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Court of Criminal Appeal 15 December 2022

Enoka v R

[2022] NSWCCA 272

Sexual offencesAssault & violence

Citation: Enoka v R [2022] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judges: Garling J (primary reasons), Adamson J, Button J (both agreeing)

Background

The applicant was tried in the District Court on an 11-count indictment arising from events on the night of 2 February 2019. The complainant had organised a party bus trip with friends, and the applicant, who had been in a sexual relationship with her for several months, was part of the group. The Crown alleged the applicant was possessive and controlling throughout the evening, and that the conduct culminated in serious offending at a park in Concord when the party bus departed without the complainant.

The Crown's case was that the applicant strangled the complainant until she lost consciousness (Count 1), and then subjected her to multiple acts of sexual intercourse without consent at two separate locations (Counts 2 to 11). The defence case was that all sexual intercourse was consensual and that the complainant was an unreliable witness who was ashamed of having engaged in consensual sexual acts with a man who was in a domestic relationship.

The jury returned a verdict of guilty on Count 1 (intentionally choking, contrary to s 37(1) of the Crimes Act 1900) and not guilty on all remaining counts, including the aggravated sexual assault and nine counts of sexual intercourse without consent. The applicant was sentenced to four years and four months imprisonment, with a non-parole period of two years and two months.

  • Whether the guilty verdict on Count 1 (intentionally choking) was unreasonable because it was inconsistent with the not guilty verdict on Count 2 (aggravated sexual assault), where the choking was alleged to have been the act enabling the sexual assault.
  • Whether the guilty verdict on Count 1 was unreasonable because it was inconsistent with the not guilty verdicts on all remaining counts (Counts 2 to 11), given the temporal and contextual entanglement of the events underlying all charges.

Decision

Garling J, with Adamson and Button JJ agreeing, dismissed the appeal. The court held that the verdicts were not logically inconsistent and that the guilty verdict on Count 1 was not unreasonable.

The court identified several factors that provided a rational basis for distinguishing the verdict on Count 1 from those on the sexual offence counts. First, the offences comprised different elements. Intentionally choking does not require proof of consent or its absence, whereas all sexual offence counts turned critically on the consent issue. Second, and significantly, there was objective corroborative evidence supporting the choking allegation: the complainant's physical injuries were observed by her mother, a doctor, and police, and medical examination confirmed injuries consistent with strangulation. No equivalent objective corroboration existed for the sexual offences.

Third, the quality of the complaint evidence differed across the counts. The complainant's accounts of the sexual offences involved some inconsistencies and memory gaps, whereas her account of the choking was corroborated by physical evidence. Fourth, the applicant's own evidence created a further distinction: he flatly denied any choking occurred, but conceded that sexual intercourse had taken place and relied solely on consent as his defence to the sexual counts. The jury's rejection of his denial about the choking, supported by objective evidence, was therefore analytically separate from its assessment of the consent question on the sexual counts.

The court also rejected the submission that, because the Crown had relied on the choking as an element of the aggravated sexual assault charge (Count 2), a guilty finding on Count 1 necessarily required a guilty finding on Count 2. The jury was not directed that the verdicts must be consistent, and it was open to the jury to be satisfied of the choking beyond reasonable doubt while retaining a reasonable doubt on the sexual offence counts, including Count 2.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A conviction on one count within a multi-count indictment is not automatically inconsistent with acquittals on related counts simply because the events are temporally or contextually intertwined.
  • Where offences share an underlying factual narrative but are made up of different legal elements, a jury may rationally distinguish between them, particularly where the availability and quality of corroborating evidence differs across counts.
  • The presence of objective evidence corroborating one charge (here, medical and photographic evidence of strangulation injuries) can provide a logical basis for a guilty verdict on that charge even when no comparable corroboration exists for related charges.
  • An accused's own evidence can itself create a distinction between counts: denying a physical act entirely invites a different credibility assessment than conceding the act but asserting consent, and a jury may rationally resolve those questions differently.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for inconsistent verdicts requires the applicant to show there was no logical basis on which the jury could have differentiated between the counts, a high threshold that the applicant did not meet here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1), 61I, 61J(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Cases
- Dadley v R [2021] NSWCCA 267
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Roos v R [2019] NSWCCA 67