Charlie Thomas Star v The Queen
[2020] VSCA 331
•22 December 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0248
| CHARLIE THOMAS STAR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2020 |
| DATE OF ORDERS: | 18 November 2020 |
| DATE OF REASONS: | 22 December 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 331 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1822 (Judge M Sexton) |
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CRIMINAL LAW – Appeal – Conviction – Rape – Inconsistent verdicts – Applicant tried on three charges of rape – Convicted on one charge, acquitted on second, jury unable to agree on third – Co-accused tried on five charges of rape – Acquitted on four charges, jury unable to agree on fifth – All charges involved same complainant – Consent in issue – Crown case depended on complainant’s credibility – Whether sole guilty verdict reconcilable with acquittals – No rational explanation – Appeal allowed – Conviction quashed – Verdict of acquittal entered – McKenzie v The Queen (1996) 190 CLR 348 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC | Kerry R Clancy |
| For the Respondent | Mr B L Sonnet | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
EMERTON JA
WEINBERG JA:
Summary
The applicant (S)[1] and his co-accused (B)[2] faced multiple charges of rape following an incident at a birthday party in late 2017. There were eight rape charges on the indictment: three against S and five against B. All of the offences were alleged to have been committed against a 17-year-old girl (K).
[1]The abbreviation is used for ease of reference not anonymity.
[2]The abbreviation is used for ease of reference not anonymity.
The prosecution case was that K did not consent to any of the acts of penetration the subject of the rape charges. S admitted to taking part in acts of penetration with K but maintained that they were all consensual. B also admitted to taking part in acts of penetration with K, which he said were all consensual, but denied that they were the acts of penetration the subject of the charges against him.
The jury acquitted B of four charges and were unable to reach a verdict on the fifth. They convicted S of one charge of rape (charge 6), acquitted him of another and were unable to reach a verdict on the third. S sought leave to appeal against his conviction on that single charge of rape by an act of anal penetration.
His principal ground of appeal was that the guilty verdict on charge 6 cannot be reconciled, logically or rationally, with the jury’s delivery of not guilty verdicts on five other charges and their inability to reach agreement on the remaining two charges. The other pleaded ground was that the conduct of the trial created an unacceptable level of confusion regarding the account given by S of the circumstances relating to charge 6. In the course of oral argument, however, the tenor of the submission changed, and it was contended that the judge had misinformed the jury of the defence’s case on charge 6.
Not long after the conclusion of the hearing, we announced that the inconsistent verdicts ground would be upheld and the appeal allowed on that basis. We made orders quashing S’s conviction and directed that a verdict of acquittal be entered. We said we would publish our reasons in due course. These are those reasons.
The delivery of a single guilty verdict, in a case where eight charges are laid based on events occurring in a single continuous incident, is an unusual and surprising result. As will appear, the trial was conducted on the basis that the sexual offending occurred in two parts, with the acts the subject of charges 1–4 occurring in the first part and the remainder in the second. There was a change of location between the first part and the second.
On the critical question of K’s consent, however, and whether it had been proved that the relevant accused had no reasonable belief that she was consenting, the respective positions of the protagonists did not change. As we have said, it was the prosecution case that from the outset K was not consenting, and had made clear that she was not, such that there was no reasonable basis for either of the accused to have believed that she was. The defence case, conversely, was that K was at all times consenting and that they had no reason to think otherwise.
As counsel for the applicant properly conceded, an appellate court will be astute to look for a rational explanation for divergent verdicts. In this Court, counsel for the Director maintained that there was an aspect of the evidence peculiar to charge 6 which provided such an explanation. As explained below, however, close scrutiny of the course of the trial revealed that there was no reasonable basis for attributing the suggested path of reasoning to the jury.
Factual background
K attended the birthday party of a classmate on a farm property on 2 September 2017. There were about 50 people in attendance. S and his friend B, both 20 years of age, also attended the party (but had not been invited). K knew who S and B were but had not met them previously. K consumed alcohol at the party. The party was held at a shed which was open on three sides, with a rear metal wall and large square bales of hay stacked to effectively form a second wall at a right angle to the rear metal wall. There was a portable toilet set up on the outside of the hay bale side of the shed, towards the front where most of the party-goers were socialising.
