In Regina v S  NSWCCA 204, the Court of Criminal Appeal considered a challenge to three convictions of indecent assault. The accused was charged with six counts of using his mouth or hand to make contact with the alleged victim’s penis. The jury found the accused guilty of three counts and not guilty of three counts.
The alleged victim made no complaint to the police until 20 years after the incidents. No evidence corroborated the alleged victim’s complaints. He first told the police that the indecent assaults occurred in 1975. He later said they occurred in 1976.
Some of the alleged victim’s testimony was easily demonstrated to be untrue. For example, he said that one assault occurred on the night he went to the Nimrod Theatre to see a play in which Gil Tucker was performing. The evidence established that Gil Tucker did not perform at that theatre in 1975 or 1976.
The alleged victim also testified that the complaining witness was pressuring him at school and making him feel uncomfortable. He claimed that he failed a maths test because of the pressure he was feeling. Other evidence firmly established that the accused was not in school with the alleged victim at that time and that the alleged victim did not fail a maths test. In fact, he got high grades on his maths tests in 1975 and 1976.
According to the Court of Appeal, many other background facts to which the alleged victim testified were contradicted by the evidence with regard to each of the six counts. No rational explanation existed for the jury’s decision to find the accused guilty of three counts but not guilty of the other three.
Since the evidence was equally unreliable as to all six counts, the Court of Appeal decided that the verdicts were inconsistent. The Court of Appeal could not safely rely upon the accuracy of the verdicts and therefore determined that the guilty verdicts constituted a miscarriage of justice.
Inconsistencies in evidence do not usually lead to the reversal of a conviction, since it is up the jury to evaluate facts. The jury might disbelieve evidence about background facts while still believing that testimony concerning the assaults is true. The court was troubled in this case, however, because there was no rational basis for the jury to believe that three of the alleged offences occurred and that the other three did not.
If the evidence clearly supported six convictions but the jury found the accused guilty of only three, the verdicts could be explained as an act of leniency. But the weak and conflicting evidence as to all counts does not explain a conviction of only three offences, and allowing the convictions to stand would have been unjust.
Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.