DPJB v The State of Western Australia
[2010] WASCA 12
•22 JANUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DPJB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 12
CORAM: McLURE P
OWEN JA
PULLIN JA
HEARD: 21 AUGUST 2009
DELIVERED : 22 JANUARY 2010
FILE NO/S: CACR 133 of 2008
BETWEEN: DPJB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 478 of 2008
Catchwords:
Criminal law - Appeal against conviction - Whether convictions unreasonable or unsupported by the evidence - Inconsistency of verdicts - Multiple sexual offences against the same complainant - Applicable test in considering whether verdicts inconsistent
Evidence - Application to adduce new evidence on appeal - New evidence of date on which complainant spoke to police officer and date on which television programme aired - Distinction between 'fresh' and 'new' evidence - Applicable test in case of new evidence
Legislation:
Nil
Result:
Leave to amend ground of appeal granted
Leave to adduce new evidence refused
Leave to appeal granted
Appeal allowed in part
Category: A
Representation:
Counsel:
Appellant: Mr M J McCusker QC & Ms S S Chelvanayagam
Respondent: Mr J Mactaggart
Solicitors:
Appellant: Sharmini Chelvanayagam
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azarian v The State of Western Australia [2007] WASCA 249
Beamish v The Queen [2005] WASCA 62
Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382
De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Duniam v The Queen [1997] TASSC 107
Gallagher v The Queen (1986) 160 CLR 392
Hayes v The Queen (1973) 47 ALJR 603
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
KBT v The Queen (1997) 191 CLR 417
KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221
Lawless v The Queen (1979) 142 CLR 659, 676
Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
Martinez v The State of Western Australia [2007] WASCA 143
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Mickelberg v The Queen (1989) 167 CLR 259
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Nolan v The Queen (Unreported, WASCA, Library No 970260, 22 May 1997)
Palmer v The Queen [1998] HCA 2 (1998) 193 CLR 1
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
R v Andrews‑Weatherfoil Ltd (1971) 56 Cr App Rep 31
R v C (1993) 60 SASR 467
R v F (1995) 83 A Crim R 502
R v Gay [1976] VR 577
R v Hunt [1968] 2 QB 433
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
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v PMT [2003] VSCA 200, (2003) 8 VR 50
R v Roach [1948] NZLR 677
R v Roissetter [1984] 1 Qd R 477
R v Soma [2003] HCA 13; (2003) 212 CLR 299
R v Wilkinson [1970] Crim LR 176
Ratten v The Queen (1974) 131 CLR 510
Riley v The State of Western Australia [2007] WASCA 22
Rinaldi v The State of Western Australia [2007] WASCA 53
Spooner v The State of Western Australia [2008] WASCA 16
Strickland v The Queen [2000] WASCA 68
Urbano v The State of Western Australia [2006] WASCA 147
Table of Contents
McLure P's reasons
Inconsistency
Evidence as a whole
Owen JA's reasons
Background
The trial and the appeal: an overview
Grounds of appeal
Reviewing jury verdicts - legal principles
New or fresh evidence
Unsafe verdicts
The medical report - admission of hearsay evidence
The application to adduce new evidence
The contact with Detective Bone (25 September 2006)
The television programme
The evidence - some general matters
Separate consideration of charges
Uncharged acts
The physical layout of the family home
The defence ‑ general approach
The evidence - individual counts
Counts 1 and 2
Counts 3 and 4
Counts 5 and 6
Count 7
Count 8
The evidence of the complainant and the appellant
Other evidence
Count 9
Counts 10 and 11
The evidence of the complainant and the appellant
Other evidence
Counts 12, 13 and 14
The evidence of the complainant and the appellant
Other evidence
Counts 15, 16 and 17
The evidence of the complainant and the appellant
Other evidence
Count 18
Count 19
The evidence of the complainant and the appellant
Counts 20 and 21
Counts 22 and 23
The evidence of the complainant and the appellant
Other evidence
Count 24
The evidence of the complainant and the appellant
Other evidence
Count 25
The evidence of the complainant and the appellant
Other evidence
The integrity of the verdicts ‑ a process of reasoning described
The complainant as a generally credible witness
Reliance on the complainant's evidence
The family situation
Incidents of self harm
Count 24 and the appellant's injuries
Whether the complainant had imagined (dreamt) the offences happened
Lack of contemporaneous complaint
Cards expressing affection
Conclusion on this aspect
Were the verdicts inconsistent?
The facts in the legal context
Evidence about the November 2005 incident
Count 6
Count 8
Count 19
Counts 22 and 23
The acquittals
The caveat ‑ counts 5 and 6
Unreasonable verdicts
Conclusion
Pullin JA's reasons 93
The Schedule
McLURE P: I have had the advantage of reading the reasons for judgment of Owen JA. I agree with him for the reasons he gives that the admission of the passage of the report of Dr Phillips did not, either alone or with other factors, cause or contribute to a miscarriage of justice and that leave to adduce the proposed new evidence should be refused.
I propose to state my own reasons on the appellant's contention that the verdicts of guilty are unreasonable and not supported by the evidence. There are two limbs to the appellant's claim. First, he contends the verdicts of guilty are inconsistent with the acquittals. The second limb is a broader but related claim that the evidence of the complainant was inherently improbable with the consequence that it was not open to the jury on the whole of the evidence to convict the appellant. I would dismiss both limbs of the appellant's claim.
All relevant background material and the evidence on each count is set out in the reasons of Owen JA and not repeated here unless required in order to understand these reasons.
Inconsistency
The appellant was charged with 25 offences against his daughter, the complainant. He was charged with 14 counts of sexual penetration (six counts of penile penetration of the vagina, five counts of digital penetration, two counts of cunnilingus and one count of fellatio), seven counts of indecent dealing, one count of indecent assault and three counts of assault causing bodily harm.
The earliest of the charges (counts 1 ‑ 4) relate to incidents said to have occurred in 1995 when the complainant was aged 6 or 7. Other offences are said to have been committed between 1996 and February 2007 when the complainant was aged 18. At the conclusion of its case, the State conceded that the evidence could not sustain convictions in respect of counts 12, 18, 20 and 24. The trial judge directed verdicts of acquittal on those counts.
The jury returned verdicts of guilty on five counts. The appellant was convicted of four counts of sexual penetration, being one count of cunnilingus (count 6), one count of fellatio (count 8), one count of digital penetration (count 19) and one count of inserting his penis into the complainant's vagina without her consent (count 23). The offences occurred when the complainant was aged 8, 11, 17 and 18 respectively. The appellant was acquitted of all counts of indecent dealing and indecent assault and was convicted on one count of assault causing bodily harm (count 22). The jury returned verdicts of not guilty on the remaining 16 counts (1, 2, 3, 4, 5, 7, 9, 10, 11, 13, 14, 15, 16, 17, 21 and 25).
The appellant claimed the guilty verdicts were factually (not legally) inconsistent. A survey of the relevant High Court authorities on inconsistent verdicts was undertaken by Buss JA in Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25]. It is sufficient for present purposes to note the following.
The appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366. 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, the verdicts will not be inconsistent in the relevant sense: MacKenzie (367). In essence, the question is whether the different verdicts in the case represent an affront to logic and common sense.
Where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. For example, supporting evidence may be sought or the complainant may have shown some uncertainty as to matters of detail or been shown to have a faulty recollection on some matters but not others. The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case.
Further, verdicts might be explicable on the basis that one or more of them is merciful or that they accord with the juror's innate sense of fairness and justice: MacKenzie (367); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 [34]; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71].
The significance of the verdicts of not guilty in this case must be considered not only by reference to the facts and circumstances but also in the context of the directions given by the trial judge. The trial judge gave the standard direction concerning separate charges. He said:
[I]t's important for you to remember that there are 21 separate charges in this case. Look at each charge separately and make a decision on each charge separately. When you're looking at one charge consider only the evidence that's relevant to the charge. Your verdicts do not have to be the same on each charge. If you find the [appellant] guilty of one it doesn't follow that he's guilty of another. Having considered all the evidence you may find the [appellant] guilty of all charges or you may find him not guilty of all charges or you may find him guilty of some and not guilty of others (ts 242).
Further, the trial judge directed the jury that they may accept part of a witness's evidence and reject other parts.
The trial judge also gave an extended Longman warning (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79). He repeatedly reminded the jury that the only evidence of the commission of the offences was that given by the complainant. He highlighted matters affecting the reliability of the complainant's evidence including the fact that she was a young girl when a number of the offences occurred; that there was a risk of mistaken recollection of events that occurred many years ago particularly with children; that many of the alleged offences occurred at night when the complainant was asleep or pretending to be asleep and that she was prone to nightmares. He also warned the jury of the forensic disadvantages to the appellant arising from the long delay between the alleged commission of the offences and when a complaint was first made. Having previously directed the jury that they should scrutinise the complainant's evidence with special care the trial judge repeated the warning. He said:
Because of the long delay and the matters I have referred to, it is particularly important that you scrutinise the complainant's evidence with special care.
You are at liberty to act upon her evidence to convict the [appellant] if you are satisfied of the truth and accuracy of it, but it would be dangerous to convict the [appellant] on the evidence of the complainant, unless having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence, and taking full account of the warning I've just given to you, you are satisfied beyond reasonable doubt as to its truth and accuracy (ts 263).
The conviction rate for sexual offences against children, particularly where there has been a delay between their occurrence and complaint, is materially below the conviction rate for other offences: New South Wales Bureau of Crime Statistics and Research, The Attrition of Sexual Offences from the New South Wales Justice System (Crime and Justice Bulletin No 92, Jan 2006). No doubt that is attributable in part to the content of the warnings trial judges are required to give.
