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Court of Criminal Appeal 15 June 2022

Dean v R

[2022] NSWCCA 122

Sexual offences

Citation: Dean v R [2022] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 15 June 2022
Judges: Macfarlan JA (at [1]); Rothman J (at [46]); Dhanji J (at [47])

Background

The appellant stood trial in the District Court in May 2021 on five counts of sexual assault and indecent assault against a child, the daughter of a friend. The alleged offences occurred at a house in Galston and, separately, when the complainant was aged three or four. A directed verdict of not guilty was entered on Count 1 due to insufficient evidence that the alleged offence occurred within the particularised date range.

The remaining four counts all concerned a single incident alleged to have taken place at Galston in 2016 or 2017, when the complainant was 11 or 12 years old. The jury returned guilty verdicts on Count 2 (sexual intercourse with a child) and Count 3 (indecent assault by sucking the complainant's nipples), and not guilty verdicts on Count 4 (indecent assault using a vibrator on the complainant's clitoris) and Count 5 (forcing the complainant to masturbate the appellant).

The appellant challenged his convictions on Counts 2 and 3 on the sole ground that the not-guilty verdict on Count 4 was inconsistent with those guilty verdicts, rendering them unreasonable. No similar inconsistency argument was pressed in relation to Count 5, given the trial judge's direction to the jury regarding a specific element of that count.

  • Whether the guilty verdicts on Counts 2 and 3 were unreasonable under s 6(1) of the Criminal Appeal Act 1912 (NSW) because they were allegedly inconsistent with the not-guilty verdict on Count 4.
  • Whether there was a logical and rational basis on which the jury could have distinguished between its verdicts on Counts 2 and 3 on one hand, and Count 4 on the other.

Decision

Macfarlan JA (with whom Rothman J and Dhanji J agreed) dismissed the appeal, finding that the not-guilty verdict on Count 4 was not inconsistent with the guilty verdicts on Counts 2 and 3. The difference in verdicts was rationally explicable by reference to qualitative differences in the complainant's evidence on each count.

The complainant gave relatively clear and consistent evidence about the acts charged in Counts 2 and 3. By contrast, her evidence about the vibrator (Count 4) was notably more equivocal. During her police interview she described the vibrator's use as something that "probably, definitely" happened, initially prefacing her account with "he might have also used a vibrator." This hesitation and the manner in which the detail emerged, surfacing later in the interview as further information was elicited, provided a rational basis for the jury to hold a reasonable doubt specifically about Count 4 without doubting the complainant's evidence generally.

An additional consideration arose from the complainant's evidence that she disposed of two vibrators from a window after moving out of Galston. The address she identified for that disposal was Gordon, not Galston. That evidence could lead a jury to doubt that the vibrator was used at the Galston premises, which was the location particularised in Count 4. This provided a further rational reason for the jury to acquit on that count while convicting on Counts 2 and 3.

The Court concluded that the difference in verdicts was consistent with the jury giving conscientious and separate attention to each count, as directed by the trial judge's Markuleski direction. The verdicts did not suggest irrationality; they reflected the jury drawing distinctions based on the varying quality of the evidence across counts.

Orders Made

• The appeal be dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that apparently inconsistent verdicts will not render a conviction unreasonable where there is a logical and rational basis on which the jury could have distinguished between the counts.
  • Qualitative differences in the strength and consistency of a complainant's evidence across individual counts can provide that rational basis, particularly where details of one count emerged more tentatively or emerged only after further questioning.
  • A jury's acquittal on one count does not necessarily reflect general doubt about a complainant's credibility; it may instead reflect careful assessment of the specific evidence supporting each charge.
  • Evidence concerning the location or disposal of relevant objects can provide a further independent basis for a jury to distinguish between counts relating to different alleged acts at the same incident.
  • The requirement that a jury be directed to consider each count separately (a Markuleski direction) underpinned the Court's reasoning that differences in verdicts are ordinarily consistent with conscientious jury deliberation rather than inconsistency or irrationality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66C(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- BF v R [2019] NSWCCA 321
- DS v R [2021] NSWCCA
- Ganiji v R [2019] NSWCCA 208
- Holloway v R [2017] NSWCCA 17
- Jones v The Queen (1997) 191 CLR 439
- Libke v The Queen (2007) 230 CLR 559
- M v The Queen (1994) 181 CLR 487
- MA v R [2022] NSWCCA 61
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- MG v R [2017] NSWCCA 14
- Nguyen v R [2017] NSWCCA 145
- Pell v The Queen (2020) 268 CLR 123
- R v Baden-Clay (2016) 258 CLR 308
- R v Markuleski (2001) 52 NSWLR 82
- R v TK (2009) 74 NSWLR 299
- Shiv v R [2021] NSWCCA 245
- Vasilevski v R [2019] NSWCCA 277
- Z (a pseudonym) v R [2022] NSWCCA 8