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6
Court of Criminal Appeal 10 August 2020

Collins v R

[2020] NSWCCA 198

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT

Citation: Collins v R [2020] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 10 August 2020
Judge(s): Meagher JA (primary judgment); Wilson J and N Adams J (agreeing)

Background

The applicant stood trial in the District Court at Penrith on six counts of sexual offending against his stepdaughter, who was 11 or 12 years old at the time of the alleged offences. The only direct evidence of the offending was the complainant's own complaint and testimony. Three counts (counts 3, 4 and 5) concerned alleged offending said to have occurred on the same day.

The jury returned a mixed verdict. It convicted the applicant on counts 1, 2 and 6 (aggravated indecent assault and aggravated sexual intercourse occurring at different times and locations) and acquitted him on counts 3, 4 and 5 (three offences alleged to have occurred on the same day at the same address). The applicant was sentenced to an aggregate term of six years imprisonment with a non-parole period of three years.

The applicant sought leave to appeal his convictions on grounds including that the guilty verdicts were unreasonable when viewed against the acquittals, and that the trial judge's directions on the interdependence of the counts were inadequate.

  • Whether the jury's guilty verdicts on counts 1, 2 and 6 were unreasonable and could not be supported having regard to the acquittals on counts 3, 4 and 5, where the sole evidence came from the same complainant
  • Whether the acquittals necessarily diminished the complainant's overall credibility such that the remaining convictions could not reasonably stand
  • Whether the trial judge's "Markuleski direction" (the direction requiring the jury to carry a reasonable doubt on one count into its assessment of other counts) was adequate in the circumstances

Decision

Meagher JA granted leave to appeal on ground 1 (unreasonableness in light of the mixed verdicts) and allowed the appeal on that basis, making it unnecessary to consider the remaining grounds. The central question was whether the acquittals so damaged the complainant's credibility that no reasonable jury, properly applying the evidence, could have been satisfied beyond reasonable doubt of guilt on the remaining counts.

The Court drew on the principles in MacKenzie v R and MFA v The Queen to confirm that inconsistency between verdicts does not automatically require appellate intervention. The test under s 6(1) of the Criminal Appeal Act 1912 (NSW) is unreasonableness, not mere inconsistency. A conviction is unreasonable only where the only inference available is that the jury failed to perform its function of deciding the facts logically and reasonably.

Applying those principles to the particular facts, Meagher JA concluded that the acquittals on counts 3, 4 and 5 could not be rationally explained in a way that left the guilty verdicts on counts 1, 2 and 6 intact. There was nothing in the evidence or surrounding circumstances to suggest the complainant's account was more reliable with respect to the convicted counts than it was with respect to the acquitted counts. The jury's implicit rejection of parts of her testimony necessarily diminished her overall credibility in a way that carried through to the remaining counts.

The Court also considered, and rejected, the possibility that the mixed verdicts could be explained by the jury treating counts 3 to 5 as cumulative charges for which a partial conviction was sufficient, or as the product of jury compromise. Neither explanation was reasonably available on the facts, and the Court found that intervention was required to prevent a miscarriage of justice.

Orders Made

  • Leave to appeal granted on ground 1
  • Appeal against conviction allowed
  • Convictions on counts 1, 2 and 6 quashed
  • Verdicts of acquittal entered on counts 1, 2 and 6 in lieu of the convictions

Key Takeaways

  • The test for setting aside a verdict under s 6(1) of the Criminal Appeal Act 1912 (NSW) is unreasonableness, not mere inconsistency between verdicts. Mixed verdicts do not automatically attract appellate intervention.
  • Where the only direct evidence across multiple counts comes from a single complainant, acquittals on some counts can damage that complainant's credibility in a way that renders the remaining convictions unreasonable, but this conclusion must be established by examining the particular facts of each case rather than applied as a blanket rule.
  • MFA v The Queen (2002) 213 CLR 606 makes clear that acquittals on some counts do not necessarily or mechanically entail a rejection of a complainant's credibility across all counts; the significance of those acquittals must be assessed by reference to the specific evidence and circumstances.
  • Certain categories of mixed verdict, including those explicable as the jury treating a smaller number of convictions as sufficient where multiple charges are laid, or as the product of jury compromise, are recognised as unreasonable in a strict sense but are nonetheless generally not interfered with by appellate courts out of respect for the jury's constitutional role.
  • In this case, the Court of Criminal Appeal found no rational explanation for the acquittals on counts 3 to 5 that was consistent with the convictions on counts 1, 2 and 6 being reasonably open, and accordingly quashed all three convictions and entered acquittals.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes Act 1900 (NSW), ss 61M, 66C

Cases
- MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Jones v The Queen (1997) 191 CLR 439
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Lane v R (2018) 265 CLR 196; [2018] HCA 28
- IMM v R (2016) 257 CLR 300; [2016] HCA 14
- Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
- AH v R [2019] NSWCCA 152
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Chen v DPP (2011) 83 NSWLR 224; [2011] NSWCCA 205
- Kurdi v R [2011] NSWCCA 179
- Nguyen v R [2017] NSWCCA 145
- Norris v R [2007] NSWCCA 235
- PA v R [2015] NSWCCA 18
- Pell v R [2019] VSCA 186
- Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
- R v ACK [2000] NSWCCA 180
- R v Crisologo (1997) 99 A Crim R 178
- R v J (No 2) [1998] 3 VR 602
- R v Kirkman (1987) 44 SASR 591