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Court of Criminal Appeal 30 March 2022

Cullen v R

[2022] NSWCCA 63

Sexual offencesAssault & violenceDomestic & family violence
CRIME CONVICTION APPEAL INCONSISTENT VERDICTS UNREASONABLE VERDICTS CLEAR AND UNAMBIGUOUS DIRECTIONS NO REASONABLE DOUBT

Citation: Cullen v R [2022] NSWCCA 63
Court: Court of Criminal Appeal
Date: 30 March 2022
Judge(s): Simpson AJA at [1]; Rothman J at [89]; Ierace J at [326]

Background

The applicant stood trial in the District Court at Grafton on a seven-count indictment arising from conduct in a domestic relationship. The complainant alleged a pattern of assault, intimidation, and sexual violence committed between August and November 2017. The applicant was convicted on three counts (assault occasioning actual bodily harm, intimidation, and aggravated sexual intercourse without consent) and acquitted on four others.

The conviction challenged in this application was Count 4, which alleged aggravated sexual intercourse without consent on 6 November 2017. The trial judge clarified during the summing-up that Count 3 concerned alleged anal penetration with a pencil, and Count 4 concerned alleged anal penetration with the applicant's fingers. The jury acquitted on Count 3 and convicted on Count 4.

The applicant sought leave to appeal against the Count 4 conviction only, arguing that the guilty verdict was irrational when viewed alongside the acquittals and was unreasonable on the evidence as a whole.

Legal Issues

  • Whether the guilty verdict on Count 4 was irrational and factually inconsistent with the acquittals, particularly the acquittal on Count 3
  • Whether the guilty verdict on Count 4 was unreasonable and unable to be supported having regard to the evidence
  • Whether any confusion in the way the Crown presented Counts 3 and 4 to the jury contributed to a miscarriage of justice

Decision

Ground 1: Inconsistency of verdicts

The court held that the guilty verdict on Count 4 was not inconsistent with the acquittals on Counts 3, 5, 6, and 7. A mixture of guilty and not guilty verdicts does not, without further analysis, demonstrate inconsistency, even where proof of all counts depends substantially on the evidence of a single witness (at [66]). The applicable standard, derived from MacKenzie v The Queen, requires the appellant to demonstrate that the verdicts are incompatible with one another in a way that is not rationally explicable.

The court identified a rational basis for the different verdicts in the varying degrees of independent corroborating evidence. Blood staining on the complainant's bed sheets, confirmed by forensic analysis to have originated from the complainant, supported the allegation of anal penetration causing bleeding (at [69]). By contrast, police executed a search warrant specifically seeking a pencil on 15 November 2017 but found none (at [32]). The jury's question about the pencil during the trial indicated active and careful engagement with the evidence relevant to Count 3 specifically (at [316]). The court observed that the acquittal on Count 3, far from undermining the conviction on Count 4, actually demonstrated that the jury did precisely what it was directed to do: consider each count separately (at [71]).

Ground 2: Unreasonable verdict

The court rejected the submission that the verdict on Count 4 was unreasonable. Applying the test in M v The Queen, the question is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt (at [287]). The court conducted its own independent assessment of the evidence and was satisfied that the evidence established the applicant's guilt on Count 4, notwithstanding some anomalies and discrepancies in the complainant's evidence (at [87]).

The court also rejected the contention that confusion in the Crown's presentation of Counts 3 and 4 contributed to an unreasonable verdict. Any potential confusion arising from the Crown's opening or closing address was cured by the trial judge's clear and unambiguous summing-up, which expressly assigned the pencil allegation to Count 3 and the digital penetration allegation to Count 4. No complaint was made about the content of those directions (at [302]-[303]). The court further found that the jury appeared to be looking for external evidentiary support for the complainant's allegations, and its caution in doing so did not render the conviction unreasonable (at [86]).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A conviction accompanied by acquittals on related counts does not, without more, establish that the conviction is inconsistent or unreasonable, even where proof of every count depends substantially on the evidence of one witness (at [66]). A rational explanation for the different verdicts is sufficient to defeat the inconsistency ground.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a difference in the degree of independent corroborating evidence as between counts is a sufficient rational basis to explain divergent verdicts (at [64], [69]). The presence of forensic blood evidence supporting one allegation, and the absence of a pencil on a targeted police search for another, provided that distinction here.

  • Clear and unambiguous jury directions can cure any confusion generated during counsel's opening or closing address. Where the trial judge expressly assigns particular alleged acts to particular counts in the summing-up, and no complaint is made about those directions, the directions will generally be taken to have cured earlier ambiguity (at [302]-[303]).

  • An acquittal on one count within a single course of conduct can affirmatively support confidence in a guilty verdict on a companion count, rather than undermining it. The Court of Criminal Appeal here described the acquittal on Count 3 as a basis for confidence that the jury followed its directions to treat each count separately (at [71]).

  • Under the unreasonable verdict test, the appellate court must undertake its own independent assessment of the sufficiency and quality of the evidence, while giving due weight to the jury's advantage in observing witnesses. The standard requires the appellate court to find that the jury was required to entertain a doubt, not merely that it could have done so (at [288]-[290]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes Act 1900 (NSW) , ss 32 7; 328; 578A
- Criminal Appeal Act 1912 (NSW), ss 5(b) ; 6(1)
- Criminal Procedure Act 1986 (NSW)

Cases
- Chamberlain (No 2) v The Queen (1984) 152 CLR 521; [1984] HCA 7
- Ganiji v R [2019] NSWCCA 208
- Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16
- Jones v The Queen (197) 191 CLR 439; [1997] HCA 56
- KBT v The Queen (1997) 191 CLR 417; [1991] HCA 54
- Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- Pell v the Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Stone, (unreported, 13 December 1954)
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Raspor v The Queen (1958) 99 CLR 347; [1958] HCA 30
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 23