Bailey v The State of Western Australia
[2018] WASCA 169
•28 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BAILEY -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 169
CORAM: BUSS P
MITCHELL JA
HALL J
HEARD: 10 AUGUST 2018
DELIVERED : 28 SEPTEMBER 2018
FILE NO/S: CACR 166 of 2017
BETWEEN: GHEORGHE TYRONE BAILEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
File Number : IND 1260 of 2016
Catchwords:
Criminal law - Appeal against conviction - Three counts of aggravated sexual penetration without consent - Inconsistent verdicts - Where all three counts part of single incident - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T Karstaedt |
| Respondent | : | Mr RG Wilson |
Solicitors:
| Appellant | : | Sarah Oliver |
| Respondent | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in decision(s):
DPJB v The State of Western Australia [2010] WASCA 12
Duniam v The Queen [1997] TASSC 107
DW v The State of Western Australia [2011] WASCA 52
Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82
LWD v The State of Western Australia [2017] WASCA 174
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v J (1994) 75 A Crim R 522
R v J (No 2) [1998] 3 VR 602
R v KET [1998] VSCA 73
R v Kirkman (1987) 44 SASR 591
R v LR [2005] QCA 368; [2006] 1 Qd R 435
Strickland v The Queen [2000] WASCA 68
JUDGMENT OF THE COURT:
The appellant was tried in the District Court on an indictment containing ten counts. He pleaded guilty to one count at the commencement of the trial and was found guilty of a further five counts. He was acquitted of the remaining four counts. He seeks leave to appeal against his conviction on two of the counts (counts 8 and 9) on the ground that the jury's verdicts on those counts are unreasonable or cannot be supported because they are factually inconsistent with the verdict of the jury in respect of another count (count 10) and the verdict in respect of a circumstance of aggravation (on count 8). The convictions on the other counts are not challenged.
An examination of the evidence shows that there are material differences between the evidence in respect of counts 8, 9 and 10. The verdicts can stand together as the product of a logical and reasonable exercise of fact finding. Accordingly, the verdicts were not unreasonable and are supported by the evidence. The appeal must be dismissed. Our reasons for that conclusion are as follows.
Prosecution case
The prosecution case was that the appellant and the complainant met and started to go out with each other in May of 2015. Shortly after, they stayed for a number of weeks at the complainant's parents' house. The complainant had formerly been a recreational drug user but had ceased using drugs by the time she met the appellant. She had a son who was 4 years old at that time.[1]
[1] Trial ts 153.
On 13 June 2015, the appellant persuaded the complainant to use methylamphetamine. She went on what she described as a 'bender' over that weekend. She later told her mother what had occurred and they discussed the complainant ending the relationship with the appellant.[2]
[2] Trial ts 152 - 153.
On 17 June 2015, the complainant went to visit the appellant and told him that the relationship was over. It was alleged by the prosecution that he assaulted her by grabbing her and squeezing her throat until she passed out. This was the subject of count 1 on the indictment, an alleged offence of doing an act as a result of which the life, health or safety of another was likely to be endangered. The appellant was acquitted of this count.[3]
[3] Trial ts 153.
Sometime later the complainant began to receive notifications for changes to the passwords to her Facebook and other social media accounts. She believed that the appellant was responsible and went to confront him on or about 3 July 2015. She told the appellant that she did not want to be with him and he then started accusing her of cheating on him. During the course of this argument, the appellant grabbed the complainant's mobile telephone and smashed it. That conduct was the subject of count 2 on the indictment, a charge of criminal damage, to which the appellant pleaded guilty.[4]
[4] Trial ts 154.
The appellant then pinned the complainant to a couch and threatened her. In particular, he threatened to stick a pencil in her eye. He held the pencil close to her eyeball as he made this threat. This conduct was the subject of count 3 of the indictment, a charge of threatening to unlawfully harm another, of which the appellant was found guilty.[5]
[5] Trial ts 154 - 155.
