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8
Court of Criminal Appeal 18 April 2023

Barney v R

[2023] NSWCCA 85

Sexual offences

Citation: Barney v R [2023] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 18 April 2023
Judges: Kirk JA (primary judgment); N Adams J and McNaughton J (agreeing)

Background

The applicant was convicted by a District Court jury of 12 counts of sexual offences against his step-daughter, committed over several years when she was between 6 and 12 years old. The jury acquitted him of nine further counts, four of which had been directed acquittals during the trial. He was sentenced to 12 years' imprisonment with a non-parole period of 9 years.

The applicant sought leave to appeal his conviction, arguing that the guilty verdicts were inconsistent with the not guilty verdicts. He also required an extension of time, given the lengthy delay in filing, though that extension was not contested on its own merits.

The appeal turned entirely on factual inconsistency between the mixed verdicts. The applicant did not separately contend that the evidence was insufficient to support the convictions, nor was any legal or technical inconsistency alleged.

  • Whether the guilty verdicts were factually inconsistent with the acquittals, such that the convictions were unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)
  • How the concepts of credibility and reliability are to be distinguished, and how each bears on an argument of inconsistent verdicts
  • Whether each acquittal could only be rationally explained by a general doubt about the complainant's credibility or reliability, making the mixed verdicts irreconcilable

Decision

Kirk JA, with whom the other judges agreed, granted leave to appeal but dismissed the appeal, concluding this was not one of the unusual cases where inconsistency is established.

On the credibility and reliability distinction, the Court explained that credibility concerns honesty and truthfulness, while reliability concerns a witness's capacity to accurately recall events regardless of their sincerity. A finding of untruthfulness will often taint a witness's evidence as a whole, but unreliability in relation to some detail does not necessarily undermine all of a witness's evidence. The Court confirmed that both concepts can be relevant to an inconsistent verdicts argument, but neither automatically compels a global rejection of the witness's account.

On the question of reconciliation, the Court found a rational explanation for each acquittal in the prosecution's particulars: the trial judge had directed the jury that a conviction required proof beyond reasonable doubt that each offence occurred within the date range specified in the indictment. The evidence raised the possibility that some alleged offences may have occurred outside those particularised dates. That uncertainty provided a legitimate basis for acquitting on those counts without doubting the complainant's general truthfulness or reliability.

For some counts, the Court also noted that inconsistencies in the complainant's evidence could have caused the jury to have a reasonable doubt about the recollection of specific events, without those inconsistencies being significant enough to render her fundamentally untruthful or unreliable. The acquittals, viewed individually and cumulatively, were reconcilable with the convictions.

Orders Made

  • Time for filing the application for leave to appeal extended to permit the application to be made
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for factual inconsistency in verdicts is one of logic and reasonableness, asking whether the verdicts can be reconciled on a proper basis. Intervention is warranted only where inconsistency rises to the point that it is necessary to prevent a possible injustice.
  • A distinction exists between credibility (honesty and truthfulness) and reliability (accuracy of recall). A finding that a witness is untruthful will often taint their whole account, but evidence undermining reliability on one point does not necessarily render all of their evidence unreliable.
  • Both credibility and reliability can be relevant to an inconsistent verdicts argument, but neither concept automatically compels an appellate court to conclude that mixed verdicts are irreconcilable.
  • Where an indictment particularises offences within specific date ranges, and evidence raises the possibility that some offences occurred outside those dates, acquittals on those counts carry a rational explanation that need not imply any general doubt about the complainant's account.
  • In dismissing the appeal, the Court observed that inconsistencies and omissions in a complainant's evidence are common in trials, and are particularly unsurprising where the alleged conduct spanned several years and the complainant was a young child at the time.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61P, 66C(1)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Evidence Act 1995 (NSW), ss 32, 38

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- R v Kirkman (1987) 44 SASR 591
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- Saunders v R [2022] NSWCCA 273
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Watson v Foxman (2000) 49 NSWLR 315