There are two further relevant matters to which reference is required. First, the complainant gave evidence that the sexual abuse by her father commenced when she was aged 3. On the subject of uncharged acts, the complainant was asked about contact with her father in November 2005. Her evidence was as follows:
I was moving to ask you whether there was any contact between yourself and your father during that week‑‑‑I'm fairly sure there was, I can't pinpoint anything because it all sort of blurs into one, but I am very sure that something did happen.
Are you able to tell the jury why it all sort of blurs into one‑‑‑Well, that's sort of how I dealt with things. I'd always just pretend that nothing was happening and try and pretend it was a bad dream, so, it all just sort of blurs into one, especially because often the same thing was happening anyway and it was always at night. It's really hard to differentiate between different days and different nights really (ts 76).
She made the same point when asked about the timing of count 9. She said:
It's kind of hard to be 100% sure about when stuff was, when it happened so often and each time, nearly each time, it was at night, so it's all quite similar (ts 57).
It was open to the jury to regard the evidence of blurring as relevant to both the charged and uncharged acts. Secondly, in those situations where the alleged offences occurred at night or when the complainant was asleep or sleepy, a theme of the defence case at trial was that the complainant, who was prone to nightmares, was recounting her dreams not reality.
The defence case at trial dovetailed with the Longman warning and bore fruit. Leaving to one side the directed verdicts, the jury returned verdicts of acquittal on all counts where the alleged offence occurred at night when the complainant was in her bedroom (being counts 1, 2, 3, 4, 9, 10, 11, 14, 15, 16, 17 and 21). This common feature of the acquittals is significant in reconciling the verdicts particularly in the context of the complainant's evidence as to the fact and cause of the blurring of episodes.
In connection with some of those counts, there are additional factors that may have weighed with the jury. For example, in relation to counts 1 and 2, the complainant's evidence-in-chief did not go as far as her statement to police. In relation to counts 3 and 4 the complainant's evidence went further than her statement to police. In addition, the complainant's mother was heard to be in close physical proximity in the beach house. In relation to count 9, the complainant was vague about the date of the occurrence and the surrounding details and aspects of her evidence were inconsistent with the statement she gave to police. In relation to counts 15, 16 and 17, all of which were part of a single transaction, the complainant gave evidence that the appellant hit her arm causing bruising, a matter not the subject of any charge. The complainant's evidence about counts 20 and 21 followed immediately upon her evidence as to the fact and cause of the blurring of episodes.
The five counts on which the appellant was convicted did not, on the complainant's evidence, occur at night or when she had been asleep or was sleepy. The offences the subject of counts 5, 7 and 25 (of which the appellant was acquitted) also did not take place at night. However, there are other explanations for those acquittals.
Counts 5 and 6 were said to have taken place sequentially as part of a single transaction. The appellant was convicted of count 6, an allegation of cunnilingus. She was able to specifically fix the timing of the conduct, it being in the morning of the day the complainant and the appellant took the family cat to the cattery, which was the day before the family went on holiday to Singapore in 1996. Further, it was also likely to be memorable because this was the first occasion of cunnilingus of which the complainant gave evidence. These factors take this offence outside the matters which were at risk of blurring. Finally, it appears from the record that the complainant's evidence was given without equivocation or qualification. The same type of distinguishing factors apply equally to the other offences of which the appellant was convicted, being counts 8, 19, 22 and 23.
The appellant was acquitted of count 5 which was an allegation that the appellant engaged in unlawful dealing by 'simulating intercourse' with the complainant. The complainant gave evidence that after cunnilingus (count 6) the appellant took off his clothes and 'rubbed inside my legs with his penis' (ts 46). I infer this was the evidence relied on to establish that the appellant was simulating intercourse. However, the same conduct is referred to inconsistently in the indictment.
Count 4 (of which the appellant was acquitted) was an allegation that the appellant indecently dealt with the complainant 'by rubbing his penis against her vagina on top of her underwear'. No mention is made in that charge of simulating intercourse and it is unclear whether there is any material difference in the charges and if so what. The same comment is applicable to counts 18, 20 and 21. Count 18 was an allegation of indecent dealing by the appellant 'rubbing his penis between [the complainant's] legs'. There was no express allegation of simulating intercourse. Count 20 was also an allegation of indecent dealing by simulating sexual intercourse whereas count 21 was an allegation of indecent dealing by the appellant rubbing his penis between the complainant's legs. A fair inference from the formulation of the various counts is that there is a distinction between simulating intercourse and the appellant merely rubbing his penis between the complainant's legs. There is nothing in the summing up explaining what is meant by simulating intercourse and whether and if so how it differs from the conduct the subject of counts 18 and 21. That can explain the acquittal on count 5, a charge of simulating sexual intercourse, when the evidence went no further than that the appellant rubbed his penis between the complainant's legs. In this way the verdicts can be reconciled, in which event there is no relevant inconsistency in the verdicts on counts 5 and 6.
The complainant's evidence on count 7 is equivocal on timing and detail and the circumstances lend themselves to the possibility of mistaken recollection. The complainant gave evidence that she went to swimming lessons from about the age of 4 or 5 until she was 10 or 11. She said she was 'probably' in year 5 (and thus aged 9 or 10) when the incident occurred. She thought it was year 5 because she was working back from when her sister started high school. She recalled an occasion when she was really cold 'because it had been one of those lessons where you have to do your survival swim, which is when you have to wear all of your clothes in the water and your shoes and stuff'. There was no evidence from the complainant that there was only one occasion when that was required. The complainant was wearing her bathers at the time of the offence. In cross‑examination the complainant said the conduct occurred in the pool parking area and although she did not remember whether other people were around, she accepted there probably were. The appellant's evidence was that he would drive her to swimming lessons from time to time (confirmed by the complainant's mother) and that there were many occasions in which she would get into the car with wet clothes and wrap herself up in a towel.
Count 19 has some similarities with count 7. Both were allegations of digital penetration and both occurred when the complainant and the appellant were alone in a motor vehicle in a car park. However, that is where the similarities end. The offence the subject of count 19 occurred in the context of a one‑off memorable occasion on a specified date. The complainant, who was chosen to represent her school, attended with the appellant at a function at Government House to meet a foreign ambassador. The complainant was able to confirm by reference to a photograph what she was wearing at the time of the offence. The complainant accepted in cross‑examination that it was likely other people would have been in the vicinity, but observed it was dark and she was wearing a long skirt so people walking past would not have noticed anything. The verdicts on counts 7 and 19 can be reconciled and are not, in my view, inconsistent.
Count 25 was another allegation of digital penetration whilst the appellant and complainant were alone in the appellant's car. She said she went to her parents' house in February 2007 but did not remember much of the day. The complainant had left home in 2006 to live at a residential cottage attached to the university she was attending. Her evidence is as follows:
What do you remember of the day in February 2007 when you went to your parents' house in Kalamunda to get some driving experience?‑‑‑All I remember is going for a drive with my dad. I don't think we ended up driving that far. I think we just went into town and back ‑ into Kalamunda town and back.
…
When you were driving with your dad, did anything happen?‑‑‑Yeah, something minor. I just ‑ all I remember is that he put his hand under my skirt and touched me inside my vagina, but that’s all that happened that day (ts 88 ‑ 89).
The complainant said she was driving the appellant's car because she was keen to get driving experience. She could not remember whether the incident occurred on the drive to or from Kalamunda. She gave the following evidence in cross‑examination:
I would suggest to you that in fact, [the appellant] didn't even drive you ‑ he didn't go with you into Kalamunda on that day‑‑‑I'm not sure which date it was, but I'm very sure that that incident happened (ts 121).
The appellant gave evidence that he remembered the complainant coming to the family home once in February 2007 which was an occasion when the complainant drove part of the way to and from Kalamunda with her mother. He also gave evidence that in the first quarter of 2006 he taught the complainant to drive. The complainant's mother gave evidence that was capable of supporting that of the appellant on these matters. The acquittal on count 25 can be attributed to the complainant's lack of recollection of detail and the risk of blurring because of the routine nature of the sexual conduct in a repetitive setting.
In my assessment, the verdicts of not guilty reflect a highly cautious approach by the jury to each count separately considered, an approach entirely in accordance with the directions of the trial judge. The different verdicts can be reconciled in the ways indicated and do not represent an affront to logic and common sense. The acquittals are not themselves inconsistent with the jury having been properly satisfied beyond reasonable doubt of the truthfulness and reliability of the complainant's evidence resulting in the five convictions.
Evidence as a whole
The appellant also contends it was not open to the jury on the whole of the evidence to convict him. The content and application of the relevant test remains that identified in the majority judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen [1994] HCA 63; (1994) 181 CLR 487:
[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
…
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (493 ‑ 494).
The evidence on counts 22, 23 and 24 (together with the acquittals) were relied on by the appellant to demonstrate the proposition that the evidence as a whole raised a doubt as to the complainant's truthfulness generally.
The conduct the subject of counts 22 and 23 took place on 1 October 2006 at the family home. The complainant was aged 18. The detailed evidence is set out in the judgment of Owen JA. In broad terms, the appellant relies on the following matters:
•the complainant voluntarily returned to the family home to visit;
•the complainant elected to remain in the house with the appellant when her mother and sister left to go for a walk;
•notwithstanding the commission of the offences in their absence from the house, the complainant behaved normally after the return of her mother and sister. They all had dinner and then watched TV together before the complainant departed with her sister;
•the complainant did not complain of the offences to her mother or her sister notwithstanding the opportunities to do so; and
•the complainant had from time to time during the period in which the offences occurred given the appellant cards recording her affection for and/or gratitude to him.