The complainant attempted to leave, but the appellant prevented her from doing so. This conduct is the subject of count 4 of the indictment, a charge of deprivation of liberty, of which the appellant was found guilty.[6]
[6] Trial ts 155.
It was alleged by the prosecution that on 11 July 2015 the appellant followed the complainant to a pub which she attended and stood in the carpark glaring at her with a metal pole. She later received various threatening text messages from the appellant. This was the subject of an aggravating stalking charge of which the appellant was found not guilty (count 5).[7]
[7] Trial ts 155 - 156.
On 20 July 2015, the complainant went to the appellant's house because she feared he may have harmed himself. It was alleged that she found him asleep and when she woke him he grabbed her by the throat and squeezed until she passed out. This allegation was the subject of a charge of doing an act as a result of which the life health, or safety of another was likely to be endangered, of which the appellant was found not guilty (count 6).[8]
[8] Trial ts 156.
On 26 July 2015, the appellant entered the home of the complainant uninvited. There was an argument during which the appellant started going through the complainant's mobile telephone and demanded that she inject herself with drugs. An acquaintance of the complainant, who was intending to move into the house, arrived to obtain a key. The complainant appeared to be worried and told the friend to call the police. The appellant threatened the complainant and required her to drive him away in her car. This conduct was the subject of a deprivation of liberty charge (count 7) of which the appellant was found guilty.[9]
[9] Trial ts 157 - 159.
The counts that are the subject of this appeal, counts 8, 9 and 10, occurred on 17 August 2015. On 16 August 2015, the appellant and the complainant assisted a friend of the appellant to move furniture. The complainant was telephoned by her stepfather and the appellant wrote notes regarding what the complainant was permitted to say. That evening the complainant wanted the appellant to leave and he said he would. A taxi was called and the complainant heard the door of a car open and close, and she assumed that he had left. She locked the front door and went to sleep with her young son in the same bed. Later that night she awoke to find the appellant standing next to her bed. It was alleged that he forced her to engage in oral sex. This was the subject of count 8 of the indictment. Three circumstances of aggravation were also alleged: that he was armed with a screwdriver, that a child was present and that he was in a family or domestic relationship with the complainant. The appellant was found guilty of this count and the second and third circumstances of aggravation were also found proven. The circumstance of aggravation regarding the screwdriver was not found proven.[10]
[10] Trial ts 160.
Sometime later during the same night the appellant penetrated the complainant's vagina with his penis without her consent. This was the subject of count 9 of the indictment of which the appellant was found guilty. The same three circumstances of aggravation were alleged. Again the second and third circumstances were found proven but the circumstance of being armed with a screwdriver was not found to be proven.[11]
[11] Trial ts 160.
Immediately following the act the subject of count 9 it was alleged that the appellant had penetrated the complainant's vagina with his fingers without her consent. This was the subject of count 10 of the indictment, of which the appellant was found not guilty after trial.[12]
[12] Trial ts 160.
Evidence in respect of counts 8, 9 and 10
Evidence of the complainant
In relation to counts 8, 9 and 10, the complainant gave evidence in examination-in-chief that the appellant had been at the complainant's house on 16 August 2015. At around 10.00 pm or 11.00 pm an argument arose which resulted in the complainant asking the appellant to leave. The appellant called a taxi, which arrived about 20 minutes later, and the complainant locked the front door and went to sleep believing that the appellant had left in the taxi.[13]
[13] Trial ts 353 - 355.
At some point during the night the complainant awoke to find the appellant standing next to her going through her phone. Her son was asleep in the same bed, lying to her right. The complainant could see that it was the appellant because she always left her kitchen light on at night, which provided background light in the bedroom.[14]
[14] Trial ts 356 - 358.
