AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 4 August 2020

Pethybridge v R

[2020] NSWCCA 185

Sexual offences
CRIMINAL LAW APPEAL AGAINST CONVICTION UNREASONABLE VERDICT

Citation: Pethybridge v R [2020] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 4 August 2020
Judge(s): Leeming JA (principal judgment); Lonergan J; Hidden AJ

Background

The appellant was tried in the District Court over five days in January 2020 on an indictment containing three counts. All three counts related to the same complainant, a young man aged between 18 and 20, and arose from events occurring in the early hours of 13 July 2017. The appellant and the complainant had been friends for some years.

The alleged events took place in a shared bed where four people were sleeping together: the appellant, the complainant, the appellant's partner ("Sol"), and a young woman. The appellant was acquitted on count 1 (assault accompanied by an act of indecency, alleged to have occurred while all four were in the bed) but convicted on counts 2 and 3 (a further assault accompanied by an act of indecency, and sexual intercourse without consent, respectively) arising from events after Sol had left the bed. The appellant was sentenced to an aggregate term of 2 years and 9 months imprisonment, with a non-parole period of 1 year and 5 months, and was granted bail pending appeal.

The appellant advanced a single ground of appeal: that the guilty verdicts on counts 2 and 3 were unreasonable or could not be supported having regard to the evidence and the jury's acquittal on count 1.

  • Whether the guilty verdicts on counts 2 and 3 were unreasonable or could not be supported by the evidence, applying the test in M v The Queen (1994) 181 CLR 487
  • Whether the guilty verdicts were irreconcilable with the jury's acquittal on count 1, given the same complainant's evidence underpinned all three counts
  • Whether, when the evidence was assessed as a whole, the jury ought to have entertained a reasonable doubt as to guilt on the convicted counts

Decision

Leeming JA (with whom Lonergan J and Hidden AJ agreed) undertook a detailed review of the trial record and concluded that the verdicts on counts 2 and 3 could not be sustained. The court applied the standard in M v The Queen: where, on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt of guilt, the Court of Criminal Appeal is bound to set aside the verdict.

The court identified five significant difficulties with the complainant's evidence. First, the jury's acquittal on count 1 was difficult to reconcile with the guilty verdicts on counts 2 and 3, given that the complainant's credibility and reliability were equally in issue across all counts. Second, the text messages sent by the complainant to his boyfriend shortly after the alleged assault were inconsistent in tone with the complainant's account of being highly distressed immediately afterward. Third, the evidence of the young woman who had been present in the bed was difficult to reconcile with the complainant's version of events in several respects: she was awake, heard the complainant speak, but did not sense him pushing the appellant away, and gave a different account of what occurred immediately after the alleged assault.

Further, despite the complainant telling Sol that the young woman had witnessed what occurred, the young woman maintained a friendship with the appellant for approximately a year while ending her friendship with the complainant. When all of the evidence was assessed together, the court found there were serious doubts about the complainant's account, particularly that the appellant performed fellatio on him for approximately five seconds before he pushed the appellant away. Those doubts were not resolved by any other evidence at trial, and the jury ought to have entertained reasonable doubts on both counts on which they returned guilty verdicts.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Guilty verdicts on counts 2 and 3 quashed
  • Verdicts of acquittal entered in lieu

Key Takeaways

  • The Court of Criminal Appeal confirmed that, under the standard established in M v The Queen, a guilty verdict must be set aside where the appellate court concludes the jury ought to have entertained a reasonable doubt, assessed by reference to the whole of the evidence at trial.
  • Inconsistencies between a complainant's evidence and the testimony of other witnesses present at the time were central to the court's finding that the verdicts could not be supported.
  • A jury's acquittal on one count that arises from the same transaction and depends on the same witness's credibility can inform an appellate court's assessment of whether convictions on related counts are unreasonable.
  • The court addressed the operation of s 578A of the Crimes Act 1900 (NSW), confirming that the statutory non-publication requirement protecting a complainant's identity did not extend to prohibiting publication of the accused's name, where that name alone would not be likely to lead to the complainant's identification.
  • Post-event communications between the complainant and others, and the subsequent conduct and relationships of key witnesses, can form part of the material considered when an appellate court assesses whether a verdict is unreasonable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L, 578A
- Bail Act 2013 (NSW), s 22

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen [2020] HCA 12; 94 ALJR 394
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Roos v R [2019] NSWCCA 67