It was accepted that the complainant did not complain of the appellant's conduct to any member of her family or a person in authority until June 2007.
The appellant contends it is inherently improbable that a person such as the complainant would have acted as she did if the alleged sexual abuse had in fact happened. The proposition is intended to apply to all counts on which the appellant was convicted.
The complainant provided an explanation for her conduct. One factor was her own feelings of guilt. She was asked why she had not complained to anyone in her family. She said:
You don't want to think about it. You don't want to talk about it. You don't want to think that of yourself. You don't feel good about yourself (ts 131).
Another factor was the complainant's desire to continue to be part of a family and the hope that the abuse would cease.
I do not accept the appellant's proposition that the matters on which he relies, individually or collectively, render the complainant's evidence of the offences improbable. That is, these matters do not cause me to experience a reasonable doubt as to the truthfulness or reliability of the complainant's evidence. On the State case, the abuse commenced when the complainant was a very young child. There is evidence of the appellant grooming the complainant. There is no reason to believe that a young child would know or understand that his or her father, a person expected to provide protection, guidance and love, was acting inappropriately or wrongfully. By the time such a child victim reaches an age where, perhaps with gradually developing awareness, he or she comes to know that the conduct is wrong, it is reasonable to expect the victim to experience deeply conflicting emotions, one of which is likely to be guilt. Conflicted feelings of love or affection for the offender are not necessarily inconsistent with intra‑familial sexual abuse. Even when a person comes to eventually accept that they are truly an innocent victim of a criminal abuse of a position of power, it would be a difficult step to potentially destroy the family unit and expose one's father to the criminal justice system.
The appellant also relies on the complainant's evidence in relation to count 24 (the subject of a directed acquittal) in support of his contention that the whole of the evidence raised a doubt as to the complainant's truthfulness generally. It was alleged that sometime between 23 and 28 December 2006, the appellant indecently assaulted the complainant by placing his hand on her vagina. The complainant had gone to the family home for a visit during the Christmas period. The complainant's evidence was that the appellant came into the kitchen where she was reading a newspaper, went over to her and put his hand under her pyjama shorts and, she thought, touched her vagina.
During the relevant period, the appellant had a broken elbow and ankle. The appellant gave evidence that his right arm was in a sling, his left foot heavily bandaged and he was using a crutch to take his weight when he was walking. He said he could not walk without a crutch which was positioned under his left arm and he could not have done what was alleged. The appellant's general practitioner gave evidence supporting the appellant's evidence that he was physically incapable of acting in the manner alleged. However, the complainant's mother and sister gave
evidence from which the jury might have concluded that any restriction on the appellant's mobility and capacity had been exaggerated.
I am satisfied that it was open to the jury on the whole of the evidence to convict the appellant on counts 6, 8, 19, 22 and 23. I would grant leave to appeal but dismiss the appeal.
OWEN JA: After a trial by jury in the District Court the appellant was convicted of four offences of sexual assault and one count of unlawful assault perpetrated against the complainant. This is an application for leave to appeal against those convictions.
Background
The complainant was born on 12 July 1988. From the date of her birth until 2006 the complainant lived with the appellant (who is her father), her mother and her older sister in the family home in Perth. In July 2006, shortly after her 18th birthday, the complainant moved out of the family home. She returned to the family home on visits from time to time after July 2006. The complainant alleged that over a period of 12 years or so, between January 1995 and March 2007, she was the subject of sexual and other physical assaults committed by the appellant.
The appellant was charged with 25 offences, most of a sexual nature, against his daughter, the complainant. Details about the various counts in the indictment and their disposition at trial are contained in the schedule to these reasons. The earliest of the charges relates to incidents occurring in 1995 when the complainant was 6 or 7 years of age. Other offences are said to have been committed in various years between 1996 and 2006 and the last of them was in 2007, when the complainant was 18 years of age. The allegations of sexual offences are of indecent dealings and sexual penetrations of various kinds. The physical assaults resulted in the laying of charges of unlawful assault occasioning bodily harm.
It is common ground that the complainant did not report any of these incidents to anyone at or shortly after the time the respective events occurred. Her evidence was that around (or in) October 2006 she spoke to Detective Bone at Claremont Police Station. Detective Bone testified that on 25 September 2006 she met the complainant. Evidence was also given that on or shortly before 18 June 2007 the complainant had a conversation with her mother. This prompted the mother to speak to the appellant. The appellant testified that during the conversation his wife told him the complainant had asked to go to counselling because there were issues of sexual abuse. There was a further conversation between the complainant
and her mother on 22 June 2007 after which the mother moved out of the family home. Save for the exchange between the mother and the appellant on or shortly after 18 June 2007 no evidence was given about the content of any of these conversations. Some time in June 2007 Detective Bone interviewed the complainant and on 27 June 2007 the complainant signed a statement in which she made allegations that the appellant had sexually and physically abused her. On 18 October 2007 the complainant was examined by a doctor at the Sexual Assault Resource Centre.
Charges were preferred against the appellant in September 2007. Between 11 August 2008 and 14 August 2008 the appellant was tried before a jury in the District Court on an indictment containing the 25 counts. At the conclusion of its case the State conceded that no evidence had been led in relation to the incidents on which three of the charges were based (counts 18, 20 and 24) and that the evidence led on count 12 could not sustain a conviction. The trial judge entered judgments of acquittal for those four counts. Having deliberated on the other counts the jury returned guilty verdicts on five of them: counts 6, 8, 19, 22 and 23. Not guilty verdicts were returned on the remaining 16 counts. In summary, the appellant was:
(a)convicted on four counts of sexual penetration but acquitted on nine counts alleging sexual penetration;
(b)acquitted on all eight counts alleging indecent dealing; and
(c)convicted on one, but acquitted on two, counts of unlawful assault.
For the sake of completeness I should add that the appellant was sentenced to imprisonment for a total of 8 years and 6 months, with eligibility for parole. There is no appeal against the sentence.
The trial and the appeal: an overview
Because of the nature of the challenge to these convictions it will be necessary to embark on a detailed review of the evidence. Before I do that, and even before I have described the grounds of appeal, I think it is necessary to stand back from the detail, and look at the broad nature of the circumstances in which these events have unfolded.
The case involves allegations of sexual and physical abuse perpetrated by a father against his natural daughter. The offences are said to have occurred over a period of about 12 years when the complainant was between the ages of 6 and 18. All of the alleged offences (save for the last four) were committed when the appellant, the complainant and the complainant's mother and sister were living together in the family home and in an otherwise conventional domestic situation. The last four offences are said to have been committed after the complainant moved away from home but when the family situation was otherwise unremarkable. The complainant's mother and sister both testified but no evidence was given of sexual misconduct or physical abuse against any other member of the family.
The complainant gave evidence describing what had happened to her. The appellant says that the incidents simply did not occur. The complainant's evidence about the factual elements of the several offences was uncorroborated, although there is no suggestion that corroboration was a legal requirement for a conviction. The jury saw and heard the complainant and the appellant give evidence. They saw and heard or viewed other witnesses, photographs and materials called or tendered to support some of the surrounding aspects of the version of events put by the complainant or (where possible) the appellant's denial of those incidents. Save for one small matter concerning the admissibility of part of a medical report, no complaint is made as to the way the trial was run. The trial judge directed the jury on all relevant legal and factual aspects of the trial and no complaint is made about anything said (or not said) in those directions. In my view, had any such complaint been made it would have been doomed to failure as the trial judge's directions on critical issues were comprehensive and balanced. This is, therefore, largely an 'oath against oath' case.
The gravamen of the appellant's complaint is twofold. First, the verdicts of guilty on counts 6, 8, 19, 22 and 23 are said to be inconsistent with the acquittals on the remaining counts. The appellant contends there is no logical or rational explanation for the different dispositions of the various counts. Secondly, the complainant's evidence as to events is said to be inherently improbable. Her account of events was unreliable and incapable of sustaining convictions due, in particular to:
(a)her lack of complaint to any family member or to anyone in authority at or near the time the offences are said to have taken place;
(b)the lack of any evidence of signs of distress or physical injury observed by third parties at or around the time of the alleged offences;
(c)the continuation by her of participation in an otherwise unremarkable family situation over a long period, including after she turned 18 and moved away from home; and
(d)evidence of affectionate cards sent by her to the appellant from time to time during the period when the abuse was said to have been perpetrated.
These are always very difficult cases. They raise complex issues about family relationships, the human condition and the intricacies of the decision making process. They highlight the obstacles a person accused of such offences faces when she or he is confronted by allegations relating to a time long past. The ability to rebut the allegations by, for example, calling evidence to demonstrate that the events could not have occurred in the way alleged is lost or seriously compromised. Although it is not necessary (in a legal sense) to establish or refute these matters, cases such as this can raise in the mind of a trier of fact the questions:
(a)if the complaints are true, why did the victim continue in a family situation after repeatedly being sexually abused; and (or)
(b)if the complaints are not true, what motive did the victim have to make them?
The latter question, in particular, is apt to raise difficult issues and I will return to it a little later. These cases also bring into sharp relief the role of the jury in a matter turning largely on the assessment of credibility and the task of an appellate tribunal called upon to review the proceedings. It will be necessary to touch on some of these difficult questions in the course of resolving this appeal.
