B W A v The Queen

[2012] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0159

B W A	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 September 2012
DATE OF JUDGMENT	10 September 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 218
JUDGMENT APPEALED FROM	R v [B W A ] (Unreported, County Court of Victoria, Judge Gamble, 29 June 2012)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of one charge of sexual penetration of a child and acquitted of two charges of sexual penetration of a child and three charges of performing an indecent act with a child – Whether verdicts inconsistent – Crown concession that verdicts could not stand together – Leave to appeal granted – Appeal allowed – No point of principle.  

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Keating Avery
For the Crown	Mr C Ryan SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I will ask T Forrest AJA to deliver the first judgment.

T. FORREST AJA:

1. On 7 June 2012 at the County Court in Melbourne, the applicant was convicted of one count of sexual penetration of a child under 16, such child being under his care, supervision or authority (contrary to s 45(1)(b) Crimes Act 1958).

3           At the same trial, the applicant was acquitted of five further charges.  The following table sets out a summary of the verdicts:

Charge on Indictment	Offence	Verdict
1.	Sexual penetration of a child under 16 under care supervision or authority contrary s 45(1)(b) Crimes Act 1958.	NG
2.	Indecent act with or in presence of a child under 16 contrary s 47(1) Crimes Act 1958.	NG
3.	Sexual penetration of a child under 16 under care supervision or authority contrary s 45(1)(b) Crimes Act 1958.	G
4.	Indecent act with or in presence of a child under 16 contrary s 47(1) Crimes Act 1958.	NG
5.	Sexual penetration of a child under 16 care supervision or authority contrary s 45(1)(b) Crimes Act 1958.	NG
6.	Indecent act with or in presence of a child aged 16 or 17 contrary s 49 Crimes Act 1958.	NG

1. The applicant was sentenced to two years and six months’ imprisonment.  Fifteen months of this sentence was suspended for an operational period of three years.

Background

1. The applicant was the complainant’s teacher at a regional college.  In early 2010, she was 15 years old.  The offending, involving six charges, was alleged to have

occurred on five separate occasions during the year.  I shall set out very briefly the nature of the allegations.  All offences were alleged to have been committed between 1 February and 20 April 2010.

Charge 1

1. At the applicant’s home the applicant was alleged to have inserted his tongue into the complainant’s vagina.  Verdict: Not Guilty.

Charge 2

1. At the applicant’s home the complainant touched the applicant’s erect penis while they kissed each other.  Verdict: Not Guilty.

Charges 3 & 4

1. In the applicant’s car the applicant was alleged to have inserted his fingers into the complainant’s vagina (charge 3) and to have rubbed her breasts (charge 4).  Verdicts: Guilty on charge 3, Not Guilty on charge 4.

Charge 5

1. The applicant was alleged to have inserted his fingers into the complainant’s vagina.  This was said to have occurred in a shed that the applicant had access to.  Verdict: Not Guilty.

Charge 6

1. On the complainant’s 16^th birthday the applicant and the complainant met at the same shed.  The complainant was seen by her friends walking there.  They kissed and cuddled for about 30 minutes.  Verdict: Not Guilty.

1. The complainant was confronted by her mother and a policeman on 21 April 2010.  She denied an improper relationship.  She ran away to Melbourne, was taken to a police station by a taxi driver and was then taken back to her home.  She made a statement setting out the matters summarised in the previous paragraph on 22 April 2010.  Her evidence at trial was consistent with her statement.

1. There was other evidence in the trial.  A number of school friends gave evidence of observing the applicant and the complainant near the shed on 20 April 2010.  Mobile telephone records showed that the applicant’s mobile telephone had been called a number of times from the shed and from a phone box near his house.  The complainant had confided in her friend HC about her relationship with the applicant and had described various sexual activities with her.  This was not a weak prosecution case.

1. In his police interview, the applicant denied all allegations made against him.  At trial, he did not give evidence but called alibi evidence regarding his movements on 20 April 2010.

1. The applicant seeks leave to appeal on the following ground:

Ground 1

The guilty verdict on charge 3 is unsafe and unsatisfactory having regard to the not guilty verdicts on charges 1, 2, 4, 5 and 6.

1. The applicant argued that the verdicts are inconsistent with each other.  The verdicts of not guilty entailed a rejection of the complainant’s account of events on five of the six allegations.  It was further argued that there was nothing in the complainant’s evidence or the surrounding circumstances which could logically support the proposition that the complainant’s evidence was more reliable on charge 3 than on other charges, including charge 4 which was alleged to have occurred at the same time.

1. The respondent concedes this appeal and accepts that the verdict on charge 3 is inconsistent with the other verdicts.  It follows that the respondent accepts there is no proper way by which the verdicts can be reconciled.

1. For my part, I consider this concession is well made.  A verdict is factually

inconsistent with other verdicts in the trial of a single accused if the verdicts cannot stand together.[1]  An appellate court must be satisfied that no reasonable jury, applying their minds properly to the facts of the case, could have arrived at the conclusion that is unequivocally demonstrated by the verdicts.[2]

[1]Mackenzie v The Queen (1996) 190 CLR 366 (Gaudron, Gummow and Kirby JJ) (‘Mackenzie’).

[2]R v Stone (Unreported, 13 December 1954, Devlin J) as cited in Mackenzie (1996) 190 CLR 348, 366.

1. I am unable to reconcile the verdicts in this case.  There was no corroboration evidence led in relation to charge 3.  The accused was acquitted of charge 4, an alleged indecent act said to have occurred at the same time.  The defence was a broad brush denial of any impropriety.  On one view the prosecution case was stronger on the other charges, particularly those said to have occurred at the shed and more particularly charge 6 where the complainant was seen on her way to the shed.  Yet he was acquitted of those charges.  I can see nothing in the evidence that was capable of providing a rational explanation for the different treatment of the complainant’s word as between charge 3 and the other charges.

1. I consider the verdicts logically unsustainable and I would allow the application for leave and the appeal.

1. In these circumstances, I propose the following orders:

(a)leave to appeal is granted;

(b)the appeal is allowed;

(c)the verdict of guilty and sentence imposed on charge 3 be set aside;  and

(d)a verdict of not guilty on that charge be entered.

WEINBERG JA:

1. I agree.