Drew Anthony Moffitt v Regina [2002] NSWCCA 73

New South Wales Court of Criminal Appeal

CITATION : Drew Anthony Moffitt v Regina [2002] NSWCCA 73 FILE NUMBER(S) : CCA 60545/01 HEARING DATE(S) : 8 March 2002 JUDGMENT DATE : 20 March 2002

PARTIES : Drew Anthony Moffitt (Appellant) Regina (Crown) JUDGMENT OF : Stein JA at 1; O'Keefe J at 31; Buddin J at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/31/0285 LOWER COURT JUDICIAL Norrish DCJ OFFICER :

COUNSEL : D N Stewart (Appellant) G I O Rowling (Crown) SOLICITORS : Ross Hill & Associates (Appellant) S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - Sexual offences - appeal against conviction - inconsistent verdicts - whether convictions were unsafe and unreasonable - ND LEGISLATION CITED : N/A CASES CITED: R v MacKenzie (1996) 190 CLR 348 R v Markuleski (2000-2001) 52 NSWLR 82 DECISION : Appeal against conviction dismissed.

IN THE COURT OF CRIMINAL APPEAL 60545/01

STEIN JA O'KEEFE J BUDDIN J

Wednesday, 20 March 2002 Drew Anthony MOFFITT v REGINA Judgment 1 STEIN JA: This is an appeal against conviction by the appellant, Drew Anthony Moffitt. On 8 February 2001 the appellant was found guilty of three counts on the indictment but not guilty of one count. The appeal is on the basis that the verdicts were inconsistent and the convictions unsafe and unsatisfactory. 2 The first count in the indictment alleged that the appellant, on or about 14 June 2000, detained the complainant with intent to hold her for sexual gratification. 3 The second count alleged that on 14 June 2000 the appellant had sexual intercourse with the complainant without her consent. This count was particularised as the appellant penetrating the vagina of the complainant with a hard object. 4 The third count was to the same effect as count two but particularised as the appellant penetrating the anus of the complainant with a hard object. 5 The fourth count alleged that on the same date the appellant did unlawfully cause the complainant to take a stupefying drug, namely temazepam, with the intent to enable him to commit a sexual assault on her. 6 The jury found the appellant guilty of counts 1, 2 and 4 but not guilty on the third count. 7 On behalf of the appellant, Mr D Stewart of counsel submits that the verdicts of the jury are inconsistent. He submits that there was no rational reason why the jury, having not been satisfied of the guilt of the appellant in relation to count 3, could be satisfied as to his guilt in relation to count two. The verdicts, according to the submission, defied the test of logic and reasonableness outlined in R v MacKenzie (1996) 190 CLR 348. The verdicts cannot stand together. Counsel further submits that the verdict of the jury on count 3 means that counts 1 and 4 are also verdicts inconsistent with it.