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Court of Criminal Appeal 22 August 2023

Ngo v R

[2023] NSWCCA 201

Sexual offences

Citation: Ngo v R [2023] NSWCCA 201
Court: NSW Court of Criminal Appeal
Date: 22 August 2023
Judges: Adamson JA, Ierace J, Chen J

Background

The applicant and the complainant were in an intimate relationship from October 2019 to March 2020. Their relationship was turbulent, involving multiple police call-outs and, ultimately, an apprehended violence order made against the applicant in March 2020. The alleged offending occurred in April 2020.

The applicant was tried in the District Court on six counts: three counts of carrying out a sexual act (masturbation) without consent, two counts of sexual assault, and one count of breaking and entering a dwelling in circumstances of aggravation. The jury acquitted the applicant on the first three counts but convicted him on the remaining three, covering sexual intercourse without consent and the break-and-enter.

The applicant sought leave to appeal his conviction on three grounds: that the guilty verdicts on the sexual assault counts were logically inconsistent with his acquittal on count 2; that the admission of bad character evidence and the failure to give a corrective direction caused a miscarriage of justice; and that the absence of an anti-tendency direction under s 95 of the Evidence Act 1995 (NSW) also caused a miscarriage of justice.

  • Whether the jury's guilty verdicts on counts 4 and 5 (sexual assault) were logically inconsistent with its acquittal on count 2 (sexual act without consent).
  • Whether the Crown's reliance on bad character evidence, without cross-examining the applicant about it, and without a corrective jury direction, constituted a miscarriage of justice.
  • Whether the trial judge's failure to give an anti-tendency direction under s 95 of the Evidence Act 1995 (NSW) resulted in a miscarriage of justice, notwithstanding that no such direction was sought by defence counsel at trial.

Decision

Ground 1: Inconsistent Verdicts

Chen J (with Adamson JA and Ierace J agreeing) dismissed this ground. The Court identified a ready explanation for the acquittal on count 2: a photograph of the complainant in her underwear (Exhibit 3), said to have been taken after the alleged conduct, was capable of raising reasonable doubt specifically in relation to that count. That reasoning was neither illogical nor indicative of jury error. In addition, the complainant's evidence on lack of consent and the applicant's knowledge of it was appreciably clearer and stronger for counts 4 and 5 than for count 2, providing a further basis for differentiating the verdicts. The Court applied the test from Mackenzie v The Queen and AH v R, concluding the verdicts reflected the jury doing precisely what it had been directed to do: consider each count separately on the relevant evidence.

Grounds 2 and 3: Bad Character Evidence and Anti-Tendency Direction

Adamson JA (with Chen J agreeing) addressed these grounds together. The Crown was not obliged to put all aspects of a complainant's evidence to an accused in cross-examination, particularly where that evidence did not form part of the Crown case. Accordingly, the prosecutor's failure to cross-examine the applicant on certain bad character matters disclosed no breach of any obligation.

On the anti-tendency direction, the Court inferred that trial counsel's decision not to seek such a direction was a legitimate forensic choice. The defence strategy was built on a wholesale challenge to the complainant's credibility, and highlighting the bad character evidence by seeking a direction would have been inconsistent with that approach. The Court distinguished Hamilton v The Queen, finding that the circumstances here did not give rise to a miscarriage of justice.

Ierace J wrote separately on grounds 2 and 3, also agreeing the appeal should be dismissed, but noted that it did not necessarily follow from the mixed verdicts that the jury had discounted the extraneous allegations. His Honour nonetheless concluded, agreeing with the orders proposed, that the appeal should fail.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the inconsistency ground, the Court of Criminal Appeal confirmed that a plausible explanation for differentiated verdicts, such as specific evidence raising doubt on one count but not others, is sufficient to dispel any logical inconsistency; the test from Mackenzie v The Queen remains the operative standard.
  • A mixed verdict of acquittals and convictions on related counts does not, without more, demonstrate that a jury failed to perform its task; it can instead reflect careful, count-by-count deliberation.
  • The Crown is not required to put all of a prosecution witness's evidence to the accused in cross-examination, and has no obligation to adopt every aspect of a complainant's account as part of its own case.
  • Where defence counsel's failure to seek an anti-tendency direction was consistent with a deliberate forensic strategy, that omission will not necessarily give rise to a miscarriage of justice, even where bad character evidence was received by the jury.
  • Under s 95 of the Evidence Act 1995 (NSW), an anti-tendency direction may be warranted where evidence of a party's conduct is admitted, but a failure to give such a direction will not automatically constitute a miscarriage of justice when the omission is explicable by legitimate trial tactics.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HE, 61E, 61L, 112
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), ss 161, 294, 294AA
- Evidence Act 1995 (NSW), ss 95, 128, 191
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- AH v R [2019] NSWCCA 152
- Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42
- KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Browne v Dunn (1893) 6 R 67
- R v Meher [2004] NSWCCA 355
- Booth v R [2022] NSWCCA 113
- Cullen v R [2022] NSWCCA 63
- Bussey v R [2020] NSWCCA 280
- Ganiji v R [2019] NSWCCA 208
- Soames v R [2012] NSWCCA 188
- R v Tangye (1997) 92 A Crim R 545
- R v Murray (1987) 11 NSWLR 12