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6
Court of Criminal Appeal 9 February 2022

SM v R

[2022] NSWCCA 13

Sexual offencesDrugs

Citation: SM v R [2022] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 09 February 2022
Judges: McCallum JA (principal judgment); Rothman J (agreeing); Wright J (agreeing)

Background

The applicant stood trial in the District Court before Pickering SC DCJ and a jury on seven counts of sexual offences against his stepdaughter and one count of supplying a prohibited drug. The offences were alleged to have occurred over a period beginning around 2005, when the applicant moved into the family home after commencing a relationship with the complainant's mother.

After several days of deliberations, the jury returned unanimous guilty verdicts on four counts (counts 1, 2, 4 and 8) but could not reach a verdict, even by majority, on the remaining four counts (counts 3, 5, 6 and 7). The judge discharged the jury on the unresolved counts.

The applicant sought leave to appeal his convictions on the four counts on which guilty verdicts were returned, arguing the verdicts were unreasonable in light of both alleged evidentiary weaknesses and the jury's failure to agree on the other counts.

  • Whether the verdicts of guilty on counts 1, 2, 4 and 8 were unreasonable or unsupported by the evidence under s 6 of the Criminal Appeal Act 1912 (NSW)
  • Whether a jury's failure to reach a verdict on certain counts can inform an appellate court's assessment of the reasonableness of guilty verdicts returned in the same trial
  • Whether, specifically, the hung counts here affected the reliability or credibility of the complainant's evidence on the convicted counts
  • Whether individual evidentiary inconsistencies and complaints about the complainant's demeanour raised a reasonable doubt about the guilty verdicts

Decision

The unreasonable verdict standard. The Court confirmed the well-established appellate task: to make an independent assessment of the whole of the evidence, both as to sufficiency and quality, to determine whether it was open to the jury to be satisfied of guilt beyond reasonable doubt. The question is one of fact, not whether there was merely some evidence capable of supporting the verdict. The Court drew on the High Court trilogy of M v The Queen, MFA v The Queen and SKA v The Queen as the authoritative statements of principle.

The relevance of hung counts. McCallum JA acknowledged that, contrary to her initial inclination, two prior decisions of the Court of Criminal Appeal (PA v R and Daaboul v R) establish that a jury's failure to agree on some counts may, depending on the circumstances, inform an appellate court's assessment of the reasonableness of guilty verdicts in the same trial. However, that principle is not automatic. It applies only where the counts share common elements or evidence, such that differing outcomes would be logically inexplicable. Where the charges are factually unrelated, no such inconsistency arises.

Application to this case. The applicant conceded that the hung counts and the convicted counts were factually unrelated, sharing no common evidence or elements. The Court rejected the applicant's submission that the hung counts nonetheless cast doubt on the complainant's general credibility across all counts. That submission was described as predicated on a fallacy: the law does not require a witness's evidence to be accepted or rejected wholesale. Accepting it would have required impermissible speculation about why the jury was hung and an illegitimate extrapolation to unrelated counts.

The evidentiary complaints. The Court considered a series of specific challenges to the complainant's evidence, including alleged inconsistencies with prior accounts, a complaint about contextual evidence concerning verbal aggression, and observations about the complainant's manner of giving evidence (pausing, requesting breaks, failing to recall detail). Each was rejected. The Court noted that hesitation, requests for breaks and gaps in memory are as consistent with trauma as with dishonesty, and that several of the submissions simply rehearsed arguments already put to and assessed by the jury. Considering the submissions both individually and in combination, the Court was not caused to entertain doubt about the reasonableness of the verdicts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A jury's failure to reach a verdict on some counts can, in principle, inform an appellate court's assessment of the reasonableness of guilty verdicts returned at the same trial, but only where the counts share common evidence or elements such that differing outcomes would be logically inexplicable.
  • Where hung counts and convicted counts are factually unrelated and share no common evidence, the Court of Criminal Appeal confirmed that the hung counts cannot be used to cast doubt on a complainant's general credibility across all charges.
  • Accepting that hung counts diminish a complainant's overall credibility would require appellate courts to speculate impermissibly about why a jury failed to agree, and to extrapolate that speculation to unrelated charges; the Court rejected both steps.
  • Witness behaviour such as pausing, requesting breaks and failing to recall detail does not, without more, point to dishonesty; such conduct is equally consistent with the experience of trauma.
  • In dismissing the appeal, the Court reaffirmed that the jury's primary role as fact-finder, including the advantage of having seen and heard witnesses, remains central to the appellate assessment of whether a verdict is unreasonable.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes Act 1900 (NSW), ss 66C(2), 66C(4), 578A

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- Libke v R (2007) 230 CLR 559; [2007] HCA 30
- PA v R [2015] NSWCCA 18
- Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191