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Court of Criminal Appeal 27 April 2001

Regina v S [2001] NSWCCA 204 revised - 25

[2001] NSWCCA 204

Sexual offences
CRIMINAL LAW INCONSISTENT VERDICTS UNSAFE AND UNSATISFACTORY VERDICTS APPEAL ALLOWED.

Citation: Regina v S [2001] NSWCCA 204 revised - 25/05/2001
Court: NSW Court of Criminal Appeal
Date: 27 April 2001
Judge(s): Meagher JA, Sully J, Dowd J

Background

The appellant stood trial in the District Court on six counts of indecent assault against a male complainant, who was fourteen or fifteen years old at the time of the alleged offences. The alleged incidents were said to have occurred between April and July 1976, though the complainant had originally placed them in 1975. The Crown case rested entirely on the uncorroborated evidence of the complainant.

The jury returned a split verdict, convicting the appellant on the first three counts and acquitting him on counts four, five and six. All six counts were alleged to have occurred in essentially the same context and chronological sequence.

The appellant appealed to the Court of Criminal Appeal, arguing that the verdicts were inconsistent and that the convictions were unsafe and unsatisfactory.

  • Whether the jury's verdicts were logically inconsistent, given that convictions were returned on counts one to three but acquittals on counts four to six arising from the same course of alleged conduct
  • Whether the convictions on counts one to three were unsafe and unsatisfactory in light of the evidentiary difficulties with the complainant's account
  • Whether a new trial should be ordered if the convictions were set aside

Decision

Meagher JA found that the complainant's evidence was attended by significant factual inaccuracies in the surrounding details he used to anchor each allegation in time. For example, a theatrical performance the complainant relied upon to fix the timing of count four was shown never to have taken place at the relevant venue in either 1975 or 1976. Similarly, the complainant described adverse academic consequences for the appellant in relation to count one that the evidence directly contradicted.

Meagher JA concluded that no sensible reliance could be placed on the complainant's evidence, and that the convictions on counts one to three were both unsafe and unsatisfactory and inconsistent with the acquittals on counts four to six. His Honour acknowledged the Crown's arguments, including that juries are the sole judges of credibility and that incidental inaccuracies do not necessarily undermine a central allegation. However, he held that accepting those arguments in an absolute sense would make it impossible for any appellate court to ever set aside a jury verdict, which would be inconsistent with settled High Court authority.

Sully J agreed with the orders and identified the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v R (1997) 191 CLR 439 as providing decisive reasoning. He also found the present case fell within the first of three relevant categories discussed by Simpson J in R v Crisologo (1997) 99 A Crim R 178. Dowd J agreed with both Meagher JA and Sully J. The court unanimously allowed the appeal and set aside the convictions, with no new trial ordered.

Orders Made

  • Appeal allowed
  • Convictions and sentences on counts one, two and three set aside
  • No new trial ordered
  • In all publications of this matter, the appellant is to be referred to as "Mr S"

Key Takeaways

  • Inconsistent jury verdicts can constitute a miscarriage of justice warranting appellate intervention, even where the jury is ordinarily the sole arbiter of credibility.
  • The high Court's joint judgment in Jones v R (1997) 191 CLR 439 provided the applicable framework for assessing whether inconsistent verdicts required convictions to be set aside.
  • A conviction supported only by uncorroborated complainant evidence may be found unsafe and unsatisfactory where the surrounding details offered to establish timing and context are demonstrated to be factually wrong.
  • The principle that incidental inaccuracies do not necessarily undermine a central allegation has limits; where the surrounding detail is integral to the complainant's account and is demonstrably false, the reasoning collapses entirely.
  • In setting aside the convictions, the Court of Criminal Appeal declined to order a new trial, treating the acquittals as a reason not to expose the appellant to further proceedings.

Legislation and Cases Referenced

Cases:
- Jones v R (1997) 191 CLR 439 (High Court of Australia)
- R v Crisologo (1997) 99 A Crim R 178 (NSW Court of Criminal Appeal)

Legislation: No specific legislation was identified in the judgment text.