MacDonald v R [2024] NSWCCA 240

MacDonald v R [2024] NSWCCA 240

The trial judge's misdirection regarding the elements of consent in s 61D(1) offences was an error but did not result in a substantial miscarriage of justice because consent was not an issue at trial and the evidence established lack of consent beyond reasonable doubt; there was rational explanation for the acquittal on count 9 due to uncertainty in JC's evidence, not unreliability, and verdicts of guilty on remaining counts concerning JC were consistent; the jury's verdicts were reasonable and supported by the tendency evidence and complainants' descriptions, except for count 11, which was not sufficiently proved as sexual intercourse but was accepted as indecent assault.

Parties
Applicant: Kenneth MacDonald; Respondent: Rex
Jurisdiction
Australia
Judgment Date
20 December 2024
Procedural Posture
Criminal Appeal / Decision on Leave and Merits
Outcome
Appeal dismissed except as to count 11; conviction on count 11 quashed and substituted with verdict of guilty for indecent assault under s 61E(1); matter remitted for re-sentence.
Legal Topics
Appeals Against Conviction, Sexual Offences, Misdirection, Unreasonable Verdicts, Inconsistent Verdicts, Miscarriage of Justice, Application of Proviso
Criminal Law Appeals Against Conviction Sexual Offences Misdirection Unreasonable Verdicts Inconsistent Verdicts Miscarriage of Justice Application of Proviso

Case Brief

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Parties

Kenneth MacDonald

Applicant

Rex

Respondent

Procedural Posture

Criminal Appeal / Decision on Leave and Merits

Legal Issues

  1. 1 Whether the trial judge erred in directing the jury as to consent for sexual intercourse without consent charges under s 61D(1) Crimes Act 1900 (NSW)
  2. 2 Whether the verdicts of guilty were inconsistent with acquittal on count 9
  3. 3 Whether the verdicts of guilty were unreasonable and cannot be supported having regard to the evidence

Ratio Decidendi

The trial judge's misdirection regarding the elements of consent in s 61D(1) offences was an error but did not result in a substantial miscarriage of justice because consent was not an issue at trial and the evidence established lack of consent beyond reasonable doubt; there was rational explanation for the acquittal on count 9 due to uncertainty in JC's evidence, not unreliability, and verdicts of guilty on remaining counts concerning JC were consistent; the jury's verdicts were reasonable and supported by the tendency evidence and complainants' descriptions, except for count 11, which was not sufficiently proved as sexual intercourse but was accepted as indecent assault.

Court Disposition

Appeal dismissed except as to count 11; conviction on count 11 quashed and substituted with verdict of guilty for indecent assault under s 61E(1); matter remitted for re-sentence.

Orders

  • Grant leave to appeal pursuant to s 5(1)(b) Criminal Appeal Act 1912 (NSW) in respect of all grounds.
  • Grant leave to appeal in respect of ground 1 pursuant to r 4.15 Supreme Court (Criminal Appeal) Rules 2021 (NSW).