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Court of Criminal Appeal 15 December 2022

Saunders v R

[2022] NSWCCA 273

Sexual offencesDomestic & family violence

Citation: [2022] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judges: Simpson AJA, Hamill J, Ierace J

Background

The applicant was tried in the District Court on three counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), all alleged to have occurred in the early hours of 7 August 2016 against a single complainant. The alleged aggravating circumstance in each count was that the applicant inflicted actual bodily harm on the complainant at the time of the offences. The applicant and the complainant had been in a long-distance, intermittent relationship that the complainant had ended.

The first count concerned the applicant forcing the complainant to perform fellatio through threats and violence. The second and third counts involved penile-vaginal and digital-anal penetration, also alleged to have been accompanied by violence. The Crown led tendency evidence, in the form of Agreed Facts, detailing the applicant's prior physical assaults on two former domestic partners (referred to as JD and LS), for which he had entered guilty pleas.

The jury unanimously acquitted the applicant of all three aggravated offences. However, on the first count, the jury returned a guilty verdict on the statutory alternative of sexual intercourse without consent under s 61I of the Crimes Act. The applicant was sentenced to five years and six months imprisonment with a non-parole period of three years and six months. He sought leave to appeal against conviction and an extension of time in which to do so.

  • Whether tendency evidence relating to the applicant's prior assaults on a former partner (JD) from 2004 and 2007 was wrongly admitted under s 97 of the Evidence Act 1995 (NSW).
  • Whether the trial judge erred by directing the jury that the tendency evidence involved the applicant being intoxicated, when the Agreed Facts did not explicitly state this.
  • Whether the guilty verdict on the alternative to count 1 was inconsistent with the not guilty verdicts on counts 2 and 3, and whether the verdict was unsafe and unsatisfactory.

Decision

Ground 1: Tendency evidence. The Court held that the tendency evidence concerning JD was properly admitted. The prior assaults bore significant similarity to the conduct alleged by the complainant, including hair-pulling and punching female partners, and therefore possessed the required probative value under s 97 of the Evidence Act. The fact that the applicant had conceded some degree of force during the incident (using a remote control) did not render the tendency evidence redundant. Hamill J further noted that the applicant's own police interview, in which he acknowledged pulling the complainant's hair and described her as liking being grabbed by the hair, gave the tendency evidence particular probative force on the issues of consent and the applicant's knowledge.

Ground 2: Direction on intoxication. The trial judge's directions had suggested that the tendency evidence involved the applicant being intoxicated, although this was not stated in the Agreed Facts. Leave to appeal on this ground was required under the Criminal Appeal Rules 2021 (NSW) because no objection had been raised by trial counsel. The Court declined to grant leave. It also found that the error was not material to the outcome and had not occasioned any miscarriage of justice, a conclusion reinforced by the absence of any contemporaneous objection.

Ground 3: Inconsistent verdicts and unsafe verdict. The Court acknowledged that the acquittals on counts 2 and 3 were "puzzling" in light of the guilty verdict on the alternative to count 1, but held that the verdicts were not legally inconsistent when tested against logic and reasonableness. Hamill J's analysis provided the most detailed treatment: he concluded that the most likely explanation for the differential verdicts was that the jury entertained a reasonable doubt on counts 2 and 3 as to whether the applicant knew the complainant was not consenting, a live issue given the contents of the applicant's recorded police interview. The complainant's evidence on count 1 was accepted as honest and reliable. On the second aspect of ground 3, the Court conducted an independent review of the whole of the evidence and concluded that the guilty verdict on the statutory alternative to count 1 was open to the jury and not unreasonable.

Orders Made

  • Time to seek leave to appeal extended to 20 August 2021.
  • Leave granted to appeal against conviction.
  • Appeal dismissed.

Key Takeaways

  • Tendency evidence of prior violence against former domestic partners carries significant probative value where the conduct bears meaningful similarity to the alleged offending, and is not displaced merely because the accused concedes some lesser degree of force.
  • A trial judge's misdirection in jury directions will not warrant appellate intervention where trial counsel failed to object and the error was not material to the verdict.
  • Under the test in Baden-Clay v The Queen (2016) and related authority, inconsistent verdicts will only warrant a new trial where no rational explanation exists; acquittals on some counts do not automatically undermine a guilty verdict on another count arising from the same incident.
  • Where the prosecution must prove the accused's knowledge of non-consent, as required under the Crimes Act 1900 (NSW), differing verdicts across counts may reflect the jury's application of that distinct mental-element requirement to each charge separately.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an extension of time may be granted even where delay is only partly explained, provided the applicant demonstrates genuine attempts to obtain the primary judge's reasons for sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61J, 61HA, 61Q
- Evidence Act 1995 (NSW), s 97
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW)
- Supreme Court (Criminal Appeal Rules) 2021 (NSW), r 4.15
- Evidence Amendment (Tendency and Coincidence) Act 2020 (NSW)

Cases
- Hughes v The Queen (2017) 263 CLR 336; [2017] HCA 20
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Baden-Clay v The Queen (2016) 258 CLR 308; [2016] HCA 35
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- McKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Fallah v The Queen [2010] NSWCCA 212
- Ganiji v R [2019] NSWCCA 208
- AK v R [2022] NSWCCA 175
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151