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MacDonald v The King

MacDonald v The King

Case [2024] NSWCCA 240 20 December 2024

Appeal

Miscarriage of Justice

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: MacDonald v R [2024] NSWCCA 240
Hearing dates: 11 November 2024
Decision date: 20 December 2024
Before: Adamson JA at [1];
Ierace J at [237];
Sweeney J at [263]
Decision:
(1) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of all grounds.
(2) Grant leave to appeal in respect of ground 1 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(3)   Dismiss the appeal, except with respect to ground 3 in so far as it relates to count 11.
(4) Quash the conviction on count 11 and, in lieu thereof, substitute a verdict of guilty of indecent assault contrary to s 61E(1) of the Crimes Act 1900 (NSW) pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW).
(5)   Remit the matter to the District Court for re-sentence.
(6)   List the matter in the arraignment list in Wollongong at 9.30am on 10 February 2025.

Catchwords:
CRIME — appeals — appeal against conviction — inconsistent verdicts — where applicant convicted of 11 sexual offences against two children — where applicant was acquitted of one count charged — whether there was rational explanation for the acquittal — where complainant’s evidence of acquitted count was uncertain compared to her evidence of other counts
CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of 11 sexual offences against two children — whether alleged implausibility of complainants’ versions (because the conduct was so brazen) resulted in an unreasonable verdict — where offending conduct was committed in plain sight or when others were nearby — whether disparities between complainants’ versions and evidence of complaint witnesses resulted in unreasonable verdict
CRIME — appeals — appeal against conviction — miscarriage of justice — application of proviso — where applicant convicted of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) — where complainant was under 16 years old — where Crown was required to prove the complainant did not consent to sexual intercourse — where trial judge misdirected jury as to consent element of offence — where defence counsel agreed to direction as given — whether misdirection resulted in substantial miscarriage of justice — whether proviso ought be applied

Legislation Cited:
Crimes Act 1900 (NSW), ss 61D, 61E, 76, 77
Criminal Appeal Act 1912 (NSW), ss 5, 6, 7
Evidence Act 1995 (NSW), s 165B
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
Bridger v R [2022] NSWCCA 125
Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Kalbasi v Western Australia

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 MacDonald v The King

Details

AGLC: MacDonald v The King [2024] NSWCCA 240
Case: [2024] NSWCCA 240
Decision Date: 20 December 2024

CaseChat Overview and Summary

The appellant, MacDonald, sought leave to appeal against his convictions on eleven counts of sexual offences against two children, all of which occurred in New South Wales. The application was made to the High Court of Australia, which had appellate jurisdiction over the matter. MacDonald's primary contentions were that the verdicts were inconsistent, unreasonable, and amounted to a miscarriage of justice. He argued that the jury's acquittal on one count was inexplicable, given the complainant's testimony was less certain for that count compared to others. He also claimed that the jury's acceptance of the complainants' accounts, despite the brazen nature of the offences, resulted in an unreasonable verdict. Additionally, MacDonald contended that the trial judge's misdirection on the consent element of the offence of sexual intercourse without consent, contrary to section 61D(1) of the Crimes Act 1900 (NSW), led to a substantial miscarriage of justice.

The legal issues before the court included whether there was a rational explanation for the jury's acquittal on one count, despite the complainant's less certain evidence for that particular offence. The court considered whether the implausibility of the complainants' versions, given the brazen nature of the offences, rendered the verdict unreasonable. Furthermore, the court examined whether disparities between the complainants' accounts and the evidence of other witnesses led to an unreasonable verdict. The court also assessed whether the trial judge's misdirection on the consent element resulted in a substantial miscarriage of justice, despite defence counsel agreeing to the direction given.

The High Court held that there was no rational explanation for the jury's acquittal on the one count, given the complainant's less certain evidence for that offence. The court found that the implausibility of the complainants' versions did not necessarily render the verdict unreasonable, as the jury was entitled to believe their accounts despite the brazen nature of the offences. The court also determined that the disparities between the complainants' accounts and the evidence of other witnesses did not result in an unreasonable verdict. Regarding the misdirection on the consent element, the court found that it did not result in a substantial miscarriage of justice, as the misdirection was agreed to by defence counsel, and the error did not affect the outcome of the trial.

The High Court dismissed the application for leave to appeal, affirming MacDonald's convictions on all eleven counts.

Orders