Marland v R

1. [1]

   MACFARLAN JA: In June 2015 the applicant, Rodney Craig Marland, was tried in the District Court before a judge and jury on 14 charges of sexual misconduct with a 15 year old girl. The offences were alleged to have occurred over a 10 month period between July 2004 and April 2005. The applicant was aged 28 or 29 at the relevant times. The Crown case proceeded on the assumption that the conduct was consensual.

2. [2]

   The Indictment charged offences to the following effect:

3. [3]

   The charges alleged offences under the following sections of the Crimes Act 1900 (NSW): s 61N(1) (Count 1), s 61M(1) (Count 2), s 66C(3) (Counts 3 to 13) and s 91H(2) (Count 14).

4. [4]

   The jury returned verdicts of not guilty on Counts 10 and 13 and, by direction, on Counts 3 and 4. It found the applicant guilty on the other counts.

5. [5]

   Subsequently the applicant was sentenced in respect of the offences of which he was convicted to a term of imprisonment of 5 years and 3 months, with a non-parole period of 2 years and 9 months.

6. [6]

   The applicant seeks leave to appeal to this Court against his convictions other than that on Count 14. These counts will be referred to as “the challenged conviction counts”. As the applicant’s Notice of Intended Appeal was filed out of time, he needs an extension of time for its filing. Further, as his sole ground of appeal is that “[t]he verdicts of the jury are irreconcilable and the verdicts of guilty are unreasonable and not supported by the evidence” (founded upon s 6(1) of the Criminal Appeal Act 1912 (NSW)), he also requires leave to appeal because his ground of appeal raises a question of fact only (see s 5(1) ibid; M v The Queen (1994) 181 CLR 487 at 492; [1994] HCA 63).

7. [7]

   As the applicant’s proposed appeal is arguable and he has explained his delay in seeking leave to appeal, an extension of time and leave to appeal should be granted. Nevertheless, for the reasons that follow, the appeal should be dismissed.

The relevant legislation and available defences

1. [8]

   At the material times, s 61M(1) of the Crimes Act provided for an offence of indecent assault in circumstances of aggravation, one of these circumstances being that the victim was under the age of 16 years. Section 61N(1) made it an offence to commit an act of indecency with or towards a person under the age of 16 years, and s 66C(3) prohibited sexual intercourse with a person over the age of 14 years and under the age of 16 years. The consent of a complainant under 16 years of age did not provide a defence in relation to these offences (see s 77). Section 91H(2) made it an offence to produce or disseminate child pornography, the reference to “child” in this context being to a person under (or apparently under) the age of 16 years (s 91H(1)).

2. [9]

   In CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25, the High Court held that the common law principle that an honest and reasonable, but mistaken, belief in facts that would render an act innocent is a ground of exculpation that applies to s 66C(3) of the Crimes Act. The Court held that once an accused has satisfied the evidential burden of leading evidence of such a belief (as occurred in the present case), the legal burden of proof rests on the prosecution “to prove beyond reasonable doubt that the accused did not honestly believe, on reasonable grounds, that the other party was above the age of sixteen years” (at [35]). The parties to the present proceedings accepted both at trial and on appeal that these principles were also applicable to s 61M(1) and s 61N(1) of the Crimes Act.

3. [10]

   The position is otherwise in respect of an offence under s 91H(2) due to s 91HA(1), which relevantly provided for a defence as follows:

4. [11]

   It was common ground between the parties that the applicant bore the onus of establishing this defence on the balance of probabilities.

The complainant’s evidence

1. [12]

   The complainant gave evidence that she met the applicant on 25 May 2004 at a video store at which they both worked. She was then 14 years of age. She said that on the day she met the applicant she told him that she was turning 15 the next day and would not be at work (as was the fact). The complainant and the applicant subsequently developed a relationship. Initially, this relationship did not involve any sexual contact. It allegedly came to do so at the times and in the way indicated in the challenged conviction counts in the Indictment referred to in [2] above.

2. [13]

   The complainant said that during her relationship with the applicant they would often talk about school, what year she was in (being Year 9) and that she was aged 15. She said that they used to talk a lot about their relationship and how they wanted to wait until she was 16 before having sex. That “pact”, as she described it, was not adhered to. She kept a diary that recorded details of their relationship, including their sexual encounters.

3. [14]

   The complainant gave evidence that she and the applicant broke off their relationship on Australia Day 2005, but that they continued to work at the same video store and had “casual sex” after that date. These alleged sexual encounters appear to have comprised the two incidents the subject of Counts 12 and 13. The Count 14 conduct occurred on the same day as that the subject of Count 13. It was constituted by the applicant taking photographs of their sexual act on his mobile phone and sending them to the complainant the following day.

