Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McCann v R [2014] NSWCCA 79 Hearing dates: 9 May 2014 Decision date: 09 May 2014 Before: Leeming JA; Fullerton J; RA Hulme J Decision: 1. To the extent necessary, grant leave to appeal. 2. Appeal allowed. 3. Set aside the appellant's conviction in respect of Count 2, entered on 26 March 2013, and in lieu thereof enter a verdict of acquittal. Catchwords: CRIMINAL LAW - appeal against conviction - sexual assault - Crown case turned on testimonial evidence of complainant of three assaults - inconsistent verdicts - jury convicted on second count and acquitted on first and third counts - second and third counts alleged to have occurred on same occasion - nothing in circumstances to conclude that complainant's evidence on second count more reliable than on other counts - relevance of lengthy jury deliberations and reactions of trial judge and counsel to jury's verdicts - conviction quashed and verdict of acquittal entered Legislation Cited: Crimes Act 1900 (NSW), s 61M(2), s 66A Criminal Appeal Act 1912 (NSW), s 5(1)(b), s 6(1) Cases Cited: Black v The Queen (1993) 179 CLR 44 Jones v The Queen (1997) 191 CLR 439 MacKenzie v The Queen (1996) 190 CLR 348 MFA v R [2002] HCA 53; 213 CLR 606 Peiris v R [2014] NSWCCA 58 R v Bonat [2004] NSWCCA 240 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v NEK [2001] NSWCCA 392 Category: Principal judgment Parties: David John McCann (Appellant) Regina (Respondent) Representation: Counsel: K Traill (Appellant) V Lydiard (Crown) Solicitors: Peter Murphy (Appellant) Solicitor of Public Prosecutions (Crown) File Number(s): 2011/99609 Decision under appeal Date of Decision: 2013-03-26 00:00:00 Before: Charteris DCJ File Number(s): 2011/99609 Judgment 1THE COURT: On 9 May 2014, after hearing fully from the Crown in relation to the first ground of appeal, that the appellant's conviction was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW), we ordered that to the extent necessary, there be a grant of leave, that the appeal be allowed, that the appellant's conviction on Count 2 of the indictment be quashed and that an acquittal be entered. These are our reasons for making those orders. The course of the trial 2The appellant was charged with one count of indecent assault upon a child aged under 10 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (in the form it then took), and two counts of sexual intercourse with a child aged under 10 years, contrary to s 66A of the Crimes Act. He pleaded not guilty. He was tried by judge and a jury. The trial commenced on Tuesday 12 March 2013. The Crown case closed on Friday 15 March 2013, and there was no defence case. Counsel addressed and the judge summed up to the jury on Tuesday 19 March. 3The jury retired late on the afternoon of Tuesday and continued their deliberations on the Wednesday. One juror had to attend a funeral on Thursday, and the trial was adjourned until Friday 22 March. That morning, the judge received a note which stated: "After much deliberation the jury is unable to reach a unanimous decision. If given more time the jury does not believe a unanimous verdict will be able to be reached. Given the evidence presented the jury would appreciate any guidance the judge might be able to give at this time as we are unsure how best to proceed." 4The primary judge gave a direction in accordance with Black v The Queen (1993) 179 CLR 44. The jury's deliberations continued for most of that day. The judge was told in the afternoon that there continued to be a possibility that the jury could reach a unanimous verdict. On the afternoon of Monday 25 March 2013 the jury again communicated that there was the possibility of a unanimous verdict, but that more time was required. On Tuesday 26 March 2013 the jury returned with a unanimous verdict of not guilty on the first and third Counts, and guilty on the second Count. 5The appellant had been granted bail throughout the trial. The Crown did not oppose bail being continued after the verdict. After imposing a sentence of imprisonment for 6 years with a non-parole period of 4 years on 6 September 2013, the trial judge continued bail, a notice of intention to appeal on conviction having been lodged. 6His Honour recognised that the power to continue bail after imposing a custodial sentence was very rarely exercised. In his sentencing remarks, his Honour said: "I consider that only in exceptional circumstances would the District Court grant bail to an offender after a conviction before a jury. I consider these circumstances are exceptional." 7His Honour was evidently concerned about the jury's verdicts. His Honour said: "...the issue about unsafe and unsatisfactory is entirely a matter for the Superior Court ... It's not a matter for me. There was a time when District Court used to intrude into that and actually discharge juries on the basis of unsafe and unsatisfactory - I don't know if you remember that, directed verdicts. Directed verdicts, where a District Court judge would say I think any conviction here would be unsafe and unsatisfactory and direct a jury to convict. That went on for some years until the Court of Appeal said no, that's our function under the Act, not the judge at first instance." 