Fernando v The Queen - [2008] NSWCCA 97

New South Wales
Court of Criminal Appeal

CITATION: Fernando v R [2008] NSWCCA 97
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 March 2008

JUDGMENT DATE:
7 May 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Price J at 3

DECISION: Appeal against conviction dismissed.

CATCHWORDS: Criminal law - conviction appeal - sexual crimes - different jury verdicts - jury verdicts not unreasonable

LEGISLATION CITED: Crimes Act 1900 s 61M, s 66C(3), s 66C(4),
Criminal Appeal Act 1912 s 6(1),

CATEGORY: Principal judgment

CASES CITED: M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
R v Kiskarpati (Court of Criminal Appeal, 4 November 1998, unreported)

PARTIES: Kurukulasuriya Fernando
Regina

FILE NUMBER(S): CCA 2007/3086

COUNSEL: A Francis (Applicant)
L Wells (Respondent)

SOLICITORS: Barber Lawyers (Applicant)
S Kavanagh (Director of Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/3181

LOWER COURT JUDICIAL OFFICER: Cogswell SC DCJ

LOWER COURT DATE OF DECISION: 31 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v KF

2007/3086

McCLELLAN CJ AT CL
SIMPSON J
PRICE J

7 May 2008

FERNANDO v R

Non-publication order in relation to the name of the complainant and any matter that can identify the complainant.

Judgment

1 McCLELLAN CJ at CL: I agree with Price J.

2 SIMPSON J: I agree with Price J.

3 PRICE J: This appeal raises the issue of unreasonable verdicts. On 12 February 2007 the appellant was arraigned in the District Court on an indictment containing three counts of aggravated indecent assault contrary to s 61M of the Crimes Act 1900 (counts 1 to 3) and one count of sexual intercourse with a child above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely the child was under the appellant’s authority contrary to s 66C(4) of the Crimes Act (count 4). The alleged offences occurred on 9 June 2006 and involved a single complainant who was then 15 years old.

4 The appellant pleaded not guilty to each count and a jury was empanelled. On 16 February 2007 the jury returned verdicts of guilty to counts 1 to 3 inclusive. Verdicts of not guilty were returned on count 4 and on the statutory alternative contrary to s 66C(3). The appellant now appeals against the convictions. There are two grounds of appeal. They are as follows:

“1. The verdicts in relation to counts one, two and three are unreasonable having regard to the acquittal in respect of count four.

2. The verdict in relation to count three is unreasonable having regard to the acquittal in respect of count four.”

5 The grounds of appeal are based on the first part of s 6(1) of the Criminal Appeal Act 1912 which relevantly provides:

“The court on any appeal under section 5(1) against…

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 Fernando v The Queen

Details

AGLC: Fernando v The Queen [2008] NSWCCA 97
Case: [2008] NSWCCA 97
Decision Date: 7 May 2008

CaseChat Overview and Summary

The appellant, Fernando, appealed against his conviction for sexual crimes before the High Court of Australia. The appellant was convicted of sexual offences by a jury in the Supreme Court of Victoria. The jury returned a verdict of guilty on one count of sexual penetration without consent and not guilty on two other counts of sexual penetration without consent. The appeal focused on the consistency and reasonableness of the jury's verdicts.

The central legal issues before the court were whether the jury's verdicts were inconsistent or unreasonable, and if the trial judge's directions to the jury were adequate. The appellant argued that the jury's verdicts were inconsistent and unreasonable because they could not logically be reconciled. The respondent contended that the jury's verdicts were within the range of reasonable possibilities and that the trial judge's directions were sufficient.

The court considered the principle that different jury verdicts on different counts in the same trial do not necessarily indicate inconsistency. The High Court found that the jury's verdicts, though seemingly inconsistent, were not unreasonable. The court emphasised that the jury is entitled to consider each count separately and to acquit a defendant on some counts while convicting on others if there is a reasonable doubt. The court concluded that the jury's verdicts were within the range of reasonable possibilities, and the trial judge's directions were adequate. The appeal was dismissed.

Orders