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Court of Criminal Appeal 15 March 2024

Sakar v R

[2024] NSWCCA 40

Sexual offencesAssault & violence
CRIME APPEALS APPEAL AGAINST CONVICTION GUILTY VERDICTS REASONABLE APPEALS WHETHER TRIAL JUDGE MISDIRECTED JURY

Citation: Sakar v R [2024] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 15 March 2024
Judges: Simpson AJA; Button J; Weinstein J

Background

The appellant was tried in the District Court on four counts arising from events alleged to have occurred in the early hours of 8 September 2019. The complainant, an 18-year-old woman, met the appellant at Darling Harbour and accompanied him to a nearby casino. The appellant later drove her home, entered her residence, and the Crown alleged he then committed a series of offences against her.

The four counts were: common assault (count 1); intentional choking so as to render the complainant incapable of resistance (count 2); and two counts of sexual intercourse without consent, one by penile-vaginal penetration and one by penile-anal penetration (counts 3 and 4). The jury returned guilty verdicts on counts 1 and 3, and not guilty verdicts on counts 2 and 4.

The appellant sought leave to appeal against the two convictions. He contended that the guilty verdicts were unreasonable when assessed against the available evidence and, in particular, that they were irreconcilable with the not guilty verdicts returned on the related counts.

  • Whether the guilty verdicts on counts 1 and 3 were unreasonable or could not be supported having regard to the evidence and to the jury's not guilty verdicts on the remaining counts
  • Whether the trial judge misdirected the jury (a ground raised protectively only, and not pressed as a live argument before the Court)

Decision

Ground 1: Unreasonable verdicts

The Court applied the established appellate test requiring it to make its own independent assessment of the evidence, while giving appropriate weight to the jury's advantage in seeing and hearing witnesses. The test, drawn from M v The Queen and confirmed in Pell v The Queen, asks whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt as to guilt, and whether the jury, acting rationally, ought nonetheless to have entertained such a doubt.

Simpson AJA identified that the jury's not guilty verdicts on counts 2 and 4 were explicable by reference to inconsistencies between the complainant's trial evidence and earlier accounts she had given to friends and to police. Those inconsistencies affected those specific counts but did not undermine the complainant's evidence in relation to the common assault and the first count of sexual intercourse. All three judges agreed that the complainant's evidence, if accepted by the jury in material respects, was capable of proving the appellant's guilt beyond reasonable doubt on those counts, and that no inconsistencies, discrepancies or other inadequacies required the jury to entertain a reasonable doubt.

Ground 2: Jury direction

The appellant acknowledged that this ground could not succeed before the Court of Criminal Appeal. A substantially identical complaint about a jury direction had already been rejected in Lee v R [2023] NSWCCA 203. No objection had been taken to the direction at trial, and leave to raise the ground was required. The ground was pursued on a protective basis only, to preserve the point for any further appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Mixed verdicts do not automatically render the guilty verdicts unreasonable. Where the not guilty verdicts are explicable by specific inconsistencies in the evidence relating to those particular counts, a jury can rationally convict on the remaining counts.
  • The appellate test for unreasonable verdict requires the court to conduct its own independent assessment of the evidence, but to proceed on the assumption that the jury accepted the complainant's evidence as credible and reliable, then ask whether rational jurors ought nonetheless to have doubted guilt.
  • Appellate courts must give weight to the jury's advantage in assessing witness credibility through live oral evidence, a principle affirmed by reference to Pell v The Queen and The Queen v Baden-Clay.
  • Where a ground of appeal concerning a jury direction was not raised at trial and involves an argument already rejected by the Court of Criminal Appeal, it will be treated as protective only and will not succeed.
  • No complaint about a Liberato direction (concerning how a jury should approach evidence where an accused has given their version of events) can be raised where no objection was taken at trial and the direction itself is unchallenged.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37(1), 61, 61HA, 61HE, 61I
- Criminal Appeal Act 1912 (NSW), s 5(1)(a)
- Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 (NSW)
- Supreme Court (Criminal Appeal) Rules, r 4.15

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- Lee v R [2023] NSWCA 203
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
- R v Knight (1988) 35 A Crim R 314
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Gipp v The Queen (1998) 194 CLR 106; [1998] HCA 21
- Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
- Cullen v R [2022] NSWCCA 63