Carney v R [2008] NSWCCA 140

New South Wales Court of Criminal Appeal

CITATION: Carney v R [2008] NSWCCA 140

HEARING DATE(S): 16 June 2008 JUDGMENT OF: Spigelman CJ at 1; Hidden J at 39; Latham J at 40

EX TEMPORE JUDGMENT DATE: 16 June 2008

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law – Jury verdict – Unreasonable or insupportable verdict – Inconsistency between multiple counts – Indictment containing multiple counts of sexual offences with respect to one complainant.

LEGISLATION CITED: Crimes Act 1900

MacKenzie v The Queen (1996) 190 CLR 348 CASES CITED : MFA v The Queen (2002) 213 CLR 606 M v The Queen (1997) 181 CLR 487

PARTIES: Adam Graham Carney (Appellant) Regina (Respondent)

FILE NUMBER(S): CCA 2008/406002

COUNSEL: C T Loukas (Appellant) J Dwyer (Respondent)

SOLICITORS: Aboriginal Legal Service (NSW/ACT) (Appellant) Director of Public Prosecutions (NSW) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0113

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 20 September 2007

IN THE COURT OF CRIMINAL APPEAL 2008/406002

SPIGELMAN CJ HIDDEN J LATHAM J

16 June 2008 Adam Graham Carney v Regina Judgment

1 SPIGELMAN CJ: The appellant stood trial on 19 September 2007 at Dubbo District Court on an indictment containing six sexual assault charges. The jury returned verdicts of not guilty on three out of six counts. He appeals from the convictions on the other three counts being one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 and two counts of indecent assault contrary to s 61L of the Crimes Act. 2 On the Crown case there were two occasions on each of which the Crown alleged three sexual assaults took place. The appellant was then aged 23 and the complainant was then aged 16. 3 The complainant was visiting a rural property on 3 January 2006. On the Crown case, during the evening the appellant masturbated the complainant's penis, the first count, digitally penetrated the complainant's anus, the second count, and forced him to masturbate the appellant, the third count. The jury found the appellant not guilty on counts one and two and guilty on count three. 4 The second occasion was between 9 January and 16 January 2006 when the complainant was again visiting the rural property. On the Crown case the appellant masturbated the complainant, count four, inserted his finger into the anus of the complainant, count five, and forced the complainant to masturbate him, count six. The jury found the appellant not guilty on count four and guilty on counts five and six.