Andrew v The Queen
[2013] VSCA 333
•26 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0278
| MARK ANDREW |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and WHELAN JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 13 November 2013 |
| DATE OF JUDGMENT | 26 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 333 |
| JUDGMENT APPEALED FROM | DPP v Andrew (Unreported, County Court of Victoria, Judge Montgomery, 11 May 2012) |
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CRIMINAL LAW — Appeal against conviction — Rape and indecent assault — Convicted on two charges, acquitted of three — Different evidence relating to charges upon which appellant convicted — Whether verdicts inconsistent — Whether, by virtue of inconsistency between acquittals on charges 1 to 3 and conviction on charge 4, conviction on charge 5 otherwise unsafe or unsatisfactory — Verdicts not inconsistent — Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Mr C Carr | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
The appellant stood trial in the County Court at Melbourne on three charges of rape (charges 2, 3 and 5) and two charges of indecent assault (charges 1 and 4). In relation to charge 2, the complainant’s evidence fell short of establishing an act which involved full sexual penetration. Accordingly the trial judge directed that a verdict of not guilty be entered in respect of that charge. His Honour did, however, leave the alternative and lesser charge of indecent assault to the jury in respect of that matter.
The appellant was ultimately acquitted by the jury on charges 1, 2 and 3. He was convicted on charges 4 and 5. He was sentenced on charge 4, the charge of indecent assault, to a term of 12 months’ imprisonment. In relation to charge 5, the charge of rape, he was sentenced to a term of four years’ imprisonment. Six months of the sentence on charge 4 was made cumulative upon the sentence on charge 5. That made a total effective sentence of four years and six months. A non-parole period of two years and six months was fixed.
Buchanan JA granted leave to appeal against conviction on the following ground:
1.The convictions on charges 4 and 5 are unsafe in the light of the evidence against the appellant and the acquittals on charges 1, 2 and 3.
Background facts
The following outline of the facts is taken largely from the Registrar’s Neutral Summary.
The appellant, who was aged 38 at the relevant time, and the complainant, then aged 20, were both employed by a debt recovery company. The appellant was in a relatively senior position with that organisation, whereas the complainant was, in effect, a receptionist. As it happened, the appellant was, at the time, in a relationship with Ms Shandelle Wade, the proprietor of the business. It seems that the complainant was on good terms with both the appellant and Ms Wade.
On 25 September 2009, the appellant and the complainant happened to be alone in the office. It was common ground that they had engaged in some flirtatious banter. The complainant told the appellant that a young man whom she was then seeing had sent her some nude photos of himself. She added that she had sent a topless photo of herself in response. That led the appellant to make a comment about the complainant’s breasts that made her feel uncomfortable. She walked away and returned to her desk.
According to the complainant, the appellant then came out of his office. He said to her words to the effect that ‘if she came into his office he would fuck [her]’. The complainant rebuffed his advance, reminding him that he was in a relationship with Ms Wade. The appellant, undaunted by this, said ‘have you not thought of it? I’ve seen the way you look at me.’ The complainant said that she was embarrassed and merely replied ‘I don’t know’.
The complainant said that the appellant then grabbed her by the arm, and pulled her, playfully, into the boardroom. Once inside, the appellant kissed her. She responded by kissing him back.
According to the complainant, the kiss lasted for just a few seconds. She said that she then pushed the appellant away. She said ‘No we can’t be doing this, you are with Shandelle’. Still undeterred, the appellant attempted once again to kiss her. She pushed him away and said ‘No’. The appellant then pushed her up against the wall and pulled her top down, exposing her breasts. He then kissed one of her breasts. This was the subject of charge 1, indecent assault, in respect of which the appellant was acquitted.
The complainant next said ‘I have to go and do the banking and get the mail’. She claimed that the appellant then slipped his hand down her jeans and touched her on the outside of the vagina. This was the subject of charge 2, originally a charge of rape, when the complainant gave a somewhat different account, but later amended to one of indecent assault. As previously indicated, the appellant was acquitted of this charge.
According to the complainant, the appellant, while keeping her pinned to the wall and kissing her, then began unbuttoning her jeans. He pulled them part way down, and licked her vagina. This was the subject of charge 3, a charge of rape. Once again, the appellant was acquitted of this charge.