Grounds of appeal
Originally there was a single ground of appeal; namely that the verdicts of guilty on counts 6, 8, 19, 22 and 23 are unreasonable or cannot be supported or, alternatively, are unsafe and unsatisfactory and constitute a miscarriage of justice. That ground was the subject of particulars set out in eight paragraphs.
Particular 1 alleges that the five guilty verdicts are inconsistent with the acquittal of the appellant on the remaining 20 counts. In particular 2 the appellant contends that the complainant's evidence on the five counts was uncorroborated and was inherently improbable. In the third particular the appellant points out that the impugned conduct occurred over a long period and yet no complaint was made to the complainant's mother or sister, nor did they give evidence of observing any signs of distress or physical injury. Particular 4 alleges that over the period the complainant sent loving and affectionate cards to the appellant and voluntarily placed herself in situations that she might be expected to avoid if she had been sexually abused. The next three particulars are specific to nominated counts and raise issues that the appellant contends make the complainant's version of events inherently improbable.
Particular 8 alleges that hearsay evidence, in a medical report read to the court, was inadmissible and highly prejudicial to the appellant and should not have been admitted into evidence. It seems to me that this allegation, if it has substance, is a separate ground of appeal raising an error of law rather than a particular of the general ground.
At the hearing of the appeal the appellant sought leave to add an additional ground of appeal and to adduce new evidence to support it. The ground (which is identified as particular 9) reads as follows:
New evidence, not led at trial, would (if led) have raised a significant doubt as to the credibility of the complainant's evidence relating to counts 22 and 23, and that relating to count 8. The failure to lead that evidence has caused or contributed to a miscarriage of justice.
This ground (or particular) is the subject of further particulars. In relation to counts 22 and 23 (which are said to have been perpetrated on 1 October 2006), the particular alleges that the complainant gave oral evidence that she saw Detective Bone 'in October 2006'. But that was not what happened. Bone's evidence was that she saw the complainant on 25 September 2006 and again in June 2007. As the evidence was left, it is likely the jury would have been left with the impression that the complainant had seen Bone 'in October' (after the conduct the subject of counts 22 and 23) and were likely to have inferred she made a complaint at that time. She made no such complaint. If she had been sexually abused on 1 October 2006 (as she alleged), her failure to return immediately thereafter to see Bone and to complain, would raise a reasonable doubt about her credibility.
So far as concerns count 8, the complainant gave evidence that the offence occurred on a Monday evening while she was watching a television programme that she had taped from the previous evening (Sunday). The 'new evidence' sought to be adduced is from the telecast schedule of the station to the effect that the programme was not aired in its usual timeslot (Sunday evening) because of a sporting commitment. It was shown on Monday evening. This, the appellant contends, refutes the complainant's evidence that she watched a taped version of the show on the Monday night and is capable of casting doubt on her credibility.
It is not easy to relate the arguments raised on appeal individually and sequentially to the ground (or grounds) of appeal and the particulars. I propose to deal with it by looking first at particular 8 (the admission of hearsay evidence) because it raises a discrete issue. I will then turn to the application to adduce new evidence before considering the general ground that the guilty verdicts are unreasonable, unsafe, unsatisfactory, unsupported by the evidence and inconsistent.
Reviewing jury verdicts - legal principles
Due to the nature of the challenges raised by the grounds of appeal it is, I think, desirable to restate the general legal principles that govern:
(a)the admission of new or fresh evidence on an appeal; and
(b)the process by which an appellate court determines whether jury verdicts are unreasonable, unsafe or unsatisfactory and, in particular, whether they are tainted by inconsistency.
New or fresh evidence
At common law there is a distinction between 'fresh' evidence and 'new' evidence. As will appear shortly the additional evidence that the appellant seeks to adduce is, in my view, 'new' rather than 'fresh'. Nonetheless, I will deal with the legal tests that are relevant to both species of additional material.
Evidence is considered to be 'fresh' if it did not exist at the time of the trial or if it could not have then been discovered with reasonable diligence: Beamish v The Queen [2005] WASCA 62 [9]; Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 [411]. Evidence will merely be 'new' if it was available at the trial or could, with reasonable diligence, then have been discovered: Ratten v The Queen (1974) 131 CLR 510, 517; Urbano v The State of Western Australia [2006] WASCA 147 [9].
The court has traditionally treated appeals based on the admission of fresh evidence differently from appeals based on the admission of new evidence. The reason is that an appeal based on fresh evidence is founded upon a different basis of appellate review from one based merely on new evidence. The rationale for allowing an appeal based on fresh evidence is that the absence of the evidence from the trial was, in effect, a miscarriage of justice: Beamish [10]; Mickelberg v The Queen (1989) 167 CLR 259, 301; Gallagher v The Queen (1986) 160 CLR 392, 395, 402 and 410. Conversely, the absence of new evidence from the trial does not, of itself, constitute a miscarriage of justice: Mickelberg (1989), 301. As Barwick CJ noted in Ratten (517), a criminal trial is:
… a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked… Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.
As a result, an appeal based on new evidence necessarily falls into the category of cases which call upon the court's general power to set aside a conviction on the grounds that, in all the circumstances of the case, there was a miscarriage of justice.
Despite some suggestions that the difference between fresh and new evidence is no longer as significant as it once was (see, for example, Nolan v The Queen (Unreported, WASCA, Library No 970260, 22 May 1997), the distinction between the two is based on sound principle and continues to be recognised: Rinaldi v The State of Western Australia [2007] WASCA 53 [81]; Beamish [13]. The distinction also has profound consequences for the disposition of criminal appeals. As Pullin JA noted in de La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [152]:
The distinction between 'fresh' and 'new' evidence continues to be of importance. The distinction is important because 'new' evidence, after all, is evidence which was available and known by the convicted person to be available at the time of the original trial, or alternatively, 'constructively' (Ratten, 517) known to be available at the time of the original trial. An accused will 'constructively' know about evidence if, although not actually aware of it, he or she could with reasonable diligence have discovered the evidence by the time of the original trial. Admittedly, 'great latitude' (Ratten, 517) must be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have been able to produce at trial. This is because an accused will often be disadvantaged in intellectual terms, or in terms of financial and legal resources in the conduct of the case. The fact that such latitude must be shown may be the reason why it has been said that the distinction between 'fresh' and 'new' evidence is not as significant as it once was: Nolan. The distinction does, however, remain and is soundly based in principle. See Mickelberg (2004) [415]). There will be many cases where no latitude should be granted because the accused is not disadvantaged in any way. [full citations omitted]
Where the evidence is fresh, in order to allow the appeal the court need only be satisfied that in the light of all the admissible evidence (including the evidence at trial) there is a significant possibility that a jury, acting reasonably, would have acquitted the accused: Rinaldi [82]; de La Espriella‑Velasco [157]; Beamish [14]; Mickelberg (2004) [416]; Mickelberg (1989), 275.
An appellant faces a higher hurdle in overturning a jury's verdict on the basis of new evidence. It is not enough merely to show an increased chance of acquittal. For the appeal to succeed, the new evidence must be strong enough to show that the appellant is innocent or raise such a doubt that the court concludes that the appellant should not have been convicted: de La Espriella‑Velasco [158]; Lawless v The Queen (1979) 142 CLR 659, 676; Button v The Queen [2002] WASCA 35; (2002) 25 WAR 382 [16]; Martinez v The State of Western Australia [2007] WASCA 143 [220] ‑ [225].
Unsafe verdicts
Section 30(3) of the Criminal Appeals Act 2004 (WA) empowers the court to set aside a conviction if:
(a)having regard to the evidence, the verdict is unreasonable or cannot be supported;
(b)there has been a wrong decision on a question of law; or
(c)there was a miscarriage of justice.
The old jurisprudence in relation to (a) above developed using the phrase 'unsafe or unsatisfactory' but the change in wording does not affect the substantive approach an appellate court is required to take: M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492; Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450.
Discussion on this area of the law usually starts with M v The Queen. This is well travelled country but, nonetheless, I think it is worth re‑stating the principles there set out.
1.The question whether a verdict is unsafe or unsatisfactory is one of fact, not of law. Questions of law are separately dealt with by s 30(3)(b).
2.The court decides the question of fact by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, it would still be dangerous to allow the verdict of guilty to stand.
3.A verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.
4.Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, an appellate court is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
5.In answering that question the court must pay full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and to the consideration that the jury has had the benefit of having seen and heard the witnesses.
6.It does not follow from the fact that the court entertains a reasonable doubt (if that be the case), that the jury also must have had such a doubt.
7.In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
8.If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
9.The ultimate question must always be whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
In this case, the appellant attacks his convictions on the ground that they are unreasonable or not supported by the evidence, largely because the case depended so heavily on the uncorroborated evidence of the complainant. That evidence, the appellant contends, was inherently improbable. Further, the verdicts returned by the jury were inconsistent. Appeals based on inconsistent verdicts usually call in aid Jones. In that case the appellant was charged with three counts of sexual intercourse with a female child. The child was a pupil at a gymnastic academy where the appellant was an instructor. The three offences were said to have occurred when the appellant and the child were alone. The prosecution case was based solely on the uncorroborated evidence of the child. The appellant gave evidence denying each of the charges. The appellant was convicted by the jury of two of the counts (counts 1 and 3), but acquitted of one of the counts (count 2).