During the evening, K became friendly with B. At one point, B asked K to walk over to the portable toilet with him, as S needed to use the toilet. K and B kissed consensually. S came out of the toilet and saw B and K together. S, K and B together walked along the outside of the shed to the rear corner, where the rear metal wall met with the hay bale wall. This location was referred to at trial as the ‘corner of the shed’. The prosecution case was that at the corner of the shed, the conduct the subject of charges 1–4, and an uncharged act of digital-vaginal penetration by S, occurred.
When other people from the party were heard nearby, S, K and B moved away from the corner of the shed to approximately the middle of the shed’s metal wall (still on the outside of the shed). This was referred to at trial as the ‘middle back’, ‘centre back’ or ‘back’ of the shed. The prosecution case was that at the back of the shed, the conduct the subject of charges 5–7 and an uncharged act of penile-vaginal penetration by S occurred, while both S and B were present; and that charge 8 occurred after S had left the area.
K left the middle back of the shed and located her friend (J). K disclosed to J what had occurred; J’s mother then collected them from the party. K reported the offending to the police. She was examined by a consultant paediatrician and participated in a VARE recording later that day.
In brief compass, the prosecution case was that K and B kissed consensually but that none of the subsequent penetrative acts with B or S was consensual. K said that she had cried continuously, stating repeatedly that she did not want to do anything, and had screamed during the incident. S’s case was that he had engaged in consensual sexual activity with K. B’s case was that none of the penetrative acts alleged against him had taken place; and that he had slightly penetrated her vagina — consensually — on one occasion after S had left the area.
At the conclusion of the prosecution case, S’s counsel made a ‘no case’ submission on charge 6. The submission was made on the basis that the jury could not exclude the reasonable possibility (to the criminal standard) that the act was unintentional. That submission was rejected by the trial judge in a ruling.
The possibility that the act was unintentional rested on the answer given by S when he was asked, during the record of interview, to explain how the act of anal penetration had occurred. He replied:
Because I was just — positioning wasn’t the greatest so I was struggling to just keep it in anyway … and there was just one stage where I’ve come out and then sort of, like, as I was, I guess, trying to put it back in, I just sort of felt something just sort of push and she said, ‘ow, that hurt’ and I was like ‘sorry’.
According to S, he then put his penis back in K’s vagina.
Ground 1: jury confusion
As pleaded, ground 1 was in these terms:
A substantial miscarriage of justice has occurred as a result of the confusion that was created concerning the use that the jury could make of the applicant’s account of anal penetration in the record of interview.
As S’s written case acknowledged, K’s account was quite clear. She alleged that she was anally raped by B in the first part of the incident, and by S in the second part of the incident. Moreover, the cross-examination of K by counsel for the respective defendants proceeded on that basis.
Again as was conceded in S’s written case, his counsel cross-examined K on the basis that his contact with her anus occurred in the second part. It was never suggested to K by counsel for S that he had made any anal contact in the first part. This was hardly surprising, given the account which S had given in his record of interview. Without prompting by the interviewing officers, S described the anal contact as having occurred in the second phase, that is, after the three of them had moved along the back wall of the shed. In short, S’s unprompted recollection of the sequence of events, and of the stage at which the anal contact had occurred, accorded exactly with the account given by K.
The basis for what was said to be ‘confusion’ was an exchange between S and the interviewing officers later in the record of interview. At this point, S confirmed that in the first phase he was engaging in oral penetration of K, with B behind her. Then, according to S, he suggested that they swap places, such that B commenced oral penetration of K while S himself attempted vaginal penetration from the rear. This was the point at which someone came around with a light, which prompted them to move along the back of the shed. By this time, S said, he had not succeeded in penetrating K. Inexplicably, the interviewing officer then asked S whether this was when he had penetrated her anus. S answered, ‘Possibly, yeah’.
