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Court of Criminal Appeal 4 December 2018

TWM v R

[2018] NSWCCA 276

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER VERDICTS UNREASONABLE

Citation: TWM v R [2018] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 4 December 2018
Judge(s): Fullerton J (primary reasons); Davies J and N Adams J agreeing

Background

The applicant faced trial in September 2016 on ten counts alleging sexual offences against a child who was his niece by marriage, committed between 2004 and 2010 when the complainant was aged between four and ten years. The offences included sexual intercourse with a child under ten and aggravated indecent assault, charged under the Crimes Act 1900 (NSW).

The jury returned guilty verdicts on seven counts and not guilty verdicts on three counts. The applicant was sentenced to nine years imprisonment with a six-year non-parole period. He sought leave to appeal, arguing that the guilty verdicts were unreasonable when viewed alongside the acquittals.

The appeal was heard in March 2018, but before the Court delivered its decision, the applicant died of natural causes in May 2018. The Court proceeded to deliver judgment regardless.

  • Whether the guilty verdicts on counts 2 to 5 and 7 to 9 were unreasonable and could not be rationally supported having regard to the jury's not guilty verdicts on counts 1, 6 and 10
  • Whether the jury's rejection of the complainant's evidence on certain counts necessarily undermined the reliability of her evidence on the remaining counts
  • Whether a rational basis existed to reconcile the different verdicts returned on related counts

Decision

The Court applied the well-established test from M v The Queen (1994) 181 CLR 487: an appellate court must ask 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 giving full regard to the jury's primary role and its advantage of seeing and hearing witnesses. Where mixed verdicts are returned, the focus of the enquiry is on whether a rational explanation exists for the acquittals, not the convictions.

The Court found that each of the three acquittals could be explained on a rational basis. The acquittal on count 1 was explicable by significant inconsistencies between the complainant's 2011 and 2013 interviews, including a discrepancy as to whether she was four or seven years old at the time, combined with the trial judge's direction that the time of the offence was a particular the Crown had to prove beyond reasonable doubt. The acquittal on count 6 was explicable by the complainant's uncertain evidence as to digital penetration and an incorrect jury direction that referred to penetration "to any extent of the female vagina" rather than the correct formulation referable to penetration of the genitalia. The acquittal on count 10 was explicable because the jury may not have been satisfied there was a sexual connotation to the touching described, and neither of the complainant's parents recalled her complaining about that incident when she made her initial disclosure.

Given that rational explanations existed for all three acquittals, the Court was not persuaded that the jury ought to have entertained a reasonable doubt on the seven guilty counts. The delay in the complainant's disclosures, and the inconsistencies between her 2011 and 2013 interviews, were matters the jury was entitled to weigh for itself. The guilty verdicts could not be characterised as unreasonable.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • Where a jury returns mixed verdicts on a multi-count sexual assault indictment, an appellate court's task is to examine whether there is a rational explanation for the acquittals, not to re-examine the basis for the convictions.
  • A conviction will not be set aside as unreasonable merely because a jury acquitted on related counts; the verdicts need only be explicable on a rational basis, even if several possible explanations exist.
  • Inconsistencies between a complainant's accounts across different recorded interviews are matters for the jury to assess, and their presence does not automatically render guilty verdicts on other counts unreasonable.
  • Under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), an appellate court applying M v The Queen must independently assess the sufficiency and quality of evidence while paying full regard to the jury's constitutional role as the primary arbiter of guilt.
  • In dismissing this appeal, the Court of Criminal Appeal confirmed that an incorrect jury direction (here, on the elements of digital penetration) can provide a rational explanation for an acquittal without thereby contaminating the guilty verdicts returned on other counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 61O(2), 66A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Merrick v R [2017] NSWCCA 264
- Stanford v R [2018] NSWCCA 249
- MC v R [2017] NSWCCA 274
- A reference by the Attorney General for the State of NSW re Frederick Lincoln McDermott [2013] NSWCCA 102
- R v Jefferies [1969] 1 QB 120
- R v Rowe [1955] 1 QB 573
- R v Stringer [2000] NSWCCA 293
- Sen v The Queen (1991) 30 FCR 173