Carney v R [2008] NSWCCA 140 | Case summary

5 The appellant did not give evidence but relied on his interview with the police. In that interview he denied the digital penetration alleged in count two but admitted the remaining sexual activity. He said that the complainant consented, indeed, that he had instigated the sexual contact. 6 There are two grounds of appeal. They were treated together in the submissions before the court. The grounds are: "Ground 1 The convictions were unreasonable and cannot be supported by the evidence, as in the particular and relevant circumstances those verdicts are inconsistent with the verdicts returned in relation to the remaining three counts on the indictment. There is no reasonable basis for the inconsistency. Ground 2 There was a miscarriage of justice, as the jury's failure to extend the doubt on three of the six counts to the remaining three counts, in the particular and relevant circumstances of this trial, is indicative of such compromise or error of approach as to justify the intervention of the Court and the quashing of the convictions." 7 The relevant legal principles were not in issue. With respect to inconsistency, the court must bear in mind the primary responsibility of the jury to decide guilt or innocence. The approach is, and I quote from MacKenzie v The Queen (1996) 190 CLR 348 at 367: " … if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted." 8 As frequently occurs, this is a word against word case. However, the fact that the jury does not convict on the basis of some part of the complainant's evidence does not of itself establish a relevant inconsistency. The whole of the circumstances of the case must be considered. 9 As the joint judgment of Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen (2002) 213 CLR 606 at [34]: "In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others." 10 The appellant submitted that in this case the inconsistent verdicts were: "an affront to logic and commonsense", adopting the formulation in MacKenzie at 368 and referred to with approval in the joint judgment of McHugh, Gummow and Kirby JJ in MFA at [86].

