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Court of Criminal Appeal 20 August 2021

Goldman v R

[2021] NSWCCA 197

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEAL DISMISSED

Citation: Goldman v R [2021] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 20 August 2021
Judge(s): Payne JA (principal judgment); Davies J and Ierace J agreeing

Background

The applicant stood trial in the District Court on five counts arising from alleged conduct during an intimate relationship. The complainant and the applicant had begun a relationship in 2016, when both were teenagers. The Crown alleged the relationship deteriorated over time as the applicant became progressively more aggressive and violent.

The five counts were: assault occasioning actual bodily harm (count 1, pushing the complainant down stairs); assault by choking (count 2); two counts of sexual intercourse without consent (counts 3 and 5); and indecent assault (count 4). The defence maintained throughout that the couple engaged in consensual "rough" sex, and that the choking incident underlying count 2 occurred during consensual intercourse with the complainant's agreement.

The jury acquitted the applicant on counts 1, 3, 4 and 5, but convicted him on count 2. He was sentenced to a 24-month community correction order. He then sought leave to appeal to the Court of Criminal Appeal, arguing the conviction on count 2 was unreasonable in light of the acquittals and the complainant's alleged unreliability.

  • Whether the guilty verdict on count 2 (assault by choking) was unreasonable or could not be supported by the evidence, having regard to all the evidence and the acquittals on the remaining four counts.
  • Whether the acquittals on counts 1, 3, 4 and 5 necessarily indicated that the jury rejected the complainant's credibility generally, thereby undermining the conviction on count 2.
  • Whether 19 specific matters raised by the applicant, relating to alleged inconsistencies and credit failures by the complainant, demonstrated that the jury ought to have entertained a reasonable doubt about guilt on count 2.

Decision

Payne JA (with Davies J and Ierace J agreeing) granted leave to appeal but dismissed the appeal. The Court held that the conviction on count 2 was not unreasonable and that no miscarriage of justice occurred.

On the relationship between the acquittals and the conviction, the Court rejected the applicant's premise. It is not correct to assume that acquittals on some counts and convictions on others necessarily denote a rejection of the complainant's overall credibility or reliability. The Court's task was to scrutinise the evidence and make its own assessment of whether the guilty verdict was reasonable, while remaining conscious of the jury's advantage in observing witnesses firsthand.

The Court found a logical and reasonable basis for the jury's differential verdicts. In particular, the count 2 choking allegation was supported by immediate and consistent complaint evidence, which distinguished it from the other counts. The jury's differentiation was consistent with conscientious attention to the trial judge's directions and to the distinct evidence applicable to each count.

Turning to the 19 credibility matters raised by the applicant, the Court found none of them warranted setting aside the verdict. Several of the asserted concerns did not arise on the evidence, while the remaining matters were factual questions properly within the jury's province. Payne JA noted that the complainant gave evidence over four days, was cross-examined over three days, gave careful and considered responses, made appropriate concessions, and did not embellish her account. The jury was well placed to evaluate any conflicts and imperfections in her testimony.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that acquittals on some counts do not automatically undermine a conviction on another count arising from the same complainant's evidence. There is no rule that a jury's partial acquittal necessarily signals a general rejection of a complainant's credibility.
  • Where differential verdicts exist, the appellate court must examine whether a logical and reasonable basis exists for the distinction the jury drew, rather than treating inconsistency as presumed.
  • Sufficient evidence existed, including immediate and consistent complaint evidence specific to count 2, to support the jury's decision to differentiate that count from the others on which it acquitted.
  • Alleged credibility inconsistencies, even numerous ones, will not automatically render a verdict unreasonable. Conflicts and imperfections in a witness's testimony are ordinarily matters for the jury's assessment, particularly where the jury had the benefit of observing the witness over extended cross-examination.
  • Applying Pell v The Queen (2020) 268 CLR 123 and MFA v The Queen (2002) 213 CLR 606, an appellate court must make its own independent assessment of whether a verdict was reasonable, while giving appropriate weight to the jury's forensic advantages.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 61, 61I, 61L
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (NSW), s 191

Cases:
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- AH v R [2019] NSWCCA 152
- ML v R [2015] NSWCCA 27
- Holt v R [2021] NSWCCA 140
- Jafary v R [2018] NSWCCA 243