Ekisa v The Queen

[2019] SASCFC 159

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

EKISA v THE QUEEN

[2019] SASCFC 159

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)

19 December 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

The appellant was convicted after a trial by jury of one count and acquitted of a second count of rape. He appeals against his conviction on the ground that the verdict is unreasonable because the verdicts are factually or logically inconsistent.

The appellant and complainant were friends who engaged on occasion in sexual relations. The complainant gave evidence that, on the night in question, after she asked the appellant to leave her bedroom, he lent on top of her and attempted to kiss her while holding her hands above her head. He then moved one hand, put it between her legs and inserted a finger into her vagina (count 1). He subsequently removed her tampon. She got a hand free and started punching him to the face as well as kicking him. His finger was again inserted into her vagina (count 2).

The appellant gave evidence that he touched the outside of the complainant’s vagina but did not insert a finger inside it and she struck him immediately with an open palm across the face. He stood up and asked what was going on.

The complainant’s evidence was corroborated to a degree by medical evidence concerning injuries that she sustained. In addition, the complainant’s housemate gave evidence of an immediate complaint of rape.

The appellant contends that there was no distinction between the probative force of the evidence as between counts 1 and 2, the probative force of the evidence with respect to count 2 was greater than in respect of count 1 and the only inference available is that the verdicts amount to a compromise verdict.

Held by the Court dismissing the appeal:

1. There was a factual difference between the circumstances of the two counts on the complainant’s evidence because at the time of the first count there were no other significant movements occurring; whereas at the time of the second count the complainant was moving around and punching and kicking the appellant. This may have given rise to a doubt by the jury whether the appellant had the requisite intent on the second occasion to insert his finger into her vagina (at [29]).

2. It is relevant to take into account the fact that both alleged offences occurred during a single incident and a short space of time and the jury may have considered that the circumstances justified only a single charge and conviction for rape (at [31]).

3. In all of the circumstances, the verdict of guilty on count 1 is not rendered unreasonable by reason of the verdict of not guilty on count 2 (at [32]).

Criminal Procedure Act 1921 (SA) s 158, referred to.
Jones v The Queen (1997) 191 CLR 439; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, considered.

EKISA v THE QUEEN
[2019] SASCFC 159

Court of Criminal Appeal:  Kourakis CJ, Kelly and Blue JJ

THE COURT:

1. The appellant, Joshua Ekisa, was convicted after a trial by jury of one count of rape and acquitted of a second count of rape. He appeals against his conviction on the ground that the verdict is unreasonable and cannot be supported having regard to the evidence. He contends that the verdicts are factually or logically inconsistent.

   Background

2. The incident the subject of the charges occurred in the early hours of 27 March 2017. The appellant and complainant had met in March 2016 and socialised by going to dance clubs and, on occasion, engaged in sexual relations. On 27 March 2017 the appellant turned 20 years old. The complainant was 25 years old.

3. On the evening of 26 March 2017, the appellant and complainant went to Zhivago nightclub, arriving some time around 11.00 pm. They were dancing and drinking at the nightclub. They then drove to the complainant’s house, arriving at approximately 4.00 or 4.30 am. They argued in the car on the way. They went into the complainant’s bedroom and the appellant took off his external garments and got into bed.

4. The complainant gave evidence that she told the appellant that she was tired and asked him to leave but he did not. She asked him to sleep on the couch but he did not. The appellant in his evidence denied this.

5. The complainant gave evidence that, when the appellant did not leave, she threatened to call the police. The appellant responded that he would give her a reason to call the police. He lent on top of her on the bed and attempted to kiss her while holding her hands above her head. The complainant’s housemate H knocked on the door and asked if she was okay and the complainant replied “yes”. She believed that things were still under control at that point.

