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Court of Criminal Appeal 17 May 2021

Hugo (a pseudonym) v R

[2021] NSWCCA 99

Sexual offences
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST CONVICTION QUESTION OF MIXED FACT AND LAW CRIMINAL APPEAL ACT 1912 (NSW), S 6(1)

Citation: Hugo (a pseudonym) v R [2021] NSWCCA 99
Court: NSW Court of Criminal Appeal
Date: 17 May 2021
Judges: Gleeson JA; Harrison J; Bellew J

Background

The appellant (referred to by the pseudonym "Hugo" due to statutory publication restrictions) was tried on 13 counts of sexual offences against two children, his nieces S and K. The alleged offending took place across two locations over several years: at a family home in Trangie in western New South Wales, and later in Maroubra in Sydney.

The jury acquitted the appellant on 12 of the 13 counts, including all counts relating to K and all remaining counts relating to S, but convicted him on count 1, a charge of aggravated indecent assault against S under section 61M(2) of the Crimes Act 1900 (NSW). The District Court sentenced him to 15 months' imprisonment with a non-parole period of 7 months, and he was released on bail pending this appeal.

The appellant challenged his conviction on the single ground that the guilty verdict on count 1 was unreasonable, given its apparent inconsistency with the jury's acquittals on the other counts involving S.

  • Whether the guilty verdict on count 1 was unreasonable under section 6(1) of the Criminal Appeal Act 1912 (NSW), having regard to its inconsistency with the acquittals on the remaining counts relating to S.
  • Whether the acquittals on those other counts were necessarily attributable to doubt about the complainant S's credibility, rather than some other explanation.
  • Whether a logical and reasonable reconciliation of the verdicts existed that did not depend on doubting S's credibility.

Decision

The Court of Criminal Appeal applied the principles from MacKenzie v The Queen (1996) 190 CLR 348, which require an appellant to establish inconsistency between verdicts assessed by a standard of logic and reasonableness. Critically, the relevant enquiry focuses not on explaining the conviction, but on whether the acquittals can be explained by something other than doubt about the complainant's credibility.

Gleeson JA (with Harrison J and Bellew J agreeing) examined whether any feature of the evidence could account for the acquittals on counts 2 and 5 to 9 without attributing them to a loss of confidence in S's evidence generally. The Court considered factors including differences in the locations of the alleged offending, the presence or absence of corroborating witnesses, and the consistency of S's account. One particular concern was S's recollection that her mother appeared visibly pregnant during the events giving rise to count 1, a detail the trial judge had specifically identified in summing up as bearing on S's overall credibility.

The Court concluded that no logical and reasonable explanation for the acquittals existed other than that the jury harboured doubt about S's credibility. Because the conviction on count 1 depended entirely on accepting S's evidence as both credible and reliable, and because the acquittals necessarily indicated the jury did not have that confidence, the guilty verdict was unreasonable. It was not open to the jury to be satisfied beyond reasonable doubt of guilt on count 1 while declining to convict on the other counts relating to S.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal allowed.
  • Conviction on count 1 quashed and the sentence imposed in the District Court on 8 March 2019 set aside.
  • A verdict of acquittal entered on count 1 in lieu of the conviction.

Key Takeaways

  • Where a conviction rests entirely on a complainant's credibility, acquittals on other counts involving the same complainant may render that conviction unreasonable if the acquittals can only be explained by doubt about that credibility.
  • The central question in an inconsistent verdicts analysis is not why the jury convicted, but whether the acquittals can be explained without resort to doubts about the complainant's credibility. If no such explanation exists, the conviction may not stand.
  • Under the MacKenzie principles, appellate courts do not substitute their own view of the facts for one open to the jury; however, where no logical reconciliation of the verdicts is available, the unreasonableness ground under section 6(1) of the Criminal Appeal Act 1912 (NSW) is engaged.
  • A jury's ability to consider each charge separately, or to take a merciful view on particular counts, remains a possible explanation for divergent verdicts, but those possibilities did not assist where the credibility of the sole witness was the only real issue across all related counts.
  • The Court of Criminal Appeal directed a verdict of acquittal rather than ordering a retrial, reflecting its finding that conviction was not open on the evidence as a matter of law.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Crimes Act 1900 (NSW), ss 61M(2), 578A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Roos [2019] NSWCCA 67