The complainant's evidence-in-chief in relation to count 8 was that the appellant accused the complainant of cheating on him and said that if she 'like[s] sucking so much then [she] can suck on his [penis]'. He got into the bed and laid down to the left of the complainant. In response to the words the appellant said, the complainant said 'no' and begged him. When the appellant lay on the bed, the complainant noticed a screwdriver in his left pocket. He pulled his shorts and underwear down and grabbed the complainant's hair. She was begging him and crying and saying, 'Please, please, I don't want to do this'. He held the screwdriver to her throat, touching her neck with it, and told her to 'shut the fuck up' and do as she was told. He then forced his erect penis into her mouth. The complainant began to experience a panic attack and hyperventilate, and the appellant told her she could stop and that 'it's ok'. He put the screwdriver down on the left hand side of the bed. The complainant fell asleep.[15]
[15] Trial ts 358 - 361.
The complainant's evidence-in-chief in relation to count 9 was that she later woke up to the appellant pulling her shorts and underwear down. She was on her side facing the left hand side of the bed and the appellant was lying next to her to the right, in between her and her son. He penetrated her vagina with his penis for two or three minutes until he ejaculated. During this time the complainant told him to stop.[16] She did not refer to the appellant threatening her with a screwdriver at this point in time.
[16] Trial ts 361 - 362.
The complainant's evidence in relation to count 10 was that having ejaculated in her vagina, the appellant put his fingers in the complainant's vagina and said 'gee, I've really filled you up, girl'.[17]
[17] Trial ts 362, 364.
The complainant gave evidence of a further argument that morning between her and the appellant, during which she said the appellant assaulted her, including hitting her on the head with the screwdriver. There was a knock on the front door as an acquaintance, Jacinta Goldberg, had arrived to collect some of her things. The complainant picked up her son and gave him to Ms Goldberg begging her to take him away from the house. She and Ms Goldberg unsuccessfully attempted to persuade the appellant to leave in a taxi. Eventually Ms Goldberg left. The complainant later managed to escape and drive to a friend's house from where she called the police and reported the offences. She took the screwdriver with her and put it in her car.[18]
[18] Trial ts 366 - 376, 379.
The complainant did not resile from this account in cross-examination.
Video record of interview with the appellant
The appellant took part in a recorded interview with police on 18 August 2015. The appellant told police that he was not guilty but would plead guilty 'for [the complainant's] reasons' to everything alleged against him by her.[19] After being told that the allegation was one of sexual assault, the appellant repeated that he would plead guilty to whatever was alleged and the following exchanged occurred:[20]
[19] Blue AB page 57.
[20] Blue AB pages 66 - 67.
POLICE: Tell me what your knowledge is of what happened on that night.
BAILEY: Unlawful penetration of [the complainant]. That's it.
POLICE: Tell me about that.
BAILEY: Whatever that means. Like, if, if the, the short version is rape, well, then, yeah.
POLICE: Okay. Well, tell me what happened.
BAILEY: That's what happened. [The complainant] got raped by myself.
POLICE: Okay. And, how did that happen? How did you do that?
BAILEY: With my hands.
POLICE: With your hands.
BAILEY: And, yeah. And oh I don't know how to fucking explain it, man. I can't explain it. Whatever [the complainant] said. Whatever she said.
POLICE: Which body parts went where?
BAILEY: I unlawfully put my penis inside her forcibly.
POLICE: Into what part of her?
BAILEY: Her vagina.
POLICE: Anywhere else?
BAILEY: No.
POLICE: Nowhere else?
BAILEY: No. Wha-, wha-, whatever she said. Whatever she said. I dunno. Whatever's been made in [the complainant's] statement I'll plead guilty to.
The appellant went on to say to police that sex took place in the complainant's bed in her house and the complainant's son was next to the appellant on the bed. He said that he was in the wardrobe when police arrived at the house because he had not paid his rent. He said he entered the house through the bathroom window. He said that the complainant begged him to have sex with her and he refused. He continued to answer questions with words to the effect of 'whatever is in [the complainant's] statement' throughout the interview.
Evidence of the appellant
In his evidence-in-chief the appellant said that on 16 August 2015, the complainant called a taxi for him after an argument. However, she then asked him to stay so the appellant paid the taxi driver $10 and went back inside the house. He and the complainant went to bed together. The complainant's son was asleep on the right hand side of the bed, the complainant was in the middle and the appellant was on the left hand side.[21]
[21] Trial ts 962 - 965.
