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Court of Criminal Appeal 25 October 2019

Wheeler v R

[2019] NSWCCA 255

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER THE VERDICTS WERE UNREASONABLE CREDIBILITY OF THE WITNESS

Citation: Wheeler v R [2019] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 25 October 2019
Judge(s): Bathurst CJ, Garling J, Wright J

Background

The applicant was tried in late 2014 on eight counts involving sexual and indecent assault of a single complainant (referred to by the pseudonym "Bianca"), who was under 16 years of age. The jury convicted him on four counts and acquitted him on the remaining four, returning what are commonly called "differential verdicts." The prosecution case rested almost entirely on Bianca's uncorroborated evidence.

The applicant was sentenced in October 2015 to a total effective head sentence of five years and three months, with a non-parole period of two years and nine months. He had been released on parole by the time the appeal was heard. The appeal was filed in March 2019, well outside the ordinary time limit, but the Crown did not oppose an extension of time.

The applicant challenged only his convictions, not his sentence. His sole ground of appeal was that the jury's verdicts were unreasonable or could not be supported by the evidence, particularly having regard to the acquittals on the other four counts.

  • Whether the jury's verdicts were unreasonable or unsupported by the evidence, including the complainant's credibility.
  • Whether the differential verdicts, four convictions alongside four acquittals based on the same complainant's evidence, were irreconcilable as a matter of logic and reasonableness.
  • Whether an extension of time to bring the appeal should be granted.

Decision

The Court of Criminal Appeal unanimously allowed the appeal and quashed all four convictions. Garling J delivered the principal judgment, with Bathurst CJ and Wright J agreeing.

On the question of inconsistent verdicts, the applicable test is whether the different verdicts are irreconcilable as a matter of logic and reasonableness. The applicant bears the burden of establishing that no reasonable jury, properly applying its mind to the facts, could have arrived at both sets of verdicts simultaneously. A court examining differential verdicts must look for an explanation for the acquittals that does not require doubting the complainant's credibility. If no such explanation exists, the convictions may be unsafe.

Garling J found that no satisfactory explanation could be found for the acquittals that left Bianca's credibility intact. Two matters were particularly significant. First, Bianca's account of the "Marine Rescue Party" incidents, on which the applicant was acquitted, was implausible. The circumstances made it inconceivable that a bystander, her mother, would not have reacted to the conduct as described. Second, statements Bianca made in a third police interview cast further and serious doubt on the reliability of her evidence generally. These credibility problems were not confined to the counts on which the applicant was acquitted; they infected the entirety of her evidence, including the counts on which he was convicted.

Bathurst CJ agreed, adding that the jury's advantage in seeing and hearing the complainant give evidence could not explain away the doubts arising from those two specific factors. Taken cumulatively, the evidence left the jury without a proper basis to be satisfied beyond reasonable doubt on the counts resulting in conviction, and the differential verdicts could not stand together.

Orders Made

  • Leave granted to extend the time within which to bring the application for leave to appeal to 20 March 2019.
  • Leave to appeal granted.
  • Appeal allowed.
  • Convictions on Counts 2, 3, 7 and 8 quashed; acquittals entered in their place.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for inconsistent jury verdicts is one of logic and reasonableness: the applicant must show that no reasonable jury, properly directed, could have returned both the convictions and the acquittals.
  • Where multiple counts rest on a single complainant's uncorroborated evidence, a court examining differential verdicts must ask whether the acquittals can be explained without resort to doubts about the complainant's credibility. If they cannot, the convictions are unsafe.
  • Credibility concerns that arise from one part of a complainant's evidence may be sufficiently pervasive to undermine reliance on other parts of that same evidence, even where the relevant incidents are factually distinct.
  • A jury's advantage in observing a witness give evidence does not automatically rescue credibility findings when the identified doubts arise from matters the jury could assess without reliance on demeanour, such as implausible circumstances or inconsistent prior statements.
  • An extension of time to appeal will ordinarily be assessed against the merits of the appeal itself; where the Crown does not oppose the extension and the appeal ultimately succeeds, leave to extend time is granted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61O(1), 66C(4), 61M(2), 66(2)

Cases
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v R (2011) 243 CLR 400; [2011] HCA 13
- McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
- R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
- MC v R [2017] NSWCCA 274
- AH v R [2019] NSWCCA 152
- Bell v Regina [2017] NSWCCA 207