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Court of Criminal Appeal 29 November 2023

Berntsen v R

[2023] NSWCCA 296

Sexual offences

Citation: Berntsen v R [2023] NSWCCA 296
Court: Court of Criminal Appeal, NSW
Date: 29 November 2023
Judges: Ward P, Dhanji J, Sweeney J

Background

The applicant stood trial in the District Court at Bathurst on nine counts of sexual offending against his stepdaughter, committed over a period from 2011 to 2017, when the complainant was aged approximately eight to thirteen years. The alleged offending included indecent assault, penile-vaginal intercourse, and anal intercourse, occurring across a range of locations including the applicant's workplace, the family home, his car, and a shed on the property.

The jury returned a mixed verdict: guilty on counts 1 to 5 and count 7, and not guilty on counts 6, 8, and 9. The applicant was sentenced to an aggregate term of 17 years' imprisonment with a non-parole period of 11 years. All evidence in support of the counts came primarily from the complainant, with some additional evidence from her mother in relation to certain counts.

The applicant sought leave to appeal against the convictions, arguing that the guilty verdicts were unreasonable when viewed alongside the three acquittals. Leave was sought out of time, with the delay attributed to difficulties in obtaining revised transcripts and a delayed response from initial counsel. The Crown opposed the extension of time and the grant of leave.

  • Whether the guilty verdicts on counts 1 to 5 and 7 were unreasonable having regard to all of the evidence and the acquittals on counts 6, 8, and 9.
  • Whether the acquittals necessarily indicated that the jury rejected the complainant's evidence as reliable and truthful, such that her evidence could not support the remaining convictions.
  • Whether the different verdicts were capable of any logical explanation grounded in the evidence, or whether the only inference available was that the jury had impermissibly reversed the onus of proof.

Decision

Sweeney J (with Ward P and Dhanji J agreeing) granted leave to appeal but dismissed the appeal. The court applied the well-established test from MacKenzie v The Queen: the relevant question is whether no reasonable jury, applying their minds properly to the facts, could have arrived at the verdicts returned. The court conducted its own independent assessment of the evidence on each count.

The court identified logical and rational explanations for each of the three acquittals that were consistent with the jury nonetheless accepting the complainant's evidence on the remaining counts. In particular, the court found that differences in the nature of the alleged acts, the circumstances surrounding them, and specific evidentiary features relating to each count provided sufficient basis for a jury to reach different conclusions on different charges without those conclusions being irreconcilable.

On count 6, which alleged anal intercourse, the court found the jury's acquittal was explicable on the evidence without requiring a wholesale rejection of the complainant's credibility. Similarly, the acquittals on counts 8 and 9 were found to be supportable by distinct evidential considerations specific to those counts. None of the acquittals, individually or in combination, compelled the conclusion that the jury must have disbelieved the complainant generally.

The court was satisfied that, on the evidence supporting counts 1 to 5 and 7, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of those offences. The convictions were not unreasonable.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • Mixed verdicts in a multi-count trial do not automatically render guilty verdicts unreasonable; the critical question remains whether no reasonable jury, properly applying their minds, could have reached the verdicts returned.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that acquittals on some counts are capable of logical explanation without undermining a complainant's credibility across an entire indictment, provided those explanations are grounded in the evidence.
  • Where a jury is directed to consider each count separately by reference to the evidence specific to that count, different outcomes on different counts may be entirely reconcilable.
  • The applicant's argument that acquittals demonstrated an impermissible reversal of the onus of proof was rejected; the court found plausible, evidence-based reasons for each not guilty verdict that did not support that inference.
  • An extension of time to seek leave to appeal may be granted notwithstanding Crown opposition, where satisfactory explanation for delay is provided, though the interests of finality and the parties affected remain relevant considerations.

Legislation and Cases Referenced

Legislation:
- Nil cited.

Cases:
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v TK [2009] NSWCCA 151
- Wheeler v R [2019] NSWCCA 255