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This case concerns an appeal against conviction of several sexual offences following a judge-alone trial, where the appellant had previously been acquitted of five other counts. The central issue on appeal was whether the trial judge had given the appellant the “full benefit” of those acquittals. The Court of Appeal, in dismissing the appeal, found the trial judge had not erred in respect of taking the acquittals into account, but offered different reasons. Morrison JA held that an acquittal does not equate to a finding of innocence of an accused, although this is amongst the possible reasons for a jury verdict of “not guilty”, because a jury may simply have had a reasonable doubt as to one element of the offence. In contrast, McMurdo JA and Bradley J, held “full benefit” of an acquittal means an assumption that the accused was innocent of that offence; however, their Honours found this principle had no operation in the present case. One other ground was raised on appeal which is not the subject of this note.
Morrison and McMurdo JJA and Bradley J
24 August 2021
Following a complaint made 22 years after the alleged offending, the appellant was charged with 17 counts of sexual offences against the complainant, who had been a child at the time. The appellant had been a partner of the complainant’s mother. The first trial was conducted in 2019. The jury acquitted the appellant of five counts but was unable to reach a verdict on 12 counts. The Crown entered a nolle prosequi on the last count. .
Subsequently, the appellant was re-tried in 2020 in relation to 12 counts by a judge-alone. The counts referred to maintaining a sexual relationship with a child, indecent treatment of a child under 16 – under care, and rape. –. The appellant was convicted of eight counts and acquitted of the remaining 4 counts. .
The first ground of appeal was whether “the learned trial judge erred in law in her treatment of the appellant’s prior acquittals”. . The second ground is not considered by this note. The central issue on appeal was the meaning of “full benefit” for prior acquittals. .
It was accepted by the appellant that evidence relating to the acquittals was presented at the judge-alone trial at the defence’s request, and not in support of the Crown case. –. Inadmissibility issues were not considered on appeal.
Decision of the Court of Appeal
The Court of Appeal (Morrison JA, McMurdo JA and Bradley J) upheld the decision of Dick SC DCJ, finding that her Honour had not erred in the manner in which she took account of the appellant’s prior acquittals.
Morrison JA, after considering case law authorities – particularly Washer v Western Australia (2007) 234 CLR 492 and R v Storey (1978) 140 CLR 364, identified the overarching principles that an acquittal prevents an accused suffering double jeopardy or being put at “risk of being thought guilty” of the acquitted offence. . The acquittal, however, does not allow inference to be made that “any particular fact was found or negatived by the jury so as to make that fact a res judicatum” and a jury must be told what the acquittal means in the circumstances of the particular case. .
Morrison JA found that the trial judge had not used the evidence of the acquittals to reconsider the appellant’s guilt of those charges, and thus had not erred in respect of her Honour’s treatment of that acquittal evidence. –. Her Honour did not refer to the evidence relating to the acquitted counts in the reasons for judgment and explicitly stated she was not relying on the particulars for those acquitted charges. .
Further, Morrison JA held that R v FAR  QCA 317 is not authority for a general principle defining “the full benefit of the acquittals”. –. His Honour explained:
“What was said was not, in my respectful view, said as a qualitative assessment of the impact of the previous acquittals in R v FAR. What was being dealt with was the possibility that the absence of the appropriate direction may have had an impact upon the verdict because of the risk that the jury approached the evidence in the wrong way. The Court cannot be thought to have advanced a view of the impact in fact. To do so would be to usurp the jury’s role of the trier of fact.” .
His Honour found that the principle that an accused is to be considered innocent of the offence acquitted “is not the same as saying that the events did not happen” because a jury need only have a reasonable doubt about a single element of an offence to acquit and the precise reason for their acquittal cannot be known. –.
In this case, the “full benefit of the acquittals” meant that this evidence would be “taken into account when assessing the credibility and reliability of [the complainant’s] evidence”. . The direction the trial judge gave herself, hearing the matter judge-alone, was sufficient to achieve this purpose. –. “Her Honour was rightly observing that an acquittal on a previous charge did not necessarily mean that [the complainant’s] evidence on other charges was adversely affected to the point that she should be rejected as credible or reliable”. .
McMurdo JA, whilst agreeing the appeal should be dismissed, offered different reasons for rejecting the first ground. . Following review of the High Court authorities, McMurdo JA held that these cases defined “full benefit” of an acquittal as “[w]hat must be assumed, where this principle [of incontrovertibility of acquittals] is engaged, is that the accused did not commit that offence”; it does not “merely establish a possibility that the accused person was innocent”. . His Honour found that in the present case the “principle of incontrovertibility” of acquittals did not arise because the prosecution had not sought to establish a fact inconsistent with the accused’s acquittals, rather the evidence was relied on by defence. .
Bradley J, agreeing with both Morrison JA and McMurdo JA, agreed with McMurdo JA on the point that the incontrovertibility of the acquittals was not being challenged by the prosecution at trial. –.
A Hughes of Counsel