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Court of Criminal Appeal 29 September 2023

Lenior v R

[2023] NSWCCA 242

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION I NCONSISTENT VERDICT

Citation: Lenior v R [2023] NSWCCA 242
Court: Court of Criminal Appeal, New South Wales
Date: 29 September 2023
Judge(s): Ward P (principal judgment); Harrison J and Dhanji J (agreeing)

Background

The applicant was tried in the District Court in Armidale on five counts of sexual offending arising from a single incident on 12 July 2019. The complainant and the applicant were both visiting Armidale for a residential college ball and had met that evening. After travelling together by taxi to a college room on campus, the Crown alleged that the applicant subjected the complainant to a series of sexual acts without her consent.

The five counts proceeded in a broadly chronological sequence: sexual touching (count 1), digital penetration (count 2), penile penetration (count 3), cunnilingus (count 4), and attempted fellatio (count 5). The applicant maintained that all sexual activity was consensual. The jury acquitted him on counts 1 and 2 but convicted him on counts 3, 4, and 5.

The applicant sought leave to appeal against the three convictions, arguing that the guilty verdicts were inconsistent with the acquittals. Because the acquittals related to conduct that preceded the conduct underlying the convictions, the applicant contended no rational jury could distinguish between them.

  • Whether the verdicts of guilty on counts 3, 4, and 5 were unreasonable and could not be supported having regard to the evidence and the acquittals on counts 1 and 2.
  • Whether a rational and logical explanation existed for the jury returning different verdicts across the five counts.
  • Whether any inconsistencies between the complainant's evidence and Crown witnesses' evidence raised a reasonable doubt on counts 3 to 5.

Decision

Ward P, with Harrison J and Dhanji J agreeing, granted leave to appeal but dismissed the appeal. The court found that there was a rational and logical explanation for the differential verdicts, and that the guilty verdicts were not inconsistent with the acquittals in any legally operative sense.

Central to the reasoning was the complainant's evidence about the early stages of the encounter. The court identified that the jury could have understood from her evidence that she acknowledged the applicant may have believed she consented to the initial sexual activity, partly because she did not physically resist at that stage. This provided a basis for the jury to hold a reasonable doubt about the applicant's knowledge of her lack of consent for counts 1 and 2, while accepting beyond reasonable doubt that he knew she was not consenting during the later conduct underlying counts 3 to 5, when the complainant's evidence of explicit and repeated verbal refusals was considerably stronger.

The court also addressed the significance of the complainant's accounts to the police and a treating doctor, which revealed she had not initially complained about counts 1 and 2. Ward P observed that it would produce an incongruous result if those early complaints, which contributed to the acquittals on counts 1 and 2, were then required to undermine the convictions on the remaining counts, given the strength of the evidence on those later counts.

On the question of inconsistencies between the complainant's evidence and that of Crown witnesses, the court found these did not rise to a level that enlivened a reasonable doubt on counts 3 to 5. Applying the established test from MacKenzie v The Queen, the court held this was not a case where no reasonable jury, properly applying its mind to the facts, could have arrived at the convictions returned.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A rational explanation for differential verdicts across counts can be grounded in the complainant's own evidence, particularly where that evidence acknowledges a degree of ambiguity in the accused's perception of consent during an earlier phase of conduct.
  • The Court of Criminal Appeal confirmed the established principle, drawn from MFA v The Queen and Jones v The Queen, that a jury may legitimately find a complainant more reliable about some parts of their evidence than others, and return mixed verdicts accordingly.
  • Acquittals on chronologically earlier counts do not automatically render convictions on later counts legally inconsistent, provided the factual distinctions between the counts offer a logical basis for different outcomes.
  • Inconsistencies between a complainant's evidence and Crown witness evidence do not necessarily enliven a reasonable doubt on conviction counts: the court found those inconsistencies in this case fell short of that threshold.
  • In dismissing the appeal, the court applied the test from MacKenzie v The Queen, requiring the applicant to show that no reasonable jury properly directing itself could have arrived at the guilty verdicts, a high threshold that was not met on the evidence here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61KC(a), 344A(1), 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), s 38(1)(a)

Cases
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Mason v R (No 2) [2015] NSWCCA 325
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- ML v R [2015] NSWCCA 27
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v RAT [2000] NSWCCA 77; (2000) 111 A Crim R 260
- Rasic v R [2009] NSWCCA 202
- Smith v R [2023] NSWCCA 118
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151