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Court of Criminal Appeal 30 October 2019

Mulholland v R

[2019] NSWCCA 257

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION IDENTIFICATION NO ERROR IN DIRECTIONS VERDICT NOT UNREASONABLE

Citation: Mulholland v R [2019] NSWCCA 257
Court: NSW Court of Criminal Appeal
Date: 30 October 2019
Judges: Simpson AJA, Wilson J, Ierace J (Ierace J writing)

Background

The appellant was convicted by a jury in August 2017 of recklessly inflicting bodily harm with intent to have sexual intercourse, contrary to s 61K(a) of the Crimes Act 1900 (NSW). The offence arose from an assault on a woman walking home alone late at night in Randwick on 14 March 2016. The assailant grabbed her from behind, dragged her to the ground, and attempted to pull at her clothing before she escaped by grabbing a beer bottle from a nearby bag.

The central issue at trial was identification. The appellant denied being the assailant and gave an account in his police interview that he had been robbed by unknown persons near the same location that night, losing his backpack and clothes. The prosecution relied on DNA evidence connecting the appellant to a chef's jacket taken by the complainant during the struggle, the presence of the same brand of beer at the scene and in the appellant's home, and the complainant's visual identification of the assailant.

The appellant sought leave to appeal his conviction on two grounds: that the trial judge erred in the directions given to the jury regarding identification evidence, and that the verdict was unreasonable or unsupported by the evidence.

  • Whether the trial judge erred in directing the jury about the physical characteristics of the accused as they related to identification evidence
  • Whether the verdict was unreasonable or could not be supported having regard to the evidence, applying the principles in SKA v The Queen (2011) 243 CLR 400

Decision

On the first ground, the Court of Criminal Appeal found no error in the trial judge's directions to the jury on identification. The directions were assessed against the requirements under ss 116 and 165 of the Evidence Act 1995 (NSW), which concern the reliability warnings for identification evidence. Ierace J concluded the directions adequately addressed the jury's task in evaluating the identification evidence.

On the second ground, the Court considered whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. Ierace J examined the totality of the evidence, including the DNA profile on the chef's jacket (assessed as over 100 million times more likely to have come from the appellant than from an unrelated individual), the matching beer brand, the appellant's own account placing him in the same area on the same night in similar circumstances, and the complainant's evidence of seeing the assailant's face.

The Court addressed the appellant's specific arguments, including that the absence of visible injuries on the appellant was inconsistent with the complainant having struck him during the struggle, and that his former partner had not noticed blood on him when he returned home. Ierace J rejected both arguments as not necessarily following from the evidence, noting the complainant had described her blows as weak and that blood from her elbow injury would not necessarily have transferred to the assailant.

The Court was satisfied that there was no reasonable inference inconsistent with guilt available on the evidence and rejected both grounds of appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a verdict will not be set aside as unreasonable simply because the accused offered an alternative explanation for the physical evidence, provided that explanation was considered and the jury was entitled to reject it.
  • Identification directions under ss 116 and 165 of the Evidence Act 1995 (NSW) will be assessed for adequacy in the context of the whole charge to the jury, not against a formulaic checklist.
  • Strong DNA evidence, when combined with other circumstantial material such as matching items connecting the accused to the scene, can form a proper basis for a jury's finding of guilt beyond reasonable doubt.
  • In dismissing the appeal, the Court applied the SKA v The Queen test, confirming that an appellate court must itself examine whether the jury, acting on the whole of the evidence, could rationally have been satisfied of guilt, rather than merely deferring to the jury's verdict.
  • The absence of corroborating physical injury on an accused does not automatically create a reasonable doubt where the complainant's own evidence explained why such injury may not have occurred or been visible.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61K(a), 61L
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), ss 116, 165, 191

Cases:
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Collins v R [2006] NSWCCA 162
- Dickson v R [2017] NSWCCA 78
- R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455