6. The complainant gave evidence that the appellant moved one hand and put it between her legs. She told him that she was on her period and had a tampon in and told him to stop. He nevertheless inserted a finger into her vagina (count 1). He moved his hands to her side to remove her underwear, thereby releasing her hands. She used her hands to resist and her legs to kick him and told him to stop. He again used his hands to hold her hands above her head and then returned one hand to her vagina, removing the tampon and throwing it on the floor. She got a hand free and started punching him to the face as well as kicking and kneeing him. His finger was again inserted into her vagina (count 2). She called out for her housemate, H. H entered the room. She asked H to call the police. The appellant said to H that the complainant had kissed him and wanted it.

7. The appellant gave evidence that, after he undressed and got into bed, the complainant kissed him. He moved one hand and put it between her legs. She did not say anything about a tampon. He touched the outside of her vagina but did not insert a finger inside it. She struck him with an open palm across the face. He immediately stood up and asked what was going on. She started yelling out to H. H entered the room. The complainant said to the appellant “you tried to rape me”. The appellant told H that the complainant had kissed him and wanted it. The appellant denied that the complainant punched or kicked him and said that she only struck him once with an open palm.

8. H gave evidence that she was in a deep sleep when she was awoken by a noise. She knocked on the complainant’s door and asked her if she was all right. The complainant said yes but sounded quite hesitant. H returned to bed, fell into a REM sleep and was awoken by the sound of the complainant calling her name. She entered the room. The complainant was on the bed with her head down and her bust exposed. She appeared to be distressed and traumatised. The appellant had a swollen lip with blood on it. The complainant told H that the appellant raped her and asked her to call the police. The appellant said that that was not what happened. The battery in H’s phone was flat. She left the room to put her phone on charge. When she returned, the complainant told her that the appellant ripped out her tampon and raped her. She went outside and spoke to the appellant. When she returned, she noticed a tampon on the floor. It was an agreed fact that H called the police at 5.18 am.

9. Senior Constable Handberg gave evidence that he attended at the complainant’s house at approximately 5.30 am and arrested the appellant. Detective Brevet Sergeant Kilsby gave evidence that he attended at the police station after 6.00 am and witnessed the taking of photographs of the appellant. He observed injuries to the appellant’s mouth and right cheek.

10. Dr Young gave evidence that she carried out a forensic medical examination of the complainant at approximately 10.45 am. Dr Young observed a red mark on the knuckle of the complainant’s right hand consistent with her having punched an object, an oval-shaped mark on her right wrist, a red mark near the knuckle on her left hand, a bruise on the back of her left hand and a red mark on her left forearm. Dr Young observed bruises around the complainant’s right knee consistent with having kneed an object, a bruise on her lower leg above the ankle and red marks on her left thigh.

11. Dr Young gave evidence that she observed a centimetre-long bruise of the labia minora extending to the vaginal vestibule containing a small abrasion. Dr Young expressed the opinion that the bruise could have been caused by a finger or by the forcible removal of a tampon but that it was unlikely to have been caused by a woman removing her own tampon.

12. The trial took place in November 2018. There is no suggestion that the Judge’s directions to the jury were inadequate. The Judge directed the jury that each count charged a separate offence and they must be considered separately. The Judge directed the jury that it was for the prosecution to prove each and every element of each charge beyond a reasonable doubt and in the circumstances of the case the prosecution needed to satisfy the jury as to both the credibility and reliability of the complainant beyond a reasonable doubt in order to convict. The Judge directed the jury that, if the jury was satisfied beyond reasonable doubt that the accused committed one count, it must not reason that he was therefore the sort of person who would have committed or was likely to have committed the other count.

13. The Judge directed the jury that it must address the matter by looking at each count on its merits in determining whether the prosecution had proved the case beyond a reasonable doubt. If the jury found the accused not guilty of one count because it was not satisfied about the complainant’s credibility or reliability on that count, it could use that lack of satisfaction when it came to assess the other count because the prosecution case depended entirely upon the jury’s acceptance beyond reasonable doubt of the credibility and reliability of the complainant. If the jury had a doubt about those matters on one count, the Judge directed that that may be carried over to the other count.

