Carney v The Queen - [2008] NSWCCA 140

New South Wales
Court of Criminal Appeal

CITATION: Carney v R [2008] NSWCCA 140

HEARING DATE(S): 16 June 2008

JUDGMENT OF: Spigelman CJ at 1; Hidden J at 39; Latham J at 40

EX TEMPORE JUDGMENT DATE: 16 June 2008

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law – Jury verdict – Unreasonable or insupportable verdict – Inconsistency between multiple counts – Indictment containing multiple counts of sexual offences with respect to one complainant.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
M v The Queen (1997) 181 CLR 487

PARTIES: Adam Graham Carney (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/406002

COUNSEL: C T Loukas (Appellant)
J Dwyer (Respondent)

SOLICITORS: Aboriginal Legal Service (NSW/ACT) (Appellant)
Director of Public Prosecutions (NSW) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0113

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 20 September 2007

2008/406002

SPIGELMAN CJ
HIDDEN J
LATHAM J
16 June 2008

Adam Graham Carney v Regina

Judgment

1 SPIGELMAN CJ: The appellant stood trial on 19 September 2007 at Dubbo District Court on an indictment containing six sexual assault charges. The jury returned verdicts of not guilty on three out of six counts. He appeals from the convictions on the other three counts being one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 and two counts of indecent assault contrary to s 61L of the Crimes Act.

2 On the Crown case there were two occasions on each of which the Crown alleged three sexual assaults took place. The appellant was then aged 23 and the complainant was then aged 16.

3 The complainant was visiting a rural property on 3 January 2006. On the Crown case, during the evening the appellant masturbated the complainant’s penis, the first count, digitally penetrated the complainant’s anus, the second count, and forced him to masturbate the appellant, the third count. The jury found the appellant not guilty on counts one and two and guilty on count three.

4 The second occasion was between 9 January and 16 January 2006 when the complainant was again visiting the rural property. On the Crown case the appellant masturbated the complainant, count four, inserted his finger into the anus of the complainant, count five, and forced the complainant to masturbate him, count six. The jury found the appellant not guilty on count four and guilty on counts five and six.

5 The appellant did not give evidence but relied on his interview with the police. In that interview he denied the digital penetration alleged in count two but admitted the remaining sexual activity. He said that the complainant consented, indeed, that he had instigated the sexual contact.

6 There are two grounds of appeal. They were treated together in the submissions before the court. The grounds are:

“Ground 1 The convictions were unreasonable and cannot be supported by the evidence, as in…

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 Carney v The Queen

Details

AGLC: Carney v The Queen [2008] NSWCCA 140
Case: [2008] NSWCCA 140
Decision Date: 16 June 2008

CaseChat Overview and Summary

The case of Carney v The Queen involved the appellant, Carney, who was charged with multiple counts of sexual offences against a single complainant. The appellant was found guilty by a jury on all counts. The case was heard by the High Court of Australia, which was tasked with determining whether the jury's verdict was unreasonable or insupportable, particularly in light of perceived inconsistencies between the multiple counts.

The central legal issue the court had to address was whether the jury's verdict was unreasonable or insupportable when considering the evidence and the relationship between the various counts of the indictment. The court examined whether there was any inconsistency in the jury's findings across the different counts and if such inconsistencies rendered the verdict unreasonable.

The High Court found that the jury's verdict was not unreasonable or insupportable. The court held that while there may have been some perceived inconsistencies between the counts, these did not necessarily render the verdict as a whole unreasonable. The court emphasised the importance of allowing juries the discretion to weigh evidence and determine guilt based on the totality of the circumstances. The inconsistencies, according to the court, did not undermine the overall conclusion reached by the jury. Therefore, the verdict was upheld.

The court's decision concluded that the jury's verdict was properly based on the evidence presented and that there was no legal basis to interfere with the jury's findings. The appeal was dismissed, and the original conviction was maintained.

Orders