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Court of Criminal Appeal 9 November 2021

Dadley v R

[2021] NSWCCA 267

Sexual offences
CRIME APPEALS A PPEAL AGAINST CONVICTION APPEALS APPEAL AGAINST CONVICTION INCONSISTENT VERDICTS

Citation: Dadley v R [2021] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 9 November 2021
Judges: Bell P (principal judgment); Walton J and Bellew J (agreeing)

Background

The applicant, a man tried on indictment, faced two counts of sexual intercourse without consent and one count of committing an indecent act. The allegations arose from events in the early hours of 9 December 2016, after a work Christmas party. The complainant, the applicant, and a mutual colleague had returned to the complainant's apartment by Uber, agreed on sleeping arrangements, and retired to separate rooms.

The three counts were closely related. Count 1 alleged the applicant had penile-vaginal intercourse with the complainant while she slept in her own bedroom. Count 2 alleged he then moved her to his bedroom and had intercourse with her again. Count 3 alleged that after the act in Count 2, he licked his fingers and applied saliva to the outside of the complainant's vagina. The applicant denied all three allegations, saying he slept in his own bedroom throughout and was awoken by the complainant screaming at him.

A first trial in February 2020 ended in a hung jury. At the second trial in July 2020, the jury acquitted the applicant on Count 1 but returned guilty verdicts on Counts 2 and 3. He was sentenced to an aggregate term of 3 years and 3 months, with a non-parole period of 2 years. He then appealed to the Court of Criminal Appeal.

  • Whether the guilty verdicts on Counts 2 and 3 were inconsistent with the acquittal on Count 1, in circumstances where the three counts were so temporally and contextually intertwined that the jury's doubts as to the complainant's credibility on Count 1 must have carried across to the other counts.
  • Whether the guilty verdicts on Counts 2 and 3 were unreasonable and unable to be supported having regard to the whole of the evidence, including the DNA evidence, the complainant's intoxication, and the conflicting evidence about the applicant's state of dress at the time he was removed from the apartment.

Decision

Inconsistent verdicts

The Court found the acquittal on Count 1 was irreconcilable with the guilty verdicts on Counts 2 and 3. Because there were no other eyewitnesses, the acquittal could only be explained by the jury harbouring doubt about the complainant's credibility. The three counts were so closely linked in time and context that no plausible or rational basis existed for treating the complainant's evidence as reliable for Counts 2 and 3 but not for Count 1. The Court applied the principles from R v Markuleski and found this was not a case where the different verdicts could be explained by, for example, differences in supporting evidence between counts.

Unreasonable verdicts

Independently, the Court found the guilty verdicts on Counts 2 and 3 were unreasonable on the whole of the evidence. A key plank of the prosecution case was a trace of the applicant's DNA found in the complainant's vaginal swab, taken some 17 to 18 hours after the alleged assaults. Expert evidence established that such DNA could not survive in the vagina for more than 12 hours. That evidence was therefore more consistent with secondary transfer, meaning the complainant had picked up the applicant's DNA in innocuous circumstances, than with direct sexual contact.

Additional evidentiary tensions reinforced that conclusion. The complainant said the applicant was not wearing pants when she evicted him from the apartment. The colleague present in the lounge room gave unchallenged evidence that the applicant was, in fact, wearing pants at that time. The Court also noted the complainant's level of intoxication and the nature of the applicant's words and conduct as she removed him, which were more consistent with bewilderment than guilt. Taken together, these matters rendered the verdicts on Counts 2 and 3 unreasonable and incapable of being sustained.

Orders Made

  • The applicant's convictions on Counts 2 and 3 were quashed.
  • The applicant's sentence was set aside.

Key Takeaways

  • Where multiple counts in a sexual assault trial arise from events that are tightly intertwined in time and context, and where the complainant is the sole witness, an acquittal on one count may be logically incompatible with guilty verdicts on the remaining counts if the acquittal can only be explained by doubt about the complainant's credibility.
  • The Court of Criminal Appeal confirmed that the Markuleski framework for inconsistent verdicts requires attention to whether the different outcomes are explicable by some rational distinction in the evidence, or whether no such distinction can be identified.
  • DNA evidence used to support a conviction must be assessed in light of expert evidence about its limitations, including the maximum period a DNA trace can survive in a given location. Where that period is shorter than the time between the alleged event and the forensic sample being taken, the evidence may be more consistent with innocent secondary transfer than with the alleged act.
  • Unchallenged evidence from an independent witness that directly contradicts the complainant's account of a specific detail can be a material factor in assessing the reasonableness of a guilty verdict.
  • Under s 130A(3) of the Criminal Procedure Act 1986 (NSW), a pre-trial evidentiary ruling from a first trial carries through to a retrial, meaning parties are generally not permitted to re-agitate those rulings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 130A(3), 306I
- Evidence Act 1995 (NSW), s 137

Cases
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Bussey v R [2020] NSWCCA 280
- Gage v R [2021] NSWCCA 222
- Long (a pseudonym) v R [2021] NSWCCA 212
- Director of Public Prosecutions v Paulino (2017) 54 VR 109; [2017] VSCA 38