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Court of Criminal Appeal 3 May 2021

Mucaj v R

[2021] NSWCCA 84

Sexual offences
CRIME APPEAL CHALLENGE TO UNREASONABLE VERDICT LEAVE REQUIRED APPEAL INCONSISTENT VERDICTS

Citation: Mucaj v R [2021] NSWCCA 84
Court: Court of Criminal Appeal, NSW
Date: 3 May 2021
Judges: Basten JA (leading judgment), Davies J, Button J (both agreeing)

Background

The appellant was convicted by a jury of two sexual offences against a female relative following an incident at his rural property near Murrumbateman in April 2018. The complainant had met the appellant at a local takeaway shop and was subsequently driven to his property, where she alleged she was pushed into a shed and sexually assaulted. After leaving the property, she made two phone calls reporting the assault and attended Canberra Hospital that afternoon.

The jury returned verdicts on four counts: guilty on count 1 (detaining without consent for sexual gratification and occasioning actual bodily harm) and count 3 (assault and act of indecency involving the complainant's breasts), but not guilty on count 2 (intentionally inflicting actual bodily harm with intent to have sexual intercourse) and count 4 (assault and act of indecency involving the complainant's vagina). The appellant was sentenced to an aggregate term of 2 years 9 months imprisonment with a non-parole period of 18 months.

The appellant sought leave to appeal his convictions, arguing that the split verdicts were legally inconsistent and that the guilty verdicts were unreasonable and unsupported by the evidence.

  • Whether the verdicts of guilty on counts 1 and 3 were inconsistent with the verdicts of not guilty on counts 2 and 4, such that a miscarriage of justice had occurred.
  • Whether the guilty verdicts were unreasonable or could not be supported having regard to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).
  • Whether leave to appeal was required, given that neither ground involved a question of law alone under s 5(1) of the Criminal Appeal Act 1912 (NSW).

Decision

Leave to appeal: Because neither ground involved a question of law alone, leave to appeal was required under s 5(1) of the Criminal Appeal Act 1912 (NSW). The Director of Public Prosecutions did not oppose leave, and the Court granted it. Despite this, both grounds ultimately failed.

Inconsistent verdicts: Basten JA applied the principles from MacKenzie v The Queen (1996) 190 CLR 348, distinguishing between legal and factual inconsistency. The Court found that the split verdicts reflected a legitimate differentiation by the jury rather than an impermissible compromise. The elements of the offences on which the appellant was convicted differed from those on which he was acquitted, and the evidence supporting each count varied. Importantly, the conviction on count 1 (unlawful detention) did not depend on the same factual foundation as the acquittals on counts 2 and 4. There were available explanations consistent with the jury having approached its task properly, including the possibility that the jury applied a more cautious standard to acts requiring penetration and that the evidence in support of the acquitted counts was less compelling.

Unreasonable verdict: The Court applied the test from M v The Queen (1994) 181 CLR 487, asking whether it was open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of guilt. Basten JA found the answer was clearly yes. The complainant's evidence was corroborated by medical findings of bruising and swelling across her neck, chest, arms and thighs. DNA evidence also implicated the appellant. The complainant made early complaints consistent with her trial evidence, and her account was described as plausible throughout. The appellant's own evidence, both in his recorded interview and at trial, was characterised as difficult to follow and unpersuasive. Davies J independently reviewed the evidence and reached the same conclusion.

Orders Made

  • Leave granted to appeal from the convictions on counts 1 and 3 on the indictment dated 29 October 2019.
  • Appeal dismissed.

Key Takeaways

  • Apparently inconsistent jury verdicts do not automatically constitute a miscarriage of justice. Where available explanations exist, consistent with the jury having properly discharged its function, the verdicts will stand.
  • Under MacKenzie v The Queen, the distinction between legal and factual inconsistency is critical. Factual inconsistency may be explicable by differences in the elements of the offences charged or the strength of evidence on particular counts.
  • In dismissing the unreasonable verdict ground, the Court of Criminal Appeal confirmed that corroborating medical evidence and early complaint can significantly fortify a complainant's credibility, even where a jury returns acquittals on some counts.
  • Where a jury returns mixed verdicts on multiple counts turning on a single complainant's evidence, the direction in R v Markuleski remains relevant: juries should consider whether doubt about one count affects the complainant's reliability generally, but properly directed juries are presumed to have applied that approach correctly.
  • Grounds challenging verdict reasonableness and inconsistency do not involve questions of law alone under the Criminal Appeal Act 1912 (NSW), and leave to appeal is therefore required.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), s 38

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Kirkman (1987) 44 SASR 591