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19
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: Court of Criminal Appeal
Date: 2 February 2022
Judges: Macfarlan JA (primary judgment); Brereton JA and Beech-Jones CJ at CL (agreeing)

Background

The applicant stood trial in the District Court on eight counts arising from his relationship with his ex-wife. The charges spanned an alleged historical sexual assault in 2008 and a series of domestic violence offences said to have occurred between November 2017 and February 2018, as the relationship broke down. The applicant and complainant had been together for over 20 years and had two children.

The jury returned a mixed verdict. It convicted the applicant on three counts: assaulting the complainant causing actual bodily harm (Count 3), making a threat to kill (Count 4), and using threatening or offensive language in a domestic setting (Count 7). It acquitted him on the remaining five counts, including the historical sexual assault, a choking offence, throwing keys at the complainant, forcing her to engage in a sexual act, and a further assault.

The applicant sought leave to appeal against his convictions on Counts 3 and 7 only. He did not challenge his conviction on Count 4, because he had admitted during his own evidence that he uttered words to the effect charged.

Legal Issues

  • Whether the convictions on Counts 3 and 7 were unreasonable or could not be supported by the evidence, applying section 6 of the Criminal Appeal Act 1912 (NSW)
  • Whether the complainant's general credibility was so damaged that it was not open to the jury to accept her evidence beyond reasonable doubt
  • Whether the jury's acquittals on other counts were logically inconsistent with its convictions on Counts 3 and 7, such that those convictions could not stand
  • Whether section 578A(2) of the Crimes Act 1900 (NSW), prohibiting publication of material identifying the complainant in prescribed sexual offence proceedings, applied to the appeal

Decision

Applicable principles: unreasonable verdict ground

The Court confirmed that the test on an unreasonable verdict ground is whether it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt, which is equivalent to asking whether the jury must have, rather than merely might have, entertained a doubt (at [23]). The appellate court must make its own independent assessment of the evidence, while giving appropriate weight to the jury's advantage in seeing and hearing witnesses (at [24]).

General credibility challenge

The applicant argued that the complainant's credibility was so thoroughly undermined, across multiple areas of evidence, that no jury acting reasonably could have accepted her account on Counts 3 and 7. The Court rejected that submission (at [28]-[29]). Macfarlan JA emphasised that matters of credibility are for the jury, and that it will only be in unusual cases that credibility damage is so severe as to prevent the jury from accepting a witness's evidence. The complainant offered explanations for inconsistencies, including the effects of trauma on memory, and the jury was entitled to accept those explanations. Her evidence on both counts was corroborated by contemporaneous complaints to friends and by diary notes (at [30], [41], [42]).

Count 3: assault occasioning actual bodily harm

The jury acquitted on Count 2 (the more serious choking offence requiring proof that the complainant was rendered incapable of resistance) but convicted on the alternative Count 3. The Court found this outcome was reasonably explicable: the complainant's evidence did not clearly establish that she was incapable of resistance, which was an essential element of Count 2, but her account of the assault was otherwise supported by a contemporaneous complaint to her friend MB, a diary note, and a visible red mark on her neck that the applicant's evidence of self-defence did not account for (at [41], [46]). It was well open to the jury to be satisfied of the Count 3 elements beyond reasonable doubt.

Count 7: threatening language

The applicant's evidence was that he did not use the words alleged. The Court found the complainant's account was corroborated by her contemporaneous complaint to her friend MB (who observed the complainant to be hysterical and barely able to speak) and by a diary note recording the applicant's words (at [42]). The applicant sought to limit the weight of the diary note by pointing to an allegedly misleading entry relating to Count 3, but the Court held the jury was entitled to regard that Count 3 entry as cryptic rather than misleading.

Alleged inconsistency between verdicts

The Court rejected the submission that the acquittals on Counts 1, 2, 5, 6 and 8 necessarily reflected doubt about the complainant's credibility that should have extended to Counts 3 and 7 (at [43]-[49]). Each acquittal was explicable on a logical and reasonable basis independent of any general rejection of the complainant's evidence. The Count 1 acquittal was explicable by the absence of a contemporaneous complaint and diary note (at [45]). The Count 2 acquittal was explicable by the stringent elements of that offence (at [46]). The Count 5 acquittal was explicable by the absence of a visible injury and the lack of any contemporaneous complaint to a neighbour who saw the complainant immediately after (at [47]). The Count 6 acquittal was explicable by the absence of additional corroborating evidence to support an inference that the applicant knew or was reckless as to the complainant's non-consent (at [48]). The Count 8 acquittal was explicable by the absence of any contemporaneous complaint and the absence of reference to spitting in the diary (at [49]).

Section 578A(2) publication prohibition

Beech-Jones CJ at CL noted some uncertainty about whether the appeal itself constituted "prescribed sexual offence proceedings," given that the charge under section 61I of the Crimes Act 1900 was not the subject of the appeal. However, his Honour concluded that the publication prohibition in section 578A(2) continued to operate in any event, to the extent that identifying the victim of the offences the subject of the appeal would identify her as the complainant in the District Court proceedings (at [55]-[56]). Both parties were accordingly referred to by pseudonym.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A mixed verdict is not inherently inconsistent. Where each acquittal is explicable on a logical and reasonable basis independent of a general rejection of the complainant's credibility, the differing outcomes across counts do not render convictions on other counts unreasonable (at [43]-[49]).
  • Credibility challenges will rarely, on their own, support an unreasonable verdict ground of appeal. Juries are the appropriate tribunal for credibility assessments, and only in unusual cases will credibility damage be so severe that it was not open to accept the witness's account (at [29]).
  • Contemporaneous complaints to third parties and diary notes made close in time to alleged incidents can provide the corroboration that allows a jury to be satisfied beyond reasonable doubt, particularly where evidence on other counts lacked those features and led to acquittals (at [41], [42], [45], [47]-[49]).
  • The distinction between a choking offence requiring proof of incapacity to resist and the lesser alternative of assault occasioning actual bodily harm is a legitimate basis on which a jury may acquit on one and convict on the other, without any inconsistency (at [46]).
  • Under section 578A(2) of the Crimes Act 1900, the publication prohibition on identifying the complainant in prescribed sexual offence proceedings does not cease once the trial concludes, and may continue to apply to appeal proceedings even where the charge under a prescribed sexual offence provision is not itself the subject of the appeal (at [55]-[56]).

Legislation and Cases Referenced

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

Cases
- BF v R [2019] NSWCCA 321
- DS v R [2021] NSWCCA 52
- Holloway v R [2017] NSWCCA 17
- JC v R [2021] NSWCCA 254
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- 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
- MG v R [2017] NSWCCA 14
- Nguyen v R [2017] NSWCCA 145
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Prasad v R [2020] NSWCCA 349
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- RD (a pseudonym) v R [2021] NSWCCA 94
- Vasilevski v R [2019] NSWCCA 277