Marland v R

The applicant's submissions on appeal

1. Subject to one possible qualification to which I refer below (see [32]), the applicant contended that the challenged convictions should be set aside solely upon the basis that the verdicts of guilty were irreconcilable with the acquittal on Count 13. The applicant did not otherwise assert that the convictions were unreasonable or not supported by the evidence.
2. The applicant acknowledged that the jury's verdicts of not guilty on Count 13 and guilty on Count 14 were explicable by reason of the different onuses applicable to the respective defences relating to those offences. In the case of Count 13, the Crown bore an onus to establish beyond reasonable doubt that the applicant did not have an honest and reasonable belief that the complainant was at least 16 years of age. In contrast, if the applicant was to avoid conviction in relation to Count 14, he bore the onus of establishing on the balance of probabilities that he did not know, and could not reasonably be expected to know, that the complainant was under 16 years of age. The jury might well have considered that neither onus was discharged, with the result that verdicts of not guilty on Count 13 and guilty on Count 14 were appropriate.
3. The applicant also acknowledged that there was no apparent inconsistency between the not guilty verdict on Count 10 and the guilty verdicts on the challenged conviction counts. The complainant's evidence arguably did not prove the Count 10 conduct whereas, if accepted, it did so in respect of the other challenged conviction counts.
4. On the other hand, the applicant contended that the not guilty verdict in relation to Count 13 is irreconcilable with the verdicts of guilty on the challenged conviction counts because "[t]aking the Crown case at its highest, there was no change to the circumstances as 'known to the Applicant' between [the events the subject of] Count 1 and Count 13". In particular, in his written submissions the applicant contended: "75 The verdict on count 13 is not explicable by reason of the fact that the Complainant and Accused had formally ceased their relationship on or about Australia Day of 2005. The Jury convicted the Applicant in respect of count 12 which also particularised a date after the pair had formally ended their relationship. 76 Equally, the proximity of Count 13 to the Complainant's birthday (upon which she turned 16) cannot explain the different verdicts. 77 The Crown case was that the Complainant had told the Applicant on 27 May 2004 precisely when her birthday was and that she was turning 15. 78 The Complainant's evidence was that she rang the Applicant on her birthday and told him she was 16. That post-dated count 13. 79 The irreconcilable nature of the verdicts is best demonstrated by contrasting counts 12 and 13. In respect of count 12 and 13, there was no logical and reasonable basis for the jury to distinguish on the basis of the Applicant's honest belief (the first limb of the 'defence'). There was no evidentiary basis for an honest belief to exist in April (count 13) that did not exist 8 weeks earlier in February. 80 That line of reasoning would have required the Jury to accept the evidence of the Complainant that she told the Applicant when her 15th birthday was (in May 2004), but the Crown had not excluded that by April 2015 the Applicant had forgotten precisely when the birthday was and honestly believed that the 16th birthday had passed. That line of reasoning had absolutely no foundation in the evidence before the Jury and was not available. 81 A suggestion that the verdicts on counts 12 and 13 could be distinguished on the basis of the 'reasonableness' of the Applicant's belief (the second limb of the 'defence') is equally illogical and unavailable. 82 An approach by which the Jury reasoned that the closer that the Complainant got to 16 years, the more objectively reasonable was his belief is illogical. 83 That would have required a line of reasoning that was utterly arbitrary. At what point in the 8-week period between February and April did the Crown become unable to exclude that the Applicant's belief become reasonable in circumstances? (sic) 84 That line of reasoning required a consideration as to whether the Complainant's birthday had come and gone without any discussion whatsoever about it between the Complainant and the Applicant. There was no evidentiary basis for that line of reasoning."

