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Court of Criminal Appeal 27 March 2023

Park v R

[2023] NSWCCA 71

Sexual offences

Citation: Park v R [2023] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 27 March 2023
Judge(s): Kirk JA, Walton J, Sweeney J

Background

The appellant was convicted of one count of aggravated sexual assault (Count 2) arising from a single incident. The trial also involved related counts of aggravated sexual touching: the appellant was acquitted of a count relating to kissing (Count 1 and its alternative, Count 1A), and the jury was unable to reach a verdict on a count relating to touching of the complainant's breasts (Count 4). Notably, some alternative charges (Counts 1A and 4A) were put to the jury but did not appear on the indictment.

The appellant challenged his conviction on four grounds: alleged juror confusion about which count carried the guilty verdict, inconsistency between the guilty verdict and the acquittals, an inadequate direction under the principle in Liberato v The Queen, and a misdirection on how the jury could use evidence of the delay in the complainant making her complaint.

Two of the four grounds required leave to appeal because no objection had been raised at trial. The Court granted leave and ultimately upheld the appeal, quashing the conviction and ordering a new trial.

  • Whether the verdict was unreasonable due to possible juror confusion about the count on which they intended to return a guilty verdict
  • Whether the guilty verdict on Count 2 was inconsistent with the acquittals on Counts 1 and 1A, given the misdirections at trial
  • Whether the trial judge gave an inadequate direction under Liberato v The Queen, specifically as to the second limb of that direction
  • Whether the trial judge misdirected the jury on the use of evidence of delay in complaint under s 294 of the Criminal Procedure Act 1986 (NSW)
  • Whether, if the appeal succeeded, the appropriate remedy was acquittal or a new trial

Decision

Juror confusion (Ground 1 in part): Kirk JA (Sweeney J agreeing) found that while the foreperson initially appeared confused about the counts during the taking of verdicts, the exchange was clarified before the verdicts were formally recorded. No juror remonstrated when the verdicts were taken. Any initial confusion had been resolved, and this ground did not independently succeed. The Court did, however, deprecate the inconsistent practice of listing only some alternative charges on an indictment as liable to cause confusion.

Inconsistent verdicts (Ground 1 in part, majority): Kirk JA (Sweeney J agreeing) held that the acquittals on Counts 1 and 1A could not be reconciled with the guilty verdict on Count 2 in a principled way. The trial judge gave no positive direction on the mental elements of the sexual touching offences, and the clear implication from the summing-up was that no mental element was required for those counts. The Crown's proposed explanation, that the jury must have applied and carefully assessed the mental element for the touching counts but not for the intercourse count, would require the court to assume the jury did something the directions would have told them they need not do. That speculation was not a proper basis for reconciling the verdicts. Walton J dissented on this ground, finding that factual differences between the counts, together with explicit directions from Crown and defence counsel and references in the summing-up, provided a rational explanation for the acquittals.

Inadequate Liberato direction (Ground 2): The second limb of a Liberato direction requires the jury to be told that it must acquit if the accused's account might be true, even if it is not actually believed. The trial judge's formulation directed the jury to acquit if it "cannot come to a view about who to believe," which did not capture the same point and omitted the directness of the obligation. The Court found a real chance this departure affected the verdict, and that the appellant thereby lost a chance of acquittal. The third limb of Liberato (that disbelieving the accused does not of itself establish proof beyond reasonable doubt) was adequately communicated elsewhere in the summing-up.

Misdirection on delay in complaint (Ground 3): Section 294(2)(c) of the Criminal Procedure Act prohibits a direction that delay in complaint is relevant to credibility unless sufficient evidence justifies it. The trial judge treated the provision as requiring an affirmative direction that delay is not relevant, which was an error. Given that delay was central to the defence case, and the complainant had not reported the matter to police for some months, the Court found a real risk the erroneous direction affected the verdict and that the appellant lost a chance of acquittal.

Remedy: The majority (Kirk JA, Sweeney J) held that upholding the appeal on the basis of inconsistent verdicts did not automatically require entry of an acquittal. The misdirections on the mental elements meant this was not a case where entering an acquittal would simply carry forward the logic of the other verdicts. A new trial was the appropriate order. Walton J agreed that Grounds 2 and 3 warranted a retrial and found no basis for the proviso in s 6(1) of the Criminal Appeal Act 1912 to operate.

Orders Made

  • Leave to appeal granted to the extent necessary
  • The appeal upheld
  • The appellant's conviction and sentence on Count 2 quashed
  • A new trial ordered on Count 2
  • Proceedings listed in the arraignment list in the District Court on 21 April 2023

Key Takeaways

  • A Liberato direction must squarely convey to the jury that it is obliged to acquit if the accused's version might be true, even if it is not actually believed. A formulation directing acquittal only where the jury "cannot come to a view about who to believe" does not satisfy this requirement.

  • Section 294(2)(c) of the Criminal Procedure Act 1986 (NSW) restricts the giving of a direction that delay in complaint is relevant to credibility; it does not impose an obligation to direct the jury that delay is irrelevant. Treating the provision as requiring an affirmative direction of irrelevance is an error.

  • Where a trial judge omits to direct the jury on the mental elements of some counts, an appellate court cannot reconcile an inconsistent verdict by speculating that the jury nonetheless applied a careful mental-element analysis to those counts. Reconciliation based on what the jury would have been assumed not to do, had the positions been reversed, is not a proper approach under Mackenzie v The Queen and Gilbert v The Queen.

  • The inconsistent practice of including some alternative counts on the indictment but not others is deprecated by the Court as liable to cause jury confusion.

  • Upholding a conviction appeal on the ground of inconsistent verdicts does not automatically result in an acquittal. The remedy is a matter of discretion, and where misdirections have tainted the verdicts on which the appellant was acquitted, a new trial may be the appropriate order.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61KC, 61KD(1)(a), 61I, 61J(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), s 294
- Supreme Court (Criminal Appeal) Rules, r 4.15

Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Hewitt v R [2021] NSWCCA 227
- R v Markuleski (2001) 52