Citation: Regina v Bishell [2002] NSWCCA 279 revised – 31/07/2002
Court: Court of Criminal Appeal, New South Wales
Date: 7 June 2002
Judge(s): Heydon JA, Hidden J, Blanch AJ
Background
The appellant was convicted in the Gosford District Court on four of six counts of homosexual intercourse with a person aged between 10 and 18, contrary to section 78K of the Crimes Act. The complainant was aged 14 to 15 at the relevant time. The appellant was the de facto partner of the complainant's mother.
The six counts alleged separate acts of anal and oral intercourse occurring across various periods between October 1997 and August 1998. The appellant was acquitted on counts two and four and convicted on counts one, three, five, and six. His defence at trial was that the complainant had drugged him and performed acts without his consent.
The appellant appealed against both the convictions and the sentences. The appeals against counts three and five were abandoned. The substantive grounds pursued on appeal concerned the conviction on count one and count six.
Legal Issues
- Whether the conviction on count one was properly supported by the evidence, given the role of the complainant's uncorroborated testimony
- Whether a warning about uncorroborated evidence was required in respect of count six
- Whether the verdict of guilty on count six was inconsistent with the verdict of acquittal on count two, given the similarities between the two charges
- Whether the sentences imposed required adjustment in light of the time already served by the appellant
Decision
On count one, the Court found the conviction was well supported. The prosecution case did not rest solely on the complainant's evidence: the appellant had made admissions in a police interview, and a tape-recorded conversation also implicated him. The Court held that a warning about uncorroborated evidence was not required, and that a jury could properly be satisfied of guilt beyond reasonable doubt. The appeal against that conviction was dismissed.
On count six, the position was different. The evidence came essentially from the complainant alone. The appellant denied the conduct both in his police interview and at trial. The trial judge himself noted in summing up that the evidence on this count came from the complainant. An admission attributed to the appellant through the complainant's mother was unreliable: the mother gave inconsistent evidence about timing and acknowledged her memory was affected by her illness. The alleged admission could equally have related to count two, on which the appellant was acquitted.
The Court found the verdict on count six was inconsistent with the acquittal on count two. Both counts involved allegations of oral intercourse and, on the evidence available, the jury's conclusions on the two counts could not be rationally reconciled. The conviction on count six was quashed and a verdict of acquittal was entered.
On sentence, the Court noted the trial judge had taken the unusual step of ordering periodic detention despite the nature of the offences. The Court agreed that assessment was appropriate. Given the time the appellant had already served, the Court restructured the sentences to reflect what had been served and noted the sentences had already expired.
Orders Made
- Leave to appeal against sentence granted
- Conviction on count six quashed; verdict of acquittal entered
- Appeals against counts three and five dismissed (abandoned)
- Appeal against conviction on count one dismissed
- Sentences imposed by the trial judge quashed
- On each remaining count, the appellant sentenced to a fixed term of 12 months imprisonment, dating from 1 June 2001
- All sentences to be served concurrently, by way of periodic detention
- The Court noted the sentences had already expired and no further detention was required
Key Takeaways
- An inconsistent verdict ground requires the appellate court to assess whether two verdicts on comparable counts can be rationally reconciled on the evidence available to the jury. Where they cannot, the guilty verdict will be quashed.
- Reliance solely on a complainant's evidence to support a conviction, where the accused has denied the conduct and supporting evidence is unreliable or ambiguous, can expose a conviction to successful challenge on appeal.
- The Court of Criminal Appeal confirmed that a warning about uncorroborated complainant testimony was not required where independent corroborating evidence, such as admissions recorded in a police interview and a taped conversation, also supported the prosecution case.
- In resentencing after a partially successful conviction appeal, the court may restructure sentences across the remaining counts to reflect custody already served, including time served under periodic detention and by way of full-time imprisonment.
- An admission attributed to a defendant through a third-party witness carries reduced weight where that witness's evidence is internally inconsistent and the admission is equally referable to a charge on which the defendant was acquitted.
Legislation and Cases Referenced
Legislation
- Crimes Act (NSW), s 78K
Cases
- R v Murray (1987) 11 NSWLR 12
- R v McNamara [2002] NSWCCA 248
- R v Markuleski [2001] NSWCCA 290
- M v The Queen (1984) 191 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- MacKenzie v The Queen (1996) 190 CLR 348