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Court of Criminal Appeal 5 August 2020

Martin v R

[2020] NSWCCA 192

Sexual offences
APPEAL CONVICTION REJECTED WHETHER VERDICT UNREASONABLE OR UNSAFE NO REASON TO DOUBT CONVICTION GROUND UPHELD IN RELATION TO ONE COUNT

Citation: Martin v R [2020] NSWCCA 192
Court: Court of Criminal Appeal, NSW
Date: 5 August 2020
Judges: Hoeben CJ at CL, Harrison J, Beech-Jones J

Background

The applicant was the former de facto partner of the mother of two child complainants, referred to as AB and CD. The alleged offending occurred in 1997 while the family lived together in the Newcastle area. The applicant was charged with ten counts of sexual intercourse with a child under ten years and two counts of aggravated indecent assault, one relating to each complainant.

At trial in the District Court, the jury acquitted the applicant on all of the more serious sexual intercourse counts but convicted him on the two aggravated indecent assault counts (counts 1 and 6). The evidence of each sibling was admitted as tendency evidence in relation to the counts concerning the other.

The applicant was sentenced to an aggregate term of three years imprisonment with a non-parole period of one year and eight months. He sought leave to appeal his convictions on two grounds.

  • Whether the jury's guilty verdicts on the two aggravated indecent assault counts were inconsistent with the acquittals on the more serious charges
  • Whether the convictions were unreasonable or unsafe having regard to the whole of the evidence

Decision

On the inconsistency ground, the Court rejected the appeal. The verdicts were explicable on the basis that the jury accepted both complainants as witnesses of truth but required something additional before convicting on the more serious charges. For count 1 (relating to AB), the additional factor supporting the conviction was AB's consistent and corroborated complaint history. For count 6 (relating to CD), the tendency evidence from AB provided that additional support.

On the unreasonableness ground, the Court reached different conclusions for each count. In relation to count 1 (AB), the Court found that the evidence was not unreasonable to accept. AB's account was cogent, and his complaint history, though complicated, was consistent in key respects. The conviction on count 1 was nonetheless ultimately set aside on the basis described below.

In relation to count 6 (CD), the Court upheld the ground. CD had significant memory difficulties and a series of complaints that were materially inconsistent with one another. The Court found that no jury acting reasonably could have been satisfied beyond reasonable doubt of the count 6 charge on CD's evidence alone. The conviction on count 6 therefore depended on the tendency evidence from AB. Once the conviction on count 1 was set aside as unreasonable, relying on that tendency evidence to support count 6 was itself problematic. Because the jury may have also reasoned in reverse, using the count 6 finding to support count 1, the count 6 conviction could not stand either.

The Court declined to enter an acquittal on count 6, notwithstanding that the applicant had nearly completed the custodial portion of his sentence. The Court held that the decision whether to retry the applicant should be left to the Director of Public Prosecutions, given the seriousness of the charge, the public interest in prosecution of offenders, and the importance of not usurping the DPP's prosecutorial discretion.

Orders Made

  • Leave granted to raise both grounds of appeal
  • Appeal allowed
  • Both convictions quashed
  • Verdict of not guilty entered on count 1
  • New trial ordered on count 6
  • Matter listed in the District Court Arraignments List at Newcastle on 24 September 2020

Key Takeaways

  • A jury may return verdicts that appear facially inconsistent with acquittals without those verdicts being legally inconsistent, where the acquittals and convictions are explicable by reference to the evidence available for each charge, such as corroborating complaint history or tendency evidence.
  • Where a conviction rests substantially on tendency evidence drawn from a co-complainant's account, the reasonableness of that tendency evidence depends on the reliability of the underlying conviction it supports.
  • The Court of Criminal Appeal confirmed that once a conviction relied upon to establish tendency reasoning is itself set aside as unreasonable, any conviction that depended on that tendency evidence is also unsustainable.
  • An appellate court should ordinarily order a new trial, rather than enter an acquittal, where there is evidence capable of supporting a conviction, even if the accused has nearly completed the custodial component of their sentence. The interests of justice and the public interest in prosecution are relevant factors.
  • Under the Criminal Appeal Act 1912, the decision to retry an accused following a quashed conviction ordinarily rests with the Director of Public Prosecutions, not with the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), ss 5(1), 8(1)
- Evidence Act 2005 (NSW)

Cases:
- AH v R [2019] NSWCCA 152
- Black v The Queen (1993) 179 CLR 44
- Curran v R [2020] NSWCCA 171
- Jafary v R [2018] NSWCCA 243
- Jiminez v The Queen (1992) 173 CLR 572
- Libke v The Queen (2007) 230 CLR 559
- Longman v R (1989) 168 CLR 79
- M v The Queen (1994) 181 CLR 487
- Mackenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- Pell v The Queen [2020] HCA 12
- R v Markuleski (2001) 52 NSWLR 82
- R v Taufahema (2007) 228 CLR 232
- R v TK (2009) 74 NSWLR 299
- SKA v The Queen (2011) 243 CLR 400
- Spies v The Queen (2000) 201 CLR 603
- The Queen v Baden-Clay (2016) 258 CLR 308
- Walker v R [2019] NSWCCA 4