Wheeler v The Queen - [2019] NSWCCA 255

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wheeler v R [2019] NSWCCA 255
Hearing dates: 7 August 2019
Date of orders: 25 October 2019
Decision date: 25 October 2019
Before: Bathurst CJ at [1]
Garling J at [9]
Wright J at [108]
Decision:
(1)   Grant leave to extend the time within which to bring this application for leave to appeal to 20 March 2019;
(2)   Leave to appeal be granted;
(3)   Appeal allowed;
(4)   Convictions of the applicant on Counts 2, 3, 7 and 8 on the Indictment dated 25 November 2014 be quashed, and in lieu thereof order that acquittals be entered on those counts.

Catchwords: CRIME – Appeals – appeal against conviction – where applicant convicted of four counts of indecent and sexual assault with a person under 16 years – where applicant is acquitted of four counts of assault and indecency – whether the verdicts were unreasonable – whether the whether the differential verdicts are irreconcilable – whether there was inconsistency in the jury’s verdict – where the complainant’s evidence at trial was uncorroborated – credibility of the witness
Legislation Cited: Crimes Act 1900
Cases Cited: AH v R [2019] NSWCCA 152
Bell v Regina [2017] NSWCCA 207
MC v R [2017] NSWCCA 274
McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
M v The Queen (1994) 181 CLR 487; [1994] HCA 63;
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299
SKA v R (2011) 243 CLR 400; [2011] HCA 13
Texts Cited: Nil
Category: Principal judgment
Parties: Eric Wheeler (Applicant)
The Crown
Representation:
Counsel:
S Hall (Applicant)
J Roy (Crown)
Solicitors:
K Pearce (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/123264
Publication restriction: Publication of the name and any other matters which may tend to identify the complainant is prohibited
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

4 December 2014

Before:

North DCJ

File Number(s):

2013/123264

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Garling J in draft. I agree with the orders proposed by his Honour and with his reasons. I only would add the following.
In considering the issue, regard must be had to the position of the jury as the constitutional trier of fact and the advantage they had in seeing and hearing the complainant give her evidence: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. This is particularly the case where the outcome depends to a significant extent on the credibility of the complainant.
Further as Garling J has pointed out at [24]-[25] below citing Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], “the jury will ordinarily be directed to give separate consideration…

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 Wheeler v The Queen

Details

AGLC: Wheeler v The Queen [2019] NSWCCA 255
Case: [2019] NSWCCA 255
Decision Date: 25 October 2019

CaseChat Overview and Summary

In the case of Wheeler v The Queen, the applicant appealed against his conviction for four counts of indecent and sexual assault with a person under 16 years. The applicant was acquitted of four counts of assault and indecency. The appeal raised issues concerning the reasonableness of the verdicts, the consistency of the jury's decision, and the credibility of the complainant's evidence, which was uncorroborated at trial.

The legal issues before the court were whether the verdicts were unreasonable, whether the differential verdicts were irreconcilable, and whether there was an inconsistency in the jury’s verdict. The court considered the principles applicable to appeals against conviction, particularly the extent to which the court should interfere with the jury's assessment of the evidence and the credibility of witnesses. The court examined the evidence presented at trial, including the testimony of the complainant, and the applicant's submissions regarding the jury's reasoning and potential inconsistencies.

The court concluded that the verdicts were not unreasonable, despite the differential outcomes on similar charges. It held that the jury's assessment of the evidence and the credibility of the witnesses was within their purview, and there was no basis to find that the verdicts were inconsistent or irreconcilable. The court emphasised that the absence of corroboration did not undermine the jury's decision if they were satisfied beyond reasonable doubt of the applicant's guilt on the counts for which he was convicted.

The appeal was dismissed, and the original conviction stood. The court confirmed that the jury's decision, based on the evidence before them, was not subject to reconsideration by the appellate court unless there was a clear error in the process of arriving at the verdict. The court's reasoning underscored the importance of respecting the jury's role in assessing witness credibility and determining the facts of the case.

Orders