His evidence was that they started kissing and cuddling, and had consensual sex lying on their sides facing the left hand side of the bed with the appellant behind the complainant. They then went to sleep. In the morning the complainant initiated oral sex with the appellant but he 'wasn't into it'. They then had consensual penile/vaginal sex in the same manner as before.[22]
[22] Trial ts 963, 965 - 968.
Another argument erupted that morning and the appellant asked the complainant to take him to his house. Following a further argument, the complainant left in her car with her son without the appellant. He went around the back of the house, took the flyscreen off the bathroom window and climbed into the house. He saw police at the front of the house and hid in the wardrobe.[23] He later said in cross-examination that he only went inside because it was raining.[24]
[23] Trial ts 969 - 980.
[24] Trial ts 1193.
In cross-examination the appellant denied touching the screwdriver.[25] He also denied putting his fingers in the complainant's vagina.[26] In re‑examination he said:[27]
Yes, at the start I - I - this is really awkward to say, but I put my fingers down there to make sure that [the complainant] - - -
Just - if you want to just tell us - - -?---Yeah, I put it down there to help my penis go into her vagina.
Yes?---That's about the only time that my hands were down there.
Evidence of Dr Maureen Phillips
[25] Trial ts 1173 - 1174.
[26] Trial ts 1177.
[27] Trail ts 1217 - 1218.
Dr Phillips is a doctor employed by the Sexual Assault Resource Centre who examined the complainant. She did not find any evidence of recent injury apart from some tenderness on the back of the complainant's head.[28] She gave evidence that sexual penetration without consent may occur without any resulting signs or injuries.[29]
Evidence of Jacinta Goldberg
[28] Trial ts 581 - 588, 592.
[29] Trial ts 592.
Ms Goldberg knew the complainant through the complainant's sister. She gave evidence that she attended the complainant's address and before she had even knocked on the door the complainant opened it and handed her son to her. She then closed the door again. Ms Goldberg said that the complainant looked scared, frantic and unsteady. Ms Goldberg went inside the house and saw the complainant and the appellant arguing. She told the appellant to 'let things go and to step away from [the complainant]' and let her and her son leave. The appellant continued to yell and the complainant was crying on the floor. Ms Goldberg and the complainant offered to pay for a taxi for the appellant or take him home. The complainant eventually left in her car with her son and the appellant left the property later.[30]
Evidence of police officers
[30] Trial ts 601, 609 - 610.
Constable Smith attended the complainant's address on 17 August 2015. He noticed some flyscreens lying on the ground in the backyard next to the windows. All the other doors and windows were locked.[31] Sergeant Langthorn also noticed that the flyscreens had been removed.[32] When the house was searched, the appellant was located in the wardrobe.[33]
[31] Trial ts 752 - 753.
[32] Trail ts 730.
[33] Trial ts 732, 753, 813.
Summing up
In summing up, the trial judge told the jury that they needed to consider the evidence in respect of each charge separately. He told them that in considering each charge they should look only to the evidence that is relevant to that charge. He said that their verdicts did not have to be the same and it did not follow that because they found the accused guilty or not guilty on one count, the same verdict should be delivered on another count. He told the jury that it was open to them to find the appellant guilty of some of the charges and not guilty of others.[34]
[34] Trial ts 1273.
His Honour also directed the jury that they did not have to accept all of a witness's evidence. He said that the jury was free to accept part of a witness's evidence and reject other parts. He told them that in order to deliver verdicts it would be necessary to form a view as to the honesty, accuracy and reliability of the evidence given by the witnesses.[35]
[35] Trial ts 1263.
In respect of counts 8, 9 and 10, his Honour said that these three counts essentially occurred as part of a series of conduct.[36] He referred to the elements of these offences and in each case said that there were two elements, namely whether the appellant had sexually penetrated the complainant in the way alleged and whether that had occurred without the consent of the complainant. He told the jury that each of these elements had to be proven beyond reasonable doubt. He explained the concepts of sexual penetration and consent. He also explained each of the circumstances of aggravation.