The complainant said that the appellant’s phone then rang. He spoke on the phone for about one or two minutes. During that time, he stood between the complainant and the door, effectively blocking her exit. While he was on the phone, the complainant buttoned up her jeans. Her evidence was that the appellant was staring at her the whole time, and she was frightened of him.
The appellant completed his call and, according to the complainant, once again pushed her up against the wall. He tried to kiss her again, and then ‘put his hands on’ her. At that stage, ‘he appeared to be doing something with himself’, but she was uncertain as to what it was. She claimed that he grabbed her hand and put it on his crotch area, and that she ‘pulled away’. He then grabbed her by the hand a second time and placed it momentarily on to his exposed penis. She acknowledged that she had moved her hand on his penis once, effectively stroking it, before she ‘pulled away again’. She could not explain why she had done this, save to say that ‘it [was] what he was implying for me to do’. This incident was the subject of charge 4, indecent assault, in respect of which the appellant was convicted.
The appellant then again began to unbutton the complainant’s jeans and this time started to pull them down. She stopped him and said ‘No’. He then yanked them down, with more force, and she twice more said ‘No’. At that point, the appellant grabbed her by the arms, turned her around, and pushed her down onto the floor.
According to the complainant, the appellant said, pointing to his penis, ‘Where can I put this?’. She replied ‘Not in me’. The appellant ignored her, and twice inserted his penis into her vagina. He then ejaculated across her stomach and clothing. He said, ‘That’s what happens when you don’t have sex for four weeks. Don’t tell Shandelle’. This incident gave rise to charge 5, rape, in respect of which the appellant was convicted.
The appellant stood mute at the trial. He relied for his defence upon what he had said to the police when they formally interviewed him several months after the alleged offending. He told the police that although he had engaged in various sexual acts with the complainant, he had not kissed her breast. In particular, he denied having had sexual intercourse with her. He maintained that she had been a willing participant throughout.
Broadly speaking the appellant’s main defence to all of the charges brought against him was consent. However, his counsel made it clear that, in the alternative, his defence would be that he at all times believed that the complainant was, in fact, consenting.
In essence, therefore, the defence case was that the complainant was a complete liar, and that what the appellant had told the police was the entire truth.
The Crown contended that the complainant’s account was supported by various witnesses who gave evidence of what she had told them shortly after the events in question. In particular, the Crown relied upon a series of emails that she had sent to a close friend in which she claimed, albeit somewhat cryptically, to have been sexually assaulted.
The complainant’s evidence was that, after Ms Wade returned to the office, she pretended to be ill, and asked to be allowed to go home. She was given permission to do so. Later that afternoon, she telephoned Ms Wade and told her, in somewhat opaque terms, that something had occurred between the appellant and herself. The complainant could not recall whether she went into any detail. The following day the complainant went to the police and reported the matter.
Ms Wade confirmed what the complainant had said about having gone home sick. She also confirmed the complainant’s account of the subsequent telephone conversation. She said that the complainant had told her, during that call, that the appellant had, earlier that day, kissed her. The complainant had said that before she knew it, she was on the floor with her jeans off. Ms Wade said that she had asked the complainant whether they had had sex, and the complainant answered ‘No’. Thereafter, according to Ms Wade, the complainant repeatedly said that she was sorry.
According to Ms Wade, once this telephone conversation was over, she confronted the appellant. He initially denied having had any sexual contact with the complainant. However, under pressure from Ms Wade, he admitted that he had ‘cheated’ on her.
Finally, and for the sake of completeness, it should be noted that Ms Wendy Green, who happened to be a friend of Ms Wade, gave evidence that on the day after the alleged offending she spoke with Ms Wade by telephone. Ms Wade told her that the appellant had had sex with the complainant, and that this had occurred on the previous day ‘on the boardroom table’. Ms Green said that she then took it upon herself to telephone the complainant and confront her directly. She told the complainant that she had heard that something had happened on the previous day, and asked her if she was alright. The complainant then told her, in some detail, what the appellant had done to her. Ms Green asked the complainant whether the appellant had harmed her, and she said ‘No’. She added that it was ‘not like that’. Ms Green asked the complainant if she was going to press charges. The complainant said that she was not minded to do so. She repeated that ‘it wasn’t really like that’.
