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Court of Criminal Appeal 2 August 2019

Crosland v R

[2019] NSWCCA 175

Sexual offences
CRIME WHETHER VERDICTS ARE INCONSISTENT VERDICTS NOT IRRECONCILABLE

Citation: Crosland v R [2019] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 2 August 2019
Judges: Leeming JA, Davies J, Button J

Background

The applicant stood trial in the District Court at Tamworth before Judge Payne. The indictment contained seven counts alleging sexual offences said to have occurred on 25 January 2015, including counts of sexual intercourse without consent (under s 61I of the Crimes Act 1900 (NSW)) and assault with an act of indecency (under s 61L). All counts arose from events involving the applicant and a 16-year-old complainant who was a close friend of his sister and had stayed overnight at the family home.

The jury returned guilty verdicts on counts 2 through 6, which covered digital penetration, penile penetration, breast assault, and two further incidents of sexual touching said to have occurred in the complainant's sleeping area after she returned from the shed. The jury acquitted the applicant on counts 1 and 7, which related to an allegation of non-consensual oral intercourse in the shed and a separate incident alleged to have occurred in the bedroom.

The applicant sought leave to appeal against the five convictions. No appeal was brought against the aggregate sentence.

  • Whether the guilty verdicts on counts 2 to 6 were unreasonable or unable to be supported having regard to the evidence generally (applying the test in M v The Queen (1994) 181 CLR 487).
  • Whether the guilty verdicts were irreconcilable with the acquittals on counts 1 and 7, such that the convictions could not stand.

Decision

Button J (with whom Leeming JA and Davies J agreed) addressed both limbs of the single ground of appeal in turn.

On the inconsistent verdicts argument, Button J examined each count carefully and identified rational points of differentiation between the acquittal counts and the conviction counts. The acquittal on count 1 (oral intercourse in the shed) was explicable on the basis that the jury may have had a reasonable doubt about consent or the applicant's knowledge of non-consent at that early stage of events. The acquittal on count 7 (an alleged incident in the bedroom witnessed by no one and occurring while Chantelle and the infant slept nearby) could similarly reflect a reasonable doubt about that specific event rather than a wholesale rejection of the complainant's account. The verdicts were not irreconcilable.

On the broader unreasonableness ground, Button J undertook a detailed review of all the evidence, including the complainant's account, the evidence of Chantelle (who had been declared an unfavourable witness under s 38 of the Evidence Act 1995 (NSW)), and the applicant's own evidence. His Honour noted that the jury's discriminating approach, returning different verdicts on different counts, demonstrated it had approached its task with analytical care rather than wholesale acceptance or rejection of any witness's account. Applying the M v The Queen standard, Button J was satisfied it was well open to the jury to convict on counts 2 to 6, and that he did not himself experience a reasonable doubt about those matters.

Button J also observed that appellate courts must give appropriate deference to jury verdicts, particularly where credibility assessments are central. Reading a transcript in chambers is a markedly inferior substitute for the jury's direct assessment of witnesses over several days of trial.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury's acquittal on some counts does not automatically render guilty verdicts on other counts inconsistent or unreasonable: the question is whether rational grounds of differentiation exist between the counts.
  • In dismissing the appeal, the Court of Criminal Appeal applied the M v The Queen (1994) 181 CLR 487 standard, under which a conviction is unreasonable only if the jury, acting rationally, ought not to have been satisfied beyond reasonable doubt of guilt.
  • Discriminating verdicts, where a jury convicts on some counts and acquits on others arising from the same episode, can themselves be evidence that the jury approached its task with appropriate analytical care.
  • Appellate courts reviewing jury verdicts on credibility-dependent evidence must exercise considerable caution and pay due deference to the jury's superior position in assessing demeanour and reliability of witnesses at trial.
  • No single criticism of a Crown case, taken in isolation, will render guilty verdicts unreasonable unless it constitutes what Button J described as a "killer point" that fundamentally undermines the prosecution case.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes Act 1900 (NSW), ss 61I, 61L
- Evidence Act 1995 (NSW), s 38

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- Phillips v R (2006) 225 CLR 303; [2006] HCA 4