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Court of Criminal Appeal 22 March 2023

HS v R

[2023] NSWCCA 54

Sexual offences
CRIMINAL LAW APPEALS AGAINST CONVICTION WHETHER INCONSISTENT VERDICTS VERDICTS NOT INCONSISTENT

Citation: HS v R [2023] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judges: Beech-Jones CJ at CL, Davies J, McNaughton J

Background

The applicant, a maternal uncle, was tried in the District Court on four counts of sexual offending against his niece, who was aged six or seven at the time of the alleged offending. Counts 1 and 2 involved similar incidents in which the applicant asked the complainant to sit on his knee, held her around the stomach, and pressed his erect penis against her back. Counts 3 and 4 involved separate bedroom incidents: one in which the applicant allegedly exposed himself to the complainant while she was in bed, and another in which he allegedly attempted to place his penis in her mouth while covering her mouth with his hand.

The jury convicted the applicant on Counts 1 and 2 and acquitted him on Counts 3 and 4. He was sentenced to an aggregate term of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 4 months. He sought leave to appeal against conviction only.

On appeal, the applicant argued that his convictions on Counts 1 and 2 were unreasonable because they were logically inconsistent with his acquittals on Counts 3 and 4. His central contention was that, in the absence of complaint evidence or medical evidence, the Crown case rested entirely on the complainant's credibility, and the acquittals showed the jury had doubted her.

  • Whether the guilty verdicts on Counts 1 and 2 were unreasonable by reason of their alleged inconsistency with the not guilty verdicts on Counts 3 and 4.
  • Whether the jury's acquittals necessarily reflected a rejection of the complainant's credibility across all counts.
  • Whether the verdicts could be reconciled by reference to evidence particular to the individual counts, including the tendency evidence admitted on Counts 1 and 2.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal unanimously. The Court found that the verdicts were not inconsistent and that it was entirely open to the jury to convict on Counts 1 and 2 while acquitting on Counts 3 and 4.

The Court identified several factors, independent of the complainant's general credibility, that could rationally explain the acquittals on Counts 3 and 4. The complainant acknowledged her memory of the bedroom incidents was unclear. The bedroom incidents appeared in neither her initial disclosure to her stepmother and father nor in the "mood journal" she brought to police. At her police interview, it became apparent she had "recently remembered" those events. Additionally, the applicant's wife, who the complainant said had interrupted the incident the subject of Count 4, denied any such interruption occurred.

By contrast, the convictions on Counts 1 and 2 were supported by cogent tendency evidence. The Crown led evidence that the applicant had engaged in conduct almost identical to the subject matter of Counts 1 and 2 against another child, a cousin of the complainant. Davies J found this evidence was likely to have given the jury considerable confidence in the complainant's account of those particular incidents.

Beech-Jones CJ at CL applied the reasoning from MFA v The Queen, observing that a not guilty verdict does not necessarily involve a rejection of the complainant's evidence. A juror may accept that something is more probably true than not, while still declining to convict without something additional to reach the required standard of proof beyond reasonable doubt. In this case, the tendency evidence provided that additional element for Counts 1 and 2, while no equivalent support existed for Counts 3 and 4.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A jury's acquittal on some counts does not automatically undermine its convictions on other counts, even where all counts involve the same complainant and similar subject matter.
  • The applicable principle, confirmed from MFA v The Queen and applied here, is that a not guilty verdict may simply reflect cautious application of the high criminal standard of proof rather than disbelief of the complainant.
  • Where different counts are supported by materially different bodies of evidence, such as tendency evidence admitted only in relation to certain counts, verdicts that appear inconsistent on the surface may be entirely rational and reconcilable.
  • In dismissing the appeal, the Court emphasised that the complainant's credibility was not the sole variable: factors such as the timing and circumstances of disclosure, inconsistencies in supporting witness evidence, and the complainant's own acknowledgement of uncertain memory were all independently capable of raising a reasonable doubt on specific counts.
  • Sufficient evidence existed to support the convictions on Counts 1 and 2, with the tendency evidence from a second complainant providing cogent corroboration of the conduct alleged in those counts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 61N, 66B

Cases
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Walker v R [2019] NSWCCA 4