Mfa v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Hayne,Callinan JJ,McHugh,Gummow,Kirby JJ
• Judgment Date: 14 November 2002
• Neutral Citation: [2002] HCA 53,2002-1114 HCA C
• Docket Number: S38/2002
• Date: 14 November 2002

[2002] HCA 53

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S38/2002

MFA

Appellant

and

The Queen

Respondent

Representation:

P Byrne SC with J E Barnett and P J D Hamill for the appellant (instructed by Legal Aid Commission of New South Wales)

R D Ellis with G E Smith for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))

Criminal Appeal Act 1912 (NSW), s 6(1).

MFA v The Queen

Criminal law — Appeal — Indictment containing multiple counts of sexual offences with respect to one complainant — Verdicts of guilty on two counts and acquittals on the remaining counts — Whether verdicts unreasonable — Significance of acquittals when considering unreasonableness of guilty verdicts — Test for determination of unreasonableness of jury's verdict — Significance of disparities in evidence and failure of prosecution to call witness.

Criminal law and practice — Court of Criminal Appeal — Whether error shown in Court of Criminal Appeal's reasons — Whether proceedings should be returned to that Court — Whether High Court should perform appellate reconsideration.

Word and phrases — ‘unreasonable, or cannot be supported, having regard to the evidence’.

ORDER

Appeal dismissed.

1 Gleeson CJ, Hayne and Callinan JJ. The question raised by this appeal is whether the Court of Criminal Appeal of New South Wales erred in the manner in which it dealt with a contention that, in a case of multiple counts, verdicts of guilty on two counts were unreasonable having regard to the evidence in relation to those counts and having regard to verdicts of not guilty on the remaining counts.

2 In March 2000, the appellant was tried in the District Court of New South Wales before Acting Judge Ford and a jury. He was charged with nine offences of a sexual nature against a male complainant, LB. The alleged offences occurred over a period between December 1993 and January 1998. The nine counts in the indictment related to four separate occasions.

3 Counts 1 to 3, which involved one charge of indecent assault and two charges of homosexual intercourse, related to an occasion in 1993 or 1994 when the complainant (then aged 12), the appellant (then aged 34), and another adult named Hendrik Bosman, were together in a caravan that was parked at the rear of Mr Bosman's house. Counts 4 to 6, which also involved one charge of indecent assault and two charges of homosexual intercourse, related to an occasion in 1995 or 1996, when the complainant, two other juveniles, the appellant, and Mr Bosman were together in the same caravan. Count 9, which was a charge of homosexual intercourse, related to an incident that was said to have occurred early in the morning of New Year's Day 1998, in a tent near Mr Bosman's house. The jury returned verdicts of not guilty on all those counts.

4 The jury returned verdicts of guilty on counts 7 and 8. Those counts related to an occasion in mid-1997 when the complainant (then aged 15), the appellant (then aged 37), and another juvenile, MA (then aged 12), were together in the caravan.

5 Count 7 alleged that the appellant indecently assaulted the complainant. No further particulars were contained in the indictment. The evidence of the complainant was that he and MA were alone in the caravan having a pillow fight on the bed when the appellant entered. The complainant said the appellant joined MA and the complainant on the bed, and ‘started touching mine and [MA's] penis’. According to the complainant, the appellant put his hand down the inside of the front of the complainant's pants for several minutes. At the conclusion of the evidence, in the absence of the jury, the trial judge asked the prosecutor to clarify the various charges. In relation to count 7, the prosecutor said that ‘we say the [appellant] place[d] his hand inside the complainant's pants … and touche[d] the complainant's penis.’

6 Count 8 alleged that the appellant had homosexual intercourse with the complainant, being a male between the ages of 10 and 18 years. No further particulars were contained in the indictment. The evidence of the complainant was that, following the episode the subject of count 7, the appellant fondled MA's penis, ‘and then he asked us to suck his penis.’ The complainant then described acts of fellatio, performed first by MA, and then by the complainant, upon the appellant. In relation to count 8, the prosecutor, before the summing-up, said that the alleged homosexual intercourse took the form of ‘the [appellant] placing his penis in the complainant's mouth.’

