other witnesses. The acquittal on count three was treated as a significant factor: it indicated the jury did not accept the complainant's evidence to the requisite standard on that occasion, raising questions about reliability across all counts. Taken together, the evidence lacked the cogency necessary to sustain the convictions on counts one and two.

Wilson J dissented. Her Honour accepted that inconsistencies existed and that the acquittal on count three warranted close scrutiny. However, Wilson J concluded that the jury's opportunity to observe the complainant directly, a witness whose intellectual disability would have been immediately apparent to the jury, was particularly significant and resolved any issues of doubt. Her Honour further reasoned that an acquittal on one count does not constitute a wholesale rejection of the complainant as a credible witness, and that there was a rational basis for the differentiated verdicts.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal allowed
  • Verdicts of guilty set aside
  • Verdicts of not guilty entered

Key Takeaways

  • Where an accused is convicted on some counts but acquitted on others in a multi-count indictment, an appellate court must determine whether there is a proper rational basis to reconcile the verdicts, assessed by reference to the specific facts and a test of logic and reasonableness.
  • An acquittal on one count does not automatically render guilty verdicts on other counts unreasonable, but it is a factor requiring close scrutiny of the complainant's overall credibility and reliability.
  • Sufficient inconsistency in a complainant's evidence, particularly where that inconsistency is not explained by the manner of giving evidence, can generate a reasonable doubt that the appellate court considers a reasonable jury ought to have experienced.
  • The advantage enjoyed by a jury in observing witnesses, particularly those with intellectual disabilities whose presentation may have been materially unusual, carries significant weight in the appellate assessment, as Wilson J's dissent illustrates.
  • A majority of the Court of Criminal Appeal found that the complainant's evidence lacked the degree of cogency necessary to sustain the convictions, notwithstanding the deference ordinarily owed to jury findings on credibility.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(a) and s 5(1)(b)
- Evidence Act 1995 (NSW), s 165
- Criminal Procedure Act 1986 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Jones v The Queen (1997) 191 CLR 439
- R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- Whitehorn v The Queen (1983) 152 CLR 657
- SKA v R [2009] NSWCCA 186
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Baden-Clay (2016) 258 CLR 38; [2016] HCA 35
- MG v R [2017] NSWCCA 14