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Court of Criminal Appeal 15 February 2019

SC v R

[2019] NSWCCA 25

Sexual offencesAssault & violenceDomestic & family violence
CRIMINAL LAW APPLICANT ACQUITTED OF COUNTS 1 5 AND 9 BUT CONVICTED OF 6 WHETHER VERDICTS INCONSISTENT

Citation: SC v R [2019] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 15 February 2019
Judge(s): Gleeson JA; Schmidt J; Adamson J (principal judgment)

Background

The applicant was convicted by jury on three counts: aggravated sexual intercourse without consent (count 6), and two counts of assault occasioning actual bodily harm (counts 7 and 8). The complainant in each count was his then wife. The conduct underlying the convictions occurred between February and March 2014 and included forced anal intercourse causing rectal bleeding, a punch to the mouth requiring six sutures, and a sustained physical attack involving the applicant grabbing the complainant by the neck on two occasions.

The jury acquitted the applicant on five other counts (counts 1 to 5 and 9), which covered earlier incidents of alleged sexual violence and physical assault going back to January 2010, as well as an alleged threat made with a knife on the same night as count 8.

The applicant sought leave to appeal both his conviction and his sentence. On conviction, he argued that the verdict on count 6 was inconsistent with his acquittals, and that the trial judge should have discharged the jury after prejudicial evidence was inadvertently introduced. On sentence, he argued that the sentencing judge had incorrectly assessed the gravity of the offending and that the sentence was manifestly excessive.

  • Whether the jury's guilty verdict on count 6 (aggravated sexual intercourse without consent) was logically inconsistent with its not guilty verdicts on counts 1 to 5 and 9
  • Whether the trial judge erred by declining to discharge the jury after a reference to a "pistol" was introduced into evidence, and whether trial counsel's conduct was relevant to that ground
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the aggregate sentence was manifestly excessive

Decision

Alleged inconsistent verdicts (Ground 2)

The Court considered whether the verdicts could be reconciled on a logical and reasonable basis, consistent with the approach in R v Murray (1987) 11 NSWLR 12. Adamson J reviewed the evidence on each count and concluded that the jury had a rational basis for differentiating count 6 from the counts on which it acquitted. The guilty verdicts on counts 7 and 8 were supported by corroborating evidence beyond the complainant's account alone, including medical evidence and a witness. For count 6, there was also supporting evidence, including a text message sent by the applicant to the complainant, hospital records documenting rectal bleeding, and the complainant's prompt disclosure to a friend. By contrast, the earlier counts lacked comparable independent corroboration. The verdicts were therefore reconcilable and this ground failed.

Discharge of jury following prejudicial evidence (Ground 1)

During cross-examination, the complainant made a reference to a "pistol" in a context suggesting the applicant had access to a firearm, a matter not charged and not otherwise before the jury. The applicant argued the trial judge should have discharged the jury. The Court noted that trial counsel had contributed to the situation by pursuing a line of cross-examination that elicited the reference, and had not sought a discharge at the time. The trial judge gave a correcting direction. Applying principles from Crofts v The Queen (1996) 186 CLR 427 and The Queen v Glennon (1992) 173 CLR 592, the Court found no substantial miscarriage of justice. The direction was capable of curing any prejudice, and discharge of the jury was not required. This ground also failed.

Sentence grounds (Grounds 3 and 4)

The applicant submitted that the sentencing judge had over-assessed the seriousness of the offending because the offences were committed within a domestic relationship. The Court rejected this reasoning firmly, holding that there is no rule that sexual offences are less serious when committed by an offender in a relationship with the victim. The Court noted that a breach of trust is itself an aggravating feature in domestic violence offences, not a mitigating one. On manifest excess, the Court reviewed the individual indicative sentences and the aggregate term, taking into account the absence of remorse, guarded rehabilitation prospects, minimal criminal history, and the serious nature of each offence. The Court was not persuaded that the sentence was excessive, and both sentence grounds failed.

Orders Made

  • Leave to appeal against conviction and sentence granted
  • Appeal dismissed

Key Takeaways

  • Apparently inconsistent verdicts will not be set aside if they can be reconciled on a logical and reasonable basis: the Murray direction framework permits juries to differentiate between counts where the quality and quantity of supporting evidence differs across those counts.
  • A reference to prejudicial and uncharged conduct during cross-examination does not automatically require discharge of the jury. Where trial counsel contributed to the situation and did not seek a discharge, and a correcting direction was given, no substantial miscarriage of justice may arise.
  • There is no rule that sexual or physical offences committed within a domestic relationship are objectively less serious than equivalent offences committed between strangers. The Court of Criminal Appeal confirmed the position clearly.
  • Breach of trust is a factor that aggravates, rather than reduces, the seriousness of domestic violence offending when assessed at sentencing.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that sentencing judges are afforded considerable flexibility in assessing objective seriousness, and that manifest excess is assessed by reviewing the result, not by identifying a specific error in reasoning.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61I, 61J, 114
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 28(1)
- Criminal Appeal Act 1912 (NSW), s 8

Cases
- Crofts v The Queen (1996) 186 CLR 427
- Dinsdale v The Queen (2000) 202 CLR 321
- Gately v The Queen (2007) 232 CLR 208
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- MFA v The Queen (2002) 213 CLR 606
- Mulato v R [2006] NSWCCA 282
- R v Birks (1990) 19 NSWLR 677
- R v Markuleski (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- Robinson v The Queen (1999) 197 CLR 162
- The Queen v Glennon (1992) 173 CLR 592
- Veen v The Queen (No 2) (1988) 164 CLR 465