Norris v R

Case [2007] NSWCCA 235

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      NORRIS v REGINA [2007]  NSWCCA 235

FILE NUMBER(S):
No. 2007/236

HEARING DATE(S):               Tuesday 10 April 2007

JUDGMENT DATE: 6 August 2007

PARTIES:
NORRIS, Stephen Maxwell
v REGINA

JUDGMENT OF:       McClellan CJ at CL Howie J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/21/3143

LOWER COURT JUDICIAL OFFICER:     Nicholson DCJ

LOWER COURT DATE OF DECISION:    11 April 2006

COUNSEL:
Crown:  J Girdham
App:  P Hamill SC

SOLICITORS:
Crown:  S Kavanagh
App:  Michael Croke & Co

CATCHWORDS:
Criminal law - appeal against convictions - indictment containing multiple counts of sexual offences against one complainant - guilty verdicts on first two counts and acquittals on remaining two counts - unsafe and unsatisfactory verdict principles - unreasonable and insupportable verdicts - test for determining unreasonableness of jury's verdict - significance of acquittals when considering unreasonableness of guilty verdicts - prosecution relying on direct evidence of complainant - credibility of complainant - making or failing to make complaint going to credibility of complainant - delay - s.6(1), Criminal Appeal Act 1912

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED:
Hayes v The Queen (1973) 47 ALJR 603
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1997) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Morris v The Queen (1987) 163 CLR 454
Regina v Maddox (Queensland Court of Appeal, McPherson J)
Regina v Markuleski (2001) 52 NSWLR 82
Regina v R (1989) 18 NSWLR 74
Regina v Workman (2004) 60 NSWLR 471

DECISION:
Appeal upheld.  The convictions on Counts 1 and 2 set aside.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 2007/236

McCLELLAN CJ at CL
HOWIE J
HALL J

MONDAY 6 AUGUST 2007

STEPHEN MAXWELL NORRIS v. REGINA

Judgment

  1. McCLELLAN CJ at CL:  I have had the benefit of reading the judgments of both Howie and Hall JJ in draft. I regret that I do not share their Honour’s view that the verdicts on the first two counts were unreasonable.

  2. Section 6(1) of the Criminal Appeal Act 1912 NSW obliges this Court to set aside the verdict of a jury that is “unreasonable or cannot be supported”, having regard to the evidence “… or that on any other ground whatsoever there was a miscarriage of justice.”

  3. Various decisions of the High Court and of this Court consider the problems which a court faces when applying this provision (see M v The Queen (1994) 181 CLR 487, Jones v The Queen (1997) 191 CLR 439, MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Markuleski (2001) 52 NSWLR 82). One of the difficulties is the significance to be accorded to the fact that a jury, which for present purposes must be assumed to be properly instructed, has returned a guilty verdict. That difficulty is emphasised when the jury has…

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AGLC
Norris v R [2007] NSWCCA 235
Case
[2007] NSWCCA 235
Decision Date

CaseChat Overview and Summary

Norris, the appellant, brought an appeal against his convictions on two counts of sexual offences, while being acquitted on two other counts. The respondent, the Crown, argued for the appeal to be dismissed. The appeal was heard in the High Court of Australia. The primary legal issues revolved around the principles of unsafe and unsatisfactory verdicts, specifically whether the guilty verdicts on the first two counts were unreasonable and insupportable, and thus constituted a miscarriage of justice. The court also considered the significance of the acquittals on the remaining two counts when assessing the reasonableness of the guilty verdicts.

The High Court found that the not guilty verdicts on the last two counts suggested that the jury either rejected the complainant's reliability in relation to the alleged offences or were unwilling to convict based solely on the complainant's evidence. This was particularly relevant in light of the lengthy delay before the matter was reported to the police. The court concluded that the Crown's case essentially depended on accepting the complainant's evidence as reliable. Given that the only supporting evidence for the first two counts was related to the opportunity and, to some extent, the complainant's credibility, the not guilty verdicts on the last two counts could only be rationally explained by the jury concluding that the events were improbable or that they were not prepared to convict based on the complainant's evidence alone. Consequently, the guilty verdicts on the first two counts were deemed unreasonable and insupportable, constituting a miscarriage of justice.

The court decided to uphold the appeal and set aside the convictions on Counts 1 and 2, emphasising the importance of the jury's verdicts in the context of the complainant's credibility and the long delay before the allegations were reported to the police. The decision underscores the necessity for a coherent and rational explanation for the jury's verdicts, particularly when there are acquittals on related counts. The acquittals played a significant role in the court's assessment of the reasonableness of the guilty verdicts, ultimately leading to the conclusion that a miscarriage of justice had occurred.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ
I have, accordingly, conclude that it is likely that the not guilty verdicts on Counts 3 and 4 either represented a rejection of the complainant as reliable in relation to the alleged assaults or that the jury were not prepared to convict upon the complainant’s evidence alone. That rejection is relevantly to be seen in the context of the extremely long delay before the matter was reported to police.Conclusion The Crown case in relation to the four counts essentially depended upon an acceptance of the reliability of the complainant’s evidence. The only supporting evidence in relation to Counts 1 and 2 was evidence that went to establish opportunity and to a point the complainant’s credibility. The not guilty verdicts in relation to Counts 3 and 4, as a matter of rational inference, can only be explained either by the jury having concluded that the events alleged in relation to both were improbable or that they were not prepared to convict on the appellant’s evidence alone. The guilty verdicts on Counts 1 and 2 were accordingly sufficiently unreasonable to constitute a miscarriage of justice. I, accordingly, propose the following orders:-(a) The appeal be upheld.(b) The convictions on Counts 1 and 2 be set aside.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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