HARB v R [2011] NSWCCA 9

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: HARB v R [2011] NSWCCA 9 Hearing dates: 4 February 2011 Decision date: 04 February 2011 Before: Whealy JA at 1 RS Hulme J at 2 Harrison J at 17 Decision: Appeal dismissed Category: Principal judgment Parties: Charle HARB (Appellant) Regina (Crown) Representation: Counsel: J Pickering (Crown) C Davenport SC (Appellant) Solicitors: S Kavanagh Solicitor Public Prosecutions Peter Katsoolis Lawyers File Number(s): 2009/1530 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-08-28 00:00:00 Before: Armitage DCJ File Number(s): 2009/1530

Judgment 1WHEALY JA : The sole issue on this appeal, as Ms Davenport outlined it, is this: Is there a rational explanation for the inconsistency in the verdict? In my view for the reasons given by Justice Hulme, I think there is. I agree with Hulme J in all respects. 2RS HULME J: On 24 August 2009, the above named Appellant was indicted before a jury on three charges:- (i) That on 27 May 2008 he assaulted MS and at the time committed an act of indecency upon her; (ii) That on 27 May 2008 he had sexual intercourse with MS without her consent and knowing she was not consenting and she then being under the age of 16; and (iii) That on 27 May 2008 he had sexual intercourse with MS without her consent and knowing she was not consenting and she then being under the age of 16. 3The act of indecency relied on in the first count was touching of the complainant's breasts. The intercourse relied on in the second count was the placing of fingers into the complainant's vagina. The intercourse relied on in the third count was the placing of the Appellant's penis in the complainant's vagina. All three events occurred in close succession and all were admitted by the Appellant to have occurred. 4On 28 August 2009 the jury acquitted the Appellant on the first and second charges and convicted him on the third. The sole ground of appeal is that the verdict on count 3 is unreasonable in view of the acquittals on counts 1 and 2. There is no appeal against sentence. 5The complainant's evidence was that she had not consented to the actions of the Appellant. His evidence was that she had. In summary the complainant alleged that she had gone into a bedroom to change the song on a computer, that the Appellant then walked in, closed the door, pulled her down onto a bed, pushed her back, started touching her on the breasts, inserted one or more of his fingers and then his penis into her vagina. She said that from the outset and throughout these events she was saying "No, I want to go", "No, I don't want to", telling the Appellant to stop and trying to push him off her. 6The Appellant's evidence was that before the complainant went into the bedroom, he discussed having sex with her, she agreed and when in the bedroom actively co-operated. 7The evidence of the complainant was supported to some extent by evidence of what she had said and how she appeared to a friend MJ soon after the events occurred and also by what the complainant said to a doctor who examined her on the following day. The friend said that when the complainant emerged from the bedroom she looked a little bit upset and said that she didn't want to do anything and said no to him and a little later was on a couch crying and when asked what was wrong again said she didn't want to and said "No". In cross-examination she agreed that the complainant had said something to the effect, "I didn't want to, he made me" or "I couldn't stop him". 8Although given the issues raised in the appeal nothing turns on the matter, it may be mentioned also that the complainant's evidence was that in conversation prior to the events the subject of the charges she informed the Appellant that she was 15. His evidence was to the effect that she had said she was 19 and looked older. 9The trial judge, Armitage DCJ, included in his summing-up directions to the effect that the jury were entitled to bring in different verdicts if there was a logical reason for doing so but that if the jury were to find the Appellant not guilty on any count they would have to consider how that conclusion affected their consideration of the remaining counts. His Honour also warned the jury against compromise. 10Over the years there has been consideration by many courts of the question of what conclusions should be drawn from verdicts which on their face appear to be inconsistent - see e.g. MacKenzie v The Queen (1997) 190 CLR 348 at 366-368; MFA v The Queen (2002) 213 CLR 606 at [34], [35], [85] and [86]; R v Markuleski (2001) 52 NSWLR 82. There is no need in the case of this appeal to revisit at length this previous consideration. The issue boils down to whether the acquittals so affect the credibility of the complainant that, in the circumstances of the case, a conviction was not open to the jury. 11The Crown submitted that in the way the trial was conducted, in practical terms the issues left to the jury were whether the complainant consented and, if not, whether the Appellant knew she was not consenting, submitting that there was significant emphasis on the latter issue and the jury might well have had a reasonable doubt on the issue of the Appellant's belief as to the complainant's consent to the events that preceded the penile intercourse while having no such doubt as to his knowledge of her consent to the latter event. The Crown was unable to demonstrate that anywhere there was the emphasis asserted in its submissions and in any event I can see no rational basis for the jury to differentiate between the Appellant's knowledge at one stage of events rather than another. 12There was nothing in the terms of any of the evidence or that appears on a reading of the transcript or exhibits that seems to me to provide a satisfactory explanation for the apparent inconsistency in the jury's verdicts. However, one should recognise that the evidence of MJ might be regarded as providing support for the complaint of some sexual misconduct by the Appellant, and of a greater rather than lesser kind, rather than of all that alleged by the complainant. 13A further submission of the Crown was that, given that the breast touching and digital penetration of the vagina were clearly actions preliminary to the Appellant's goal of penile-vagina intercourse, the jury may well have thought that conviction on the latter charge sufficiently reflected his culpability. True it is that such a course meant that the jury was not fulfilling their obligations in accordance with their oaths or affirmations but it has long been recognised that juries sometimes prefer to do justice than accord with the law - see R v Kirkman (1987) 44 SASR 591 at 593; MacKenzie v The Queen (1996) 190 CLR 348 at 367; R v P [2000] Qd R 401 at 410. 14In the circumstances of this case, particularly although not simply because the conviction was for what was obviously the most serious of the Appellant's actions, the explanation referred to in the immediately preceding paragraph seems to me a far more likely explanation for the inconsistency in verdicts than does the suggestion of compromise or disbelief by the jury in the complainant's evidence as to lack of consent to the breast touching and digital penetration. 15Despite the restrictive nature of the single ground of appeal, during the course of oral submissions counsel for the Appellant sought to argue that there was an element of the unsafe about the convictions in light of the fact that the complainant made no reference in the course of her police interview to the presence of a condom, which according to the evidence, the Appellant placed on his penis prior to intercourse and which broke or became dislodged during the course of that intercourse, which was removed by the complainant from her vagina and then replaced on the Appellant's penis. No doubt this was a matter which properly formed the basis of an argument before the jury on the issue of the complainant's consent. However, nothing in the evidence concerning that matter, or in the fact it was not mentioned by the complainant in her original police interview, persuades me that the verdict was unsafe, whether that topic be looked at on its own or whether one seeks to combine its significance with that of the inconsistency in the verdict. 16In the result, I am not persuaded that that the jury's verdict on the third count was unreasonable or cannot be supported having regard to the evidence or that in relation to that count there was a miscarriage of justice. I would dismiss the appeal. 17HARRISON J : I agree with the reasons given by Justice Hulme and with the order that he proposed. 18The order of the Court is that the appeal be dismissed.