On appeal, the High Court quashed the convictions on the basis that they were unsafe and unsatisfactory. The fact that the jury acquitted the appellant on count 2 indicated that the jury, acting reasonably, must have had a reasonable doubt about the appellant's guilt in relation to counts 1 and 3. The reason that such a conclusion could be drawn was that the evidence supporting the prosecution case was no stronger in relation to counts 1 and 3 than it was in relation to count 2. In respect of all three counts, the prosecution case relied on the child's uncorroborated evidence and was met by the appellant's denials. As Gaudron, McHugh and Gummow JJ said (455):
Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
As we have already said, nothing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.
In the years following Jones, there have been many cases in which the court has considered whether a conviction ought to be set aside because of allegedly inconsistent verdicts. It is difficult to draw from those cases any definitive test which an appellate court ought to apply when deciding the issue. This is unsurprising, given the wide variety of facts and offences which the cases encompass. As will become apparent, the resolution of these cases generally depends on 'all the circumstances of the case' rather than a narrow point of law. Nevertheless, there are some principles that may be gleaned from the authorities.
First, Jones does not stand for any rigid principle of law. The court did not intend to enunciate any general rule for the guidance of appellate courts when dealing with similar grounds of appeal: R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 [205], [224], [233].
Secondly, when dealing with an appeal based on the inconsistency of verdicts, a distinction must be drawn between legal inconsistency and factual inconsistency: MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366. A legal inconsistency arises when the jury returns two verdicts which cannot, at law, stand together. An example is convictions for both an attempt to commit an offence and the completed offence: R v Roach [1948] NZLR 677. A factual inconsistency arises when, although in law they can stand together, the verdicts cannot be reconciled with regard to the facts of the case
Thirdly, the rationale for allowing an appeal on the basis of inconsistent verdicts is that although the reasons of the jury are generally inscrutable, through a series of verdicts the jury sometimes puts on record an insight into its thinking. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice and must intervene: MacKenzie (365).
Fourthly, nothing in Jones diminishes the jury's duty to consider each charge separately and, if warranted, return different verdicts in respect of each: Markuleski [31]; KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 [36]. Similarly, nothing in Jones detracts from the general principle that a trier of fact is at liberty to accept some parts of a witness's evidence and decline to accept other parts: see KBT v The Queen (1997) 191 CLR 417, 424. In other words, Jones does not mean that the verdicts must all go one way or all go the other.
Fifthly, the test to be applied by an appellate court is whether the inconsistency is of such a character that in logic and reasonableness, as an exercise of fact-finding, the verdicts cannot stand together. In other words the differing 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 count of the indictment: Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82 [18]; MacKenzie (366).
Sixthly, 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: Lefroy [19]; MacKenzie (367).
Seventhly, the court must be cognisant of the role of the jury as the 'constitutional' tribunal for resolving disputed factual questions and should not interfere with its decisions without good cause: Markuleski [76]; MacKenzie (365, 367).
Finally, in applying the test, there are no hard and fast rules. It all depends on the circumstances of the individual case: Markuleski [38]; MacKenzie (368).
Despite there being no hard and fast rules in determining whether different verdicts can 'stand together', several points emerge from the authorities.
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.
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.
All of these matters have to be borne in mind as an appellate court embarks on the task of examining the evidence led in a case under review.
The medical report - admission of hearsay evidence
I turn now to the matters raised in particular 8; namely, the admission of hearsay evidence contained in the medical report. Evidence was given by Dr Nixon from the Sexual Assault Resource Centre. She had not seen the complainant but, by consent, read a passage from a report prepared by Dr Phillips of the Centre. Phillips had seen the complainant on 18 October 2007. In the report Phillips reported that she had conducted a genital examination and said: '[There was] no sign of genital injury or scarring. The absence of genital injury or scarring does not exclude childhood sexual penetration'. She then referred to two studies published in medical journals to support that statement. Particular 8 attacks the admission of details of part of a conversation between the complainant and the medical practitioner. The part under challenge is as follows:
She told me that during her childhood from the age of seven years and onward her father had penetrated her vagina with his penis. She told me that this had occurred on a number of occasions and that she had made a statement to the police with the details of her allegations.
It is to be remembered that no objection was taken to Nixon reading this passage from Phillips' report or to its content. When Nixon was called she was asked the usual questions about her identity, position and experience and about Phillips. The prosecutor then said:
With my learned friend's consent, your Honour, I wonder, [witness] if you might read that report to the jury please? … We have agreed between us, if it please your Honour, as to the content of the report and there will be a passage which, by consent, might be read.
Defence counsel did not demur from the prosecutor's description of the arrangement. The cross‑examination of Nixon was limited to one discrete area: how many of the children whose cases were examined in the two studies were eventually found to have made 'genuine complainants'. Not surprisingly, Nixon could not answer that question. The impugned portion of Phillips' report was not referred to in cross‑examination.
When the prosecutor came to address the jury the only reference he made to the medical evidence was to the two studies and to the opinion that absence of scarring does not exclude genital penetration. So far as I can see, counsel for the defence did not make any reference to the medical evidence in his closing remarks. The trial judge's directions about Nixon's evidence were also limited to the absence of signs of genital injury.
The appellant contends that evidence of what the complainant had told Phillips was hearsay, it was highly prejudicial and served no valid forensic purpose. It is, unarguably, hearsay. But this has to be seen against the background that the whole case was conducted on the basis that there had been no contemporaneous complaint made by the complainant to any person. I will deal with that question in detail a little later. It is sufficient here to say that the lack of contemporaneous complaint was acknowledged by the prosecution and its significance was stressed in various aspects of the defence case and was explained by the trial judge in his directions.
A conviction may be quashed on appeal as a result of the admission of inadmissible evidence even though the material was tendered without objection. If the admission of the evidence amounts to a miscarriage of justice, the verdict may be overturned notwithstanding the lack of objection: R v Soma [2003] HCA 13; (2003) 212 CLR 299 [11], [41] ‑ [43]; Azarian v The State of Western Australia [2007] WASCA 249 [20], [139]. Where inadmissible material was tendered by consent, as opposed to tendered without objection due to the inadvertence of counsel, the court will be more reluctant to conclude that the accused was really prejudiced by it: see R v Gay [1976] VR 577, 584 ‑ 585; R v Roissetter [1984] 1 Qd R 477, 479.
The impugned portion of the medical report was in short focus, it was led without objection in accordance with an arrangement reached between counsel, it was not the subject of cross‑examination and it was not returned to at any later stage in the trial. Its potential to prejudice the accused has to be seen in that light. In terms of forensic purpose, it explained how the medical report came to be prepared. There cannot, in my view, be any realistic prospect that the jury would have been misled into putting it to an inappropriate use.
In my view, the admission of this material has not, either alone or in combination with the other factors raised in the appeal, caused or contributed to a miscarriage of justice.
The application to adduce new evidence
The contact with Detective Bone (25 September 2006)
The mischief which the appellant says needs to be addressed by the admission of new evidence is twofold. First, because of the way the evidence emerged, it is likely the jury would have been misled into thinking that the complainant had made a complaint to police in October 2006 (proximate to the events the subject of counts 22 and 23). Secondly, no evidence was led as to the purpose of the complainant's visit to police on 25 September 2006. Had the jury known of the purpose they are likely to have taken a different view as to her credibility. This aspect of the application to adduce new evidence goes to the lack of contemporaneous complaint which, as I have already said, was an important component of the defence case. I will consider the whole question of the absence of contemporaneous complaint in more detail in the overall examination of the evidence led at trial.
By October 2006 the complainant was living away from the family home. She says that on 1 October 2006 she returned to the home with her sister. During the afternoon her sister and her mother went for a walk leaving the complainant and the appellant alone in the residence. She alleges that while her sister and mother were absent the accused punched her in the face (count 22) and penetrated her vagina with his penis (count 23). When her mother and sister returned to the house the complainant did not complain to them about the incidents and nor was there any evidence given of signs of injury or distress. Later that evening the sister drove the complainant back to the place at which she was living. Again there was no complaint made and no evidence was given of signs of injury or distress.
It was around this time that the complainant had gone to a police station and had spoken to Detective Bone. In her examination‑in‑chief the complainant gave evidence about the incidents the subject of counts 22 and 23. The prosecutor then led this evidence:
I don't want to know what you said, but I think in around October 2006, you went to [the] Police Station---Yeah.
And you spoke at that police station to a Detective Bone---Yes.
That was in October 2006---Yes. [emphasis added]
So far as I can see, that is the entirety of the evidence that the complainant gave about her conversation with Bone. No cross‑examination was directed to that visit.
When Bone came to give evidence the following exchange occurred:
On 25 September 2006, did you meet [the complainant]---Yes, I did.
And later in June 2007, did you again meet [the complainant]---Yes, I did.
And I think on - during 2007 you took a statement from [the complainant]---Yes.
Bone gave no evidence of any contact with the complainant in October 2006. The cross‑examination of Bone was brief and did not cover any aspect of the 25 September 2006 visit or conversation. Nor was the visit the subject of express comment in the addresses of either counsel or the trial judge to the jury. However, the prosecutor had referred to it in his opening remarks. He said:
You'll hear evidence from [Bone], who … will say that she spoke with [the complainant] on 25 September 2006, which you'll note was before counts 22 to 25, being the dates on which the State says those counts were committed. You'll hear that Ms Bone spoke again with [the complainant] in June of 2007. [emphasis added]
The complainant made a statement to police which she signed on 27 June 2007. It was, of course, part of the prosecution brief and was in the hands of the defence prior to the trial. In it the complainant gave more detail of the conversation with Bone. She said:
Around October 2006, I went to the … Police Station and spoke with [Bone].