[36] Trial ts 1292.
His Honour then summarised the evidence and the prosecution and defence cases. In regard to the defence case, his Honour said:[37]
The defence case is that the sex took place - or that sex took place, but that it was consensual. [The appellant] gave evidence on 16 August. He and [the complainant] had been helping his friend Ace - Ayson Reid - to move from Rockingham to [the appellant's] house in Padbury. After they'd done this, they collected [the complainant's son] from his grandmother's house. The three of them went back to [the complainant's] house and had dinner. [The complainant's son] was put to bed around 8 pm.
Ace ended up coming over for a couple of hours, leaving at 10 or 10.30. After he left, [the appellant] and [the complainant] had another conversation about her drug use and whether she was going to tell her father about it. She had wanted to put this issue on the backburner. [The appellant] said that he wanted to leave. [The complainant] tried to get him to stay. At [the appellant's] request, [the complainant] called him a taxi. As the taxi came, [the complainant] said she would talk to her mum and her dad and do whatever he wanted, but that she did not want to be alone in the house.
He paid the taxi driver $10 and the two of them went to bed. After some kissing and cuddling, they had sex. [The complainant's son] was in the bed with them, but asleep. They had sex lying on their sides. They then went to sleep.
In the morning, as they were waking up, [the complainant] started to give [the appellant] oral sex. [The appellant] was not into oral sex with [the complainant] and had told her this. They then had sex again, again on their side, this time with [the appellant] being in the middle of the bed. The sex was consensual.
[37] Trial ts 1296 ‑ 1297.
In regard to the appellant's police interview, his Honour referred to the fact that the prosecution relied on the apparent admissions by the appellant that he had engaged in an unlawful sexual intercourse with the complainant. He then told the jury that the defence case in respect of the interview was that the appellant was very upset at the time he made these statements and that they were not in fact true.
His Honour stressed that the jury could only convict the appellant of a particular count if they were satisfied beyond reasonable doubt in relation to that particular incident. He noted that the only witnesses who could give direct evidence about the alleged offences were the appellant and the complainant. He then said:[38]
The only witnesses who can speak directly about the alleged offences are [the complainant] and [the appellant]. You should not approach your deliberations by asking, "Whose evidence do I prefer, [the complainant's] or [the appellant's]?" That would be the wrong approach.
For you to return a verdict of guilty on an offence charged in the indictment, you must be satisfied that the State has proven beyond a reasonable doubt, on all the evidence produced in the trial, that [the appellant] is guilty of that particular offence. If the State has not so satisfied you, then [the appellant] is entitled to the benefit of that reasonable doubt and you must find him not guilty of that offence. Now, the State's case stands or falls on whether, having taken into account all of the evidence adduced during the trial, you are satisfied beyond a reasonable doubt that [the complainant's] evidence in relation to a particular incident is honest, accurate and reliable.
If you are not satisfied beyond a reasonable doubt that [the complainant's] evidence in relation to a particular incident is honest, accurate and reliable, then it would follow you would not be satisfied beyond a reasonable doubt that the offence arising from that incident occurred and consequently you would find [the appellant] not guilty of that particular offence.
If you are satisfied beyond a reasonable doubt that [the complainant's] evidence in relation to a particular incident is honest, accurate and reliable, you will need to consider her evidence in the context of all the evidence relevant to that offence.
If on all the evidence relevant to a particular offence, including that from [the appellant], you are left with a reasonable doubt in relation to that offence, then you must deliver a verdict of not guilty. If on all the evidence relating to a particular offence, including that from [the appellant], you are satisfied beyond a reasonable doubt that he is guilty of that offence, then that would be your verdict.
[38] Trial ts 1309 ‑ 1310.
There was no complaint from trial counsel regarding the trial judge's directions.