Ms Green made contemporaneous notes of her conversation with the complainant. Those notes recorded the complainant as having said that the appellant had led her from her desk into the boardroom, and there started kissing her. The notes also recorded the complainant as having said that they both ended up ‘on the table’. There was no mention in the notes of rape, and no suggestion of any act of a non-consensual nature.
A number of other witnesses gave evidence to the effect that the complainant appeared distressed in the period shortly after the alleged offending.
Appellant’s submissions
Mr McLoughlin, who appeared on behalf of the appellant, submitted that the jury’s verdicts of acquittal on at least charges 2 and 3 could only be explained by ‘the jury not being satisfied that the app[ellant] was aware that the complainant was not or might not be consenting’. He submitted that the evidence in support of charge 4 was of no different character, in that regard, to that led in support of charges 2 and 3. It followed, so he said, that merely by reason of inconsistency, the conviction on charge 4 was unsafe and unsatisfactory.
Mr McLoughlin supported that submission by reference to the complainant’s account of what the appellant had said to her when he asked ‘Where can I put this?’ (in relation to charge 5). He argued that the appellant would not have asked such a question if he had, moments earlier, in relation to charge 4, been aware that the complainant was not a willing party to putting her hand on his penis.
Mr McLoughlin next submitted that if the conviction on charge 4 was itself unsafe, because of inconsistency with the acquittals on charges 2 and 3, it must logically follow that the conviction on charge 5 could not be sustained. That was because a tainted verdict on charge 4, itself based on inconsistency, necessarily meant that the jury had failed to discharge their responsibility appropriately and, in all likelihood, simply delivered compromise verdicts. In Mr McLoughlin’s terms, an unsafe and inconsistent verdict on charge 4 was rather like the ‘clock striking 13’. An unsafe verdict on charge 4 would render all previous (and subsequent) ‘strokes of the clock’ unreliable.
In putting the matter in that way, Mr McLoughlin sought to avoid the obvious difficulty, in this case, of mounting an ‘inconsistent verdicts’ argument in respect of charge 5. Plainly, and on any view, the evidence in support of that charge, was of an entirely different character to that led in support of charges 1 to 4.
Mr McLoughlin’s submission rested upon a single proposition. He argued that, whereas the jury must have found that the Crown had not established that the appellant had the requisite mens rea for any sexual offending in relation to his acts prior to taking the telephone call, their verdict on charge 4 meant that they concluded, without any apparent justification, that he had somehow become aware that the complainant might no longer be consenting, immediately before putting her hand on his penis.
Mr McLoughlin argued that such a finding could not reasonably have been made. In his submission, the evidence was that the complainant only began to protest, in earnest, after all of the events giving rise to charge 4 had taken place. The appellant’s question to the complainant, ‘Where can I put this?’, constituted a ‘road block’ to a conviction on charge 4, and therefore tainted the conviction on charge 5.
Respondent’s submissions
Mr Carr, who appeared for the Crown, submitted that the convictions recorded in respect of charges 4 and 5 were fully supported by the evidence and perfectly able to be reconciled with the acquittals on (at least) charges 2 and 3. In his submission, the evidence led in support of charges 1 to 3 differed significantly from that led in support of charges 4 and 5.
Mr Carr placed particular emphasis upon the circumstances surrounding the telephone call, and its immediate aftermath. Whereas prior to that call the complainant had done little or nothing to signify any actual unwillingness on her part to engage in sexual activity, the situation changed thereafter.
Mr Carr identified a number of factors which, he submitted, provided a rational explanation as to how the jury could have entertained a reasonable doubt as to the appellant’s guilt on charges 1 to 3, but at the same time been satisfied of his guilt on charge 4.
In substance these were as follows:
·while the appellant was speaking on the phone, the complainant moved away from the wall, against which she had previously been placed, and stood up straight. She then proceeded to button up her jeans;
·whereas the appellant had not, before answering the telephone, looked closely at the complainant, her evidence was that thereafter he ‘stared’ at her continuously. It would have been open to the jury to conclude that, from that point onwards, the appellant was in a position to see how frightened she was;
·the appellant ‘grabbed’ her hand and held it to his crotch area. She then ‘pulled’ or ‘shied’ away; and
·the appellant then ‘grabbed’ her hand a second time and put it onto his exposed penis. After the complainant stroked his penis once, she again ‘pulled away’.