As the respondent points out, the prosecutor made clear during submissions in the absence of the jury that reliance was placed on the first of S’s unprompted answers as ‘an admission of intentional sexual penetration’. He emphasised:
We’re not going back to the corner of the shed. This is the middle of the back of the shed, that’s the prosecution case, your Honour.
At that point, counsel for B drew attention to the later — prompted — answer where S said that the anal contact had ‘Possibly’ occurred earlier. For his part, counsel for S made no reference to the later answer but submitted that what was in the record of interview was not an admission to penetration but ‘an acknowledgement that his penis may have come out of her vagina and touched the anus at some stage’. Counsel’s concern was to be able to address the jury on the basis that any such contact was accidental.
In final address, counsel for S addressed the jury in these terms:
Of course, in my client’s record of interview, and you’ve been taken to this by me already and by [counsel for B], the complexities in this, he says if that happened it happened down by the port-a-loo, right, but I want you to consider this and, really, I’m urging you that you don’t need to really get to this point to consider what I’m about to say but not wanting to insult your intelligence in any way, I have to draw you to it. If you accept, right, her version, you say I have no doubt about the circumstances and the order of these events, then you’ll have to consider that question, the question of intention in relation to Charge 6, the anal penetration, right.
Now, again it’s complicated because my client says if it happened, he doesn’t admit there was any penetration, right, you might — I don’t know if you recall, he says in his record of interview at one point he was penetrating her vaginally and he accidentally — his penis might have touched her anus, right. That’s what he says, and he says it again candidly and voluntarily in his record of interview, and you might think again that gives the whole thing a ring of truth, but he says that if it happened it was an accident.
To get to this point of reasoning I’m going to ask you to consider, you will have already had to come to a view that her version is credible, right, so you’re putting this happening behind the back of the shed rather than where he says it happened, at the port-a-loo. I say it really can’t, I’m not urging you to, but you might get there. If you get there then what you have to assess is whether that penetration in those circumstances was intentional, right. He says if it happened, accident. She says, right, in her recorded evidence at p 226, line 21 ... she says she doesn’t know if it was accidental or not, not at liberty to say, right.
As the respondent correctly points out, the submission by S’s counsel that, on his client’s version, the anal contact occurred in the first phase was a distortion both of what S had said in the record of interview and of the basis on which K had been cross-examined. Importantly, as the respondent points out, counsel for S here conceded that it was open to the jury to accept the sequence of events as described by K. The real issue, once again, was whether the jury could eliminate the possibility of accident.
In her charge, the judge directed the jury as follows:
In response to the prosecution case against him, in his interview [S] asserts that he engaged in consensual kissing with [K] and that once the three of them were at the corner of the shed he asserts that he was the first of the two men to engage in consensual sexual activity with [K] by penetrating her mouth with his penis while [B] was standing behind her; that when they all moved further down the shed [S] asserts that he engaged in consensual penetration of her vagina with his penis while [B] was consensually penetrating her mouth with his penis as he lay on the ground. [S] asserts that he then accidentally penetrated her anus with his penis and then reinstated his penis into her vagina with her consent. He denies that any sexual activity he engaged in with [K] was without her consent and denies that he had no reasonable belief that she was consenting.
...
I do say, though, that the prosecution must prove that for Charges 1 and 7 [S] introduced his penis to any extent into [K’s] vagina and for Charge 6 that [S] introduced his penis to any extent into [K’s] anus, and even slight or fleeting penetration is enough.
The prosecution must also prove that [S] engaged in the sexual penetration intentionally, that is, he intended to sexually penetrate her and did so deliberately, consciously and voluntarily. In his interview at Answer 50, [S] asserts that he was struggling to ‘get it in’ and said he accidentally ‘put it in her bum’. You should also look at Answer 172 and 174 in this respect.
I direct you that if you are satisfied that he intended to sexually penetrate [K] at that time then it does not matter that the penetration occurred to a different part of her body. It is not necessary for the element to be made out for the prosecution to prove an intention to sexually penetrate a particular part of the body. The type or place of where the penetration occurred is a detail, it is not part of the element that the prosecution must prove.