Defence closing address
As noted by the trial judge, the issue in respect of counts 8, 9 and 10 was not whether some sexual contact had occurred, but whether it was consensual. This is apparent from the closing address of defence counsel at the trial:[39]
The one point to do with eight, nine and 10, the sexual allegations of non-consensual sex, goes to the positioning of the actual sex. The kind of positioning of the actual sex isn't controversial. Both [the complainant] and [the appellant] as much, that it was side-by-side but [the appellant] from behind, this was penile to vaginal sex. But if you think that's true, that positioning is not conducive to an allegation of forced sex.
It's not the kind of positioning that one would imagine would be plausible in respect of an allegation of forced sex, or sex that requires, I would have suggested to you, the exertion of force against the word of the recipient. Indeed, she doesn't even say in her evidence that she struggled. You might think, well, her explanation of that would be [the appellant's son] but that wouldn't really make sense.
Forced sex, you would imagine something along the lines of a person being forced perhaps off the bed onto the ground, struggling, hands the offender onto the arms of the complainant, that kind of thing. But we just don't have that scenario. It's not a consistent type of account with the kind of complaint that's made, and we suggest that's another example to take into account the lack of plausibility of the allegation.
[39] Closing address ts 3 ‑ 4.
Ground of appeal
There is one ground of appeal against conviction. It is as follows:
The appellant appeals against the convictions on count 8 and count 9 on the ground that the verdicts of guilty on which those convictions are based should be set aside because, having regard to the evidence, the verdicts are unreasonable or cannot be supported.
Particulars
The verdicts on count 8 and 9 are factually inconsistent with the jury's verdict of not guilty on count 10, and with the verdict of not guilty on the circumstance of aggravation on count 8 that the appellant was armed with an offensive weapon namely a screwdriver, such that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness.
Inconsistent verdicts - the principles
The principles applicable to an appeal brought on a ground that a verdict is unreasonable or cannot be supported having regard to the evidence because it is inconsistent with other verdicts given by the jury are well established. The test to be applied by an appellate court is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness. In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts.[40]
[40] Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82 [18]; MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366 and LWD v The State of Western Australia [2017] WASCA 174 [47].
The function which the law assigns to juries should be respected. Thus if there is a proper way to reconcile the verdicts, consistent with the jury performing their functions as required, it will generally be accepted by an appellate court.[41]
[41] MacKenzie (367).
Although there are no hard and fast rules for determining whether different verdicts can stand together, Owen JA in DPJB v The State of Western Australia set out several points that emerge from the authorities:[42]
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: Markuleski [67]; R v KET [1998] VSCA 73 [29]. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction: Duniam v The Queen [1997] TASSC 107. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroy [18]; MacKenzie (367 ‑ 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non‑consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non‑consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first‑hand which is not available to an appellate court.
[42] DPJB v The State of Western Australia [2010] WASCA 12 [81].
Owen JA then concluded that:
It seems, therefore, that the task of the court in these cases is to review the evidence and to determine whether, as a matter of logic and reasonableness, the different verdicts can stand together. All of the circumstances of the case must be taken into account in making that assessment. It also seems to me that an inability to identify with precision a single factor or a combination of factors that positively explains why the jury acquitted on one or more counts and convicted on others is not necessarily fatal to the integrity of the convictions. The question is whether it was logically and reasonably open to the jury to reach the conclusions that they did [82].
The appellant's submissions
The appellant submits that the verdicts of guilty on counts 8 and 9 cannot stand together with the verdict of not guilty on count 10 and the verdict of not guilty of the aggravating circumstance on count 8 that the appellant was armed with a screwdriver, as being the product of a logical and reasonable exercise of fact finding.
The appellant relies on the fact that the three alleged acts of penetration occurred close in time and at the same place, and that the complainant's evidence in relation to the three acts contained, it is said, the same level of particularity. It is submitted that there was nothing in the complainant's evidence that could justify the jury reaching a different conclusion in respect of counts 8 and 9 than it reached in respect of count 10 and in respect of the screwdriver. If the complainant's evidence failed to convince the jury that count 10 and the allegation regarding the screwdriver had been established beyond reasonable doubt, then, it is submitted, it could not have satisfied them to the requisite standard in respect of counts 8 and 9.
