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Court of Criminal Appeal 22 April 2022

McMahon v R

[2022] NSWCCA 64

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST CONVICTION SEXUAL INTERCOURSE WITHOUT CONSENT

Citation: McMahon v R [2022] NSWCCA 64
Court: Court of Criminal Appeal
Date: 22 April 2022
Judge(s): Harrison J (at [1]), Wright J (at [68]), Fagan J (at [69])

Background

The appellant stood trial before a judge and jury in February 2021 on three counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). All three counts related to alleged acts occurring on the same night in January 2015 at shared rental accommodation in Sydney. The complainant, a new tenant, alleged she was subjected to digital-vaginal penetration, cunnilingus, and penile-vaginal intercourse while unconscious or semi-conscious after drinking with the appellant.

The jury acquitted the appellant on the first two counts (digital penetration and cunnilingus) but convicted him on the third (penile-vaginal intercourse). He was sentenced to three years' imprisonment with a non-parole period of 18 months. A prior trial in 2020 had resulted in a hung jury on most counts, with an acquittal on an additional attempted anal intercourse charge.

The appellant sought leave to appeal against his conviction, arguing that the jury's mixed verdicts were irreconcilable and that the conviction on count 3 could not be supported by the evidence. He did not challenge the sentence.

  • Whether the jury's verdict of guilty on count 3 was unreasonable given the acquittals on counts 1 and 2
  • Whether the differing verdicts were legally inconsistent, specifically whether the acquittals could only be explained by the jury doubting the complainant's credibility
  • Whether a rational explanation existed for the acquittals that did not depend on rejecting the complainant's account

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the mixed verdicts were not irreconcilable and that a rational explanation for the acquittals existed independently of any doubt about the complainant's credibility.

Harrison J, applying the principles in TK v R and Jones v The Queen, confirmed that the relevant inquiry is not why the jury convicted, but whether a rational explanation exists for the acquittals that does not require imputing a credibility finding against the complainant. If such an explanation can be found, inconsistency in verdicts does not render the conviction unreasonable.

The Court identified a compelling rational basis for the jury's discrimination between counts. On counts 1 and 2, the appellant may not have had actual knowledge, recklessness, or an absence of reasonable grounds for believing the complainant was consenting when she first stirred from sleep and began to protest. The jury may have accepted the complainant's account in full while nonetheless harbouring a reasonable doubt about what the appellant knew or believed at that precise moment.

By the time the appellant performed the penile-vaginal intercourse in count 3, a different factual situation applied. On the complainant's evidence, she had previously woken, said "no" and "stop," and tried to pull away. Fagan J reasoned that by count 3 the appellant was unmistakably aware that the complainant did not consent to sexual contact. This distinction in the appellant's state of knowledge, not any doubt about the complainant's credibility, provided a coherent and rational basis for the differing verdicts. The conviction on count 3 was therefore not unreasonable.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that mixed verdicts across related counts are not automatically inconsistent: the critical question is whether the acquittals can be rationally explained without imputing a doubt about the complainant's credibility.
  • Where a rational explanation for acquittals can be identified, the principle in Jones v The Queen requiring appellate intervention does not apply, and the conviction on remaining counts may stand.
  • In sexual assault proceedings involving multiple counts on a single occasion, differences in the defendant's knowledge of non-consent at different points in time can constitute a sufficient rational basis for distinguishing verdicts, even where the complainant's evidence is accepted in its entirety.
  • Under s 61HA(3) of the Crimes Act 1900 as applicable at the relevant date, the jury's focus on the knowledge element (actual knowledge, recklessness, or absence of reasonable grounds for belief in consent) can legitimately produce different outcomes across counts, reflecting the evolving circumstances of a single incident.
  • In dismissing the appeal, the Court emphasised that appellate courts must look to whether an explanation for acquittals exists, rather than scrutinising the logic of convictions, when assessing the reasonableness of diverse verdicts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I (sexual intercourse without consent); s 61HA(3) (knowledge of consent)
- Criminal Procedure Act 1986 (NSW), s 306I

Cases
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Long (a pseudonym) v R [2021] NSWCCA 212