8In his Honour's sentencing remarks, he said: "I am also conscious of the fact that there may well be agitated in the Court of Criminal Appeal the inconsistency of the verdicts and consideration of the issue as to whether the conviction on one of the four charges available would lead that Court to conclude that the conviction was unsafe or unsatisfactory. That matter is exclusively for the Court of Criminal Appeal." 9During the proceedings after conviction, the judge expressed an inclination to issue a certificate under s 5(1)(b) of the Criminal Appeal Act. If issued with a certificate under that paragraph, a person convicted on indictment may appeal as of right on grounds which extend beyond questions of law. It is not clear from the appeal materials whether in fact a s 5(1)(b) certificate was issued. The first ground of appeal is not a pure question of law, and so out of an abundance of caution, we granted leave to the extent necessary. The Crown case at trial 10The appellant was a friend of the complainant's father, and the appellant and his partner and their child moved into the complainant's house in Rockdale, Sydney, in 1992. In early 1993, all moved to another house in Bexley. 11The Crown case at trial was that the appellant had assaulted the complainant on two occasions in 1992 and 1993, when she was aged 5. When the complainant gave evidence, she was 25. 12The first occasion was in the house in Rockdale, which had an under croft area under the house. The complainant said that while the appellant was reading a book to her, he rubbed her leg and touched her on the outside of her underwear near her vagina. She said, "I don't know if he meant to touch my vagina but he did." This was the first Count on the indictment, of which the appellant was acquitted. 13The second occasion was when the families were living in Bexley. The complainant said that she was driven by the appellant in a blue Toyota Crown to a park, at night. She said that the appellant pulled down her pants and underpants and licked and kissed her vagina and inserted his finger into her vagina. The cunnilingus was the second Count on the indictment, of which the appellant was convicted. The digital penetration was the third Count on the indictment, of which he was acquitted. 14The complainant's evidence in chief in relation to the second and third Counts was: "A. Then he started kissing and licking my vagina and at around the same time he used his finger and put it halfway in my vagina and he was moving it around. He was kissing at the same time. ... Q. When the accused was licking and kissing your vagina, what was he doing in terms of his movements? A. That's all he was doing. Q. And you said at around the same time he put his finger I think you said halfway into your vagina, how long had he been licking and kissing before he did that with his finger? A. Not very long. Q. You said you felt some pain? A. That's right." 15The complainant made no complaint at the time. She made a statement in 2007, some 15 years later. 16There were inconsistencies between the statement in 2007 and her evidence in 2013 (we pause to note that it would be more surprising if there were no inconsistencies). In her 2007 statement the complainant had said in relation to the first Count that "I don't remember him going near my vagina area". In relation to the third Count, she had made no reference to feeling any pain. The complainant was cross-examined on the inconsistencies. In her statement the complainant had also said that the appellant had taken her for a drive in her father's blue Ford. Her evidence was that it was a blue Toyota Crown. In cross-examination, the complainant had originally said that she had not looked at any home video footage; she accepted that that evidence was incorrect: Q. So when you said earlier you didn't look at any video footage that was incorrect, is that right? A. I didn't think that that was important. Q. Well, telling the truth in Court is important so when you said earlier that you didn't look at the home video footage that was incorrect, is that right? A. That's incorrect. But, I just - I - we watched it but only for the purpose of my dad. I happened to be at his [house] and he put it on. I didn't sit through the whole thing and watch it. Q. Well the fact is you sat with your dad and watched the video footage - home video footage before you gave evidence in this Court, that's correct, isn't it? A. Yes. The Crown submissions on appeal 17The Crown defended the decision on the basis that the jury's verdicts were explicable by the facts that there were weaknesses and inconsistencies in relation to the complainant's evidence in respect of Counts 1 and 3, but not Count 2. In relation to Count 1, the Crown said that the acquittal might have been based on the concession that the appellant might not have touched, or might not have intended to touch, her vagina. In relation to Count 3, the Crown said that the acquittal might have been based on the inconsistency between the complainant's evidence in 2013 and the absence of any mention of pain in her statement in 2007. However, said the Crown, there were no inconsistencies in the complainant's evidence in relation to Count 2. 