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

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.
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.
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.
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.
JOHNSON J: I agree with Adamson J.
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.
The indictment was presented in the following terms:

“Count 1: Between 31 July 1985 and 1 September 1985, at Richmond in the State…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Artery v R

Details

AGLC: Artery v The Queen [2017] NSWCCA 259
Case: [2017] NSWCCA 259
Decision Date: 03 November 2017

CaseChat Overview and Summary

The case of Artery v R involved an individual, Artery, who was acquitted of the charge of sexual intercourse without consent but convicted of the offence of indecent assault. The matter was brought before the court on an application for leave to appeal against the conviction, specifically focusing on whether the verdicts were inconsistent. The court was tasked with determining whether the acquittal on one charge and the conviction on another could be reconciled on a logical and reasonable basis.

The legal issue before the court was whether the verdicts of acquittal on the charge of sexual intercourse without consent and conviction for indecent assault were inconsistent. The court had to consider whether it was possible to logically and reasonably reconcile these verdicts given the evidence and the legal standards applicable. The court examined whether the jury could have reasonably believed that the applicant was not guilty of sexual intercourse without consent but was guilty of indecent assault based on the evidence presented.

The court determined that the verdicts were indeed able to be reconciled on a logical and reasonable basis. It held that the jury could have reasonably concluded that, while the applicant did not engage in sexual intercourse without consent, he did commit an act that amounted to indecent assault. The court found that the verdicts did not suffer from any inconsistency that would render them unacceptable. Consequently, the application for leave to appeal against the conviction was dismissed, and the conviction for indecent assault was upheld.

Orders