I didn't tell her what had occurred with dad I wanted to know what the process was if I was to make a complaint and how much evidence I would need.
These two paragraphs from the written statement (which, of course, was not tendered at the trial) are the materials that the appellant says constitute new evidence and which he now wishes to adduce. The relevance and probative value of the new material is said to be twofold. First, counsel for the appellant submitted that the exchange in the complainant's evidence-in-chief was likely to have led the jury to believe that she had made a complaint to Bone after the alleged assault and sexual penetration on 1 October 2006. Secondly, the new evidence, if adduced, would indicate the purpose for which the complainant had gone to see Bone on 25 September 2006. It would have raised an issue why she had not returned to see Bone in October 2006 (immediately after the alleged offences) or at any time before June 2007.
Counsel for the appellant submitted that had these facts been known, they should have raised a reasonable doubt in the jury's mind. Acting reasonably, the jury would have borne in mind that by the time she says she was sexually assaulted on 1 October 2006 she was armed with information as to the process involved in making a complaint of a sexual offence. In those circumstances the jury would have questioned why, if she had been assaulted and sexually penetrated, she did not immediately return to see Bone and make a complaint or undergo a physical examination.
The material in the written statement was known to the defence before the trial commenced. It is new, rather than fresh, evidence. The test for its admission in the appeal has to be seen in that light. If this were a stand alone challenge I would have had no hesitation in rejecting it. In my view it is not likely the jury would have been left with the impression that on 25 September 2006 (or in October 2006) the complainant had made a complaint to Bone. In saying that I have in mind:
(a)the reference by the prosecutor in his opening remarks to the fact that the 25 September 2006 visit to Bone occurred before the dates on which the offences the subject of counts 22 and 23 were said to have been committed;
(b)the reference in the complainant's evidence-in-chief to 'around' October (which could logically have included late September) as well as to 'in' October (both given by simple affirmative answers to leading questions);
(c)the fact that there was no suggestion in any other evidence or in closing remarks or in the judge's directions that a complaint had then been made; and
(d)the concentration at trial on the lack of contemporaneous complaint.
As there is no realistic prospect that the jury would have been misled into drawing the conclusion that a complaint had been made in October 2006 I think the premise on which the application for the admission of the new evidence is based falls away.
The appellant contends that the jury would be likely to draw a conclusion adverse to the complainant from the fact she failed to complain about offences committed shortly after she became aware of what was involved in lodging a complaint. This contention proceeds on an assumption that the evidence would stand alone. There is no place for speculation as to what might have happened had the evidence been led. But we do know that the jury was satisfied that offences occurred in or about October 1996, March 2000 and late 2005, all without a complaint having been made. We also know that about eight months after the October 2006 events a complaint was made. Against that background it seems to me questionable whether a jury, looking at the complainant's lack of complaint in October 2006, should have, or would have been likely to, react in the way posited by the appellant.
Additionally, there might have been valid forensic reasons why defence counsel chose not to raise the issue. For example, in the written statement the complainant referred to several contacts that she had over the years (from about 2004) with an organisation called Kids Helpline and the Sexual Assault Resource Centre. She said that she had undergone counselling in October 2004 and had 'disclosed a couple of things to [the counsellor]'. It is at least possible that had defence counsel probed the 25 September 2006 visit it might have rendered some of that material admissible in reply. This may have undermined a central plank of the defence; namely the significance of the lack of contemporaneous complaint.
My preliminary view, therefore, is that neither of the bases put forward for the admission of two paragraphs of the written statement has been made out. The material is not strong enough to show that the appellant is innocent and nor would it raise such a doubt that the court ought to conclude that the appellant should not have been convicted. However, as it relates to the whole area of lack of complaint I will consider it again in the context of the evidence overall before reaching a final conclusion as to whether leave should be given to adduce it.
The television programme
The complainant alleges that in March 2000 the appellant penetrated her mouth with his penis. This is the subject of count 8. A significant issue here is the evidence the complainant gave that enabled her to pinpoint the date on which she said the offence occurred. During the complainant's examination‑in‑chief the following exchange occurred:
In the year 2000, I think you were in year 7---Yes.
And you were 11 years of age at that time---I was 11, turning 12 in July, yeah.
Can you tell us please, what month your dad's birthday's in---March, March 22.
Okay. Can you tell us please, about an event which happened in March of 2007 [sic]---Yes, it was a few days before his birthday and what happened was, he - it was a Monday of a school day and he brought me into my room and [incident described].
Before he brought you into your room, it was a Monday, it was a school night---Yeah.
What had you been doing---I was watching my favourite show at the time, which I'd taped.
And what was that---Popstars.
…
You'd been watching Popstars and you think you'd taped it, is that correct‑‑‑Yeah, I remember I'd taped it because it was on, on Sundays and we'd been somewhere the night before and - - -
Were you watching Popstars with anyone---No.
You went to the toilet and then you were going back to the lounge room---Yeah, I'm pretty sure I was going back to the lounge room because I just paused it, so I was going to keep watching.
And what happened---And then dad came up from the direction of the lounge room, so towards me, and he sort of brought me into my room, …. [incident described]
While the complainant was cross‑examined about the incident the subject of count 8 no questions were put about the television programme. This exchange occurred in the cross‑examination of the appellant:
You agree that [the complainant] watched television shows like Pop Stars---Yes.
And that she would sometimes tape those shows and watch them by way of videotape, or video recorder or whatever--- (inaudible).
I think it can be assumed that the appellant gave an affirmative to answer to the second question in that exchange. In his closing remarks the prosecutor referred to the complainant's evidence about the Popstars programme without differentiating between a live broadcast and a taped presentation. But at the conclusion of closing addresses and in the absence of the jury the prosecutor drew the trial judge's attention to what he submitted was a factual error made by defence counsel. He pointed out that it had been a tape that the complainant had played back as was her practice, not a 'show'. Defence counsel agreed but said he had only raised the programme in relation to the timing of the alleged incident ('it wouldn't have been late at night'). In his directions to the jury the trial judge dealt with the issue this way:
You'll recall her evidence was that that had occurred on an evening when she'd taped the program Pop Stars. She said this incident occurred close to the accused's birthday … .
It is common ground that the Monday closest to the appellant's birthday in 2000 was 20 March. In his affidavit sworn in support of the application to adduce new evidence, the appellant says that after the conclusion of the trial he became aware that although Popstars was usually screened on a Sunday evening, it was not telecast on Sunday 19 March 2000 due to an AFL broadcast. It was, however, shown on Monday 20 March 2000. Evidence was available from the television station to verify the change in scheduling. This is the new evidence the appellant wishes to adduce.
As I apprehend it, the appellant's argument is that the new material would cast a real doubt on the complainant's credibility. The complainant testified that she had been out on a Sunday night a few days before the appellant's birthday, she had taped her favourite show and then watched it the next night. This, the appellant said in his affidavit in support of the application, 'was likely to have lent some verisimilitude to her account in the mind of the jury'. The new evidence indicates she could not have done as she said; nothing was shown on the Sunday night that she could have taped. This, according to the appellant, 'suggests a willingness on [the complainant's] part to reconstruct or fabricate to fit her story'.
Again, the evidence is new, not fresh. Her assertion that she was watching a taped version of the programme was contained in the written statement of 27 June 2007. The fact that the programme aired on a Monday rather than a Sunday in mid‑March 2000 could have been discovered with reasonable diligence. In my view the evidence does not meet the test for the admission of new evidence. It is clear from the exchange that occurred at the conclusion of closing addresses that the point in issue between the prosecution and the defence was one of timing: whether the incident could have occurred late at night. That was the only point raised as to whether the complainant was watching the programme live or by way of a pre‑recording.
There is another point. The new evidence, if adduced, would confirm part of the relevant testimony given by the complainant; namely, that on a Monday night a few days before her father's birthday in March 2000 she was watching a programme that usually aired on a Sunday. It was open (on the appellant's testimony) for the jury to have accepted that the complainant was in the habit of watching television shows like Popstars and that sometimes she recorded the shows and watched them by way of videotape. Even if the jury decided she was wrong in saying that, on this occasion, she had recorded the programme the previous day, it would not follow that they were bound to regard it as an instance of reconstruction or fabrication on the complainant's part. It would still be open to the jury to accept other parts of the evidence. Such an error, if established, does not mean the jury, properly applying a logical and rational approach to analysis and fact finding, would be likely to have rejected the complainant's version of the incidents the subject of count 8 or to have entertained doubts about her credibility generally.
The fact that differing verdicts are delivered in relation to counts arising from the same incident or incidents that are closely connected in time and place increases the difficulty. The only explanation I can see is that the jury were not prepared to accept the complainant's account of events that fell short of sexual penetration. There were no convictions on any of the indecent dealing charges. Count 5 is an indecent dealing charge and count 6 is a sexual penetration charge.
Be that as it may, it is difficult to see a logical and reasonable basis on which the jury could have been satisfied beyond reasonable doubt that the appellant penetrated the complainant's vagina with his tongue and yet not be satisfied that he simulated sexual intercourse with her as part of the same course of conduct. The problems are compounded by the apparent inconsistency between her oral testimony and the way the case was opened by the State. If, as I have suggested, inconsistencies between oral testimony and the statement to police may reasonably have influenced the jury on other counts it is difficult to see why it would not have done so on this occasion. The fact that the inconsistency arose in relation to the indictment rather than the statement to police is not, in my view, a material difference.
