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Court of Criminal Appeal 20 December 2024

MacDonald v R

[2024] NSWCCA 240

Sexual offences

Citation: MacDonald v R [2024] NSWCCA 240
Court: Court of Criminal Appeal, NSW
Date: 20 December 2024
Judges: Adamson JA (at [1]); Ierace J (at [237]); Sweeney J (at [263])

Background

The applicant was convicted by a District Court jury of 11 counts of sexual and indecent assault against two complainants, JC and MA, both under 16 years of age at the times of the alleged offending. The offending was alleged to have occurred between 1980 and 1986, when the complainants were aged between approximately 4 and 14. The applicant lived in close proximity to both complainants' families, who were family friends, and the alleged offending occurred in and around his home.

The Crown case rested substantially on the evidence of JC and MA, supported by complaint evidence from family members and friends to whom disclosures had been made. The counts spanned indecent assault charges under ss 76 and 61E(1) of the Crimes Act 1900 (NSW), and six charges of sexual intercourse without consent under s 61D(1). The applicant denied all conduct and was acquitted of one count (count 9) but convicted of the remaining 11.

The applicant sought leave to appeal on three grounds: that the trial judge misdirected the jury on a consent element; that certain guilty verdicts were inconsistent with the acquittal on count 9; and that all guilty verdicts were unreasonable and unsupported by the evidence.

  • Whether the trial judge's failure to direct the jury on the complainant's lack of consent as an element of the s 61D(1) offences, and defence counsel's agreement to that direction, resulted in a substantial miscarriage of justice.
  • Whether the verdicts of guilty on counts 1, 2, 3 and 12 were inconsistent with the acquittal on count 9, given that both count 9 and those counts involved JC.
  • Whether the guilty verdicts on all 11 counts were unreasonable or could not be supported by the evidence, particularly given the alleged implausibility of the complainants' accounts and the alleged disparities between their evidence and complaint witness evidence.

Decision

Ground 1: Misdirection on consent (majority)

Adamson JA, with Ierace J agreeing, held that the trial judge's direction was erroneous. The direction told the jury that consent was no defence because a person under 16 cannot consent. That is incorrect: under s 61D(1), the Crown must prove the complainant did not in fact consent, and MA's age did not render her legally incapable of consent for that purpose. However, the majority applied the proviso under s 6 of the Criminal Appeal Act 1912 (NSW), concluding that no substantial miscarriage of justice resulted. The applicant's case was a complete denial that any conduct occurred, meaning consent was not a live issue at trial. The majority was also satisfied that the evidence, properly assessed, was sufficient to prove beyond reasonable doubt that MA did not consent.

Sweeney J dissented on this ground. In her Honour's view, the failure to direct the jury on the elements of lack of consent and the applicant's knowledge of that lack of consent was a fundamental irregularity producing a miscarriage of justice. The proviso should not have been applied.

Ground 2: Inconsistent verdicts

The majority dismissed this ground. The acquittal on count 9 was rationally explicable without casting doubt on JC's general credibility. JC's evidence on count 9 was uncertain as to the precise physical act alleged, whereas her evidence on the other counts involving her was clear and specific. This distinction provided a rational basis for the jury's differentiation. Sweeney J accepted there was also a rational basis for the acquittal, pointing to the absence of evidence from JC's father, who was said to have been present during the count 9 incident.

Ground 3: Unreasonable verdicts

The majority upheld this ground only in relation to count 11. On counts 1 to 8, 10 and 12, the majority was satisfied the verdicts were open to the jury after reviewing the evidence. The tendency evidence was capable of establishing a pattern of opportunistic and brazen offending against both complainants, and the fact that offending occurred in proximity to others did not render the complainants' accounts implausible. As to count 11, MA's evidence did not specify digital penetration in respect of that count, meaning conviction of the s 61D(1) offence was not open. The parties agreed a verdict of the lesser offence under s 61E(1) should be substituted.

Sweeney J dissented comprehensively on ground 3, conducting an independent review of the evidence and concluding that the jury should have had a reasonable doubt about the evidence of each complainant. In her Honour's view, all 11 convictions were unreasonable.

Orders Made

  • Leave to appeal granted under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of all grounds, with separate leave granted for ground 1 under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
  • Appeal dismissed, except in relation to ground 3 insofar as it concerned count 11.
  • Conviction on count 11 quashed; verdict of guilty of indecent assault contrary to s 61E(1) of the Crimes Act 1900 (NSW) substituted pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW).
  • Matter remitted to the District Court for re-sentencing, listed in the arraignment list at Wollongong on 10 February 2025.

Key Takeaways

  • Under s 61D(1) of the Crimes Act 1900 (NSW), the complainant's age being under 16 does not render the complainant legally incapable of consenting for the purposes of proving the offence. The Crown must still prove absence of consent as an element, and a direction to the contrary is erroneous.
  • Application of the proviso to a misdirection about an element of the offence will turn on the circumstances of the individual trial. Where the defence is a complete denial that any conduct occurred, the majority held that consent was not a live issue and the misdirection caused no substantial miscarriage of justice, even though a dissent found otherwise.
  • Inconsistent verdicts will not automatically support an appeal where a rational explanation for the acquittal exists independently of doubts about a complainant's credibility. A difference in the quality and specificity of evidence between counts can provide that rational explanation.
  • Alleged implausibility arising from offending committed in proximity to others, or in plain sight, does not of itself render guilty verdicts unreasonable. The majority confirmed the jury was entitled to treat the conduct as a pattern of opportunistic offending.
  • Where a complainant's evidence does not establish the specific physical act required for the charged offence, a conviction for that offence is not open. The Court of Criminal Appeal may substitute a verdict of a lesser offence where the evidence supports it and the parties agree.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61E, 76, 77
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 7
- Evidence Act 1995 (NSW), s 165B
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases:
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
- Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Hughes v The