The appellant submits that it is not the case that the complainant's evidence in respect of counts 8 and 9 was corroborated, whereas her evidence in respect of count 10 was not. The appellant's police interview cannot be said to provide corroboration because the admissions were of an equivocal nature, the appellant saying that he did not commit the alleged offences but that he would nevertheless say that he did for reasons which he sought to explain. It is also said that his description of what occurred in the interview was more consistent with consensual sex. Further, in the interview no admission was made in respect of the oral sex the subject of count 8.
The appellant also refers to the fact that during the police interview he mentioned unlawfully penetrating the complainant 'with my hands'. It is submitted that if the admissions made in the interview were a material point of difference, then this evidence would support a conviction on count 10. The appellant's acquittal on that count cannot therefore be reconciled with his convictions on counts 8 and 9.
As regards the appellant's evidence at the trial, it is submitted that whilst the appellant did say there was some activity involving oral sex, his evidence was that it occurred in the morning and not at the time alleged by the complainant. He also said in evidence that the complainant had initiated this activity and that he asked her to desist.
The respondent's submissions
The respondent submits that it is erroneous to presume that where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.[43] In the present case, the respondent says that there were material differences between the evidence in respect of counts 8, 9 and 10 that are capable of explaining the different verdicts.
[43] Citing MFA v The Queen (2002) 213 CLR 606 [34].
The respondent relies, in particular, on what the appellant told the police in his interview and what he said in evidence at the trial. In the interview he admitted penile/vaginal penetration. He made a similar admission in his evidence, though denying that it had occurred without consent. In the police interview there was no reference to oral sex. However, in evidence, the appellant referred to such an incident, though claimed it had occurred the following morning and was initiated by the complainant. This is to be contrasted with the evidence in relation to count 10. The respondent submits that the reference in the interview to the appellant using his hands is not, when properly understood, an admission of digital penetration. Furthermore, in his evidence at trial the appellant denied that any digital penetration had occurred.
In regard to the screwdriver, there was no evidence supporting the complainant's testimony about the appellant having used a screwdriver during the first act of oral sex, the subject of count 8. The complainant did not give evidence of the appellant being in possession of the screwdriver during the act of sexual intercourse the subject of count 9. The appellant denied in evidence that he had held a screwdriver to the complainant's neck or had hit her with a screwdriver, although he remembered seeing one on the kitchen bench. A screwdriver was located in the complainant's car and was seized and photographed. However, it was not sent for DNA analysis. Accordingly there was no forensic evidence linking the appellant to that item. Nor did the medical evidence support the complainant's claim of having been hit with the screwdriver.
The respondent submits that the verdict of acquittal on count 10 reflects the evidence and issues at the trial and is not an affront to logic or common sense. There was no supporting evidence for this alleged act of digital penetration. The potential source might have been the appellant's answer during his video interview, 'with my hands', when he was asked how he had raped the victim. However, at trial the appellant gave an explanation for his use of those words, saying that he had used his hands to guide his penis. The lack of supporting evidence for the alleged act of digital penetration the subject of count 10 and for the appellant allegedly being armed with a screwdriver is contrasted with there being some supporting evidence for each of the acts of penetration that are the subjects of counts 8 and 9. The respondent submits that the verdicts simply reflect that the jury did what they were told by the trial judge to do, that is consider the evidence in respect of each of the counts separately. It is submitted that the verdicts merely reveal that the jury was cautious and exacting in reviewing the evidence and discharging their heavy civic duty.[44]
[44] Citing DW v The State of Western Australia [2011] WASCA 52 [32] (Buss JA, Pullin JA & Hall J agreeing).
The merits
The prosecution case in respect of counts 8, 9 and 10 depended critically on the evidence of the complainant. It does not follow from that that the jury was bound to accept or reject her evidence in its entirety. Furthermore, it was open to the jury, in considering whether they were satisfied beyond reasonable doubt that the alleged offences had occurred, to look for evidence that supported or corroborated that of the complainant.