14. The Judge directed the jury that there are three elements of the offence of rape when the sexual intercourse alleged is digital:

    1The accused intentionally and voluntarily inserted his finger into the complainant’s vagina or labia majora.

    2The complainant did not consent to the alleged act of sexual intercourse.

    3The accused knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting.

15. The Judge explained that the first element involved a physical act of the accused inserting his finger into the complainant’s vagina or labia majora and a mental element that the accused did this intentionally and voluntarily, that is to say deliberately.

16. During the Judge’s summing up, the jury asked for a copy of the transcript. The Judge told the jury that it was not the practice of the Court to provide transcript to the jury as a matter of course but, after retiring to consider its verdict, the jury could request certain parts of the transcript and everyone would do their best to ensure that that part of the transcript was given to the jury. After retiring, the jury asked for the transcript of the evidence of the complainant and the accused in respect of what occurred in the bedroom and it was provided to them.

17. The jury returned a majority verdict of guilty on count 1 and a majority verdict of not guilty on count 2.

    Contentions on appeal

18. The appellant contends that the reasoning behind the verdicts is an affront to logic and common sense. There is no distinction or delineation between the probative force of the evidence as between counts 1 and 2 to support any proper reasoning resulting in a finding of guilt beyond reasonable doubt on count 1 and not guilty on count 2. On the contrary, the probative force of the evidence with respect to count 2 was greater than in respect of count 1. The only inference available is that the verdicts amount to a compromise verdict of guilty on count 1 and not guilty on count 2.

19. The Director contends that there was a significant difference between the circumstances surrounding count 1 and count 2 on the complainant’s evidence because the digital penetration the subject of count 2 occurred while the complainant was moving around and kicking and kneeing the appellant; whereas there were no similar events occurring when the digital penetration the subject of count 1 occurred. The Director contends that in any event, given that the two acts of penetration occurred close together in time and during a single incident, the jury may have ameliorated strict justice in the manner articulated by King CJ in R v Kirkman.[1]

    [1] (1987) 44 SASR 591 at 593.

    Inconsistent verdicts

20. Subsections 158(1) and (2) of the Criminal Procedure Act 1921[2] provide:

    [2] These subsections reproduce former subsection 353(1) of the Criminal Law Consolidation Act 1935 except that they divide a single subsection into two subsections and the first subsection into three paragraphs.

    158—Determination of appeals in ordinary cases

    (1)     The Full Court, on any such appeal against conviction, will only allow the appeal if it thinks that—

    (a)     the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

    (b)     the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

    (c)     on any ground there was a miscarriage of justice.

    (2)   The Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

21. If a jury returns a verdict of guilty on one count and not guilty on another count, in certain circumstances the verdicts may be regarded as inconsistent and may be regarded as giving rise to a conclusion that the verdict of guilty is unreasonable within the meaning of section 158(1)(a). In this respect, a distinction is drawn between legal or technical inconsistency on the one hand and factual or logical inconsistency on the other.[3] No question of legal or technical inconsistency arises on this appeal.

    [3]    For the differences between legal or technical inconsistency and factual or logical inconsistency, see MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351) and MFA v The Queen [2002] HCA 53, (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ and [84]-[86] per McHugh, Gummow and Kirby JJ.

22. In MacKenzie v The Queen,[4] MacKenzie was a solicitor who gave evidence at the trial of his client for cannabis cultivation which corroborated his client’s evidence that he had not previously handled a lease document before it was given to the police during an interview at which MacKenzie and the client were present. MacKenzie was charged with two counts of committing perjury (section 327(1) of the Crimes Act 1900 (NSW)) and in the alternative with two counts of the aggravated offence of committing perjury intending to procure an acquittal (section 328). The jury found MacKenzie guilty of the perjury counts and not guilty of the aggravated perjury counts. One of the principal grounds of his appeal to the High Court was that the verdicts were inconsistent as to render the convictions for perjury unreasonable. It was not immediately obvious what reason MacKenzie could have had for giving knowingly false evidence other than to enhance his client’s prospects of acquittal. This ground of appeal was dismissed.

