Citation: MA v R [2022] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 25 March 2022
Judges: Macfarlan JA (leading judgment); Bellew J (agreeing); Dhanji J (agreeing, with additional reasons)
Background
The applicant stood trial in the District Court on an indictment charging him with 20 offences involving the indecent and sexual assault of his granddaughter over a period spanning roughly 2006 to 2017. The complainant had been placed in the permanent care of her paternal grandparents in late 2005, when she was approximately five years old.
At trial, directed verdicts of not guilty were entered on two counts because the complainant gave no supporting evidence in relation to them. The jury then acquitted the applicant on all remaining counts from 1 to 12, but convicted him on counts 13 to 20. This division became known on appeal as the jury's "line in the sand." The applicant was sentenced to eight years and six months imprisonment, with a non-parole period of five years, for the seven offences on which he was convicted.
The applicant sought leave to appeal against his convictions, arguing that the guilty verdicts were unreasonable because they were inconsistent with the not guilty verdicts. His central argument was that the acquittals could only be explained by the jury harbouring a reasonable doubt about the complainant's credibility, and that if such doubt existed, it should have produced acquittals across all counts.
Legal Issues
- Whether the guilty verdicts on counts 13 to 20 were unreasonable by reason of inconsistency with the not guilty verdicts on counts 1 to 12.
- Whether the jury's "line in the sand" between the two groups of counts could be explained on a rational and logical basis other than wholesale disbelief of the complainant.
- Whether the guilty verdicts were otherwise unreasonable having regard to the whole of the evidence (this second particular was not pursued at the hearing).
Decision
The Court of Criminal Appeal unanimously dismissed the application. Macfarlan JA, writing the leading judgment, concluded that the not guilty verdicts could be explained on logical and reasonable bases that did not require the jury to have harboured a reasonable doubt about the complainant's credibility across all counts.
A key reason the jury could rationally draw a line at count 13 was the existence of contemporaneous complaint evidence. The complainant gave evidence that she spoke to her younger sister on the night the events in count 13 occurred, and the sister's evidence supported the view that the complainant had begun making complaints at or around that period, well before any police report. The earlier counts, by contrast, were not similarly supported by complaint evidence that the jury could treat as independently corroborative.
Dhanji J added that two further features supported the rationality of the jury's approach. First, the counts on which convictions were returned were later in time, meaning the complainant was older and the events more recent at the time she recalled them. The jury could rationally treat her evidence as more reliable in respect of those counts on both grounds. Second, the chronological sequence of the relevant bingo night incidents was directly confirmed by the complainant in her evidence, giving the jury a clear temporal framework within which to assess the relative strength of the Crown case on different counts.
The Court was satisfied that the jury's concern with the complainant's evidence went to its reliability rather than its honesty, and that the verdicts reflected a rational response to a genuine difference in the evidentiary support for the earlier and later counts. The application for an extension of time was refused and the application for leave to appeal was dismissed.
Orders Made
- The applicant's application for an extension of time to file his notice of appeal was refused.
- The application for leave to appeal against conviction was dismissed.
Key Takeaways
- Inconsistent jury verdicts will not necessarily render guilty verdicts unreasonable where the distinction between acquittals and convictions can be explained on a rational evidentiary basis, even if that basis is not explicitly stated by the jury.
- The presence of contemporaneous complaint evidence in relation to some counts but not others can provide a logical and legally sufficient explanation for a jury drawing a line between counts on a single indictment.
- Where a complainant's evidence concerns events spread over many years, a jury is entitled to treat evidence of more recent events as more reliable, particularly where the witness was older at the time and the events were temporally closer to the trial.
- In dismissing the appeal, the Court confirmed that an applicant who argues inconsistent verdicts must demonstrate that the acquittals are explicable only on the basis of reasonable doubt as to credibility applying to all counts. Showing that an alternative rational explanation exists is sufficient to defeat that argument.
- The advantage a jury holds over an appellate court in assessing a witness who gives evidence with special assistance, including intermediary support, remains a relevant consideration when an appellate court weighs the reasonableness of the verdicts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66A, 66A(2), 66C(2), 344A
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), Pt 29, Sch 2 Div 2, s 84(2), Div 3, s 88
Cases:
- BF v R [2019] NSWCCA 321
- DS v R [2021] NSWCCA
- 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
- 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
- RD (a pseudonym) v R [2021] NSWCCA
- Vasilevski v R [2019] NSWCCA 277
- Z (a pseudonym) v R [2022] NSWCCA 8