So proof of this element that [S] intentionally sexually penetrated only requires proof to intentionally sexually penetrate, not proof of an intention to sexually penetrate the vagina, anus or mouth as the case may be.
If the act of sexual penetration that is intentionally performed is an act of sexual penetration as the law defines it ... that will be sufficient for this element to be proved. So the prosecution can prove this element by proving that [S] intentionally introduced his penis to any extent between the outer lips of [K’s] vagina, for Charges 1 and 7, and to any extent into her anus for Charge 6. If you are not satisfied by [K’s] evidence that sexual penetration took place in the particular charge you are considering, then you must find [S] not guilty of that charge.
So the prosecution case in summary for this first question is that [S] intentionally sexually penetrated [K] on each of the following occasions: at the corner of the shed, [S] kept moving as she moved and inserted his penis into her vagina, Charge 1; at the middle-back of the shed, [S] put his penis inside her rectum and she gave a muffled scream because she could not really breathe, Charge 6. [S] then laughed and put his penis back into her vagina, Charge 7.
The defence case on this question is that [S] denies that he sexually penetrated the complainant as alleged. The defence says you should question the credibility and reliability of the complainant’s account and, given the other evidence led by the prosecution, you could not be satisfied beyond reasonable doubt of her allegations against [S]. The defence says that any act of sexual penetration of the complainant occurred in the circumstances described in his interview with the police, and his interview should cause you to accept the possibility that it is in fact a truthful account, creating further doubt about the complainant’s evidence.
Further, the accused argues that if you are satisfied that the penetration alleged in Charge 6 occurred in the circumstances as alleged by the complainant, you cannot discount the possibility that it was accidental and therefore you could not be satisfied that the penetration was intentional.
Counsel for S did not take exception to this part of the charge. As the respondent pointed out, the charge removed any realistic possibility of the jury taking into account what was said by S in his record of interview, as they were directed to confine their attention to K’s evidence.
In any case, for the reasons given earlier, there was no basis for a contention that the jury might have been confused. The picture conveyed by K’s evidence, and reinforced by the terms in which she was cross-examined by counsel for S, was clear. The case against S was that the anal contact occurred in the second phase.
As already mentioned, the submissions advanced under this ground took a different direction in the course of oral argument. Senior counsel for the applicant submitted that, in the passage from the charge set out above, the judge had misdirected the jury by misstating the defence position on charge 6. (There was no objection from the respondent to this change of argument.)
That submission of an alleged misdirection must also be rejected. As we will seek to explain, what the judge said about the defence position on charge 6 sufficiently reflected the way counsel had addressed the jury on that charge.
Importantly, the judge had given both counsel — in advance — her full charge in writing. If we may say so respectfully, this is a course which has much to recommend it. Not only does it minimise the risk of error in the directions but it reinforces the guiding philosophy of the Jury Directions Act2015 — that it is counsel’s responsibility to decide what directions should be sought and, in the language of s 12, to ‘request that the trial judge give, or not give, particular directions in respect of the matters in issue’.[3]
[3]See Dunn (a pseudonym) v The Queen [2017] VSCA 371, [54], [85] (Maxwell P, Beach and McLeish JJA).
We recognise of course how demanding it must be for the judge to have the charge in final form and ready for distribution at that stage of the trial. But it is notable that, like counsel for B, counsel for S expressed his appreciation to the judge for the assistance he had derived from having the charge in writing.
The transcript reveals that counsel for S followed the written script of the charge very closely as the judge was presenting it orally to the jury. The one exception which counsel took concerned a detail which was not in the written charge but which, as the judge explained when the point was raised, she had added in when directing the jury.
In those circumstances, the failure by counsel for S to take exception is powerful confirmation that what her Honour said about the defence position on charge 6 was both sufficient and not materially inaccurate. Otherwise, counsel for S would inevitably have made a complaint about its deficiency.
