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18
Court of Criminal Appeal 2 February 2022

Z (a pseudonym) v R

[2022] NSWCCA 8

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME APPEALS WHETHER VERDICTS UNREASONABLE PRINCIPLES TO BE APPLIED APPEALS WHETHER VERDICTS INCONSISTENT

Citation: Z (a pseudonym) v R [2022] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 2 February 2022
Judge(s): Macfarlan JA; Brereton JA; Beech-Jones CJ at CL

Background

The applicant and the complainant were in a domestic relationship for over 20 years. They had children together and were married in approximately 2010, with the relationship ending in 2018. The Crown alleged a series of offences spanning from 2008 to early 2018, including a historical sexual assault, choking, intimidation, and various assaults.

The applicant was tried before a judge and jury in the District Court on eight counts (one being an alternative). The jury returned a mixed verdict: acquitting on five counts and convicting on three, namely occasioning actual bodily harm (Count 3, the alternative to a choking charge), and two counts of intimidation (Counts 4 and 7).

The applicant sought leave to appeal against his convictions on Counts 3 and 7 only. No appeal was brought against Count 4, where the applicant had himself admitted in evidence to making a death threat against the complainant and the children.

  • Whether the guilty verdicts on Counts 3 and 7 were unreasonable and unable to be supported by the evidence, within the meaning of s 6 of the Criminal Appeal Act 1912 (NSW)
  • Whether the complainant's credibility was so damaged across the trial as a whole that it was not open to the jury to accept her evidence on those counts to the required standard
  • Whether the acquittals on other counts necessarily undermined the convictions, raising a verdict inconsistency argument
  • Whether s 578A of the Crimes Act 1900 (NSW), prohibiting publication of material identifying a complainant in prescribed sexual offence proceedings, applied to the appeal proceedings

Decision

The Court of Criminal Appeal unanimously granted leave to appeal but dismissed the appeal. Macfarlan JA delivered the principal judgment, with Brereton JA and Beech-Jones CJ at CL each concurring briefly.

On the unreasonable verdict ground, the Court reaffirmed the applicable principles: an appellate court must conduct its own independent assessment of the evidence and ask whether it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt of guilt. The Court found there was ample evidence supporting the convictions on Counts 3 and 7. The complainant's account was corroborated by diary entries, contemporaneous complaints to friends, and in the case of Count 4 (the intimidation charge that was not appealed), by the applicant's own partial admission. No error was established.

The applicant's general credibility attack on the complainant, based on omissions from her family law affidavit, claims of repressed memory, and other inconsistencies, was rejected. The Court emphasised that credibility is pre-eminently a matter for the jury. It noted the complainant had offered explanations for memory gaps, including trauma and the presence of the applicant when she gave her initial police statement, and the jury was entitled to accept those explanations while still requiring corroboration before being satisfied beyond reasonable doubt.

On the question of whether the acquittals were inconsistent with the convictions, the Court applied the principle from R v Markuleski and related authority: verdicts are only relevantly inconsistent where they cannot be explained by any rational or logical reasoning process. Here, the acquittals were readily reconcilable. For example, the acquittal on the choking charge (Count 2) and the conviction on the alternative charge (Count 3) reflected the jury's nuanced acceptance that some physical assault occurred without being satisfied of the more serious choking element. Acquittals on other counts could be explained by factors specific to those allegations, such as gaps in corroboration or the strength of the applicant's evidence on those individual incidents, rather than a general rejection of the complainant's credibility.

On the publication restriction question, the Court noted the trial proceedings were plainly "prescribed sexual offence proceedings" under s 578A of the Crimes Act 1900, as a charge under s 61I was included in the indictment. Some uncertainty existed as to whether the appeal itself attracted that description, given the s 61I charge was not subject to appeal. However, the Court found the prohibition in s 578A(2) continued to apply to any publication that would identify the complainant, because identifying the applicant would necessarily identify his ex-wife. Pseudonyms were accordingly adopted for both parties.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that mixed jury verdicts in a multi-count domestic violence trial are not necessarily inconsistent: acquittals on some counts can reflect count-specific reasoning rather than a general credibility finding against the complainant.
  • Credibility challenges to a complainant will rarely succeed on an unreasonable verdict ground. Only in an unusual case will deficiencies in a complainant's evidence be so significant that it was not open to the jury to accept that evidence, particularly where contemporaneous diary entries and complaint evidence from multiple witnesses provide corroboration.
  • A complainant's explanation for memory gaps, including references to trauma and repressed memory, is capable of being accepted by a jury alongside a finding that the complainant was generally honest.
  • Under s 578A of the Crimes Act 1900, the prohibition on identifying a complainant in prescribed sexual offence proceedings does not cease on conclusion of the trial. Some uncertainty remains as to whether a subsequent appeal is itself a "prescribed sexual offence proceeding" where the relevant charge was not the subject of the appeal, but the identification prohibition may still operate through other pathways.
  • Sufficient evidence to sustain a conviction may exist even where the jury acquitted on closely related or alternative charges; the operative question remains whether it was open to the jury, acting reasonably, to be satisfied of guilt on each count individually.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Crimes Act 1900 (NSW), ss 37(1), 59(1), 61, 61I, 61L, 578A
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 3, 290

Cases
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- MacKenzie v The Queen (1996) 190 CLR 348
- Jones v The Queen (1997) 191 CLR 439
- Libke v The Queen (2007) 230 CLR 559
- 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 94
- JC v R [2021] NSWCCA 254
- DS v R [2021] NSWCCA 52
- BF v R [2019] NSWCCA 321
- Vasilevski v R [2019] NSWCCA 277
- Holloway v R [2017] NSWCCA 17
- MG v R [2017] NSWCCA 14
- Nguyen v R [2017] NSWCCA 145
- Prasad v R [2020] NSWCCA 349