Citation: Kim v R [2020] NSWCCA 288
Court: Court of Criminal Appeal, NSW
Date: 11 November 2020
Judges: Payne JA (principal judgment, [1]); Davies J (agreeing, [80]); Garling J (agreeing, [84])
Background
The applicant stood trial in early 2020 for offences alleged to have occurred in July 2018 against his former girlfriend, an international student. The Crown alleged that on the night in question, the applicant had used threats relating to the complainant's university enrolment and visa status to coerce her into returning to her apartment, where he then engaged in non-consensual sexual acts and assaulted her.
The jury returned a mixed result. It convicted the applicant of sexual intercourse without consent by way of anal intercourse (count 1) and common assault (count 3), but acquitted him of a separate count of sexual intercourse without consent by way of vaginal intercourse (count 2). The trial judge had directed not guilty verdicts on the originally framed aggravated counts, leaving the jury to consider the statutory alternative under s 61I of the Crimes Act 1900 (NSW).
Following conviction, the applicant was sentenced to six years' imprisonment with a non-parole period of four years on count 1, and a fixed term of 12 months on count 3. He was granted appeal bail and sought leave to appeal his convictions.
Legal Issues
- Whether the guilty verdicts on counts 1 and 3 were irreconcilably inconsistent with the acquittal on count 2, given that the conduct underlying all three counts occurred in close proximity in time
- Whether the guilty verdicts on counts 1 and 3 were unreasonable or unsupported by the evidence, having regard to alleged weaknesses in the complainant's evidence and the CCTV footage tendered by the defence
Decision
Ground 1: Inconsistent verdicts
Payne JA confirmed that the applicable test for inconsistency is one of logic and reasonableness. The applicant needed to establish that no reasonable jury, properly directing its mind to the facts, could have arrived at both the conviction and the acquittal. The Court rejected any assumption that an acquittal on one count necessarily signals that the jury disbelieved the complainant generally. Mixed verdicts, the Court reiterated, can instead reflect a jury conscientiously following its directions to consider each count separately on its own evidence.
Here, the Court identified a rational basis for the differentiated verdicts. The complainant's evidence that she had not consented to either anal or vaginal intercourse could rationally be accepted beyond reasonable doubt, while a reasonable possibility remained that the applicant did not know she was not consenting to vaginal intercourse. Because the mental element differed across the counts in a way that was open to the jury to resolve differently, the verdicts were not irreconcilably inconsistent.
Ground 2: Unreasonable verdicts
The Court noted that imperfections in a witness's recollection are common and do not of themselves render a verdict unreasonable. The assessment of the complainant's credibility and reliability was squarely a matter for the jury, as the constitutional tribunal for deciding facts. Payne JA reviewed the entirety of the evidence, including the CCTV footage strongly urged upon the Court by senior counsel for the applicant.
The Court was unpersuaded. Davies J, having independently reviewed the CCTV exhibits, concluded that the footage tended to support the complainant's account rather than the applicant's. None of the matters raised by the applicant, taken individually or together, disclosed discrepancies or inadequacies of such a character as to require the jury to have entertained a doubt as to guilt. The verdicts were open on the evidence.
Orders Made
- Leave to appeal granted
- Appeal dismissed (save for re-sentencing consequent on appeal bail)
- Count 3: 12 months' imprisonment commencing 4 July 2020
- Count 1: non-parole period of 4 years from 4 January 2021, with an additional term of 2 years expiring 3 January 2027 (first eligible for parole 3 January 2025)
- Applicant taken into custody on the day of judgment
Key Takeaways
- The test for irreconcilable inconsistency requires the applicant to show that no reasonable jury, properly directing its mind to the facts, could have returned both verdicts. A high bar, it is not met merely because counts concern conduct occurring close in time.
- Mixed verdicts do not automatically indicate that a jury rejected the complainant's credibility. They may instead demonstrate that the jury conscientiously assessed each count on its own evidence, as directed.
- Where the mental element differs across counts (such as knowledge of non-consent), a rational explanation for differentiated verdicts can exist even where the underlying physical acts were closely connected.
- In dismissing the unreasonableness ground, the Court of Criminal Appeal confirmed that it is not enough to point to deficiencies in a witness's recollection or to rely on CCTV footage said to undermine credibility; the evidence must contain inadequacies so significant as to compel a doubt about guilt.
- Credibility and reliability assessments remain within the province of the jury as the constitutional tribunal for determining facts, and appellate courts are slow to disturb verdicts resting on those assessments.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61, 61I, 61J
Cases
- MacKenzie v The Queen (1996) 190 CLR 348
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Jafary v R [2018] NSWCCA 243
- Jones v The Queen (1997) 191 CLR 439
- KRM v The Queen (2001) 206 CLR 221
- MFA v The Queen (2002) 213 CLR 606
- ML v R [2015] NSWCCA 27
- AH v R [2019] NSWCCA 152
- R v Markuleski (2001) 52 NSWLR 82
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- The Queen v Baden-Clay (2016) 258 CLR 308
- M v The Queen (1994) 181 CLR 487
- SKA v The Queen (2011) 243 CLR 400
- Libke v The Queen (2007) 230 CLR 559