    [4] (1996) 190 CLR 348.

23. Gaudron, Gummow and Kirby JJ (with whom Dawson and Toohey JJ relevantly agreed) observed:

    The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant or illogical) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory. In civil trials, the problem of inconsistency or incompatibility has often arisen where special verdicts are taken on questions, resulting in the argument that the respective answers cannot logically stand together.

    Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law.

    On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly. 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. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.[5]

    [5]    At 365.

24. Their Honours then summarised the principles in relation to inconsistent verdicts in the following terms:

    From a review of the cases, a number of general propositions can be stated:

    1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

    2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of "differences in the evidence presented at the two trials" or "the different views which the juries separately take of the witnesses".

    3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

    "He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

    4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction 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. Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

    "[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

    We agree with these practical and sensible remarks.

    5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. 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. It is impossible to state hard and fast rules. "It all depends upon the facts of the case".

    6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.[6]

    [6]    At 366-368. (Footnotes omitted)

1. In Jones v The Queen,[7] Jones was charged with three counts of unlawful sexual intercourse allegedly committed several months apart when the complainant was 11 or 12 years old. No complaint was made by the complainant until four years after the first alleged offence. There was no corroborative evidence (including medical evidence) in respect of any of the alleged offences. The appellant gave evidence and called witnesses who supported his evidence that he had no opportunity to commit the offences the subject of the first and second counts. There were inconsistencies between the complainant’s evidence and her account to police. The jury found the appellant guilty of counts 1 and 3 and not guilty of count 2. The High Court concluded that the guilty verdicts were unreasonable and directed that verdicts of acquittal be entered. Gaudron, McHugh and Gummow JJ relied on all of the circumstances including the not guilty verdict on count 2. In conclusion, they said:

   In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. 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.[8]

   [7] (1997) 191 CLR 439.

   [8]    At 455.

2. In MFA v The Queen,[9] MFA was charged with three counts of sexual offences in relation to one incident, three counts in relation to a second incident, two counts in relation to a third incident (counts 7 and 8) and one count in relation to a fourth incident. The jury found him guilty of counts 7 and 8 in relation to third incident and not guilty of the counts in relation to the other incidents. His appeal was dismissed. The principal ground of his appeal to the High Court was that the verdicts were so inconsistent as to render the convictions unreasonable. Gleeson CJ, Hayne and Callanan JJ said:

   Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case.  Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only.  And there may be an interaction between this consideration and the two matters earlier discussed.

   It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous.  It overlooks the attention to factual detail in the reasoning of Jones.  It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.[10]

   McHugh, Gummow and Kirby JJ said:

   The principles in MacKenzie apply to the present case.  This is not an instance of "legal or technical inconsistency", whereby the jury have returned two or more verdicts which, in law, cannot stand together. Nor is it a case where "logic and reasonableness" necessarily dictated a common approach to the several verdicts concerned. In judging suggested inconsistency, this Court said in MacKenzie that "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". The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act "in accordance with strictly logical considerations" or even "in accordance with the strict principles of the law which are explained to them". Juries sometimes give effect to "their innate sense of fairness and justice" as well as to their sense of proportion and compassion. 

   Nevertheless, cases do arise where different verdicts returned by a jury represent "an affront to logic and commonsense" and suggest a compromise in the performance of the jury's duty. Such a conclusion "depends upon the facts of the case". There can be no "hard and fast rules" except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission.[11]

   [9] (2002) 213 CLR 606.

   [10] At [34]-[35]. (Footnotes omitted)

   [11] At [85]-[86]. (Footnotes omitted)

3. In both MacKenzie and MFA, the High Court approved of remarks by King CJ in R v Kirkman.[12] In that case, this Court dismissed an appeal by Kirkman against convictions for attempted rape and indecent assault when the jury had found him not guilty of a second count of attempted rape that arose during the same incident. The first count of attempted rape involved an allegation of attempted penile intercourse; whereas the second count involved an allegation of attempted oral rape. King CJ (with whom Olsson and O'Loughlin JJ agreed) concluded that the jury may not have been satisfied beyond reasonable doubt that Kirkman intended to insert his penis into complainant’s mouth on the second occasion. King CJ went on to make the following remarks:

   I mentioned earlier … that there was a qualification to the proposition that if there were no other issue in this case but consent, the verdicts would necessarily be inconsistent with one another. The qualification I have in mind is that juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information.[13]

   [12] (1987) 44 SASR 591.