11 With respect to count two, there was a clear denial by the appellant unlike each other sexual contact which he admitted but said was consensual. The acquittal with respect to that count is clearly based on a difference in the evidence of a direct and material character. 12 With respect to the remaining five counts, the only issue was consent. The question for this court is whether there is a relevant inconsistency between the acquittal on the two remaining counts and the three counts upon which a conviction was entered. 13 The Crown in its submissions sought to reconcile the verdicts and in doing so did not seek to invoke the last of the three matters referred to by Gleeson CJ, Hayne and Callinan JJ in MFA at [34] being a matter which may interact with the other considerations to which their Honours referred, namely: " … it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only". 14 This case does not raise the application of that aspect of the judgment. 15 The Crown emphasised a number of directions which the trial judge had given to the jury in the course of his summing-up, particularly, the jury had to assess the evidence relating to each charge separately and to reach separate verdicts on each count in a context in which: "The evidence in relation to different charges is somewhat peculiar to each charge" and: "There are some facets of the evidence which relate solely to a particular count." Then if the jury did: "Hold a reasonable doubt in relation to a particular count where you find a particular count not proved, then these are matters that you will take into consideration when considering the next count." Then his Honour said it was "essential" that the jury: "carefully scrutinise the complainant's evidence." 16 Finally, with respect to each count the jury had to be satisfied beyond reasonable doubt that the sexual intercourse occurred without the consent of the complainant and that the accused knew that there was no such consent. 17 As I have indicated above, the acquittal on count two is in a separate category. There was a clear basis for differentiating it from the counts on which the appellant was convicted. 18 The Crown submissions with respect to the acquittals on counts one and four drew attention to certain common features between these two counts which distinguished both from the three counts on which the jury convicted the appellant. 19 Each of count one and count four involved the appellant masturbating the complainant to the point of ejaculation. These circumstances were quite distinct from, most relevantly, counts three and six upon which the jury convicted. Each of those counts alleged a forced masturbation of the appellant by the complainant. 20 The Crown draws attention to the fact with respect to count one the complainant did not initially make any mention of the events when he first gave his evidence-in-chief. He was drawn back to it by the Crown Prosecutor. 21 After recounting the relevant events in chronological sequence being the matters involved in counts two and three, the following questions and answers occurred in evidence-in-chief: "Q. Are they the only two types of activity you and Adam did together that night on the mattress? A. I sort of can't remember it all. Q. Okay. Is there anything that you remember that you haven't told the court about? A. Yes. Q. What's that? A. That he was trying to kiss me and he put lips with mine." 22 Accordingly, on a second occasion, the complainant failed to give the relevant evidence. 23 Subsequently, after giving the evidence with respect to the second occasion, namely the occasion involving counts four, five and six about the same kind of activity, that is the appellant masturbating him, that is count four, the following occurred in the course of the trial: "Q. You've given evidence about him touching your penis on the second occasion. Did he touch your penis on the first occasion or can't you remember? That other trip? A. I think he did. Q. When did that occur? Before or after he touched your bottom? A. Before. Q. How long did he touch your penis on that first occasion? A. About ten, fifteen minutes. Q. Did you ejaculate on that occasion? A. Yes." 24 The Crown submitted that there was a similar hesitation in the evidence with respect to count four. Again the evidence was adduced chronologically but the reference to touching the complainant's penis was not given until after the evidence about counts five and six. 25 Immediately after the evidence of the act of masturbation by the complainant of the appellant, the following evidence was given: "Q. What about your penis? Did anyone touch that? A. Yes, Adam. Q. When did that happen? On this night? Did he touch your penis on the night we're talking about? A. Yes, he did. Q. Did that happen before or after he put his fingers into your bottom? A. I think that was before he was putting his fingers in my bottom." He went on to give evidence that on this occasion also he ejaculated. 26 Significantly, with respect to the issue of knowledge of absence of consent is the following: "Q. How long did he touch your penis for? A. Five, ten minutes as I was trying to move away from him to stop doing it. Q. What were you doing to stop him doing it? A. Sort of pushing away from him, tried to push away from him. Q. Did anyone say anything while this activity took place? Did you say anything, or Adam? A. No, not that I can remember." 27 It is noted above, the evidence about count one was given out of sequence after this evidence. With respect to knowledge of absence of consent, the complainant's evidence was this: "Q. Did you say anything at the time to him on that first occasion? A. I just said, 'Stop it, let me go. I want to get up.' He wouldn't let me up. 28 This is clear evidence on the issue of knowledge but as noted, this evidence was given out of sequence and with apparent hesitation. Although there was no issue that the events occurred, this quality of the evidence may have been permissibly regarded as relevant by the jury on the issue of communication of a lack of consent. 29 The Crown also referred to the fact that in the initial complaint to police, the complainant had made no reference to the events constituting counts one and four being the two occasions on which the appellant masturbated him to ejaculation. The Crown submits that he was clearly embarrassed by these events and ashamed about these incidents, both in his initial complaint to the police and also in the course of giving evidence at the trial. 30 I agree that the jury was entitled to proceed on the basis that whilst accepting the complainant generally as a witness of truth, the evidence on counts one and four did not satisfy them beyond a reasonable doubt. 31 These two occasions raise a distinctive issue as to the knowledge that was required on the part of the appellant, namely knowledge that the complainant was not consenting. Each of the two counts involved masturbation by the appellant of the complaint for a considerable period up to and including ejaculation. It was in my opinion open to the jury to conclude that in these two incidents the appellant may not have had the requisite knowledge. Whatever indications of absence of consent had been given by the complainant, the jury could reasonably conclude that they were not persisted with in this respect. 32 Count five involved digital penetration of the anus which the appellant did not deny but said was consensual. By its nature it was open to the jury in my opinion to find that the appellant knew that the complainant did not consent, unlike the counts of masturbation leading to ejaculation by the complainant. 33 The evidence of this count was given without hesitation. On the issue of knowledge, the complainant said: "Q. What were you doing while he was doing this? A. I was trying to push myself away. He had his hand like that over this side of me and pulling me back in towards him." 34 In my opinion, there was no relevant inconsistency in the verdicts which would justify this court interfering with a jury verdict. At least with respect to the obligation upon the Crown to prove beyond reasonable doubt that the appellant knew that the complainant was not consenting, the three counts on which he was acquitted were relevantly different to those on which he was convicted. 35 The evidence as to the communication of lack of consent on count four was equivocal and with respect to count one could be regarded as insufficiently reliable. With respect to count two where there was a denial, the matters set out in the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA which I have quoted above are directly applicable. 36 However, I place particular weight on the fact that the masturbation continued until ejaculation with respect to both counts one and four. A jury could well conclude that the Crown had not established beyond reasonable doubt that the appellant realised that the complainant was not consenting to those acts. 37 In my opinion, there is no relevant inconsistency. With respect to the assertion of unreasonableness, the test in M v The Queen (1997) 181 CLR 487 at 493 is not satisfied. 38 The appeal should be dismissed. 39 HIDDEN J: I agree. 40 LATHAM J: I also agree. 41 SPIGELMAN CJ: The order of the Court is as I have indicated.

Carney v R

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