18The Crown insisted that the events of Count 2 could be differentiated from those of Count 3. The Crown took issue with the appellant's submission that the events took place "at the same time". The Crown placed emphasis on the complainant's evidence that the events took place "at around the same time" and the fact that the licking and kissing had been occurring before the digital penetration. The guilty verdict must be set aside 19It is plain that the fact that a jury returns different verdicts in a pure word-on-word case does not of itself mean that the guilty verdict is liable to be set aside. This Court has consistently emphasised that it all depends on the facts of the particular case: R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [65], [73] and [99] (Spigelman CJ, with whom Carruthers AJ agreed), [217]-[219] and [224] (Wood CJ at CL); R v NEK [2001] NSWCCA 392 at [24] (Priestley JA, with whom Sully J and Smart AJ agreed); R v Bonat [2004] NSWCCA 240 at [106] (Sperling J, with whom Sheller JA and Adams J agreed). The most recent application is Peiris v R [2014] NSWCCA 58, where the authorities are reviewed at [22]-[25]. 20Yet the Crown's submissions must be rejected. First, it is not the case that there were no inconsistencies in relation to Count 2. The complainant gave evidence that the conduct that was the subject of Counts 2 and 3 had taken place in a blue Toyota Crown, contrary to what she had said in her 2007 statement. Secondly, the complainant gave evidence in relation to Count 2 in the same sentence as her evidence in relation to Count 3. It is true that at one stage the complainant said that the penetration took place "at around the same time" as the licking and kissing. However, in the same answer the complainant said the kissing and penetration were happening "at the same time". There is no sound basis to differentiate the complainant's evidence in relation to Count 2 and her evidence in relation to Count 3. 21Of course, this Court did not see the complainant give evidence. Nevertheless, the transcript of her evidence answers the description given in Jones v The Queen (1997) 191 CLR 439 at 453 by Gaudron, McHugh and Gummow JJ, who said (at 453): "It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count." 22In MFA v R [2002] HCA 53; 213 CLR 606 at [85]-[86], McHugh, Gummow and Kirby JJ said: "In judging suggested inconsistency, this Court said in MacKenzie ((1996) 190 CLR 348 at 367) 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'... Nevertheless, cases do arise where different verdicts returned by a jury represent 'an affront to logic and common sense' and suggest a compromise in the performance of the jury's duty (MacKenzie at 368). 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 (MacKenzie at 368)." 23Here, for the reasons we have given, there is no proper way to reconcile the jury's verdicts. Our conclusions are fortified by two related considerations. 24The first is the circumstances surrounding the way in which the jury reached its verdicts. We acknowledge that the task of drawing inferences as to the manner in which a jury deliberated is generally fraught with uncertainty but there are some aspects in this case that are concerning. The jury's deliberations lasted longer than the trial. The sequence of events, and the notes supplied to the primary judge (which have been only incompletely summarised above) heighten our doubts about the quality of the jury's verdict. It strongly suggests a compromise of the performance of the jury's duty: MacKenzie v The Queen (1996) 190 CLR 348 at 368. 25Secondly, there is the fact that those best placed to assess the quality of the verdict - the judge and counsel - reacted at the time in the manner recorded above. Those concerns are reflected in the transcript, in the judge's remarks on sentence, and in the grant of bail, which was unopposed by the Crown. 26As was implicitly recognised by the primary judge, the guilty verdict cannot stand. Orders 27This is a case where the acquittal on Count 3 made it appropriate to enter an acquittal on Count 2: the latter verdict "carries forward the logic of the other acquittals": MacKenzie v The Queen (1996) 190 CLR 348 at 368. 28In the circumstances, it was not necessary to hear argument on the appellant's second ground, the failure to give a Markuleski direction, and we say nothing in that respect. ********** 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: 15 May 2014