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Court of Criminal Appeal 15 June 2022

Bridger v R

[2022] NSWCCA 125

Sexual offences

Citation: Bridger v R [2022] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 15 June 2022
Judges: Adamson J (principal judgment); Bellew J and Lonergan J (agreeing)

Background

The applicant was tried on seven counts arising from alleged sexual conduct towards a sleeping guest at his home in October 2018. The counts spanned digital penetration of the vagina and anus, penetration with a cold object, cunnilingus, and several acts of indecency. The complainant gave evidence that she lay motionless throughout, frightened and unwilling to wake the applicant's wife who was elsewhere in the house.

The applicant gave evidence that he had asked the complainant whether the conduct was acceptable and that she responded with an affirmative sound. In relation to count 3 (penetration with a cold object), he admitted returning from the kitchen with a frozen meal and a drink, then penetrating the complainant's vagina, and acknowledged that she "flinched" at that point.

The jury was unable to reach a verdict on count 1 (digital-vaginal penetration), returned not guilty verdicts on counts 2, 4, 5, 6 and 7, and convicted the applicant on count 3. The applicant sought leave to appeal, arguing the guilty verdict on count 3 was unreasonable because it was inconsistent with the outcomes on all other counts.

  • Whether the jury's guilty verdict on count 3 was unreasonable and could not be supported having regard to all the evidence, within the meaning of s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Specifically, whether the divergent verdicts across the seven counts disclosed a true inconsistency, or whether a rational explanation existed for the different outcomes.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Adamson J, with Bellew and Lonergan JJ agreeing, found there was a rational basis for each of the three different outcomes across the counts.

The key to the reasoning lay in the mental element required for conviction under s 61HA of the Crimes Act 1900 (NSW). Under that provision, a person "knows" the other does not consent if they actually know, are reckless, or have no reasonable grounds for believing consent exists. For count 1, the jury may have been split on whether the applicant held the requisite mental state. For counts 2, 4, 5, 6 and 7, the jury retained a reasonable doubt about the applicant's state of mind regarding consent. For count 3, however, the distinct character of the conduct provided a rational basis for unanimity: the applicant had left the room, returned with cold hands or a cold object, and the complainant visibly flinched. The Court found the jury could rationally conclude that, in those circumstances, the applicant either was reckless or had no reasonable grounds for believing she consented.

The Court also addressed a subsidiary argument about the trial judge's directions on the jury's ability to return different verdicts across counts. It found those directions were not erroneous when read in the context of the summing-up as a whole. Finally, the Court noted that the sentencing judge's remarks on the significance of the use of an object were consistent with the explanation the Court had independently reached, even though such remarks are not binding on the appellate court.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an applicant alleging an unreasonable verdict on the basis of inconsistency must demonstrate that no rational explanation exists for the divergent outcomes, not merely that the verdicts appear contradictory on their face.
  • A single factual feature distinguishing one count from others can provide a sufficient rational basis to explain a guilty verdict alongside not-guilty verdicts on similar charges. Here, the cold nature of the object and the complainant's visible flinch differentiated count 3 from the remaining counts.
  • Where the focus at trial is on the accused's mental state as to consent, jurors may rationally reach different conclusions across related counts by reference to the specific circumstances of each act, rather than making an all-or-nothing credibility finding about the complainant.
  • Under s 61HA of the Crimes Act 1900 (NSW) as it stood in October 2018, the mental element for knowledge of non-consent encompasses actual knowledge, recklessness, and absence of reasonable grounds for belief, giving rise to the possibility that a jury finds the threshold met for one act but not another in the same course of conduct.
  • Remarks made by a sentencing judge explaining divergent verdicts are not binding on an appellate court, though the Court here noted those remarks aligned with its own independently reached analysis.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 61L
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191
- Fisher v R; R v Fisher [2021] NSWCCA 91
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (considered)
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151