It was submitted that these four factors, in combination, provided a rational explanation for the jury’s decision to convict on charge 4 while, at the same time, having a reasonable doubt as to the appellant’s guilt on charges 1 to 3.
As regards the appellant’s ‘question’ to the complainant, Mr Carr submitted that, properly understood, it did not constitute a ‘road block’ to conviction on charge 4. On one view, the question ‘Where can I put this?’ might be regarded as merely rhetorical, perhaps laced with a measure of sadistic humour. It did not, in Mr Carr’s submission, reflect a polite enquiry, on the part of the appellant, as to whether the complainant was prepared at that stage to engage in an act of sexual penetration.
Inconsistent verdicts – the relevant legal principles
The law concerning inconsistent verdicts is well established.
In MacKenzie v The Queen,[1] Gaudron, Gummow and Kirby JJ reviewed the relevant authorities, emphasising that where there is factual inconsistency in relation to varying verdicts on different counts, the test to be applied is one of ‘logic and reasonableness’. Their Honours referred to the judgment of Devlin J in R v Stone[2] where his Lordship said, in relation to such a ground:
[The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.[3]
[1](1996) 190 CLR 348, 366 (‘MacKenzie’).
[2]Unreported, 13 December 1954.
[3]Ibid.
It is evident that in maintaining due respect for the jury’s traditional function, courts have hesitated to reach a conclusion of inconsistent verdicts.[4] If there is some evidence to support the particular verdict said to be inconsistent, an appellate court will be loathe to substitute its view of the facts for one that was reasonably open to the jury. For an appellate court to intervene in cases of this kind, the inconsistency in the verdicts returned would need to represent ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[5]
[4]MacKenzie (1996) CLR 348, 367.
[5]Ibid 368.
In laying down these principles, the High Court in MacKenzie was at pains to emphasise that ‘[i]t is impossible to state hard and fast rules’ as each matter will turn on its own particular facts.[6] Nonetheless, the authorities provide that a ‘conviction should not be set aside unless the inconsistency is sufficiently great to necessitate intervention to prevent a possible injustice’.[7]
[6]Ibid.
[7]R v JA [2008] VSCA 169, [49] (‘JA’).
The High Court went on to apply these same principles in MFA v The Queen.[8] There, the appellant was found guilty of two counts of sexually abusing a child but acquitted of a further seven counts. He alleged that his acquittals on the other counts involved the non-acceptance of the complainant’s evidence. This in turn, it was submitted, impacted upon the complainant’s evidence with respect to the guilty counts.
[8](2002) 213 CLR 606 (‘MFA’).
The appellant also argued that there were significant discrepancies between the complainant’s evidence and that of a corroborating witness (despite the fact that the corroborating witness essentially supported the complainant’s version of events). The High Court in MFA was asked to consider whether the New South Wales Court of Criminal Appeal had applied an erroneous test in deciding whether the verdicts of guilty were unreasonable or could not be supported having regard to the evidence.
In dismissing the appeal, the High Court reaffirmed what it had previously said in M v The Queen,[9] regarding the test for unsafe and unsatisfactory verdicts. The Court noted, in MFA, that the test established by s 6(1) of the Criminal Appeal Act 1912 (NSW) was one of ‘unreasonableness’, and not of ‘inconsistency’. The question an appellate court had to consider in order to determine whether ‘unreasonableness’ had been demonstrated was whether it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the accused.
[9](1994) 181 CLR 487.
The Court in MFA went on to say that it was erroneous to treat the Court’s decision in Jones v The Queen[10] as authority for the proposition that where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable across the board. Moreover, such verdicts do not require an appellate court to consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. The Court further stated:
It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.[11]
[10](1997) 191 CLR 439.
[11](2002) 213 CLR 606, 624 [89].
In JA, this Court summarised the effect of MacKenzie and MFA, and added:
Due to the respect accorded to the jury’s traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, ‘it is not the role of the appellate court…to substitute its opinion of the facts for one which was open to the jury.’ If the outcome is explicable as a merciful verdict, intervention will not be justified.[12]
[12][2008] VSCA 169, [47] (citations omitted).
