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Court of Criminal Appeal 27 November 2002

R v Holland [2002] NSWCCA 469 revised - 01

[2002] NSWCCA 469

Sexual offencesAssault & violence
ASSAULT WITH ACTS OF INDECENCY ALLEGED INCONSISTENCY OF VERDICTS DIRECTIONS TO JURY VERDICTS

Citation: R v Holland [2002] NSWCCA 469 revised - 01/09/2006
Court: NSW Court of Criminal Appeal
Date: 27 November 2002
Judge(s): Simpson J; Carruthers AJ; Mathews AJ

Background

The appellant was a NSW Police Service officer working as a tutor at the Goulburn Police Academy. The complainant was a 21-year-old student in his classes. On the evening of 19 July 2001, the two encountered each other socially at licensed premises near the Academy. The complainant alleged that later that evening, the appellant led her outside, physically restrained her, and subjected her to a series of sexual assaults.

The appellant was tried in the District Court on five counts arising from that same evening. The counts included aggravated sexual intercourse without consent, two counts of attempted sexual intercourse without consent, and two counts of assault with acts of indecency. The jury returned guilty verdicts on the first two counts (digital penetration and attempted penile penetration) and not guilty verdicts on the remaining three.

The appellant was sentenced to four years imprisonment with an 18-month non-parole period on the first count, and two years with a one-year non-parole period on the second, to be served concurrently. He appealed the convictions, but did not seek leave to appeal the sentences.

  • Whether the jury's verdicts were inconsistent, in that acquittals on three counts were irreconcilable with guilty verdicts on the other two counts arising from the same course of conduct
  • Whether the trial judge's directions to the jury were adequate, particularly regarding the effect that doubt about a complainant's credibility on one count should have on the assessment of other counts
  • Whether the trial judge adequately directed the jury on the question of withdrawal of consent, following a jury question on that issue
  • Whether tape-recorded telephone conversations between the complainant and the appellant were properly admitted into evidence

Decision

On the alleged inconsistency of verdicts, the Court found no error. Simpson J reasoned that the acquittals on the less serious counts were not irreconcilable with the convictions on the more serious ones. The jury may reasonably have concluded that, in the early stages of the encounter, the Crown had not negatived consent, while being satisfied beyond reasonable doubt that consent was absent during the acts giving rise to the first two counts. This interpretation was supported by a jury question about withdrawal of consent, which itself indicated the jury was turning its mind to the progression of events during the evening.

The Court also pointed to the powerful corroborative evidence surrounding the more serious counts. Medical evidence and multiple witness accounts confirmed the complainant's visible distress on her return to the venue, including swelling and discolouration consistent with her account. The appellant's own evidence, together with inconsistencies revealed in the tape recordings and his recorded police interview, further undermined his credibility.

Simpson J distinguished this case from the Court's earlier decisions in Jones and Markuleski, in which inconsistent verdicts had required convictions to be set aside. Here, the acquittals on three counts did not necessarily cast doubt on the complainant's credibility in relation to the remaining two. The varying verdicts reflected a rational, step-by-step assessment of the evidence as it related to each distinct act.

On the jury direction grounds, the Court found no error in the trial judge's directions and rejected each ground of appeal. Carruthers AJ and Mathews AJ agreed with Simpson J without separate reasons.

Orders Made

  • Appeal against convictions dismissed.

Key Takeaways

  • Apparently inconsistent verdicts on counts arising from a single course of conduct will not automatically warrant setting aside convictions; the Court of Criminal Appeal will examine whether a rational explanation exists for the differing outcomes across counts.
  • Where a jury acquits on earlier, less serious acts in a sequence and convicts on later, more serious ones, those results may be reconcilable if the evidence reasonably supports a finding that consent was present or not negatived at the outset but was subsequently absent or overborne.
  • In dismissing the appeal, the Court confirmed that the relevant question is whether the acquittals on some counts necessarily undermine the complainant's credibility on the counts resulting in conviction, rather than whether the verdicts are merely surprising at first glance.
  • Strong corroborative evidence of a complainant's physical condition and distress can provide a powerful foundation for conviction even where other counts in the same indictment result in acquittal.
  • A jury question about withdrawal of consent during deliberations can itself be significant, as it may indicate the jury was reasoning carefully about the progression of events rather than treating all counts uniformly.

Legislation and Cases Referenced

Legislation:
- Listening Devices Act 1984 (NSW)
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules, Rule 4

Cases:
- Markuleski v R [2001] NSWCCA 290; 125 A Crim R 186
- R v Jones (1997) 191 CLR 439
- R v Murray (1987) 11 NSWLR 12