McCann v R [2014] NSWCCA 79

McCann v R [2014] NSWCCA 79

The conviction on Count 2 could not stand because there was no proper way to reconcile the jury's guilty verdict on Count 2 with its acquittal on Count 3. The complainant's evidence on Counts 2 and 3 concerned the same occasion and was given together, and the identified inconsistencies, including the vehicle evidence, also affected Count 2. Nothing in the evidence or surrounding circumstances provided a sound basis to treat the complainant's evidence on Count 2 as more reliable than her evidence on Count 3. The lengthy and troubled deliberations and the contemporaneous concern of the trial judge and counsel fortified the conclusion that the verdict suggested compromise and was unreasonable.

Jurisdiction
Australia
Judgment Date
09 May 2014
Procedural Posture
Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal
Outcome
Appeal allowed; conviction on Count 2 quashed and verdict of acquittal entered.
Legal Topics
['appeal Against Conviction' 'unreasonable Verdict' 'inconsistent Verdicts' 'sexual Assault Offences' 'jury Deliberations']
['criminal Law' 'criminal Procedure'] ['appeal Against Conviction' 'unreasonable Verdict' 'inconsistent Verdicts' 'sexual Assault Offences' 'jury Deliberations']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction / Application for Leave to Appeal and Appeal Against Conviction in the Court of Criminal Appeal

Legal Issues

  1. 1 ["Whether the appellant's conviction on Count 2 was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW)." "Whether the jury's guilty verdict on Count 2 could be reconciled with its acquittals on Counts 1 and 3." "Whether the circumstances of the jury's deliberations and the trial judge's and counsel's reactions supported the conclusion that the conviction could not stand."]

Ratio Decidendi

The conviction on Count 2 could not stand because there was no proper way to reconcile the jury's guilty verdict on Count 2 with its acquittal on Count 3. The complainant's evidence on Counts 2 and 3 concerned the same occasion and was given together, and the identified inconsistencies, including the vehicle evidence, also affected Count 2. Nothing in the evidence or surrounding circumstances provided a sound basis to treat the complainant's evidence on Count 2 as more reliable than her evidence on Count 3. The lengthy and troubled deliberations and the contemporaneous concern of the trial judge and counsel fortified the conclusion that the verdict suggested compromise and was unreasonable.

Court Disposition

Appeal allowed; conviction on Count 2 quashed and verdict of acquittal entered.

Orders

  • ['To the extent necessary, grant leave to appeal.' 'Appeal allowed.' "Set aside the appellant's conviction in respect of Count 2, entered on 26 March 2013, and in lieu thereof enter a verdict of acquittal."]