AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 1 February 2019

Walker v R

[2019] NSWCCA 4

Sexual offences
CRIMINAL LAW CONVICTION APPEAL JURY TRIAL PRETEXT PHONE CALL VERDICTS NOT INCONSISTENT

Citation: Walker v R [2019] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 1 February 2019
Judges: Hoeben CJ at CL; Rothman J; Price J

Background

The applicant stood trial in the District Court at Griffith in February and March 2016 on sixteen counts of sexual misconduct against a single complainant. The offending was alleged to have occurred across six separate incidents between 1985 and 1989, when the complainant was aged between approximately 12 and 16. The counts included charges of unlawful carnal knowledge, sexual intercourse with a child, and sexual intercourse without consent.

The trial was unusual in that the applicant conceded during his evidence that he had engaged in a sexual relationship with the complainant and that the relationship had begun when she was under 16. His case was that the relationship did not commence until she was 15, and that all sexual contact was consensual throughout.

The jury acquitted the applicant on eleven counts and convicted him on five: counts 1, 2, 6, 15 and 16. He was sentenced to an aggregate term of imprisonment with a non-parole period of five years. He then sought leave to appeal against the convictions on the basis that the guilty verdicts were inconsistent with and could not stand alongside the acquittals.

  • Whether the guilty verdicts on counts 1, 2, 6, 15 and 16 were unreasonable or could not be supported having regard to the evidence.
  • Whether those guilty verdicts were inconsistent with the jury's acquittals on the remaining eleven counts, such that no reasonable jury could have arrived at both sets of verdicts.
  • Whether a rational distinction could be drawn between the counts on which the applicant was convicted and those on which he was acquitted.

Decision

Hoeben CJ at CL undertook a detailed analysis of the evidence relating to each group of counts. His Honour examined the complainant's evidence, the applicant's evidence, documentary exhibits, and the recording of a pretext telephone call between the complainant and the applicant. The convictions on counts 1 and 2 related to events at Merungle Hill, where the applicant himself conceded the relationship was most advanced. Counts 6, 15 and 16 related to separate incidents at Yanco and Merungle Hill.

The court found there were rational bases on which the jury could have distinguished between the counts on which it convicted and those on which it acquitted. For the acquitted counts, the jury could reasonably have harboured doubt about the specific locations, the complainant's precise age at the relevant times, or the credibility of her account on those particular occasions. The guilty verdict counts, by contrast, involved locations and circumstances where the evidence was stronger and more consistent. The outcome on the acquitted counts did not create doubt about the guilty verdict counts; a logical and coherent reconciliation of all verdicts was available.

Rothman J agreed with the proposed orders and added a brief observation about the legal framework. His Honour drew attention to the principles explained in Darby v R [2016] NSWCCA 164, noting that inconsistent verdict principles and the unreasonable verdict standard require the court to determine independently whether any reasonable doubt exists on the whole of the evidence, including by factoring the acquittals into that assessment. The court must also ask whether a rational distinction exists between the guilty and not-guilty verdicts. Here, such a distinction plainly existed, and neither limb of the test favoured the applicant.

Orders Made

  • Leave to appeal granted.
  • Appeal against conviction dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a jury's acquittals on some counts do not automatically render guilty verdicts on related counts inconsistent or unreasonable: a rational distinction between the two sets of verdicts is sufficient to reconcile them.
  • Under the principles affirmed in Darby v R, the appellate court must independently assess whether a reasonable doubt arises on the whole of the evidence, with not-guilty verdicts factored into that assessment alongside the guilty verdicts.
  • Where a defendant concedes parts of the Crown case at trial (here, the existence and underage commencement of a sexual relationship), that concession can itself provide a rational basis for distinguishing counts on which the jury convicted from those on which it acquitted.
  • No inconsistency arises merely because a jury returns a mixed verdict across a multi-count indictment: the question is whether the verdicts can be reconciled through a rational evidentiary distinction, not whether the outcomes appear superficially contradictory.
  • In dismissing the appeal, the court applied the well-established position that the inconsistent verdict ground will succeed only if no reasonable jury, properly applying its mind to the evidence, could have arrived at the differing verdicts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 66C, 112

Cases:
- Darby v R [2016] NSWCCA 164
- Jafary v R [2018] NSWCCA 243
- Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- ML v R [2015] NSWCCA 27
- Miller v R [2014] NSWCCA 34
- Osland v The Queen [1998] HCA 75; 197 CLR 316
- Stanford v R [2018] NSWCCA 249
- Still v R [2010] NSWCCA 131
- TK v R [2009] NSWCCA 151; 74 NSWLR 299
- Tsaccounis v R [2016] NSWCCA 163