7 In relation to count 8, the appellant was sentenced to imprisonment for three years and six months, with a non-parole period of two years and six months. In relation to count 7, the appellant was sentenced to a concurrent fixed term of two years and six months. He appealed against the convictions and sentences. The appeal against sentence was successful and resulted in a reduced sentence. That aspect of the matter is presently immaterial.

8 There was only one ground of appeal against conviction. It was as follows:

‘The verdicts of guilty on counts 7 and 8 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 1, 2, 3, 4, 5, 6 and 9.’

9 Section 6(1) of the Criminal Appeal Act 1912 (NSW) (‘the Criminal Appeal Act’) so far as presently relevant, provides:

‘The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal …’

10 The ground of appeal was based on the first part of that provision. The verdicts of not guilty on seven of the nine counts in the indictment were said to provide an additional reason for finding the verdicts on counts 7 and 8 to be unreasonable. However, it could not have been, and was not, suggested that there was any legal or technical inconsistency between the verdicts of not guilty and the verdicts of guilty. In order to explain the basis upon which it was contended that the verdicts on counts 7 and 8 were unreasonable, it is necessary to refer in more detail to the evidence, and to the course of the trial.

11 The trial lasted for two days. After the jury was empanelled, the trial judge gave the jurors brief instructions as to their task. They had already heard the charges, and the pleas of not guilty. The judge told the jurors that ultimately they would have to consider all of the charges and, in each case, decide whether the prosecution had proved the elements of the offence beyond reasonable doubt. He stressed that in each case there could only be a finding of guilt if there was a unanimous agreement that guilt had been established beyond reasonable doubt.

12 The complainant was the first witness. At the time of the trial he was aged 18. He said he first met the appellant in 1994 at Hendrik Bosman's house. There was a caravan in the backyard. Both the appellant and the complainant were frequent visitors to the house. They used to play games and engage in recreational activities together. The appellant then described the incidents giving rise to the various charges in the manner summarised above. It is unnecessary for present purposes to go into the detail of the evidence concerning the counts on which the appellant was found not guilty. The complainant gave evidence of sexual encounters with the appellant on the occasions referred to. There was no suggestion that he ever complained about what was going on, or endeavoured to put a stop to the activity. In cross-examination he adhered fully to his evidence in chief. It was put to him in relation to each of the incidents he described that no such incident ever occurred. He asserted, in relation to each incident, that his evidence was true. The complainant was then confronted with a statement that he had made to the police in May 1998. In that statement he said that he and the appellant were friends, and that the appellant had never touched him in any way. The judge asked the complainant how the matter came to the notice of the police. The complainant said that the police approached him in April 1998. He said that he made no complaint at that stage because he was afraid that the appellant was going to do something to him. He said that his statement to the police, to the effect that the appellant had never touched him, was untrue, and that he made it because he was scared. He said that he had been told about a threat that the appellant had made to someone else.

13 The complainant's mother was called as a witness. She confirmed that they lived near the Bosman house, that there was a caravan near the house, and that the complainant was a frequent visitor to the premises.

14 At that stage of the trial, a question arose as to the position of the next witness for the prosecution, MA. The prosecutor indicated to the trial judge that there was reluctance on the part of the witness, and arrangements were made for him to give evidence on closed circuit television.

15 At the time of the trial, MA was 15. He said that, on an occasion in May or June of 1997, he and the complainant and the appellant were together on a bed in the caravan earlier mentioned. The three of them engaged in sexual activity. He said that he saw the appellant touching the complainant ‘on the outside of his pants’. He then said that he saw the appellant sucking the complainant's penis. In addition, he said he saw the appellant have anal...