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Court of Criminal Appeal 30 August 2019

Ganiji v R

[2019] NSWCCA 208

Sexual offences
CRIMINAL LAW APPEAL AND NEW TRIAL CONVICTION APPEAL APPLICANT CONVICTED OF NON ASSESSMENT OF FACTUAL CIRCUMSTANCES APPEAL AND NEW TRIAL

Citation: Ganiji v R [2019] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 30 August 2019
Judges: Basten JA at [1]; Button J at [54]; Lonergan J at [63]

Background

The applicant stood trial on two counts arising from a single incident on 7 February 2016. Count 1 alleged non-consensual sexual intercourse (fellatio). Count 2 alleged indecent assault. Both offences were alleged to have occurred on the same occasion involving the same complainant.

The jury convicted on Count 1 and acquitted on Count 2. The applicant was sentenced to five years imprisonment with a non-parole period of three years. It was not disputed that the act of sexual intercourse had taken place; the central question at trial was whether the complainant had consented.

The applicant filed a notice of appeal out of time, raising two grounds: first, that the guilty verdict was unreasonable or could not be supported given the acquittal on Count 2; and second, that the trial judge had failed to adequately direct the jury on the use of doubts about the complainant's credibility on one count when considering the other (the so-called "Markuleski direction").

  • Whether the guilty verdict on Count 1 was unreasonable or could not be supported having regard to the evidence, given the acquittal on Count 2.
  • Whether a rational basis existed for the jury to accept the complainant's evidence on one count but not the other, without that difference being explained solely by doubts about her general credibility.
  • Whether the trial judge's direction to the jury was adequate, in particular regarding the use of any doubts arising from one count when assessing credibility on the other.
  • Whether, in the absence of any objection or request for a further direction at trial, the applicant required leave to raise the jury direction ground on appeal.

Decision

On the "inconsistent verdicts" ground, the Court rejected the framing of differing verdicts on separate counts as necessarily demonstrating inconsistency or error. Basten JA emphasised that "credibility" is not a single, binary finding applied uniformly across all aspects of a complainant's evidence. A jury is not asked whether it believes a witness generally; it is asked whether it accepts her evidence on the specific elements of each charge beyond reasonable doubt.

The Court applied the approach confirmed in MFA v The Queen and explained in R v TK: where a conviction and an acquittal coexist, an appellate court should ask whether there is a rational explanation for the acquittal that does not depend on general doubts about the complainant's credibility. In the present case, the evidence supporting Count 1, including the nature of the conduct and the initial complaints made by the complainant, was significantly more substantial than the evidence supporting Count 2. That distinction provided a rational basis for the differing verdicts, and the conviction was not unreasonable.

On the jury direction ground, no objection had been taken to the direction at trial and no further direction had been sought. The trial judge had, in any event, given an explicit direction addressing how doubts about parts of a witness's account could be relevant to assessing her truthfulness or reliability generally. The Court found that the direction, considered in context, was adequate. The absence of any objection from experienced defence counsel was a significant factor, and the Court noted that it was consequently denied the benefit of any analysis that would have been generated had an objection been taken.

All three judges agreed the appeal should be dismissed.

Orders Made

• Appeal dismissed
• Ground one of the appeal dismissed
• Ground two of the appeal dismissed

Key Takeaways

  • Differing verdicts on related counts do not automatically demonstrate inconsistency or unreasonableness on the part of the jury. The Court of Criminal Appeal confirmed that the correct inquiry is whether a rational explanation for the acquittal exists independently of general doubts about the complainant's credibility.

  • Credibility is not a single, indivisible finding. A jury may rationally accept a complainant's evidence on one count while entertaining doubt on another, particularly where the quality and consistency of the evidence differs between counts.

  • Where explanations for an acquittal can be found in the weight, consistency, or quantity of the evidence rather than in general disbelief of the witness, a guilty verdict on another count will not ordinarily be rendered unreasonable on that basis alone. This principle, established in MFA v The Queen and R v TK, was confirmed and applied here.

  • A failure to object to a jury direction at trial, or to seek a further direction, will ordinarily require the applicant to obtain leave to raise the issue on appeal under r 4 of the Criminal Appeal Rules (NSW).

  • In dismissing the direction ground, the Court observed that an adequate Markuleski-type direction had been given, and that defence counsel's acceptance of the direction without objection indicated satisfaction with it in the context of the whole trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 578A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 294, 294AA
- Criminal Appeal Rules (NSW), r 4

Cases
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Jafary v R [2018] NSWCCA 243
- AH v R [2019] NSWCCA 152
- Hogan (a pseudonym) v R [2019] NSWCCA 125
- Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22