N O v The Queen

[2019] ACTCA 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

N O v The Queen

Citation:

[2019] ACTCA 33

Hearing Date:

6 November 2019  

DecisionDate:

21 November 2019

Before:

Elkaim, Mossop and Rangiah JJ

Decision:

Appeal dismissed

Catchwords:

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – jury trial – differential verdicts – unreasonable and unsupportable verdicts – logical or rational explanation for inconsistency – evidence of complainant – credibility of complainant  

Legislation Cited:

Crimes Act 1900 (ACT) ss 24, 52(1), 54(1), 60(1)

Cases Cited:

BI v The Queen (No 2) [2018] ACTCA 11
ED v The Queen [2019] ACTCA 10
LS v R [2019] NSWCCA 258
Wheeler v R [2019] NSWCCA 255

Parties:

N O (Appellant)

The Queen (Respondent)

Representation:

Counsel

S Howell (Appellant)

R Christensen (Respondent)

Solicitors

McKenna Taylor (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 50 of 2017

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Penfold J

Date of Decision:         29 September 2017

Case Title:  R v N O

File Number:                 SCC 31 of 2017

THE COURT:

1. On 29 September 2017, a jury, presided over by Penfold J, found the appellant guilty of Counts 1, 2 and 5 on an indictment dated 2 March 2017. The jury found the appellant not guilty of Counts 3, 4 and 6.

1. Those offences alleged in the indictment were:

(a) Count 1: Sexual assault in the second degree, contrary to s 52(1) of the Crimes Act 1900 (ACT) (the Crimes Act);

(b) Count 2: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act;

(c) Count 3: Assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act;

(d) Count 4: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act;

(e) Count 5: Act of indecency without consent, contrary to s 60(1) of the Crimes Act; and

(f) Count 6: Sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.

1. The appellant filed a notice of appeal, and later an amended notice of appeal seeking the verdicts in relation to Counts 1, 2 and 5 be set aside and a verdict of not guilty be entered on each count.

1. The grounds of the appeal are as follows:

(1)    The verdicts of guilty are unreasonable having regard to the evidence; and

(2)    The verdicts of guilty are inconsistent with the verdicts of not guilty in relation to Counts 3 and 4.

1. The complainant is the same person in respect of all six counts on the indictment.

1. The appellant was sentenced on 23 February 2018 to a total period of five years and three months imprisonment, with a non-parole period of three years. That sentence included the three guilty counts on the indictment, as well as one transfer charge of stalking and the imposition of a suspended sentence from a breach of a good behaviour order. 

1. There is no complaint about the sentences imposed.

1. Recently, in…