There were, in any event, good reasons for counsel for S not to take exception. First of all, he had told the judge while making his no case submission that the only issue for the jury on charge 6 would be whether S ‘had formed the relevant intention’. He made this statement just after having drawn attention to the ‘Possibly’ answer in the record of interview, which is now said to have raised an issue about timing and location. Indeed, counsel went on to say during this discussion with the judge that S’s own evidence (in the record of interview) was that he was ‘intentionally having sex’ with K but that, in relation to the penetration the subject of charge 6, ‘it was an accident’.
Secondly, although counsel for S did say to the judge — and to the jury — that there was a ‘wrinkle’ about charge 6 regarding where it took place, he did not attempt to explain to the jury the evidentiary basis for his assertion that, on his client’s account, ‘it happened down by the port-a-loo’. That is hardly surprising, given the palpable diffidence of the ‘Possibly’ answer. As already noted, at that point in the interview S did no more than acknowledge that it was ‘possible’ that the anal contact had occurred in the first part.
Strikingly, the only reference made by counsel for S to the record of interview during this part of the address was to the early (unprompted) answers in which — as counsel for S reminded the jury — S said that ‘he was penetrating her vaginally and he accidentally — his penis might have touched her anus’. The jury were invited to think that, because S ‘says it again candidly’ later in the interview, it gave ‘the whole thing a ring of truth’.
Had S’s counsel taken exception to the charge, it could only have been to ask the judge to draw attention to the ‘Possibly’ answer. But, as a matter of proper instruction to the jury, the judge would in that event have been constrained to point out that — at best for S — his later answer was directly contrary to the earlier answers, and contrary to the basis on which his counsel had cross-examined K. It should be emphasised that the cross-examination in relation to charge 6 was solely concerned with whether the contact might have been ‘accidental’. As noted earlier, the cross-examination proceeded on the basis that K’s account of the sequence of events was correct.
Coming back to the ground of appeal as drawn, there was no ‘confusion’ about what use counsel for S wanted the jury to make of the earlier answers in the record of interview. Even in the face of the judge’s — entirely correct — ruling that the so-called ‘accident’ defence was no answer to the charge, counsel for S persisted with that argument to the very end. He wanted the jury to use those answers — and to accept them — in support of his (doomed) submission of accident.
Contrary to another aspect of the oral submission, the prosecutor did not abandon reliance on the records of interview, nor did anyone in the courtroom understand that he had done so. This became clear when counsel for B took an exception regarding what the judge had said to the jury about the use of the records of interview. He wanted the jury to be directed that, in considering the case against B, they could have regard to both records of interview.
The judge explained to counsel that she had considered giving that direction but concluded that, since she had already directed them to consider all of the evidence, it was to be assumed that they would consider both records of interview and that there was, as a result, no need to direct them to do so. Counsel for S was asked whether he had any submission on the point, but he had nothing to say.
In the event, the judge decided to redirect the jury regarding the use of both records of interview. She reminded them of her earlier direction, that they ‘need to consider all of the evidence’ and went on to say:
So you can and should look at both of those interviews as part of your assessment of the whole of the evidence in deciding whether the prosecution has proved a charge beyond reasonable doubt.
Unsurprisingly, neither counsel took exception. In short, both records of interview were understood to be before the jury for all purposes.
It follows that there was no error in her Honour’s references in the charge to the answers in S’s record of interview. In telling the jury (in the passage set out earlier) what S ‘asserted’ in his record of interview, her Honour was correctly reflecting the defence case — that there was sexual contact and that it was consensual. She was also reflecting what counsel for S had said in the no case submission, namely, that the only issue on charge 6 would be whether the penetration was intentional. Her Honour’s specific references to the earlier answers were, again, entirely appropriate, given that at that point her Honour was dealing with the debate over whether the anal penetration was deliberate or not.
Finally, the judge’s summary of the defence case on charge 6 sufficiently reflected the two alternatives as outlined by counsel for S. That is, her Honour correctly identified the primary defence contention as being that S did not penetrate the complainant as alleged by her but rather that ‘any act of sexual penetration’ had occurred ‘as described by him in the record of interview’. In the alternative, her Honour pointed out, S’s contention was that, if the jury were satisfied that the penetration alleged in charge 6 had occurred in the circumstances alleged by K, then the possibility of accident could not be excluded.
