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Court of Criminal Appeal 24 December 2019

BF v R

[2019] NSWCCA 321

Sexual offencesAssault & violenceFirearms & weaponsDomestic & family violence
CRIME CONVICTION APPEAL WHETHER UNREASONABLE VERDICTS APPEAL DISMISSED

Citation: BF v R [2019] NSWCCA 321
Court: Court of Criminal Appeal, NSW
Date: 24 December 2019
Judges: Macfarlan JA (principal judgment); Johnson J and R A Hulme J (agreeing)

Background

The appellant was tried in the District Court on 13 counts arising from a series of alleged sexual and violent acts committed against his female de facto partner over approximately 13 years. The charges included multiple counts of sexual intercourse without consent, aggravated sexual assault, reckless wounding, wounding with intent to cause grievous bodily harm, causing grievous bodily harm with intent, and carrying a firearm with disregard for safety.

The jury acquitted the appellant on ten counts and convicted him on three: carrying a firearm with disregard for the safety of the complainant (count 4), reckless wounding (count 5), and wounding with intent to cause grievous bodily harm (count 6). All three guilty verdicts related to acts of physical violence rather than sexual offences.

The appellant sought leave to appeal against those convictions on the ground that the guilty verdicts were unreasonable or could not be supported by the evidence, particularly in light of the ten acquittals. His counsel argued that the jury must have had serious doubts about the complainant's credibility generally, making it unreasonable for the jury to have convicted on the remaining counts based substantially on her evidence.

  • Whether the verdicts of guilty on counts 4, 5 and 6 were unreasonable or could not be supported having regard to the evidence.
  • Whether the jury's ten acquittals were necessarily indicative of a general rejection of the complainant's credibility such that the three guilty verdicts could not stand.
  • Whether logical and reasonable explanations existed to reconcile the divergent verdicts across the 13 counts.

Decision

Macfarlan JA (with Johnson J and R A Hulme J agreeing) dismissed the appeal after conducting an independent assessment of the evidence on each count. His Honour applied the well-established principle that an appellate court must ask whether the jury's guilty verdicts were reasonably open, not whether a different jury might have acquitted.

The Court confirmed that a verdict of not guilty does not necessarily mean the jury disbelieved the complainant. As the High Court explained in MFA v The Queen (2002), a juror may consider a complainant's account more probable than not, yet still stop short of being satisfied beyond reasonable doubt, particularly where there is no corroborating evidence. Acquittals on some counts therefore do not compel the conclusion that the jury rejected the complainant's credibility across the board.

On the specific counts where the appellant was convicted, the Court found there were logical and reasonable bases to explain why the jury differentiated between counts. The evidence supporting the three guilty verdicts was qualitatively stronger than that for the counts resulting in acquittal. For example, corroborating evidence, including photographic and medical evidence and pretext calls, reinforced the complainant's account on those particular counts.

Applying the framework from R v TK (2009) and Nguyen v The Queen [2017] NSWCCA 145, Macfarlan JA focused the inquiry on whether there was a rational explanation for the acquittals other than disbelief of the complainant. His Honour concluded there was, citing factors including the variable quality of corroboration across counts, potential exaggeration in some aspects of the complainant's evidence, and the different nature of the underlying allegations. The verdicts were consistent with a jury conscientiously applying the trial judge's directions to each count individually.

Orders Made

  • Leave to appeal against convictions granted.
  • Appeal dismissed.
  • Suppression order varied: publication of any information tending to reveal the identity of the complainant, the appellant, any of their children, or any witnesses or persons named in the trial (other than police officers) in connection with the proceedings prohibited for five years from the date of the order, applying throughout the Commonwealth, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the grounds in ss 8(1)(a), (c) and (d).

Key Takeaways

  • A conviction appeal based on alleged inconsistency between verdicts will fail where logical and reasonable explanations exist for the jury's differentiation across counts. Reconcilability of the verdicts is the operative test.
  • Acquittals on some counts involving the same complainant do not mandate a finding that the jury regarded the complainant as generally untruthful. A jury can accept part of a complainant's evidence while declining to be satisfied beyond reasonable doubt on other parts.
  • Where corroborating evidence varies between counts, that variation can provide a rational basis for differential verdicts. The Court of Criminal Appeal confirmed this as a recognised basis for reconciling apparently divergent outcomes.
  • In applying the unreasonable verdict ground under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), the central inquiry is whether a rational explanation exists for the acquittals, not whether one exists for the convictions.
  • Suppression orders made at the trial level are capable of being continued on appeal, though the Court of Criminal Appeal may narrow their terms where appropriate.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a), (c), (d), 12
- Crimes Act 1900 (NSW), ss 33(1), 35(4), 61I, 61J, 66I, 66J, 93G
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases:
- Holloway v R [2017] NSWCCA 17
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- MG v R [2017] NSWCCA 14
- Nguyen v The Queen [2017] NSWCCA 145
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Vasilevski v The Queen [2019] NSWCCA 277
- Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78