Applicable legal principles

1. In Nguyen v The Queen [2017] NSWCCA 145 at [34]-[48] I reviewed relevant authorities including Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17. With the concurrence of Campbell J, I stated the following conclusions concerning the principles applicable to unreasonable verdict grounds of appeal where such grounds are sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (at [48]): "These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see Mackenzie at [34] above), that is, if there is "a logical and reasonable basis for sustaining the differentiation that the jury drew" (see MFA at [42] above). Such a basis may exist if the quality of the complainant's evidence in a case involving sexual offences varied between counts (compare Jones at [36] above). There are many reasons why this may occur. One is that in some respects a complainant may have resorted "to a degree of exaggeration in order to reinforce his or her account" (see Markuleski at [39] above TK at [44] above). Alternatively, the complainant's account of events concerning a particular count may be implausible because of the nature of the events described (see MG at [45] above). Further, if parts of a complainant's evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant's evidence as compared to other parts (see MG at [46] above). Such considerations may lead the court to the conclusion that a jury's differential verdicts are the product of its conscientious attention to the trial judge's directions and to the evidence applicable to each count (see Holloway at [47] above)."
2. It is unnecessary to add to those remarks in the present case.

Consideration of the proposed ground of appeal

1. In my view the jury's verdict of not guilty on Count 13, despite its verdicts of guilty on Counts 1, 2, 5-9 and 11-12, is logically and reasonably explicable on the basis that the jury was not satisfied beyond reasonable doubt that at the date of the Count 13 conduct (2 April 2005) the applicant knew that the complainant had still not turned 16. Thus, I consider that it was open to the jury to accept the complainant's evidence that she told the applicant on 25 May 2004 that she was turning 15 the next day, but conclude that by April 2005 the applicant may not have recalled precisely when the complainant would have her next (that is,16th) birthday.
2. The jury may well have reasoned that on the one hand, it was unsurprising that the complainant recalled meeting the applicant on 25 May 2004 and informing him of the imminence of her birthday because that event, and the occurrence of her birthday the following day, may well have been significant events in her life. The jury may have further reasoned that on the other hand, the timing of the conversation may have been of little moment to the applicant, particularly in light of the applicant's evidence-in-chief that "I don't really do birthdays, anyways so, I never have" (T 160). As a result the jury, logically and reasonably, may have given the applicant the benefit of the doubt in respect of the last offence, it being alleged to have taken place less than two months before the complainant's 16th birthday, and after a significant period of time (more than 10 months) had elapsed since the initial conversation about the complainant's birthday.
3. Contrary to the applicant's submission, it is not of significance that this Court cannot determine at what point in the two months prior to 2 April 2005 the jury would have commenced to give the applicant the benefit of the doubt if a further offence or offences had been alleged to have occurred in that period. Indeed, it was unnecessary for the jury to have formed a view on that question. It is sufficient that the jury was satisfied beyond reasonable doubt that on 2 February 2005 the applicant knew that the complainant was under 16 (as the guilty verdict on Count 12 indicated) but was not satisfied to that standard as to the applicant's state of knowledge on 2 April 2005 (as indicated by the acquittal on Count 13).
4. The applicant submitted (see [80] quoted in [23] above) that there was "absolutely no foundation in the evidence" for the proposition that the applicant may have forgotten precisely when the complainant's 16th birthday was. However, there was no need for any explicit evidence on the topic. In the absence of evidence of admissions made by the applicant, the question of his state of recollection from time to time was a matter wholly within his own knowledge. In those circumstances, it was for the jury to consider the totality of the evidence and determine whether the Crown had proved beyond reasonable doubt that the applicant had relevant awareness at the time of each of the alleged offences. Contrary to the applicant's submissions, there is nothing "illogical" or "utterly arbitrary" about this approach.
5. I add that in his submissions to this Court, the applicant referred to five notes sent by the jury to the trial judge during the course of the jury's deliberations. The notes led to the judge giving further directions that are not the subject of any complaint. In my view, reference to the notes does not assist the applicant. They simply suggest that the jury was conscientiously attending to its duty to consider each of the counts on the Indictment individually. The notes were followed by entirely appropriate directions.
6. For these reasons, I consider that the jury's verdicts can be reconciled on a logical and reasonable basis. The result is that none of the challenged convictions are unreasonable or without foundation in the evidence by reason of inconsistency of verdicts.
