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16
Court of Criminal Appeal 9 July 2019

AH v R

[2019] NSWCCA 152

Sexual offences
CRIME CONVICTION APPEAL

Citation: AH v R [2019] NSWCCA 152
Court: Court of Criminal Appeal, New South Wales
Date: 9 July 2019
Judges: Simpson AJA (principal judgment); Button J and Lonergan J (agreeing)

Background

The applicant was tried in the District Court on eight counts of aggravated indecent assault under s 61J of the Crimes Act 1900 (NSW). The complainant was the daughter of his former wife, and the circumstance of aggravation was that she was under 16 years of age at the relevant times. The alleged offending spanned several years and locations, including the family home, a car, Batemans Bay, and Canberra.

The jury acquitted the applicant on one count at the direction of the trial judge (Count 6) and returned verdicts of not guilty on Count 2 and its alternative after deliberation. It convicted him on the remaining six counts (Counts 1, 3, 4, 5, 7 and 8). The applicant was sentenced to an aggregate term of 11 years and 6 months' imprisonment, with a non-parole period of 7 years and 6 months.

The applicant sought leave to appeal his convictions on two grounds. He argued first that the guilty verdict on Count 1 was irreconcilably inconsistent with the not guilty verdict on Count 2, given that both counts arose from the same occasion at Batemans Bay. He argued second that the remaining guilty verdicts were unreasonable and unsupported by the evidence.

  • Whether the jury's guilty verdict on Count 1 (digital penetration at Batemans Bay) was irreconcilably inconsistent with its not guilty verdict on Count 2 (penile/vaginal penetration at the same occasion), such that the conviction on Count 1 should be set aside.
  • Whether each of the remaining guilty verdicts was unreasonable or not supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487.

Decision

Ground 1: Inconsistent verdicts

Simpson AJA, with Button and Lonergan JJ agreeing, rejected the argument that the verdicts were irreconcilably inconsistent. The applicable test is one of logic and reasonableness: the question is whether, viewed as a whole, the verdicts cannot be reconciled on any rational hypothesis consistent with the jury's proper performance of its duties. A mixed verdict, where a jury acquits on some counts and convicts on others arising from related events, does not automatically signal that the jury disbelieved the complainant's account entirely.

The Court noted that the two Batemans Bay counts related to distinct acts, each requiring separate proof. The jury's acquittal on Count 2 may well have reflected a higher level of doubt about proof of that specific act, rather than a wholesale rejection of the complainant's credibility. The Court found this interpretation consistent with, and indeed supportive of, the jury having carefully discharged its duty to assess each count individually on the evidence relevant to it.

Ground 2: Unreasonable verdicts

Applying the standard from M v The Queen, as confirmed in The Queen v Baden-Clay (2016) 258 CLR 308, the Court conducted an independent review of the evidence. All three judges were satisfied beyond reasonable doubt that the guilty verdicts were not unreasonable. The Court accepted the Crown's analysis that the presence of other people at certain locations did not preclude the offending, noting evidence that the applicant took steps to conceal his conduct and that the other children present were younger than the complainant. Evidence of the complainant's distress on the Batemans Bay occasion was also significant, and the jury was entitled to reject the applicant's alternative explanation for that distress.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • A mixed verdict, where a jury convicts on some counts and acquits on others arising from closely related events, is not necessarily irreconcilably inconsistent. The test is whether the verdicts can be reconciled on any rational hypothesis consistent with the jury properly performing its role.
  • Acquittal on one count does not, as a matter of logic, require acquittal on a related count. A jury's differentiated findings can reflect careful, count-by-count assessment of the evidence rather than a wholesale rejection of a complainant's credibility.
  • Where multiple counts arise from the same occasion but involve distinct acts, each count requires independent proof. A jury is entitled to maintain different levels of satisfaction in respect of each discrete alleged act.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal reaffirmed that an appellate court must independently assess the whole of the evidence, while giving appropriate weight to the jury's advantage of seeing and hearing witnesses.
  • The presence of other people at a location of alleged offending is not, by itself, a basis for finding a guilty verdict unreasonable, particularly where evidence suggests steps were taken to conceal the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61J
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 294B, 306U
- Jury Act 1977 (NSW)

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 (distinguished)
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Jafary v R [2018] NSWCCA 243