   [13] At 593.

   Analysis

4. The complainant gave evidence that on both occasions the subject of counts 1 and 2 her vagina was penetrated by the appellant’s finger. Dealing with the physical ingredient of the first element of the offence defined by the trial Judge, there was no rational basis for the jury to distinguish between the first and second occasions. The issue for the jury in each case turned on the question whether the jury was satisfied beyond reasonable doubt that the complainant was telling the truth about penetration and the appellant was not in denying it. No issue of reliability, as opposed credibility, arose in relation to this ingredient. Similarly, in relation to the second and third elements of the offences, namely lack of consent by the complainant and the appellant’s knowledge of lack of consent, there was no rational basis for the jury to distinguish between the first and second occasions.

5. The position is different in relation to the mental ingredient of the first element, namely that the appellant deliberately inserted his finger into the complainant’s vagina. The prosecution case in respect of this ingredient, unlike the physical ingredient, was a matter of inference because the complainant could not give direct evidence as to the appellant’s state of mind. On the complainant’s evidence, on the first occasion the complainant told the appellant that she was on her period and her tampon was in and this was immediately followed by the insertion of the appellant’s finger in her vagina. At the time, the complainant was not moving and the only movement by the appellant was of his finger. By contrast, on the complainant’s evidence, by the time of the second occasion events had become chaotic. Both the complainant and appellant were moving and the complainant was punching the appellant as well as kicking and kneeing him. In the circumstances, it is possible that the jury was not satisfied beyond reasonable doubt that the appellant intended to insert his finger into the complainant’s vagina on the second occasion. If the jury was not so satisfied, its verdicts are entirely consistent with accepting the complainant as an honest and reliable witness because the mental ingredient of the first element was a matter of inference for the jury.

6. In considering whether the guilty verdict on count 1 is unreasonable by reason of the not guilty verdict on count 2, it is necessary, as the High Court has emphasised, to consider all of the circumstances of the case. The prosecution case on count 1 considered in isolation (ignoring count 2 for the time being) was relatively strong. The complainant’s evidence was corroborated by the medical evidence of Dr Young of the various injuries observed to the complainant’s hands, arm and legs and the bruise of her labia minora, which were apparently inconsistent with the appellant’s version of events. The complainant’s evidence of punching the appellant to the face was corroborated by the evidence of Detective Brevet Sergeant Kilsby of injuries to the appellant’s face, which were apparently inconsistent with the appellant’s version of events (which was confined to a single slap by an open palm). The complainant’s evidence is corroborated by the evidence of H, who observed the complainant apparently distressed and traumatised and by her observation of the tampon on the floor. The complainant made an immediate complaint of rape to H. In these respects, the case stands in stark contrast to the circumstances in Jones.

7. It is also necessary to consider the case from the perspective of the jury. On the complainant’s evidence, the occasions of digital penetration occurred very close together in time and were part of a single incident. Each involved only a single and transitory movement. The appellant’s conduct was not accompanied by any violence or threats. The appellant was only 20 years old and the complainant was 25 years old. The jury may well have considered, rightly or wrongly, that the circumstances justified only a single charge and conviction for rape. This is a case in which it is quite likely that the jury took the approach articulated in Kirkman, MacKenzie and MFA in giving effect to its “innate sense of fairness and justice”, exercising an “ameliorative role” and giving effect to its “sense of proportion and compassion”.

8. Weighing all the circumstances of the case, the guilty verdict on count 1 is not unreasonable by reason of the not guilty verdict on count 2.

   Conclusion

9. We dismiss the appeal.