It follows from these statements of principle, and others to the same effect,[13] that if there was a logical basis upon which the jury could have acquitted the appellant on charges 1 to 3, but at the same time convicted him on charges 4 and 5, the verdicts of guilty will not be set aside as unsafe or unsatisfactory.[14]
[13]See for example R v Ware [1997] 1 VR 647, 649; Pavitt v The Queen (2007) 169 A Crim R 452 and Choudhary v The Queen [2013] VSCA 325, 29–37.
[14]Cf Niaros v The Queen [2013] VSCA 249, [43].
Conclusion
In my opinion, the facts in this case reasonably and logically gave rise to the verdicts at which the jury arrived. As in MFA, the evidence in support of the various charges differed significantly, albeit that it came from the same source. Up until the time that the appellant answered the telephone, there was little to suggest that the complainant was unwilling to participate in sexual activity. From that time onwards, things changed dramatically. On the account given by the complainant, the jury were entirely justified in concluding that the Crown had failed to establish, beyond reasonable doubt, that the appellant knew, or was aware that she was not consenting in relation to charges 1 to 3. Charge 4 fell into a different category, and by the time the conduct that gave rise to charge 5 occurred, there could have been no doubt whatever of the appellant’s guilty state of mind.
It follows that the verdicts in this case were perfectly explicable, and in no way inconsistent.
That would be sufficient to dispose of this appeal. However, before leaving this matter, I wish to say a few words about the practice, which has developed in this State, of laying multiple charges for offences arising out of what many would regard as a single course of conduct.[15]
[15]See, for example, Sharma v The Queen [2011] VSCA 356 and CJJ v The Queen [2012] VSCA 196.
On occasion, that practice has resulted in indictments being drawn which this Court has characterised as ‘overloaded’.[16] The effect of an overloaded indictment is to make the jury’s task more difficult than it need be, to lengthen jury directions, to render the task of sentencing extraordinarily complicated, and to thereby increase the risk of error.
[16]See Department of Justice, ‘Review of Sexual Offences’ (Criminal Law Review Consultation Paper, September 2013) 13.2.3. According to that report, a sample of 50 rape cases in the Court of Appeal in 2012 indicated that in approximately 20 percent of rape trials, there were charges alleging multiple rapes on what could fairly be described as the one occasion.
This Court has, on a number of occasions, made known its concerns regarding this practice. For example, in Davy v The Queen,[17] Bongiorno JA (with whom Harper and Hansen JJA agreed) observed:
The discretion that prosecutors have in relation to the framing of indictments is, of course, undoubted. However, the proper functioning of the criminal justice system and the efficient disposition of cases by trial courts is a matter of legitimate concern for this Court. Unwieldy, unnecessarily long and ‘overloaded’ indictments are productive, not only of oppression of those against whom they are brought, but also of an increased risk of judicial error in trials and in sentencing. They complicate and lengthen trials and place an unacceptable burden on trial judges and juries. It has long been accepted by prosecutors that in framing an indictment the prosecutor should aim to expose adequately the alleged criminality of the person to be arraigned and give the sentencing judge adequate scope to impose appropriate punishment, with properly constructed sentences, in the event of a conviction.[18]
[17](2011) 207 A Crim R 266.
[18]Ibid 272–3. See also Walker and Kormez v The Queen [2011] VSCA 160 where the two accused were charged with 17 separate offences, most of them sexual, in relation to two complainants, all of these offences having been alleged to have occurred at about the same time. The presentment in that case was described as ‘overloaded’.
The practice of charging multiple sexual offences arising out of a single course of conduct has not occurred in a vacuum. An oft-cited passage in Newman and Turnbull v The Queen[19] may shed some light on why this practice has developed to the extent that it has. In considering the principles that govern what a court may take into account as aggravating circumstances when sentencing an offender, Winneke P said:
The common law principle that a person cannot be sentenced for an offence with which he has neither been charged nor convicted is a venerable one, but it is one which has created a tension with another equally venerable principle of sentencing; namely, that a sentencing judge is entitled, and indeed bound, to take into account all the circumstances which are relevant to the commission of the offence with which the prisoner has been charged. The latter principle however must, in the appropriate circumstances, give way to the former because it could never be consistent with fairness and justice to sentence a person for an offence with which he has not been charged or convicted.[20]
[19][1997] 1 VR 146 (‘Newman and Turnbull’).