7. In conclusion, I refer to the following paragraph of the applicant's written submissions which, whilst presented as part of his submissions on inconsistency of verdicts, is suggestive of a broader approach to his appeal: "93 The Crown could not exclude beyond reasonable doubt that the Applicant had an honest and reasonable belief that the complainant was 16. A Jury acting reasonably ought to have taken into account: i. The unlikelihood that the Complainant told the Applicant the first day she met him that the following day was her 15th birthday and the even greater unlikelihood that some decade later the Complainant could recall the specifics of that conversation. ii. The likelihood that the Complainant's mother had simply told the Applicant that the Complainant was too young for him (or words to that effect) without stipulating an age. iii. The Complainant's admitting that she had lied to numerous people in order to facilitate her relationship with the Applicant. iv. The Complainant's admitting that there had indeed been a 'pact' of sorts. v. The evidence of Mr Graham was not inconsistent with the Applicant's evidence."
8. Whilst there was no indication in the oral address of the applicant's counsel that the proposed ground of appeal was put on this broader basis, I nevertheless address it on that basis.
9. Using the same subparagraph numbers as in the applicant's submission quoted in [32], I make the following observations: (i) I do not consider it at all unlikely that the complainant told the applicant at their first meeting that the following day was her 15th birthday, bearing in mind the proximity to the birthday and that she was to take that day (the following day) off work. On the other hand, it is not surprising that the applicant might not be able to recall the specifics of that conversation many years later. That does not assist him however. It simply emphasises that it was open to the jury to consider that the imminence of the complainant's birthday was probably of considerably greater significance to her than it was to the applicant, which could account for her continuing recollection. (ii) I do not consider it at all likely, as the applicant submits, that the complainant's mother would not have mentioned the complainant's age to the applicant. The jury could well have taken the view that mention of the complainant's specific age would have been a natural part of her mother's attempt to warn the applicant off. (iii) If (as appears to have been the case) the complainant lied "to numerous people in order to facilitate her relationship with the applicant" in 2004 and 2005, this was not necessarily inconsistent with her giving honest oral evidence at the trial concerning her relationship with the applicant. This was a matter for the jury to evaluate in light of its observations of the complainant and the applicant, and of the remainder of the evidence at the trial. (iv) The complainant's evidence that there had been some type of pact between the complainant and the applicant not to have sex until the complainant turned 16 was again a matter for the jury to evaluate. There was nothing obviously unreasonable, illogical or unlikely in the complainant's evidence that the "pact" was not adhered to. (v) This is essentially correct but the Crown case did not depend upon Mr Graham's evidence. Further his evidence was also not inconsistent with that of the complainant.
10. The particular matters to which the applicant has drawn attention thus do not support a broad contention that the jury's guilty verdicts on the challenged conviction counts were unreasonable. Furthermore, having undertaken an independent consideration of the evidence, both as to its sufficiency and quality, I have concluded that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the relevant offences (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]). The complainant's evidence provided an ample basis for that satisfaction. Nothing that occurred at trial leads to the conclusion that it was not open to the jury to accept that evidence.

Orders

1. For the reasons I have given, the following orders should orders should be made: 1. Time to apply for leave to appeal extended to the date upon which the Application for Leave to Appeal was filed. 2. Grant leave to appeal. 3. Dismiss the appeal.
2. BUTTON J: I agree with Macfarlan JA.
3. To be more specific, I agree that there was a rational basis for the distinctions drawn by the jury in its verdicts. I also agree that, more generally, it was open to the jury to return the verdicts of guilty on the evidence placed before it.
4. HAMILL J: I agree with the orders proposed by Macfarlan JA. I also agree with his Honour's reasons. A review of the evidence and record of the trial satisfies me that it was open to the jury (in the sense described by the High Court M v The Queen (supra) and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13) to reach the verdicts that it did. It was also open to the jury to distinguish between the counts in the way that it did. In particular, the acquittal on count 13 was a logical and rational application of the presumption of innocence and the requirement that the prosecution prove beyond reasonable doubt that the accused knew that the complainant was less than 16 years old at the time of the sexual encounter to which that allegation related.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2017