There are a number of material differences between the evidence in respect of counts 8, 9 and 10 which were capable of supporting a different conclusion in respect of count 10 than that in respect of counts 8 and 9, and also in respect of the allegation of the use of a screwdriver. Those differences are as follows:
1.The appellant made an admission in respect of penile/vaginal penetration in the police interview, which could be viewed as supporting count 9.
2.The appellant also admitted in evidence that acts of penile/vaginal penetration had occurred, though he claimed that they had been consensual. This could also be viewed as evidence supporting count 9.
3.In evidence, the appellant also admitted that an act of oral sex had occurred, though he claimed it was in the morning and was initiated by the complainant. This could be viewed as evidence supporting count 8.
4.The reference by the appellant to raping the complainant 'with his hands' in the police interview was not repeated in sworn evidence. To the contrary, digital penetration was denied in evidence and the reference to hands in the interview was explained.
5.The complainant's evidence in regard to the screwdriver in respect of count 8 was not supported by any independent evidence and was denied by the appellant.
6.The complainant did not give evidence in regard to a screwdriver in respect of count 9.
The principal issue at trial in regard to the events of 17 August 2015 was not whether sexual acts had occurred but whether they were consensual. In this regard there was significant other evidence to support the conclusion that the complainant had not consented, including her distressed state the following morning. The jury, however, were presented with different accounts from the complainant and the appellant as to what sexual acts had occurred. The jury may have been satisfied, beyond reasonable doubt, that any sexual penetration of the complainant was non-consensual, but adopted a cautious approach as to which particular acts of sexual penetration had been proven. In these circumstances, the jury may reasonably have looked for other evidence supporting the complainant's account before being satisfied that particular alleged acts of sexual penetration had occurred. The fact that the appellant had admitted acts of penile/vaginal penetration and oral sex but had denied digital penetration was a relevant point of distinction.
The fact that the appellant's account of the oral sex differed from that of the complainant, in that he said that it occurred in the morning and had been initiated by the complainant, did not deprive this evidence of its relevance. It was open to the jury to accept the evidence of the appellant that an act of oral sex had occurred, but to discount his suggestion that the complainant had consented to it (bearing in mind that there was other evidence that went to the issue of a lack of consent). As to the timing of this act, the complainant did not give a precise time, though she placed it has having occurred when she was awoken from sleep by the appellant standing near her bed. It was open to the jury to consider that the act had occurred but either the complainant or the appellant was mistaken as to the timing of it. Given that these acts all occurred in close proximity to each other, any difference in timing could properly be viewed as being of lesser significance.
In our view, the difference in the verdicts on counts 8, 9 and 10 has a reasonable explanation arising from the evidence that specifically relates to each of those counts. There is a proper basis for distinguishing the evidence in respect of count 10 from that in respect of counts 8 and 9.
There is also a proper basis for distinguishing the evidence regarding the screwdriver from other evidence relating to counts 8, 9 and 10. The complainant did not mention the screwdriver in her accounts of the conduct alleged in counts 9 and 10. There was no other evidence, such as DNA evidence, supporting the complainant's account of the appellant using the screwdriver to threaten her when committing the offence alleged in count 8. In evidence, the appellant denied that he had touched the relevant screwdriver.[45] The jury may not have been satisfied beyond reasonable doubt that the appellant used the screwdriver to threaten the complainant when committing count 8 in the absence of any evidence supporting the complainant's account of its use at that time.
[45] Trial ts 998 - 999, 1176.
The verdicts on counts 8 and 9 can stand together with the verdict on count 10 as the product of a logical and reasonable exercise of fact finding. It was open on the evidence for a reasonable jury to find the appellant guilty of counts 8 and 9 but not guilty of count 10 and in respect of the circumstance of aggravation relating to the screwdriver.
For those reasons, whilst we would grant leave to appeal because the ground was reasonably arguable, the ground cannot succeed and the appeal must be dismissed.
Orders
We would make the following orders:
1.Application for leave to appeal granted.
2.Appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL28 SEPTEMBER 2018
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