John Sgardelis v The Queen

Court of Criminal Appeal (NSW)|2006-10-04|Before: Sully J, Adams J, Howie J

INTRODUCTION 1 Between 12 October 2005 and 2 November 2005 the appellant, Mr. Sgardelis, stood trial in the District Court before her Honour Judge Murrell SC and a jury. He was so tried upon an indictment containing 13 counts. 2 Each of counts 1, 3, 4, 6, 8, 9, 11 and 12 alleged an act of sexual intercourse without consent. Such an offence contravenes section 61I of the Crimes Act 1900 (NSW) and attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 3 Each of counts 2, 5, 7 and 10 alleged an attempted act of sexual intercourse without consent. By reason of the combined effect of sections 61I and 344A of the Crimes Act any such offence attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 4 Count 13 alleged a detention with the intention of obtaining sexual gratification. Such an offence contravenes section 86(1)(b) of the Crimes Act, and it, too, attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. 5 All of the 13 counts charged against the appellant were concerned with a common complainant, one R.W. 6 The jury acquitted the appellant on counts 1, 2, 3 and 4; and found him guilty on counts 5 to 13, both inclusive. On each of those 9 counts the appellant was formally convicted and he was sentenced to wholly concurrent sentences of imprisonment for a non-parole period of 2-1/2 years with a balance of term of 2-1/2 years. 7 The appellant challenges the 9 convictions upon the stated ground that the verdicts of guilty in respect of those 9 counts are "unreasonable". The gravamen of that challenge is that there is such an inconsistency between, on the one hand, the 4 verdicts of not guilty and, on the other hand, the 9 verdicts of guilty that the latter ought not to be allowed to stand. 8 There is no present challenge to the sentences and nothing further need be said about them.

