Citation: Cullen v R [2022] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 30 March 2022
Judges: Simpson AJA at [1]; Rothman J at [89]; Ierace J at [326]
Background
The appellant was tried in the District Court at Grafton on a seven-count indictment arising from alleged offending against a complainant with whom he lived in a domestic relationship. He was also her employer at a café they worked at together. The counts spanned a period from mid-2017 to November 2017 and included assault, intimidation, and multiple charges of aggravated sexual intercourse without consent.
The jury convicted the appellant on two counts (assault occasioning actual bodily harm and intimidation) and acquitted him on four others. The conviction under challenge was Count 4, which alleged that the appellant had sexually assaulted the complainant on 6 November 2017 by penetrating her anus with his fingers and a pencil, with the circumstance of aggravation being that he inflicted actual bodily harm on her at the time of the offence. Count 3, which arose from the same episode but alleged that the bodily harm occurred immediately before the sexual assault, resulted in an acquittal.
The appellant sought leave to appeal against the Count 4 conviction on the grounds that it was inconsistent with the acquittal on Count 3 (and other counts), and that it was unreasonable and unsupported by the evidence.
Legal Issues
- Whether the guilty verdict on Count 4 was irrationally inconsistent with the not guilty verdicts on Counts 3, 5, 6 and 7, in particular Count 3
- Whether the conviction on Count 4 was unreasonable or could not be supported having regard to the evidence
- Whether any confusion in the case presented to the jury gave rise to a miscarriage of justice
Decision
The Court rejected the inconsistency argument. Counts 3 and 4 each arose from the same episode on 6 November 2017 but were framed differently: Count 3 required proof that actual bodily harm was inflicted immediately before the sexual penetration, while Count 4 required proof it was inflicted at the time of the penetration. The evidence most directly corroborating harm inflicted during the sexual act (including the complainant's account of being hit on the legs while the pencil penetration occurred) provided an independent basis for the Count 4 conviction that was not equally available for Count 3. The difference in verdicts was therefore explicable and not irrational.
The Court found the trial judge's directions to the jury were clear and unambiguous. There was no demonstrated confusion about the factual basis for the separate counts, and the prosecution's closing address and the summing-up both identified the distinctions with sufficient clarity. The fact that the jury acquitted on some counts and convicted on another arising from the same general episode did not, of itself, render the conviction on Count 4 unsafe.
On the unreasonableness ground, the Court applied the well-established test from M v The Queen and related High Court authority, requiring the appellate court to assess whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of guilt. The Court concluded that the complainant's evidence, supported by independent corroborating evidence including medical examination findings and a recorded police interview, was sufficient to sustain the verdict. No reasonable doubt was raised that compelled the Court to intervene.
The appeal was dismissed.
Orders Made
No orders were made in this decision.
Key Takeaways
- Verdicts that appear inconsistent across counts arising from the same episode are not automatically fatal to a conviction; where the difference is explicable by the degree of independent corroborating evidence available for each count, no irrationality is established.
- The Court of Criminal Appeal confirmed that the appropriate test for an unreasonable verdict remains whether, examining the evidence as a whole, it was open to the jury to be satisfied beyond reasonable doubt, not whether the appellate court would itself have convicted.
- A not guilty verdict on one count does not require the jury to acquit on a closely related count if the two counts contain meaningfully distinct elements and the evidence bears differently on each.
- Clear and unambiguous jury directions, combined with a Crown address that properly distinguished between counts, will ordinarily defeat an argument that jury confusion produced a miscarriage of justice.
- Independent corroborating evidence, such as medical examination findings and a contemporaneous recorded police statement, can provide a sufficient basis to differentiate the evidentiary weight available for related but separately charged counts.
Legislation and Cases Referenced
Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes Act 1900 (NSW), ss 327, 328, 578A
- Criminal Appeal Act 1912 (NSW), ss 5(b), 6(1)
- Criminal Procedure Act 1986 (NSW)
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 23
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- KBT v The Queen (1997) 191 CLR 417; [1997] HCA 54
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Keen v R (2020) 102 NSWLR 178; [2020] NSWCCA 59
- Ganiji v R [2019] NSWCCA 208
- Chamberlain (No 2) v The Queen (1984) 152 CLR 521; [1984] HCA 7
- Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16
- Raspor v The Queen (1958) 99 CLR 347; [1958] HCA 30