As we have said, counsel for S never sought to substantiate his assertion that, on his client’s account, the act the subject of charge 6 occurred ‘down by the port-a-loo’. The dispute about ‘the order of events’ was, in short, very faintly put, with no reference to any evidence. Counsel’s real concern was ‘accident’. In the circumstances, her Honour’s summation of the defence position was entirely adequate.
For completeness, we should add that her Honour had also provided to the jury, after consultation with counsel, a series of ‘integrated directions’ (commonly described as a ‘question trail’), as authorised by s 67 of the Jury Directions Act 2015. We set out the relevant portion below:
Question trail:
NOTE: On all charges, the prosecution must satisfy you beyond reasonable doubt.
Charges 1, 6 and 7 – Rape
1. Are you satisfied that [S] intentionally sexually penetrated [K] on the occasion alleged?
If yes, go to question 2.
If no, find [S] not guilty.
Charge 1 – 1st occasion he introduced his penis into her vagina
Charge 6 – he introduced his penis into her anus
Charge 7 – 2nd occasion he introduced his penis into her vagina
Prosecution Case: [S] intentionally sexually penetrated [K] on each of the following occasions:
·At the corner of the shed, [S] kept moving as she moved and inserted his penis into her vagina (charge 1)
·At the middle back of the shed, [S]:
put his penis inside her rectum and she gave a muffled scream because she couldn’t really breathe (charge 6)
then laughed and put his penis back into her vagina (charge 7).
Defence Case: [S] denies that he sexually penetrated the complainant as alleged. The defence says you should question the credibility and reliability of the complainant’s account, and given the other evidence led by the prosecution, you could not be satisfied beyond reasonable doubt of her allegations against [S].
The defence says that any acts of sexual penetration of the complainant occurred in the circumstances described in his interview with the police, and his interview should cause you to accept the possibility that it is in fact a truthful account, creating further doubt about the complainant’s evidence.
Further, the accused argues that if you are satisfied that the penetration alleged in Charge 6 occurred, in the circumstances as alleged by the complainant, you cannot discount the possibility that it was accidental and therefore could not be satisfied that the penetration was intentional.
As can be seen, a document of this kind is likely to be of great assistance to a jury, in simplifying the issues to be decided and by integrating the elements of the offences with the facts of the case in the form of easily comprehensible questions. Relevantly for present purposes, the document set out the defence case in terms to which counsel for S took no objection, expressly identifying as it did the two alternatives mentioned above.
Ground 2: inconsistent verdicts
Ground 2 was in these terms:
The verdict of guilty on charge 6 is inconsistent and illogical having regard to all of the other verdicts in this case.
The principal submission on behalf of S was that the not guilty verdicts on charges 1–4 ‘must have involved a wholesale rejection of [K’s] credibility and reliability’ regarding the alleged offending the subject of those charges. That being so, S submitted, there was
no legitimate or rational basis upon which the jury could then be satisfied of the credibility and reliability of [K] as regards any of the charges alleged to have occurred in [the second] part of the incident.
On the key issues of consent and belief in consent, it was said, the account given by K was ‘so graphic and so emphatic’ that it left no room for any asserted belief, on the part of either accused man, that K was consenting to any of the sexual penetrations. The defence cases were equally undifferentiated as between first and second parts of the incident. They both maintained that the sexual acts which took place were performed ‘in circumstances of consent/belief in consent’. On this view, there was nothing in the evidence which would explain the sole guilty verdict on charge 6.
The respondent disputed the contention that the acquittals on charges 1–4 necessarily involved a ‘wholesale rejection’ of K’s credibility and reliability. If that were so, the respondent contended, there could be no explanation for the fact that the jury did not deliver verdicts of acquittal on charges 5 and 7 but, instead, were unable to reach a verdict on either charge. The respondent submitted that there were features of what occurred in the second part which
were sufficient to move at least some members of the jury from a position of affording the applicant the benefit of a reasonable doubt on the issue of reasonable belief in consent.
