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Court of Criminal Appeal 3 June 2022

Booth v R

[2022] NSWCCA 113

Sexual offences
CONVICTION APPEAL ACQUITTED ON OTHER TWO COUNTS WHETHER VERDICTS INCONSISTENT WHETHER VERDICTS OF GUILTY UNREASONABLE

Citation: Booth v R [2022] NSWCCA 113
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2022
Judge(s): Beech-Jones CJ at CL, Hamill J, N Adams J

Background

The applicant stood trial before a jury on four counts arising from a single night in August 2019. The charges included sexual touching and three counts of sexual intercourse without consent, all alleged against the same complainant. The events occurred at a townhouse where the complainant, the applicant, and others had consumed methylamphetamine and marijuana. The complainant gave evidence that she had passed in and out of consciousness during the night and was unable to speak or move when the sexual acts occurred.

The jury returned guilty verdicts on the first two counts (sexual touching and oral sex without consent) and acquitted the applicant on the remaining two counts (alleged vaginal and anal penetration). The applicant was subsequently sentenced to an aggregate term of four years and two months' imprisonment with a non-parole period of two years and six months.

The applicant sought leave to appeal against the two convictions. He did not appeal the sentence.

  • Whether the guilty verdicts on counts 1 and 2 were inconsistent with the acquittals on counts 3 and 4, such that they could not stand
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence under s 6(1) of the Criminal Appeal Act 1912
  • How a single answer given by the complainant in cross-examination, which was capable of suggesting consent, should be treated when assessing the reasonableness of the verdicts

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. On the inconsistency ground, the Court held that the verdicts could be reconciled. The complainant's evidence about the acts the subject of counts 3 and 4 was imprecise, and it was open to the jury to have entertained a reasonable doubt about whether those acts occurred at all. The guilty verdicts on counts 1 and 2, by contrast, rested on conduct that was not in dispute.

On the unreasonableness ground, the Court applied the established test from M v The Queen and subsequent High Court authorities: whether it was open to the jury, acting on the whole of the evidence, to be satisfied beyond reasonable doubt of the applicant's guilt. The Court found it was.

The applicant placed particular reliance on one answer the complainant gave in cross-examination, which was capable of being read as an acknowledgement of consent. Beech-Jones CJ at CL analysed that answer carefully and concluded it was an ambiguous response to an ambiguous question. When the complainant's evidence was read as a whole, including her account of being numb, unable to speak or move, and passing in and out of consciousness, the jury was entitled to be satisfied that she did not consent and that the applicant knew she did not consent.

Hamill J and N Adams J agreed with the Chief Judge's reasons and each added observations confirming that, having scrutinised the transcript with care and giving full weight to the acquittals on counts 3 and 4, neither was left with a reasonable doubt as to the applicant's guilt on counts 1 and 2.

Orders Made

  • Leave to appeal granted
  • Appeal against conviction dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mixed verdicts are not necessarily inconsistent; where the evidence on acquitted counts is imprecise or different in character from the evidence on convicted counts, a rational basis for the different outcomes may exist.
  • A single ambiguous answer in cross-examination does not automatically render a guilty verdict unreasonable; courts must consider that answer in the context of the complainant's evidence as a whole.
  • The applicable standard on an unreasonableness ground remains whether it was open to the jury, on the whole of the evidence, to be satisfied of guilt beyond reasonable doubt, consistent with M v The Queen (1994) 181 CLR 487 and MFA v The Queen (2002) 213 CLR 606.
  • Where a complainant's evidence of incapacity is otherwise compelling, a jury is entitled to conclude that lack of consent and the accused's knowledge of it were established, even where parts of that evidence are imprecise or difficult to follow.
  • No error was established in the jury's assessment of the complainant's credibility, particularly where the jury had the advantage of observing her give evidence, including in cross-examination on questions it may not have fully understood.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5AA, 5AD, 6(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW)

Cases
- Chidiac v The Queen (1991) 171 CLR 432; [1991] HCA 4
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Martin v R [2020] NSWCCA 192
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- SM v R [2022] NSWCCA 13