DRH v The State of Western Australia

DRH appealed against his conviction and sentence after being found guilty by a jury in the District Court of one count of sexual offending against a child between the age of 13 and 16 years, namely count 5, and acquitted on the other counts. The appellant argued that the verdict of guilty on count 5 was inconsistent with the verdicts of acquittal on the other counts. The appellant also appealed against the sentence of 3 years' immediate imprisonment imposed by the trial judge. The Court of Appeal held that the appellant's conviction and sentence appeals were without merit. In respect of the conviction appeal, the Court of Appeal held that it was logically and reasonably open to the jury to convict on count 5 despite having acquitted on counts 1, 2 and 7. The differences between the verdict on count 5 and the verdicts on counts 1, 2 and 7 were reasonably capable of explanation on the basis that, having regard to the significance at trial of the timing and chronology relating to counts 1, 2 and 7 (but not count 5), the jury was especially cautious and conscientious in reviewing the evidence on counts 1, 2 and 7 and discharging its heavy civic responsibility. The verdicts of acquittal on counts 1, 2 and 7 can readily be reconciled with the verdict of conviction on count 5 by reference to the defence case at trial, which emphasised grounds for doubt as to the timing of the events the subject of counts 1, 2 and 7, but accepted that no similar point arose in relation to count 5. In respect of the sentence appeal, the Court of Appeal held that the trial judge's finding that the appellant had engaged in acts of a sexual nature with BM before the commission of count 5 was not inconsistent with the jury's verdicts of not guilty on counts 1, 2 and 7 or with the directed acquittals on counts 3, 4 and 6. The finding in question related to sexual activity apart from the charged offences alleged in counts 1, 2, 3, 4, 6 and 7. The trial judge's process of reasoning in support of the impugned finding was compelling. The Court of Appeal also held that the sentence of 3 years' immediate imprisonment was within the range open to the trial judge on a proper exercise of his discretion. The Court of Appeal dismissed the conviction appeal and the sentence appeal, and refused leave to appeal.