Citation: Daaboul v R [2019] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 16 August 2019
Judge(s): Bathurst CJ; Bell P; Hamill J
Background
The applicant faced eight counts arising from alleged conduct towards a former partner. Counts 1 to 3 and 5 to 6 alleged sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). Count 4 alleged intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Counts 7 and 8 both arose from the same incident on 7 April 2016: Count 7 alleged choking with intent to enable sexual intercourse without consent (s 37(2)), and Count 8 alleged aggravated sexual assault occasioning actual bodily harm through that same choking (s 61J(1)).
Following a nine-day trial, the jury could not reach a verdict on Counts 1 to 7 but returned a guilty verdict on Count 8. The applicant had not yet been sentenced when he appealed against the conviction on Count 8.
The appeal raised two principal grounds: first, that the guilty verdict on Count 8 was irrational and inconsistent with the jury's failure to agree on the other counts, particularly Count 7; and second, that the verdict was unreasonable or could not be supported by the evidence.
Legal Issues
- Whether the principles governing inconsistent verdicts apply where the alleged inconsistency arises from a jury's failure to agree on some counts, rather than from a positive acquittal on those counts
- Whether a jury's failure to agree on related counts can logically coexist with a guilty verdict on a separate count arising from the same incident
- Whether the verdict of guilty on Count 8 was unreasonable or unsupported by the evidence, including in light of the jury's inability to agree on Counts 1 to 7
Decision
Inconsistency ground: All three judges rejected this ground. The Court held that the inconsistent verdicts principles may, in some circumstances, apply where the alleged inconsistency involves a failure to agree rather than a positive acquittal, but only where "the difference is incapable of any logical explanation." Where the charges involve different circumstances and different evidence, those principles have no application. The Court found that the failure to agree on Counts 1 to 7 did not cast such doubt on the complainant's credibility as to render a conviction on Count 8, which depended on acceptance of her evidence, logically untenable.
Hamill J added a nuance: a jury's failure to agree may in particular circumstances support a ground that a guilty verdict is unreasonable, with the appropriate test being unreasonableness rather than inconsistency. His Honour agreed, however, that the inconsistency ground itself was not made out on the facts here.
Unreasonable verdict ground: All three judges upheld this ground. The Court concluded it was left with a substantial doubt as to the applicant's guilt on Count 8, and that this was a doubt the jury ought to have entertained, notwithstanding the jury's advantage in seeing and hearing the complainant give evidence in person. Bell P placed particular emphasis on the complainant's failure to mention the alleged sexual assault during her first police interview, conducted just two days after the incident. When expressly invited by the interviewing officer to raise anything important, the complainant responded "There is something" but then referred only to spitting. The detailed account of sexual assault did not emerge until a second interview two days later. The Court found this a significant matter that weighed against the reliability of the complainant's account of Count 8.
Orders Made
- Leave to appeal granted
- Conviction on Count 8 of the indictment quashed
- Verdict of acquittal entered in lieu of the conviction
Key Takeaways
- Inconsistent verdict principles are not automatically engaged merely because a jury fails to agree on some counts while convicting on another. The principles may apply only where the differentiation between the outcomes is incapable of logical explanation, and cannot apply where the charges involve distinct circumstances and evidence.
- A jury's failure to agree on related counts is not irrelevant to appellate review. Under Hamill J's analysis, such a failure can lend support to a ground that a guilty verdict on a related count is unreasonable, with the operative test remaining one of unreasonableness rather than inconsistency.
- Where an appellate court finds a doubt that it concludes the jury ought to have shared, that doubt may justify quashing a conviction even where the jury had the advantage of observing witnesses, including the complainant, give evidence directly.
- Significant unexplained omissions in a complainant's first account to police, particularly when the complainant was expressly invited to raise important matters, can contribute to a finding that a guilty verdict was unreasonable or unsupported by evidence.
- The Court of Criminal Appeal confirmed that trial judges' concerns about a verdict, while noted, play no role in the appellate court's own assessment of whether a verdict is unreasonable or unsupported by the evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 37(2), 61I, 61J(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Cases:
- MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
- Osland v R (1998) 197 CLR 316; [1998] HCA 75
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78
- PA v R [2015] NSWCCA 18
- Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249
- Crofts v R [2018] VSCA 197
- R v Formhals [2014] 1 WLR 2219
- McCann v R [2014] NSWCCA 79
- Drysdale v R [2015] NSWCCA 135
- R v DAL [2005] QCA 281
- R v CBF [2012] QCA 294
- R v CX [2006] QCA 409
- R v Garrett [2009] QCA 300