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Court of Criminal Appeal 19 June 2024

Chambers v R

[2024] NSWCCA 94

Sexual offences
CRIME A PPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT APPEAL AGAINST CONVICTION DISMISSED

Citation: Chambers v R [2024] NSWCCA 94
Court: Court of Criminal Appeal, NSW
Date: 19 June 2024
Judge(s): Davies J, Wright J (principal judgment), McNaughton J

Background

The appellant was tried in the District Court before Hock DCJ and a jury in November 2022 on two counts. Count 1 charged him with exposing a child under 14 years of age to indecent material (a pornographic film) with the intention of making it easier to procure the child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act 1900 (NSW). Count 2 charged him with sexual intercourse with the same child while she was under his authority, contrary to s 66C(2) of the Crimes Act.

The jury returned a verdict of guilty on Count 1 and not guilty on Count 2. The appellant was sentenced to 3 years and 6 months' imprisonment with a non-parole period of 1 year and 9 months for the Count 1 conviction.

The appellant sought leave to appeal against his conviction on Count 1, arguing that the guilty verdict on that count was irreconcilable with the not guilty verdict on Count 2.

  • Whether the acquittal on Count 2 was only explicable on the basis that the jury rejected, or had a reasonable doubt about, the complainant's credibility generally.
  • Whether, if the jury harboured such a doubt about the complainant's credibility, the guilty verdict on Count 1 was unreasonable.
  • Whether the different verdicts on the two counts could be logically reconciled by reference to the differing quality of the complainant's evidence on each count.

Decision

Wright J (with Davies and McNaughton JJ agreeing) granted leave to appeal, given the ground was arguable, but dismissed the appeal. The central test, drawn from TK v R (2009) 74 NSWLR 299, asks whether an acquittal is attributable only or principally to doubt about the complainant's credibility. If there is a rational explanation for the acquittal that does not depend on rejecting the complainant's credibility, no inconsistency arises.

Wright J conducted a detailed review of the evidence and found that the quality of the complainant's account differed markedly between the two counts. Her evidence on Count 1 was consistent, detailed, and corroborated in part by surrounding circumstances. Her evidence on Count 2 was less certain, evolved during the course of the trial, lacked detail, and at times used qualified language, such as the applicant having "tried to" have sexual intercourse with her rather than stating that he did.

Importantly, the first complaint made in relation to Count 2 used the same qualified language. Davies J observed that the jury's doubt on Count 2 was most plausibly a doubt about whether the act was completed, not a doubt about the complainant's honesty. The Court concluded that the jury could reasonably have accepted the complainant as an honest witness doing her best to recount events, while finding her evidence on Count 2 insufficiently certain or detailed to establish guilt beyond reasonable doubt.

The possibility of a "merciful verdict" on one count (recognised in Sio v The Queen (2016) 259 CLR 47) was raised but not relied upon by the Crown. The Court found it unnecessary to consider that explanation, as a logical and reasonable reconciliation of the verdicts already existed on the evidence alone.

Orders Made

  • Leave to appeal against conviction granted.
  • Appeal dismissed.

Key Takeaways

  • An inconsistent verdicts argument will not succeed where there is a rational explanation for the acquittal that does not depend on the jury rejecting, or having a reasonable doubt about, the complainant's credibility as a general matter.
  • Differences in the quality, consistency, and specificity of a complainant's evidence as between separate counts can provide a proper basis for different verdicts on those counts.
  • The Court of Criminal Appeal confirmed that a jury may accept a complainant as credible and honest overall while still acquitting on a count where the evidence concerning that specific count is insufficiently certain or detailed to establish guilt beyond reasonable doubt.
  • Where a complainant's account of one incident is less detailed, contains evolving elements, or uses qualified language, those features may distinguish that count from another on which the evidence is firmer, without undermining the conviction on the stronger count.
  • In dismissing the appeal, the Court found the guilty verdict on Count 1 was not unreasonable, and the two verdicts were logically reconcilable on the whole of the evidence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66C(2), 66EB(3), 578A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases:
- TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151
- Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Black v The Queen (1993) 179 CLR 44; [1993] HCA 71
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- NW v R [2023] NSWCCA 134
- Ha v R [2023] NSWCCA 274
- Lenior v R [2023] NSWCCA 242
- Z (a pseudonym) v R [2022] NSWCCA 8
- Shiv v R [2021] NSWCCA 245
- Walker v R [2019] NSWCCA 4