Artery v R [2017] NSWCCA 259

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Artery v R [2017] NSWCCA 259 Hearing dates: 13 October 2017 Decision date: 03 November 2017 Before: Payne JA at [1]; Johnson J at [5]; Adamson J at [6] Decision: (1) Leave to appeal granted.

(2) Appeal dismissed. Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of sexual intercourse without consent but convicted of indecent assault – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 Criminal Appeal Act 1912 (NSW), s 5 Cases Cited: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Nguyen v R [2017] NSWCCA 145 Category: Principal judgment Parties: Robert Joseph Artery (Applicant) Regina (Respondent) Representation: Counsel: W Flynn (Applicant) P Coady (Respondent)

Solicitors: Warren F Ball & Co (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/178216 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 February 2017 Before: McLennan DCJ File Number(s): 2015/178216

Judgment 1. PAYNE JA: I have had the advantage of reading the reasons of Adamson J in draft. I agree with her Honour's reasons. I wish only to make a few additional observations. 2. Although the sole ground of appeal was that the verdict on count 1 was unreasonable having regard to the jury's verdict on count 2, the applicant's written submissions appeared to address a complaint that was that it was not open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt of the credibility and reliability of the complainant's evidence about count 1 in circumstances where there was an absence of complaint evidence given by the complainant's mother and thus the evidence concerning count 1 was uncorroborated, the complaint was only made to the police nearly 30 years after the events and there was potential for conscious or unconscious contamination of the complainant's memory and her evidence. 3. At the commencement of oral address, however, Mr Flynn, who appeared for the applicant, made clear that the complaint about an unreasonable verdict was limited to a complaint that the jury had returned inconsistent verdicts on counts 1 and 2. 4. For the reasons given by Adamson J, I agree that the jury did not return inconsistent verdicts. I agree with the orders proposed by Adamson J. 5. JOHNSON J: I agree with Adamson J. 6. ADAMSON J: The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal against his conviction on indictment of one count of indecent assault of a person under the age of 16 years. The sole ground of appeal is that the verdict on count 1 is unreasonable having regard to the jury's verdict on count 2. 7. The indictment was presented in the following terms: "Count 1: Between 31 July 1985 and 1 September 1985, at Richmond in the State of New South Wales, did assault [the complainant], a person under the age of 16 years, namely, 11 years, and at the time of the assault committed an act of indecency upon her (s.61E(1) Crimes Act 1900). Count 2: Between 31 August 1985 and 1 October 1985, at Richmond in the State of New South Wales, did have sexual intercourse with [the complainant], a person under the age of 16 years, namely, 11 years, without her consent and knowing she was not consenting (s.61D(1) Crimes Act 1900)." 1. The applicant was sentenced on 17 February 2017 by way of a bond imposed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). No application for leave to appeal against sentence has been filed. 2. Where there is a complaint that a jury verdict is unreasonable because of inconsistency between other verdicts returned, the question is whether there is an acceptable explanation for the differentiation as a matter of logic and reasonableness: see the summary of authorities in Nguyen v R [2017] NSWCCA 145 at [34]-[47] and [52]-[53] . 3. It was submitted on behalf of the applicant that there was a necessary inconsistency between the verdicts such as to give rise to the conclusion that the verdict of guilty on count 1 is unreasonable. In order to address this submission it is necessary to examine the evidence to determine whether there is a rational explanation for the difference in the verdicts returned for counts 1 and 2.