The complainant’s mother

1. [15]

   The complainant’s mother became aware of her daughter’s relationship with the applicant soon after its inception, and arranged to meet him in about July or August 2004. She said that she told the applicant that the complainant was “only 15, she had just turned 15, she was very young” and otherwise attempted to dissuade him from continuing the relationship. She met him again before Christmas 2005 and “would have” reiterated that the complainant was 15 years old, young and vulnerable.

Mr Dean Graham

1. [16]

   Mr Dean Graham was a friend of the applicant. He gave evidence that he became aware of the relationship between the applicant and the complainant at an indeterminate time in 2004. He said that the applicant told him that the applicant knew that the complainant was “underage”. Mr Graham attempted to discourage the applicant from pursuing the relationship.

The applicant’s evidence

1. [17]

   The applicant gave evidence that was largely consistent with his recorded interview with the police, the transcript of which was tendered in the Crown case. He said that he met the complainant in 2004 at the video store and had “just a generalised conversation” the first time they met, without the complainant telling him anything of a personal nature.

2. [18]

   He said that a friendship formed between himself and the complainant, but there was no sexual contact between them during the early part of the relationship. He said that as their friendship developed into a relationship he knew that the complainant was not yet 16 but remembered that she “had a birthday coming up” that was “only a couple of weeks to a month away, a couple of months”. He said that they agreed not to have sex until the complainant turned 16, and that their sexual relationship only began once she told him that she had turned 16. He said this occurred 4 or 5 months after they first met and that this would have been around September 2004.

3. [19]

   The applicant denied that the complainant’s mother told him that the complainant was 15. He also denied telling Mr Graham that he knew that the complainant was “underage”.

The applicant’s submissions on appeal

1. [20]

   Subject to one possible qualification to which I refer below (see [32]), the applicant contended that the challenged convictions should be set aside solely upon the basis that the verdicts of guilty were irreconcilable with the acquittal on Count 13. The applicant did not otherwise assert that the convictions were unreasonable or not supported by the evidence.

2. [21]

   The applicant acknowledged that the jury’s verdicts of not guilty on Count 13 and guilty on Count 14 were explicable by reason of the different onuses applicable to the respective defences relating to those offences. In the case of Count 13, the Crown bore an onus to establish beyond reasonable doubt that the applicant did not have an honest and reasonable belief that the complainant was at least 16 years of age. In contrast, if the applicant was to avoid conviction in relation to Count 14, he bore the onus of establishing on the balance of probabilities that he did not know, and could not reasonably be expected to know, that the complainant was under 16 years of age. The jury might well have considered that neither onus was discharged, with the result that verdicts of not guilty on Count 13 and guilty on Count 14 were appropriate.

3. [22]

   The applicant also acknowledged that there was no apparent inconsistency between the not guilty verdict on Count 10 and the guilty verdicts on the challenged conviction counts. The complainant’s evidence arguably did not prove the Count 10 conduct whereas, if accepted, it did so in respect of the other challenged conviction counts.

4. [23]

   On the other hand, the applicant contended that the not guilty verdict in relation to Count 13 is irreconcilable with the verdicts of guilty on the challenged conviction counts because “[t]aking the Crown case at its highest, there was no change to the circumstances as ‘known to the Applicant’ between [the events the subject of] Count 1 and Count 13”. In particular, in his written submissions the applicant contended:

Applicable legal principles

1. [24]

   In Nguyen v The Queen [2017] NSWCCA 145 at [34]-[48] I reviewed relevant authorities including Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17. With the concurrence of Campbell J, I stated the following conclusions concerning the principles applicable to unreasonable verdict grounds of appeal where such grounds are sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (at [48]):

2. [25]

   It is unnecessary to add to those remarks in the present case.

Consideration of the proposed ground of appeal

1. [26]

   In my view the jury’s verdict of not guilty on Count 13, despite its verdicts of guilty on Counts 1, 2, 5-9 and 11-12, is logically and reasonably explicable on the basis that the jury was not satisfied beyond reasonable doubt that at the date of the Count 13 conduct (2 April 2005) the applicant knew that the complainant had still not turned 16. Thus, I consider that it was open to the jury to accept the complainant’s evidence that she told the applicant on 25 May 2004 that she was turning 15 the next day, but conclude that by April 2005 the applicant may not have recalled precisely when the complainant would have her next (that is,16th) birthday.