THE ALLEGED UNREASONABLENESS OF THE VERDICTS OF GUILTY 43 The relevant principles were examined at length by a specially constituted Bench of this Court, (Spigelman CJ, Wood CJ at CL, Grove and Simpson JJ and Carruthers AJ), in R v Markuleski (2001) 52 NSWLR 82; and shortly thereafter by the High Court of Australia in MFA v The Queen [2002] 213 CLR 606. Of the six Justices who sat in MFA, three thought that a submission that Markuleski had been wrongly decided should be rejected; and three thought that it was unnecessary to decide the submission. In those circumstances I take present guidance from MFA. 44 In MFA the joint judgment of Gleeson CJ, Hayne and Callinan JJ contains this summary of principle: "34. Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. 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. Thirdly, there is the consideration stated by King CJ in R v Kirkman (20), and referred to in later cases (21): 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. And there may be an interaction between this consideration and the two matters earlier discussed." 45 The other three members of that Bench of the High Court: McHugh, Gummow and Kirby JJ, say: "The principles in ……. (MacKenzie v The Queen (1996) 190 CLR 348) ……. apply to the present case. This is not an instance of "legal or technical inconsistency", whereby the jury have returned two or more verdicts which, in law, cannot stand together (63). Nor is it a case where "Logic and reasonableness" necessarily dictated a common approach to the several verdicts concerned (64). In judging suggested inconsistency, this Court said in MacKenzie that "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" (65). The Court cited with approval the remarks of King CJ in R v Kirkman (66) to the effect that juries may not always act "in accordance with strictly logical considerations" or even "in accordance with the strict principles of the law which are explained to them". Juries sometimes give effect to "their innate sense of fairness and justice" (67) as well as to their sense of proportion and compassion (68). Nevertheless, cases do arise where different verdicts returned by a jury represent "an affront to logic and commonsense" and suggest a compromise in the performance of the jury's duty (69). Such a conclusion "depends upon the facts of the case". There can be no "hard and fast rules" except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission (70)." 46 In applying those statements of principle to the facts of the present case, a useful starting point is the following excerpt from the remarks made on the sentencing of the appellant: "The offender's counsel made much of what he describes as a discrepancy between the acquittals on counts one to four and the convictions on counts five to thirteen in the indictment, count thirteen being the count of detention. I do not perceive there to be any necessary inconsistency between those verdicts. As far as count four is concerned, I have already indicated that, on my view, the evidence fell short of what was required for a conviction because the complainant only ever said that the offender had tried to achieve sexual intercourse but the matter was charged as sexual intercourse without consent. As far as the first three counts in the indictment are concerned, in my view, it must be the case that the jury took the view that, while the complainant did not consent to any of the conduct in question, the offender's state of mind was such that it did not reach the requisite standard until after he had engaged in each of the main three types of sexual interactions which were the subject of the indictment. The jury found that he was not guilty in respect of the first insertion of the finger into the vagina, the first attempt to insert the penis into the vagina and the first occasion when the offender put his penis in the complainant's mouth. The jury took the view that, thereafter, the offender must at least have realised that the complainant may well not be consenting but he decided to go ahead anyway." 47 In my respectful opinion that critique of count 4 is plainly correct. What is said about counts 1, 2 and 3 requires, however, closer consideration. 48 As has been previously explained, counts 1 and 3 were two of eight counts each of which charged a specified act of sexual intercourse without consent; and the true issue joined at trial was that of consent. If it was open to the jury to accept essentially the whole of the complainant's evidence, as in my view it was, then the verdicts of not guilty on counts 1 and 3 can have only two possible explanations. One is that the jury, exceptionally, did not accept in connection with those two episodes the complainant's denial of consent. The other is that the jury, consistently, did accept that the complainant had in fact not consented; but thought that it was reasonably possible either that the appellant had reasonably but erroneously apprehended that the complainant was in fact consenting; or that the appellant had not been reckless about consent in connection with counts 1 and 3 but had become so reckless in connection with counts 6, 8, 9, 11 and 12. 49 I can see no rational basis upon which the jury might reasonably have accepted the complainant on the issue of consent in connection with counts 6, 8, 9, 11 and 12, but have rejected her, or have had, more precisely, a reasonable doubt about her on the issue of consent in connection with counts 1 and 3. 50 Neither can I see any rational basis upon which the jury might reasonably have accepted that the appellant had reasonably, but mistakenly, apprehended consent in connection with counts 1 and 3, but have somehow come to apprehend the lack of consent in connection with counts 6, 8, 9, 11 and 12. 51 I can see, further, no rational basis upon which the jury might reasonably have accepted that the appellant had not been reckless in his contemplation of the presence or absence of consent in connection with counts 1 and 3; but had somehow become so reckless in connection with counts 6, 8, 9, 11 and 12. 52 So far as concerned the issue of consent in connection with the 8 counts of sexual intercourse without consent, the trial was conducted both by the Crown and by the defence in completely clear and completely consistent terms respectively; and those competing cases were starkly and diametrically opposed. There were no shades of grey in either of the competing cases. One was a case of clear and consistent refusal of consent; the other was a case of clear and consistent consent; or, at the very least, a reasonable, clear and consistent perception of clear and consistent consent. 53 I acknowledge, of course, that the jury was not bound to accept either the whole of the complainant's evidence or the whole of the appellant's case at trial. I apprehend, however, that the triteness of that proposition ought not to be permitted to obscure the need for a jury when accepting part only of a particular body of evidence to discriminate upon the basis of reason rather than that of raw intuition. 54 Giving, as I hope and intend, proper effect to the guidance afforded by MFA, I cannot accept that there is any demonstrable middle ground, so to speak, between the two diametrically opposed cases that were presented at trial on the issue of consent in connection with the 8 counts of sexual intercourse without consent. In my opinion the jury's reasonable doubt upon counts 1 and 3 ought to have carried over into counts 6, 8, 9, 11 and 12. 55 As to the 4 counts: 2, 5, 7 and 10, alleging attempts at sexual intercourse without consent, I have come to a similar conclusion by a broadly similar process of reasoning. 56 The evidence of the complainant, if accepted, showed that there had been, incontestably, such an attempted act. Consent was not in issue. The defence case was that the appellant had, on each of the four occasions, made a preliminary overture; that the overture had been plainly rebuffed; that the appellant had at once understood that such was the fact; and that he had thereupon desisted at once and had made in fact no such attempt as was alleged. 57 To have found rationally that the appellant was not guilty on count 2, the jury must have accepted that it was at least a reasonable possibility that the appellant, as he had asserted, had not in fact made the alleged attempt. In that event, the jury, in order to have found reasonably that the appellant had made the three further alleged attempts, must have had in hand evidence which, if accepted, provided some rational basis upon which the count 2 attempt could be distinguished from the counts 5, 7 and 10 attempts. 58 I can see no such basis of distinction. There does not seem to me to be any rational basis upon which it might be concluded that the complainant was mistaken in what she said about the first attempt, but not mistaken in what she said about the other three attempts. Neither does there seem to be any rational basis upon which the jury might have found that it was reasonably possible that the appellant had not made the first attempt, but had in fact made each of the other three attempts. 59 I have made as best I can that independent assessment which binding authority instructs me that I must make. Having done so, I am left with a firm conviction that there is something logically awry with these split verdicts.

CONCLUSIONS AND ORDERS 60 For the whole of the foregoing reasons I am of the opinion that the convictions upon counts 5 to 13 inclusive ought not to stand; and I would accordingly quash all nine of those convictions. 61 Ought there to be, thereupon, an outright acquittal pursuant to section 6(2) of the Criminal Appeal Act 1912 (NSW), or an order for a new trial pursuant to section 8(1) of that Act? 62 The appellant's case is not that he was denied a fair trial according to law. Were that his case, then there would be cause to show for the ordering of a new trial. The appellant's case is, rather, that his convictions are unreasonable because they are so inconsistent as to represent a substantial miscarriage of justice. I am of the opinion that such case has been made out. 63 In my opinion the Court should allow the appeal; quash all of the appellant's convictions and sentences; and direct that a judgment and verdict of acquittal be entered upon each of the counts 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the indictment. 64 ADAMS J: I agree with Sully J. 65 HOWIE J: I agree with Sully J.

25/10/2006 - Complainant's name removed. Initials to be displayed.

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CITATION: John Sgardelis v The Queen [2006] NSWCCA 338 This decision has been amended. Please see the end of the judgment for a list of the amendments.

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