Griffin v the Queen
[2010] VSCA 214
•19 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0820
| DANIEL GRIFFIN |
| v |
| THE QUEEN |
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JUDGES: | REDLICH, MANDIE and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 August 2010 | |
DATE OF JUDGMENT: | 19 August 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 214 | |
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CRIMINAL LAW – Appeal – Conviction – Allegedly inconsistent verdicts – Sexual penetration of child under 16 – Whether acquittals on other counts inconsistent with conviction – No inconsistency demonstrated – R v Kirkman (1987) 44 SASR 591 referred to.
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| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr C B Boyce | Victoria Legal Aid |
For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I will ask Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
Daniel Griffin was tried in the County Court on a six count presentment arising out of the allegations that, in the early hours of 1 October 2006, in a Victorian county town, he falsely imprisoned, indecently assaulted and raped a 14 year old girl, LMW. The evidence of the complainant at trial was that on 30 September 2006, AFL grand final day, she had gone to the home of a school friend, YMO, to stay overnight. At some time during that evening the two girls met up with some other young people including Griffin. In the early hours of 1 October, the two girls, together with Griffin and others, were at YMO's home when LMW and YMO began preparing for bed. At about this time Griffin made some sort of amorous advance towards YMO who rebuffed him. She was upset. Griffin then asked LMW to come outside with him to talk about YMO and her rebuff of him. This she did.
They talked at the front of YMO's house following which Griffin started to move LMW towards the garage. She was not happy, but Griffin persisted, taking her into the garage and locking the door (count 1 - false imprisonment).
Inside the garage, whilst holding LMW, Griffin kissed her on the neck while he was standing behind her (count 2 - indecent act). She yelled at him, 'Danny, no, I don't want to do this. Let me go.' She was upset and angry.
Griffin then began touching LMW on the breasts underneath her clothing (count 3 - indecent act). She again protested but he persisted. At about this time LMW saw a shadow under the door suggesting that someone was outside the garage.
Griffin took LMW further into the garage where he removed her tracksuit pants, removed his own pants, and began touching her in the vaginal area (count 4 - indecent act). Very soon after this he inserted his penis into her vagina while standing behind her (count 5 - rape).
The sixth count on the presentment was a count of sexual penetration of a person under 16, and alternative to count 5, the rape.
LMW said that as this, 'was my first time it did hurt a lot.' She yelled, 'stop' and 'get it out.' After a few seconds he complied. She told Griffin to open the door and that he should go. LMW returned to the house and later told YMO what had happened. At this time she was in pain and bleeding vaginally. Eventually LMW's parents were told and the police notified and an investigation began which culminated in the County Court trial. LMW made her police statement on 21 October 2006 and Griffin took part in a record of interview on 26 October 2006.
YMO gave evidence corroborating LMW's complaint of rape to her and that she went to the garage while LMW and Griffin were, unbeknown to her, inside. She was almost certainly the cause of the shadow under the garage door described by LMW.
The only other evidence to which it is necessary to refer for present purposes is that of a forensic physician, Dr Maurice O’Dell, who examined LMW on 20 October 2006. He took a history from her of her vagina having been penetrated from behind with a penis. On examination Dr O’Dell found a healed cleft or tear in the base of the hymen at the six o'clock position where the hymen is attached to the vaginal wall. He considered the most likely explanation for this tear or cleft in the hymen was blunt trauma, such as from a finger or a penis. Injury in this area heals quickly because of its copious blood supply. It was healed when he examined LMW.
In his record of interview Griffin 'disagreed' with all of LMW's claims of criminal behaviour and of being with her in the garage, although he did not deny that he put his arm around her at a time when others were present earlier in the evening. Most of the record of interview dealt with questions related to YMO and LMW's ages which are no longer relevant.
The jury acquitted Griffin of all counts except count 6, the alternative count to rape. He was subsequently sentenced to six months' imprisonment wholly suspended for 12 months and made subject to orders under the Sex Offenders Registration Act2004.
Griffin appealed to this Court against his conviction by a notice which originally contained three grounds. However in this Court his counsel specifically abandoned Grounds 2 and 3, leaving only a ground which asserted inconsistency in the jury verdict. In support of this ground, counsel argued that, by acquitting on counts 1 to 5, the jury must have rejected the complainant's evidence of the events in the garage, and how could it then have been satisfied that there was sexual penetration so as to convict on count 6?
Mr Boyce, in a well structured argument, submitted that the events concerned in the earlier counts, particularly counts 2, 3 and 4, were so proximate in time to those concerned in count 6, that the rejection of counts 1 to 5 necessarily compelled a rejection of count 6. If the jury did not accept the complainant's evidence on those counts, it could not legally do so in respect of count 6, so his argument went.
This argument cannot be accepted. The evidence of the complainant was very specific as to the actions of Griffin. It described each act he performed which constituted a count in specific terms. None of that evidence was in any way corroborated, except that of the insertion of Griffin's penis into LMW's vagina. The jury would have been entitled to see O’Dell's evidence as corroborating, at least to some extent, LMW's account of penetration. It did not corroborate lack of consent, of course, nor did it corroborate the happening of the other events giving rise to counts 1 to 4. Those events were not even part of the history O’Dell took from LMW.
The jury could quite logically have had a reasonable doubt about lack of consent in respect of all counts for which lack of consent was relevant, and similar doubts about the detail of counts 1 to 4, whilst being satisfied to the requisite standard for count 6 because O’Dell's evidence was, at least, consistent with sexual penetration having occurred and LMW was under 16 at the time.
In part support of his argument, Mr Boyce referred to something the trial judge said in his sentencing remarks. In the course of sentencing Griffin his Honour said that he had difficulty understanding the verdict. He went as far as to say that Griffin would be likely to be successful on appeal. These remarks were, in the circumstances, unfortunate. Not only do they not assist the applicant’s argument, they disparage a verdict returned by the body constitutionally entrusted with the task of determining what evidence should be accepted and what evidence doubted or rejected. That the verdict surprised the trial judge is not to the point. What is relevant is that these verdicts, be they guilty or not guilty, were lawfully open to the jury to return. If a trial judge has a legitimate concern on a matter of law as to the jury's verdict the place to voice that concern is in a report to this Court.
The law on inconsistent verdicts was not in issue in this case. Reference was made during argument to McKenzie v The Queen[1] and R v Kirkman.[2] In Kirkman, which was an ex tempore judgment of the South Australian Court of Criminal Appeal, King CJ said:[3]
[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.
[1](1996) 190 CLR 348.
[2](1987) 44 SASR 591 (‘Kirkman’).
[3]Ibid 593.
But one does not need in this case to go as far as King CJ did in Kirkman to justify not interfering with this jury's verdict. Here the conviction on count 6 is adequately explained by the stronger evidence available on that count than on the others. The verdict being thus supported as it was, it cannot be said to have been unsafe and unsatisfactory. It should not be set aside. I would dismiss this appeal.
REDLICH JA:
I agree. I would make only this additional observation. In assessing the credibility of the complainant, the jury were also entitled, as the trial judge directed, to take into account the complaint made by the complainant to her friend YMO that she had been raped by the accused man.
MANDIE JA:
I agree with Bongiorno JA.
REDLICH JA:
The order of the Court is that the application for leave to appeal against conviction is dismissed.
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