Assuming that to be so, the unanimous guilty verdict on charge 6 remained to be explained. Addressing this directly, the respondent relied on evidence given by K against B, to the effect that when B penetrated her anally in the first part of the incident, she had ‘screamed … ’cause it really, really hurt’. The respondent contended that there was no inconsistency because
the complainant’s reaction to the act of anal penetration (charge 3) was now known to both boys. The complainant’s reaction to this act was fundamentally different to her reactions to other sexual acts, for she screamed when anally penetrated by [B] during the first episode. Thus, at the time when the applicant anally penetrated her during the second episode (as asserted by the complainant in her VARE recording), it was open to the jury to find that he had no reasonable belief in consent to that particular act.
As noted earlier, the description which S gave in the record of interview was that any anal contact was accidental, because he had been attempting vaginal penetration but was unable to see clearly because it was dark. That was the basis of his counsel’s address to the jury, as set out above.
In her directions, the judge dealt with S’s contention of accident — or, more accurately, mistake — by telling the jury that it was not necessary for the prosecution to prove an intention to penetrate a particular part of the body. It was sufficient if the jury were satisfied that S intended to penetrate K sexually.
As can be seen, the respondent’s answer to the claim of inconsistency turned on S’s having been aware that K was not consenting, and would not consent, to anal penetration in particular. Plainly enough, the cogency of that explanation depended on the jury’s having concluded that S specifically intended an act of anal penetration. Otherwise, his awareness of her objection to that particular form of penetration would have been irrelevant.
We concluded that the path of reasoning propounded by the Crown was beyond the scope of reasonable possibility. The fundamental problem was that it postulated the jury’s having come to a unanimous conclusion that S was deliberately, and specifically, intending an act of anal penetration rather than vaginal penetration. Not only were the jury not invited to consider that question but the judge had repeatedly told them that they did not need to be concerned with which part of the body the accused intended to penetrate.
A further substantial difficulty was that the imputed path of reasoning depended on the jury’s having been satisfied beyond reasonable doubt that the penetrative act the subject of charge 3 against B had taken place, that it had caused the complainant to scream, and that S had heard her scream. Given that the jury acquitted B on charge 3, it is not possible to postulate such a state of affirmative satisfaction.
That seemed to us to be particularly so given how much attention was drawn ― in the charge as well as in defence counsel’s final addresses ― to the fact that there was no evidence to support K’s account of having screamed. Early in her charge, the judge dealt at length with the question of possible ‘motive to lie’, which involved referring to all of the evidence from people who had been in the close vicinity, none of whom had heard any ‘crying, yelling or screaming’. As counsel for B rightly pointed out to the jury, the fact that no one heard a scream created ‘a real, real, big problem’ for K’s account.
There was also the difficulty of reconciling the conviction on charge 6 with the acquittal of B on charge 8. Although the alleged act of oral penetration the subject of charge 8 was said to have occurred after S had left, on K’s account S was present when B ‘just slammed me onto the floor’. She said that ‘they were trying to reposition me’ and ‘[S] was still standing there next to [B]’.
In other words, the allegation the subject of charge 8 was part of a continuous sequence. Nothing about K’s description of the circumstances underlying charge 8 would explain the acquittal on that charge in a way which would be reconcilable with the conviction on charge 6.
Finally, there was also real difficulty reconciling the conviction on charge 6 with the failure to reach a verdict on charge 7. Those two charges were based on penetrative acts of S in quick succession, the first being what S said was unintended anal contact, the second being the resumption of the intended vaginal penetration. Both on K’s account and on S’s record of interview there was nothing to differentiate the latter from the former. Even if there was only one juror who was responsible for the failure to agree on charge 7, there was nothing in the circumstances which could have explained the jury’s unanimity on charge 6.
Conclusion
Having concluded that the verdict on charge 6 could not stand, we decided that the only appropriate course was to direct that there be a verdict of acquittal on that charge. As the High Court stated in MacKenzie v The Queen:
[I]f, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s).[4]
[4]MacKenzie v The Queen (1996) 190 CLR 348, 368; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ).
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