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Court of Criminal Appeal 3 May 2021

Nguyen v R

[2021] NSWCCA 85

Sexual offences
CRIME TRIAL APPEAL AGAINST CONVICTION CHARGES OF SEXUAL AND INDECENT ASSAULT

Citation: Nguyen v R [2021] NSWCCA 85
Court: Court of Criminal Appeal, NSW
Date: 3 May 2021
Judge(s): Bathurst CJ, Beech-Jones J, Wilson J

Background

The applicant was tried in the District Court on two charges arising from an incident at a house party in June 2017. The complainant, a former girlfriend, had consumed a substantial quantity of alcohol and cannabis and became severely unwell. After friends put her to bed in a bedroom, the applicant entered the room and got into bed with her. The Crown alleged that, without speaking and without her consent, the applicant digitally penetrated her vagina (Count 1, sexual intercourse without consent) and then placed her hand on his exposed penis and moved it (Count 2, indecent assault).

The applicant admitted getting into bed with the complainant but denied any sexual touching occurred. The jury convicted on Count 1 and acquitted on Count 2. The District Court imposed a three-year community corrections order.

The applicant sought leave to appeal against his conviction on Count 1, arguing the guilty verdict was unreasonable and unsafe because it was logically inconsistent with the acquittal on Count 2. Both charges arose from the same episode and rested substantially on the same complainant's evidence.

  • Whether the guilty verdict on Count 1 (sexual intercourse without consent) was unreasonable or unsafe by reason of its apparent inconsistency with the acquittal on Count 2 (indecent assault).
  • Whether a rational explanation existed that could reconcile the two verdicts without concluding the jury acted improperly or irrationally.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Wilson J delivering the principal judgment (Bathurst CJ and Beech-Jones J agreeing).

Wilson J applied the established test from Mackenzie v R (1996) 190 CLR 348: a convicted person must show that, viewed as a whole, the verdicts are truly inconsistent, and that no rational explanation for the difference is apparent from the evidence. The court's task is not to speculate about the jury's deliberations but to assess whether any logical and rational basis for the differing verdicts can be found in the evidence.

A critical feature of the evidence was a series of text exchanges and telephone conversations between the complainant and the applicant in March 2018, approximately nine months after the incident. In those communications, the complainant confronted the applicant about having touched her genitals on the night of the party. The applicant's responses, including an apparent failure to deny that allegation in any clear terms, provided independent corroborative support for the complainant's evidence on Count 1. No equivalent independent support existed for the Count 2 allegation that he had placed her hand on his penis.

The court found it was open to the jury to look for corroboration of the complainant's account, given her level of intoxication, and to find that support only in relation to Count 1. That reasoning provided a proper and rational basis for the split verdict. The court was satisfied the verdicts reflected a careful, conscientious approach by the jury rather than any compromise or impermissible reasoning.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • The community corrections order imposed by the District Court on 22 November 2019 (for three years, expiring 21 November 2022, with a condition prohibiting association with the complainant for two years) remained in place.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an appellant challenging inconsistent verdicts must demonstrate that no rational explanation for the difference is available from the evidence taken as a whole, applying Mackenzie v R (1996) 190 CLR 348.
  • A split verdict is not automatically unreasonable simply because two charges arise from the same episode and rest on the same complainant's testimony. The court examines whether independent or additional evidence supports one charge but not the other.
  • Post-incident communications between an accused and a complainant can constitute independent corroborating evidence capable of supporting a conviction on one count while leaving another count without equivalent support, providing a rational basis for differing verdicts.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that juries may legitimately apply a cautious approach to a complainant's evidence affected by intoxication, returning guilty verdicts only where independent support is available.
  • No error was established in the jury's approach: the court found the verdicts were consistent with the jury carefully following the trial judge's directions on how to assess the complainant's evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I (sexual intercourse without consent) and 61L (indecent assault)

Cases:
- Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Roos v R [2019] NSWCCA 67