I have come to the view that the conviction on count 6 and the acquittal on count 5 are relevantly inconsistent and the conviction cannot stand. I have not reached that view on counts 8, 19, 22 and 23 and those convictions must stand.
Unreasonable verdicts
The final question is whether, notwithstanding my view that the convictions on counts 8, 19, 22 and 23 are not tainted by inconsistency the verdicts are nonetheless liable to be set aside as unreasonable or unable to be supported having regard to the evidence.
To answer that question it is necessary for the court to make its own independent assessment of the evidence and determine whether, notwithstanding that there is evidence upon which a jury might convict, it would still be dangerous to allow the verdict of guilty to stand. Put another way, the task is to determine whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The constitutional role of the jury is an important consideration in determining the issue of inconsistency of verdicts. It is the same here. The court must pay full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and to the consideration that the jury has had the benefit of having seen and heard the witnesses.
It should be apparent from what I have already said that the court has made its own independent assessment of the evidence. I cannot see any issues that apply to the general ground of unreasonableness that have not already been canvassed in the discussion about inconsistency. In my view it was open to the jury to accept the complainant as a credible witness in general terms. The major factors militating against that finding include:
(a)the absence of complaint;
(b)the fact that she did not cry out or seek help despite the incidents the subject of counts 8, 22 and 23 (and others) occurring in the family home when others were, or might have been, in close proximity;
(c)the absence of signs of injury or distress generally, but particularly immediately after counts 22 and 23;
(d)the written expressions of affection delivered by the complainant to the appellant, certainly after count 8 and in any event over a period of time; and
(e)the continuation by her of participation in an otherwise unremarkable family situation over a long period, including the fact she returned home on visits after she moved out having turned 18.
There would be little point in repeating the description and analysis of the evidence that has already been conducted. Save for some minor support in relation to the injuries sustained in count 22, the only evidence on those matters was that of the complainant. This was quintessentially an 'oath on oath' case. The complainant gave her explanation for the matters set out above and it is apparent that the jury accepted them. They did so after seeing and hearing the complainant and the appellant give evidence.
Counsel for the appellant made two submissions about this aspect of the case. First, there is nothing in the evidence to suggest that demeanour or the way in which the witnesses gave evidence could logically have influenced the outcome of the jury's deliberations. Secondly, the complainant gave evidence by closed-circuit video link. While that would not detract entirely from the advantage the jury had it would qualify the degree to which demeanour may have played a part in the jury's decision.
In my view the first of those propositions begs, rather than answers, the question. It leaves to one side the possibility, recognised in the authorities, that the transcript may not reveal the whole story as to the way in which the evidence was given. It cannot be the case that unless the State can point to some area in the evidence where there was a positive demeanour‑related happening then demeanour is, at best, neutral. Equally, it cannot be the case that unless an appellant can point to areas of obvious evasion, obfuscation or physical or other manifestation that must have been obvious to the jury that they must be taken to have acted positively on demeanour.
My concern with counsel's first proposition is that it fails to recognise that the advantage a jury has when observing witnesses goes beyond demeanour and encompasses the ability to appreciate and relate what they see and hear to the context of the trial and to all of the evidence led at trial. It is to be remembered that after the initial retirement the jury returned and asked a question; namely, whether it was possible to achieve proof beyond a reasonable doubt solely based on the complainant's testimony. It is unlikely that in referring to 'the complainant's testimony' the jury were limiting their consideration purely to what she had said divorced from the way she had said it.
I cannot accept the second of the propositions put on this issue. Section 106R of the Evidence Act provides for the court to declare a person a special witness. In fact, the effect of s 106R(3a) is that where there are charges of serious sexual offences the complainant will be regarded as a special witness unless the recognised criteria do not apply and the person does not want the status. Section 106R(7) provides that in cases such as this the judge is to instruct the jury that that the making of a declaration is routine practice and that they should not draw any inference as to the accused's guilt from it. If it is 'routine', as the section says, the legislature cannot have presumed or intended that it would have had an incidental consequence; namely to make it more difficult for a trier of fact to assess the credibility of a witness. The proposition that the giving of evidence by closed circuit visual link qualifies the advantages of seeing and hearing a witness is, so far as I am aware, unsupported by research into the practical operation of the closed circuit regime. In my view the second proposition put on behalf of the appellant does not follow as a matter of experience or logic.
The complainant's evidence was such that, if it were accepted, it could as a matter of law sustain a verdict. It is necessary to look at the whole of the evidence and to pay due regard to the constitutional role of the jury and to the advantages they had in seeing and hearing the witnesses. Having done so, I have come to the view that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty on counts 8, 19, 22 and 23.
Conclusion
In my view, the convictions on counts 8, 19, 22 and 23 are not unreasonable, they can be supported having regard to the evidence and there has been no miscarriage of justice in relation to them. However, the verdict on count 6 is tainted by inconsistency with other verdicts. It is therefore unreasonable and, in relation to it, there has been a miscarriage of justice. That conviction must be set aside and no question of a retrial on that count could arise.
I would grant leave to amend the grounds of appeal by adding the additional particular numbered 9. I would refuse leave to adduce new evidence. I would grant leave to appeal. I would allow the appeal in so far as it concerns count 6 and quash that conviction. I would dismiss the appeal in so far as it relates to counts 8, 19, 22 and 23. The court will have to hear counsel as to other orders or proceedings that may be necessary as a consequence of these conclusions.
PULLIN JA: The ground of appeal alleges that the verdicts of guilty on counts 6, 8, 19, 22 and 23 were unreasonable because they were inconsistent with the verdicts of not guilty on the other counts and that this inconsistency amounted to a miscarriage of justice.
The task of a jury in cases where largely uncorroborated evidence of the victim that the offences occurred is pitted against the uncorroborated evidence of the accused that he did not commit the offences, is an unenviable one. It is even more unenviable for a Court of Appeal particularly when the court is charged with the obligation to entertain the appeal by way of rehearing but without having seen the witnesses. This case is an excellent example of the difficult task which the jury had to perform and which the Court of Appeal must also perform.
A ground of appeal alleging verdicts are inconsistent may involve allegations that the verdicts are legally or technically inconsistent or may allege factual inconsistencies. An example of the former is provided by a jury finding that on one charge the accused attempted to commit an
offence, and on a second count, finding that the accused did commit the offence. This type of inconsistency is generally easy to resolve. See Mackenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 366. On the other hand, a ground alleging factual inconsistency is usually more difficult to make out. This is a ground alleging in terms of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) that the verdict of guilty upon which the conviction is based should be set aside, because having regard to the evidence, it is 'unreasonable': M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Spooner v The State of Western Australia [2008] WASCA 16 [126] or because pursuant to s 30(3)(c) a miscarriage of justice has occurred: Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450; Spooner [127].
An appellant usually faces a battle in making out a ground of factual inconsistency because of repeated exhortations from the courts to bear in mind that:
(a)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: Mackenzie (367) citing R v Wilkinson [1970] Crim LR 176;
(b)if 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: Mackenzie (367) citing Hayes v The Queen (1973) 47 ALJR 603, 604 ‑ 605;
(c)the jury may be assumed to have followed the judge's instructions to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt: Mackenzie (367) citing R v Andrews‑Weatherfoil Ltd (1971) 56 Cr App Rep 31, 40;
(d)the court should not rule out the possibility that the jury took a 'merciful' view of the facts upon one count or some counts and that although such count or counts might have been technically proved the jury considered that justice was sufficiently met by convicting him of less than the full number: Mackenzie (367 ‑ 368) citing R v Hunt [1968] 2 QB 433, 436 and R v Kirkman (1987) 44 SASR 591, 593;
(e)The court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses and that the court must pay full regard to those considerations: M v The Queen (493).
However, notwithstanding those points, the High Court has said that a ground alleging that verdicts are unreasonable requires the appellate court to make its own 'independent assessment of the evidence' and determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (492 ‑ 493).
In M v The Queen (491, 495), the plurality decided that the 'anxiety and discomfort' experienced by the dissenting judge in the Court of Criminal Appeal in New South Wales, Sully J must necessarily have been caused by a doubt he held about the guilt of the appellant. On that basis the plurality in M held that Sully J should have concluded that he would allow the appeal.
In addition, if it is clear that the verdicts suggest a compromise, then that will establish that there has been a miscarriage and that the verdict is unreasonable. In Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [71] the court said that the question in that case was whether the jury had been 'merciful' or:
[W]hether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case (Mackenzie v The Queen (1996) 190 CLR 348] at 368).
In Phillips, the High Court concluded that the onus on the appellant had not been discharged and said:
The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. '"It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.' [71]
Finally, it is necessary to bear in mind what was said by the High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 where the court explained that the decision of the High Court in Jones did not stand as an authority suggesting that verdicts of not guilty in 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 appellant is a person of damaged credibility. The High Court said in MFA at [35] that that view was erroneous.
In this case there were 25 counts. The jury found the appellant not guilty, or were directed to return a verdict of not guilty, on 20 counts, and guilty on five counts. The question is whether it is possible to reconcile applying the test of 'reasonableness and logic' to the verdicts of guilty on the five counts with the verdicts of acquittal on the other 20.
I agree with Owen JA that the verdict of guilty on count 6 should be set aside. The brief evidence about what happened reveals that there was one incident in respect of which the DPP formulated two counts, namely counts 5 and 6. The evidence about the two counts is set out in Owen JA's reasons. There appears to be no rational explanation for the jury being satisfied that one of the offences was committed and the other not.