[20]Ibid 150. The principle in Newman and Turnbull may have its immediate genesis in the approach taken to multiple charges of sexual offences in S v The Queen (1989) 168 CLR 266.
This Court, reflecting upon the difficulties created by the practice of charging separately almost every act of sexual offending, (irrespective of its objective gravity), sought, subsequent to Newman and Turnbull, to explain what that case had actually decided.
In R v Cincotta,[21] Winneke P (with whom Charles JA and Hampel AJA agreed) stated:
[21](Unreported, Victorian Supreme Court of Appeal, 15 October 1997) (‘Cincotta’).
I think I should say that I agree with the views which the learned judge expressed, that too much has been read, in the framing of presentments, into the decision of this Court in the case of R v Newman and Turnbull [1997] 1 VR 146. I fully appreciate the caution which must be exercised by the Director of Public Prosecutions to ensure that the entire criminal conduct of an accused person is captured within the four corners of the presentment so that the entirety of the criminal conduct can be punished. But it should be remembered that the decision in [that case] was but a particular example of the principles expressed in De Simoni v The Queen (1981) 147 CLR 383 that a person should not be punished for an offence for which he has neither been charged nor convicted.
Nothing in Newman & Turnbull [sic] should be regarded as suggesting that a sentencing judge is not to have regard to all the consequences that flow directly from the criminal conduct constituting the offence charged.[22]
[22]Ibid 11.
Despite what was said in Cincotta, the practice of laying multiple charges in cases involving sexual offences, (some of them perhaps not all that objectively grave), arising out of what is essentially a single course of conduct, continues largely unabated. In a sense, that is understandable. Prosecutors are rightly wary of being confronted at trial with defence objections to what would otherwise be ‘uncharged acts’ being led.[23] They are aware of the strictures regarding the need for specificity arising out of the High Court’s decision in S v The Queen.[24] They are also legitimately apprehensive at being caught out, at the level of sentencing, by the restrictions laid down in Newman and Turnbull.
[23]If the ‘uncharged acts’ are led, the jury will of course have to be directed as to how they are to be used. This in itself creates a potential minefield, possibly worse than that associated with Newman and Turnbull.
[24](1989) 168 CLR 266.
Perhaps the point has now been reached where the only solution to what has become something of an intractable problem is legislative reform.
Without commenting about whether it was truly appropriate, in this particular case, to have laid five separate charges against this appellant, I would simply say that prosecutors should take care not to include in an indictment for sexual offences charges that are not really necessary. That is particularly so where some of those charges are of a relatively minor nature, and serve only to complicate the trial, for no good reason.
For the reasons given earlier, I would dismiss this appeal.
WHELAN JA:
For the reasons given by Weinberg JA, the appeal should be dismissed.
LASRY AJA:
I have had the benefit of reading in draft the reasons of Weinberg JA. I respectfully agree, for the reasons his Honour describes, that the appeal should be dismissed.
Subject to what follows, I also agree with his Honour’s observations about the laying of multiple charges for offences arising out of what may fairly be regarded as one course of conduct. His Honour has not directly linked those observations to this case but it is important to recall that in this case the offending conduct was punctuated by an interruption which logically separated the factual basis for charges 1, 2 and 3 (of which the appellant was acquitted) from charges 4 and 5 (of which he was convicted). By the time the conduct the subject of counts 4 and 5 was occurring, it must have been clear to the jury that the complainant was not consenting to what was happening and, from her actions, the appellant could not have believed otherwise. To me, on the evidence, the verdicts were easily understandable.
In this case, given there were a number of charges in the indictment alleging separate criminal conduct, the jury were directed in the usual manner that they must give separate consideration to each charge.[25] In my opinion, the outcome demonstrates that the jury both accepted and understood the direction they were given on that topic and applied it diligently. I would respectfully adopt what was said by Buchanan JA in R v PMT:[26]
[25]In accordance with MFA v R (2002) 193 ALR 184 and KRM v R (2001) 206 CLR 221.
[26](2003) 8 VR 50.
There is no general rule that in cases where several sexual offences depend upon the testimony of the complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was undermined in respect of the counts upon which they have convicted. The circumstances of a particular case may justify different verdicts. In MacKenzie v R, Gaudron, Gummow and Kirby JJ said:
... the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[27]
[27]Ibid 56–57 (citation omitted).
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