2. [27]

   The jury may well have reasoned that on the one hand, it was unsurprising that the complainant recalled meeting the applicant on 25 May 2004 and informing him of the imminence of her birthday because that event, and the occurrence of her birthday the following day, may well have been significant events in her life. The jury may have further reasoned that on the other hand, the timing of the conversation may have been of little moment to the applicant, particularly in light of the applicant’s evidence-in-chief that “I don’t really do birthdays, anyways so, I never have” (T 160). As a result the jury, logically and reasonably, may have given the applicant the benefit of the doubt in respect of the last offence, it being alleged to have taken place less than two months before the complainant’s 16th birthday, and after a significant period of time (more than 10 months) had elapsed since the initial conversation about the complainant’s birthday.

3. [28]

   Contrary to the applicant’s submission, it is not of significance that this Court cannot determine at what point in the two months prior to 2 April 2005 the jury would have commenced to give the applicant the benefit of the doubt if a further offence or offences had been alleged to have occurred in that period. Indeed, it was unnecessary for the jury to have formed a view on that question. It is sufficient that the jury was satisfied beyond reasonable doubt that on 2 February 2005 the applicant knew that the complainant was under 16 (as the guilty verdict on Count 12 indicated) but was not satisfied to that standard as to the applicant’s state of knowledge on 2 April 2005 (as indicated by the acquittal on Count 13).

4. [29]

   The applicant submitted (see [80] quoted in [23] above) that there was “absolutely no foundation in the evidence” for the proposition that the applicant may have forgotten precisely when the complainant’s 16th birthday was. However, there was no need for any explicit evidence on the topic. In the absence of evidence of admissions made by the applicant, the question of his state of recollection from time to time was a matter wholly within his own knowledge. In those circumstances, it was for the jury to consider the totality of the evidence and determine whether the Crown had proved beyond reasonable doubt that the applicant had relevant awareness at the time of each of the alleged offences. Contrary to the applicant’s submissions, there is nothing “illogical” or “utterly arbitrary” about this approach.

5. [30]

   I add that in his submissions to this Court, the applicant referred to five notes sent by the jury to the trial judge during the course of the jury’s deliberations. The notes led to the judge giving further directions that are not the subject of any complaint. In my view, reference to the notes does not assist the applicant. They simply suggest that the jury was conscientiously attending to its duty to consider each of the counts on the Indictment individually. The notes were followed by entirely appropriate directions.

6. [31]

   For these reasons, I consider that the jury’s verdicts can be reconciled on a logical and reasonable basis. The result is that none of the challenged convictions are unreasonable or without foundation in the evidence by reason of inconsistency of verdicts.

7. [32]

   In conclusion, I refer to the following paragraph of the applicant’s written submissions which, whilst presented as part of his submissions on inconsistency of verdicts, is suggestive of a broader approach to his appeal:

8. [33]

   Whilst there was no indication in the oral address of the applicant’s counsel that the proposed ground of appeal was put on this broader basis, I nevertheless address it on that basis.

9. [34]

   Using the same subparagraph numbers as in the applicant’s submission quoted in [32], I make the following observations:

10. [35]

    The particular matters to which the applicant has drawn attention thus do not support a broad contention that the jury’s guilty verdicts on the challenged conviction counts were unreasonable. Furthermore, having undertaken an independent consideration of the evidence, both as to its sufficiency and quality, I have concluded that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the relevant offences (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]). The complainant’s evidence provided an ample basis for that satisfaction. Nothing that occurred at trial leads to the conclusion that it was not open to the jury to accept that evidence.

Orders

1. [36]

   For the reasons I have given, the following orders should orders should be made:

   1. (1)

      Time to apply for leave to appeal extended to the date upon which the Application for Leave to Appeal was filed.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [37]

   BUTTON J: I agree with Macfarlan JA.

3. [38]

   To be more specific, I agree that there was a rational basis for the distinctions drawn by the jury in its verdicts. I also agree that, more generally, it was open to the jury to return the verdicts of guilty on the evidence placed before it.

4. [39]

   HAMILL J: I agree with the orders proposed by Macfarlan JA. I also agree with his Honour’s reasons. A review of the evidence and record of the trial satisfies me that it was open to the jury (in the sense described by the High Court M v The Queen (supra) and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13) to reach the verdicts that it did. It was also open to the jury to distinguish between the counts in the way that it did. In particular, the acquittal on count 13 was a logical and rational application of the presumption of innocence and the requirement that the prosecution prove beyond reasonable doubt that the accused knew that the complainant was less than 16 years old at the time of the sexual encounter to which that allegation related.