There is no doubt that the number of acquittals in this case requires that very close scrutiny be given to the other five verdicts of guilty. However, it is possible to see a potential explanation for many of the jury's verdicts of not guilty. For example, some of the offences occurred when the complainant was very young; on all offences save one alleging penile penetration, there were verdicts of not guilty. The conviction on one count of penile penetration was on an occasion when the complainant was specific about the date, the time and the circumstances. It was also an event which occurred only a few months before the complainant gave a statement to the police in June 2007. The evidence of the assault which occurred at the same time was corroborated by a witness who saw a bruise which the complainant said resulted from the assault. Apart from the inconsistency in relation to counts 5 and 6, the existence of an explanation for the jury reaching some of its verdicts of acquittal, and the possibility of a merciful disposition on others, leave me with the conclusion that the convictions on counts 8, 19, 22 and 23 are not unreasonable, do not cause any affront to logic and commonsense and do not represent a miscarriage of justice. It was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of those counts.
In conclusion, I agree with Owen JA that the conviction on count 6 should be set aside. I would grant leave to amend the grounds by adding particular number 9 to ground 1. Whether the proposed new evidence should be admitted or not, I agree with Owen JA that the proposed new evidence does not reveal any miscarriage of justice. Save where these reasons display a different process of reasoning, I agree with Owen JA.
The Schedule
Description of the Counts in the Indictment
| Count | Offence | Sections | Date (range) | Incident | Age | Verdict |
| 1 | Indecent dealing with lineal relative under age of 16 | s 329(4); s 329(10)(a) | 1 January 1995 - 31 December 1995 | Touching vagina with fingers | 6 or 7 | Not guilty |
| 2 | Sexual penetration of lineal relative under age of 16 | s 329(2); s 329(9)(a) | 1 January 1995 - 31 December 1995 | Penetrating vagina with penis | 6 or 7 | Not guilty |
| 3 | Indecent dealing with lineal relative under age of 16 | s 329(4); s 329(10)(a) | 1 December 1995 - 31 December 1995 | Rubbing private parts on top of underwear | 7 | Not guilty |
| 4 | Indecent dealing with lineal relative under age of 16 | s 329(4); s 329(10)(a) | 1 December 1995 - 31 December 1995 | Rubbing penis on top of underwear, simulating intercourse | 7 | Not guilty |
| 5 | Indecent dealing with lineal relative under age of 16 | s 329(4); s 329(10)(a) | 29 September 1996 - 2 October 1996 | Simulating intercourse | 8 | Not guilty |
| 6 | Sexual penetration of lineal relative under age of 16 | s 329(2); s 329(9)(a) | 29 September 1996 - 2 October 1996 | Penetrating vagina with tongue | 8 | Guilty |
| 7 | Sexual penetration of lineal relative under age of 16 | s 329(2); s 329(9)(a) | 1 January 1998 - 31 December 1998 | Penetrating vagina with finger | 9 or 10 | Not guilty |
| 8 | Sexual penetration of lineal relative under age of 16 | s 329(2); s 329(9)(a) | 29 February 2000 - 1 April 2000 | Penetrating mouth with penis | 11 | Guilty |
| 9 | Sexual penetration of lineal relative under age of 16 | s 329(2); s 329(9)(a) | 31 March 2002 - 1 September 2002 | Penetrating vagina with penis | 13 or 14 | Not guilty |
| Count | Offence | Sections | Date (range) | Incident | Age | Verdict |
| 10 | Unlawful assault occasioning bodily harm | s 317 | 1 August 2003 - 31 October 2003 | Hitting her head with clenched fist causing bruise | 15 | Not guilty |
| 11 | Sexual penetration of lineal relative under age of 16 | s 329(2); s 329(9)(a) | 1 August 2003 - 31 October 2003 | Penetrating vagina with penis | 15 | Not guilty |
| 12 | Sexual penetration of lineal relative over age of 16 | s 329(2); s 329(9)(b) | 6 August 2004 - 9 August 2004 | Penetrating vagina with finger | 16 | Judge acquittal |
| 13 | Unlawful assault occasioning bodily harm | s 317 | 6 August 2004 - 9 August 2004 | Punching her in the chest causing bruise | 16 | Not guilty |
| 14 | Sexual penetration of lineal relative over age of 16 | s 329(2); s 329(9)(b) | 6 August 2004 - 9 August 2004 | Penetrating vagina with penis | 16 | Not guilty |
| 15 | Sexual penetration of lineal relative over age of 16 | s 329(2); s 329(9)(b) | 22 May 2005 | Penetrating vagina with finger | 16 | Not guilty |
| 16 | Sexual penetration of lineal relative over age of 16 | s 329(2); s 329(9)(b) | 22 May 2005 | Penetrating vagina with tongue | 16 | Not guilty |
| 17 | Sexual penetration of lineal relative over age of 16 | s 329(2); s 329(9)(b) | 22 May 2005 | Penetrating vagina with penis | 16 | Not guilty |
| 18 | Indecent dealing with lineal relative over age of 16 | s 329(4); s 329(10)(b) | 11 July 2005 - 31 December 2005 | Rubbing penis between legs | 17 | Judge acquittal |
| 19 | Sexual penetration of lineal relative over age of 16 | s 329(2); s 329(9)(b) | 2 September 2005 - 31 December 2005 | Penetrating vagina with finger | 17 | Guilty |
| 20 | Indecent dealing with lineal relative over age of 16 | s 329(4); s 329(10)(b) | 24 April 2006 | Simulating intercourse while both clothed | 17 | Judge acquittal |
| Count | Offence | Sections | Date (range) | Incident | Age | Verdict |
| 21 | Indecent dealing with lineal relative over age of 16 | s 329(4) | 24 April 2006 | Rubbing penis between legs, simulating intercourse | 17 | Not guilty |
| 22 | Unlawful assault occasioning bodily harm in family and domestic relationship | s 317(1) | 1 October 2006 | Punching her in the face causing bruise | 18 | Guilty |
| 23 | Sexual penetration without consent in family and domestic relationship | s 326 | 1 October 2006 | Penetrating vagina with penis | 18 | Guilty |
| 24 | Indecent assault in family and domestic relationship | s 324 | 23 December 2006 - 28 December 2006 | Touching vagina with fingers | 18 | Judge acquittal |
| 25 | Sexual penetration without consent in family and domestic relationship | s 326 | 31 January 2007 - 1 March 2007 | Penetrating vagina with finger | 18 | Not guilty |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DPJB -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 12 (S)
CORAM: McLURE P
OWEN JA
PULLIN JA
HEARD: ON THE PAPERS
DELIVERED : 22 JANUARY 2010
SUPPLEMENTARY
DECISION :3 FEBRUARY 2010
FILE NO/S: CACR 133 of 2008
BETWEEN: DPJB
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAVRIANOU DCJ
File No :IND 478 of 2008
Catchwords:
Criminal law - Sentencing - Multiple convictions - One count quashed on appeal - Reconsideration of sentence - Turns on own facts
Legislation:
Nil
Result:
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant: No appearance
Respondent: No appearance
Solicitors:
Appellant: Sharmini Chelvanayagam
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DPJB v The State of Western Australia [2010] WASCA 12
JUDGMENT OF THE COURT:
Background
The appellant was charged on indictment with 25 offences. After a trial by jury he was convicted on five of the counts and was sentenced to immediate imprisonment for 8 years and 6 months, with eligibility for parole. The appellant appealed against his convictions and in DPJB v The State of Western Australia [2010] WASCA 12 the members of the Court delivered reasons for dismissing the appeal, save for the guilty verdict on one of the counts (count 6), which was quashed.
Although there was no appeal against the sentence, the setting aside of the conviction on count 6 had the inevitable result that the sentence fell to be reconsidered. At the request of the Court both the Director of Public Prosecutions and the appellant gave written notice of their respective attitudes to the question raised by the appeal court's decision in so far as it affected the sentence. Both parties indicated that the sentence for count 6 should be quashed and the sentences imposed for the other four counts on which the guilty verdicts were returned should stand.
This Court has an obligation to reach its own conclusion on the proper disposition of the matter and is not bound by the fact that the parties are of a similar mind as to the appropriate sentence. However, having considered all of the circumstances of this case the Court is of the view that the approach indicated by the parties can be accepted.
The trial judge sentenced the appellant to terms of immediate imprisonment (after making allowances for the transitional provisions then in force) as follows:
(a)count 6: 2 years;
(b)count 8: 2 years;
(c)count 19: 6 months;
(d)count 22: 16 months;
(e)count 23: 4 years.
In accordance with the 'one transaction principle', the trial judge made the terms for counts 22 and 23 concurrent, but cumulative on the other terms. His starting point for count 19 was 2 years but to take account of the 'totality principle' he reduced it to 6 months. This is how the effective total sentence of 8 years and 6 months was arrived at.
If the sentence on count 6 is quashed and the terms on the other counts are left undisturbed, the effective total sentence is 6 years and 6 months. In our view it represents a disposition that is appropriate to the altered circumstances.
Conclusion
The sentence of 2 years immediate imprisonment for count 6 is quashed. The sentences of immediate imprisonment for 2 years for count 8, 6 months for count 19, 16 months for count 22 and 4 years for count 23 stand. The order that the terms for count 22 and 23 be concurrent but be served cumulatively on the other terms remains undisturbed. The commencement date of the terms (11 August 2008) and the order for parole eligibility also stand. This means that the total sentence is 6 years and 6 months. The appellant can be considered for release on parole after serving 4 years and 6 months.
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