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Court of Criminal Appeal 22 November 2019

Vasilevski v R

[2019] NSWCCA 277

Sexual offencesAssault & violencePublic order & justice offences
CRIME APPEAL APPEAL AGAINST CONVICTION INCONSISTENCY OF VERDICTS UNREASONABLE VERDICT APPEAL

Citation: Vasilevski v R [2019] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 22 November 2019
Judges: Bell P, Simpson AJA and Fullerton J

Background

The appellant was tried in the District Court of New South Wales on nine counts, including multiple charges of sexual assault, assault, and assault occasioning actual bodily harm, all involving the same complainant. The jury acquitted him on seven counts but convicted him on two: assault occasioning actual bodily harm (Count 6, arising from an incident in December 2016) and influencing a witness to withhold true evidence (Count 9).

Count 9 arose from events in early 2017. The appellant had drafted a statutory declaration and persuaded the complainant to replicate and sign it, intending to influence her testimony in proceedings before the Muswellbrook Local Court. The complainant had an intellectual disability, and the sentencing judge found she was vulnerable by reason of her relationship with the appellant and his domination of her.

The appellant was sentenced to an aggregate term of four years' imprisonment with a non-parole period of three years. He sought leave to appeal both his conviction and the aggregate sentence, arguing the convictions were unreasonable and the sentence manifestly excessive.

  • Whether the jury's acquittals on seven counts rendered its convictions on Counts 6 and 9 unreasonable or unsafe under s 6 of the Criminal Appeal Act 1912 (NSW).
  • Whether the acquittal on Count 7 (sexual assault on 19 December 2016) was necessarily inconsistent with the conviction on Count 9 (influencing the complainant to withhold true evidence about that same sexual assault).
  • Whether the identification of "true evidence" for the purposes of s 323(a) of the Crimes Act 1900 (NSW) required the jury to have found the underlying sexual assault actually occurred.
  • Whether the aggregate sentence, and the indicative sentences for Counts 6 and 9, were manifestly excessive.

Decision

Count 6 (assault occasioning actual bodily harm): The Court rejected the argument that acquittals on the other counts must be taken as a rejection of the complainant's credibility across the board. A jury is not obliged to reach the same verdict on every count, and an acquittal may result from a reasonable doubt about one element of a particular charge rather than a wholesale disbelief of the complainant. The conviction on Count 6 was not unreasonable.

Count 9 (influencing a witness): The appellant argued that because the jury acquitted him on Count 7 (the sexual assault charge to which the statutory declaration related), the complainant's evidence about that assault could not be "true evidence," making the Count 9 conviction logically untenable. The Court disagreed. The acquittal on Count 7 was explicable on a basis other than factual innocence: the jury may simply have harboured doubt about whether the appellant knew the complainant was not consenting, an element distinct from whether the intercourse occurred. The statutory declaration addressed the sexual intercourse itself, and that evidence could still constitute "true evidence" capable of being withheld.

Sentence: The Court considered the indicative sentence of two years and six months on Count 6 (against a maximum of five years) and three years and six months on Count 9 (against a maximum of seven years). It found neither indicative sentence was excessive. The Court distinguished the present case from the Court of Criminal Appeal's earlier decision in Evans v R [2017] NSWCCA 281, noting the appellant's conduct here was more serious: he drafted the statutory declaration himself, the complainant was intellectually disabled and vulnerable, and the false declaration was presented to the Local Court. The aggregate sentence of four years, which incorporated a significant degree of concurrence, was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal conviction granted; appeal dismissed.
  • Leave to appeal aggregate sentence granted; appeal dismissed.

Key Takeaways

  • A jury's acquittal on some counts does not automatically render a conviction on other counts unreasonable. Juries may reach different verdicts on different counts for reasons that do not involve rejecting a witness's general credibility.
  • Where a sexual assault charge requires proof that the accused knew the complainant was not consenting, an acquittal may reflect doubt about that mental element rather than a finding that no sexual intercourse occurred. That distinction can be critical when a related witness-influencing charge turns on whether the evidence sought to be suppressed was "true."
  • Under s 323(a) of the Crimes Act 1900 (NSW), the "true evidence" a defendant intended to suppress need not be evidence that a jury subsequently accepted as true beyond reasonable doubt in related proceedings.
  • In sentencing for witness-influencing offences, courts will consider factors including the vulnerability of the witness, the nature of the defendant's control over that witness, and the directness of the impact on the administration of justice.
  • Upholding the aggregate sentence, the Court of Criminal Appeal confirmed that the degree of concurrence built into an aggregate term is a relevant factor in assessing whether that term is unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 61I, 323
- Criminal Appeal Act 1912 (NSW) ss 5(1), 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 53, 53A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14
- Criminal Procedure Act 1986 (NSW) ss 11, 166
- Criminal Code (Cth) s 127(1)

Cases:
- Evans v R [2017] NSWCCA 281
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MFA v R (2002) 213 CLR 606; [2002] HCA 53
- M v R (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Jones v R (1997) 191 CLR 439; [1997] HCA 56
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Libke v R (2007) 230 CLR 559; [2007] HCA 30