Kim v R [2020] NSWCCA 288

Kim v R [2020] NSWCCA 288

The guilty verdicts on counts 1 and 3 were not irreconcilably inconsistent with the acquittal on count 2 because the jury could rationally distinguish the evidence relating to each count. The jury could accept that the complainant did not consent to both anal and vaginal intercourse, while still having a reasonable doubt as to whether the applicant knew or was reckless as to lack of consent to vaginal intercourse, given the complainant's comparative lack of resistance during count 2 and the evidence concerning the initial complaint. Count 3 raised no comparable issue about knowledge of consent and was supported by the complainant's evidence and evidence of bruising. On an independent...

Jurisdiction
Australia
Judgment Date
11 November 2020
Procedural Posture
Criminal Conviction Appeal; Application for Leave to Appeal / Court of Criminal Appeal From the District Court of New South Wales
Outcome
Application for leave to appeal granted; appeal dismissed save for orders necessary because the applicant had been granted appeal bail; sentence set aside and re-imposed with new commencement dates; applicant taken into custody.
Legal Topics
['conviction Appeal' 'inconsistent Verdicts' 'unreasonable Verdict' 'jury Verdicts' 'sexual Intercourse Without Consent' 'common Assault']
['criminal Law' 'criminal Procedure' 'evidence'] ['conviction Appeal' 'inconsistent Verdicts' 'unreasonable Verdict' 'jury Verdicts' 'sexual Intercourse Without Consent' 'common Assault']

Case Brief

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Procedural Posture

Criminal Conviction Appeal; Application for Leave to Appeal / Court of Criminal Appeal From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the guilty verdicts on count 1, sexual intercourse without consent, and count 3, common assault, were inconsistent with the not guilty verdict on count 2, sexual intercourse without consent.' 'Whether the guilty verdicts on counts 1 and 3 were unreasonable or could not be supported having regard to the evidence and the acquittal on count 2.']

Ratio Decidendi

The guilty verdicts on counts 1 and 3 were not irreconcilably inconsistent with the acquittal on count 2 because the jury could rationally distinguish the evidence relating to each count. The jury could accept that the complainant did not consent to both anal and vaginal intercourse, while still having a reasonable doubt as to whether the applicant knew or was reckless as to lack of consent to vaginal intercourse, given the complainant's comparative lack of resistance during count 2 and the evidence concerning the initial complaint. Count 3 raised no comparable issue about knowledge of consent and was supported by the complainant's evidence and evidence of bruising. On an independent...

Court Disposition

Application for leave to appeal granted; appeal dismissed save for orders necessary because the applicant had been granted appeal bail; sentence set aside and re-imposed with new commencement dates; applicant taken into custody.

Orders

  • ['Application for leave to appeal granted.' 'Appeal dismissed save for order (3) below, which is necessary by reason of the applicant being granted appeal bail.' 'Set aside the sentence imposed in the District Court on 9 April 2020 and in lieu thereof impose the following sentence: on count 3 in the indictment the...