JCC v The State of Western Australia
[2017] WASCA 146
•3 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JCC -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 146
CORAM: MARTIN CJ
MAZZA JA
MITCHELL JA
HEARD: 7 MARCH 2017
DELIVERED : 3 AUGUST 2017
FILE NO/S: CACR 124 of 2016
BETWEEN: JCC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND BUN 83 of 2015
Catchwords:
Criminal law - Appeal against conviction - Whether convictions unreasonable or unsupported by the evidence - Inconsistency of verdicts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr R G Wilson
Solicitors:
Appellant: Gary Rodgers Barrister & Solicitor
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DPJB v The State of Western Australia [2010] WASCA 12
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
MARTIN CJ:
Summary
The appellant was tried by a judge and jury in the District Court of Western Australia on an indictment which alleged seven counts of sexual penetration of a child under the age of 13. The offences were all alleged to have been committed against the same complainant, who is the appellant's niece, on various dates between March 2012 and March 2015.
The appellant was convicted on two counts and acquitted on the remaining five counts. He seeks leave to appeal against the convictions on the sole ground that they are inconsistent with his acquittal on the five other counts alleging similar offences against the same complainant. For the reasons which follow, leave to appeal should be refused and the appeal dismissed.
The prosecution case
The complainant is a girl who was between 9 and 12 years of age at the time of the alleged offences. She lived with her parents on a rural property. The appellant, who is the complainant's uncle, lived with his parents, the complainant's grandparents, on another rural property nearby. From time to time the complainant's parents would both have to work at night. On those occasions the complainant would sleep in a spare bedroom at her grandparents' home.
Count 1
The State alleged that count 1 was committed on an unknown date between 31 March and 1 October 2012, on an evening upon which the complainant's grandparents were hosting a darts competition in a large shed towards the front of their property. The State alleged that the complainant went into the appellant's bedroom for a mint. The State alleged that while she was in the bedroom the appellant pulled the complainant onto the bed, put his hand inside her pants and inserted his finger into her vagina.[1]
Count 2
[1] Trial ts 107.
The State alleged that count 2 was committed on an unknown date between 31 December 2012 and 1 January 2015. The complainant had difficulty identifying when the incident took place, but she knew that it was some time after the incident the subject of count 1 and before the incidents the subject of counts 5 and 6, which were said to have taken place on or about 10 March 2015.
The State alleges that the offence was committed on one of those occasions upon which the complainant was spending the night at her grandparents' house. The State alleged that the appellant entered the bedroom in which the complainant was on the bed reading her iPad, pinned her wrists behind her head, pulled her pants down and penetrated her vagina with a black dildo.[2]
Counts 3 and 4
[2] Trial ts 107 - 108.
Counts 3 and 4 were alleged to have been committed on the same unknown date between 30 September and 19 December 2014. The State alleged that both offences were committed on another evening upon which the complainant was spending the night at her grandparents' house.
The State alleged that each offence was committed in the bedroom occupied by the complainant, who awoke from her sleep to find the appellant sitting on the side of her bed, with his head under the doona, licking her vagina. That allegation was not the subject of any count on the indictment. The State alleged that the appellant then penetrated the complainant's vagina with the handle of a brown hairbrush (count 3) which had a smaller diameter than a black hairbrush with which the appellant then penetrated the complainant's vagina (count 4). The black hairbrush had a vibrating handle and the State alleged that it was vibrating at the time the appellant inserted it into the vagina of the complainant.[3]
Counts 5 and 6
[3] Trial ts 108 - 109.
Counts 5 and 6 were each alleged to have been committed on or about 10 March 2015, in the swimming pool at the house of the complainant's grandparents. The State alleged that while the complainant was in the swimming pool, the appellant grabbed her around the waist, pulled down his board shorts, moved her bathers to one side and first penetrated her vagina with his finger (count 5) and then with his penis (count 6).[4]
Count 7
[4] Trial ts 109 ‑ 110.
Count 7 was said to have been committed on or about the same date as counts 5 and 6. The State alleged that the complainant went into the appellant's bedroom in order to get a mint. While she was there, the appellant allegedly took a silver vibrator from a box on top of a cupboard or cabinet in his bedroom, partially undressed the complainant, and penetrated her vagina with the silver vibrator.[5]
[5] Trial ts 110 - 111.
The evidence
Consistently with what has become the usual procedure in such cases, the evidence of the complainant was pre‑recorded in two tranches. The first tranche comprised a large part of the complainant's evidence-in-chief and was given in answer to questions posed by a trained child interviewer.[6] The second tranche comprised the balance of the complainant's evidence-in-chief, which was led by a prosecutor, and the cross‑examination of the complainant by defence counsel.[7]
[6] Trial ts 120, B/GAB 41 ‑ 83.
[7] Trial ts 36 ‑ 78.
There were a number of inconsistencies in the evidence given by the complainant, to which the defence drew attention at trial. Those inconsistencies related to such things as the dates upon which the alleged offences occurred, and as to the time of day at which the offences the subject of counts 3 and 4 allegedly occurred.[8] Further, the events the subject of count 1 were not referred to by the complainant in her first recorded interview, but were referred to in the second recording of her evidence.[9] In the complainant's interview by the child witness interviewer, she stated that the appellant penetrated her vagina with three hairbrushes - one brown, one black and one blue - during the incident the subject of counts 3 and 4, whereas in her subsequent recorded evidence, she referred only to the brown and black hairbrushes.[10]
[8] Trial ts 320.
[9] Trial ts 319.
[10] Trial ts 320.
In her recorded interview with the child witness interviewer, the complainant referred to both digital and penile penetration during the incident in the swimming pool, whereas in her pre‑recorded evidence, she referred only to digital penetration.[11] There were also inconsistencies in the evidence given by the complainant as to the date upon which, and the circumstances in which, the events the subject of count 7 took place.[12]
[11] Trial ts 321.
[12] Trial ts 321.
The State adduced evidence from a friend of the complainant to the effect that the complainant told her that her uncle had tried to touch her.[13] The State also led evidence from the complainant's father to the effect that the complainant told him that his brother had touched her in the groin area and that he had a bullet shaped object and a black penis in his room that he had used on her.[14] The State also led evidence of the testing of swabs taken from the handles of each of the hairbrushes and from the tips and shafts of the dildo and the silver vibrator.[15] The testing revealed DNA in the swabs taken from each of the items tested which was said to have a very high probability of being the complainant's DNA.[16]
[13] Trial ts 31.
[14] Trial ts 130 - 131.
[15] Trial ts 155 ‑ 157.
[16] It was said to be more than 100 billion times more likely that the DNA came from the complainant than from any other contributor.
The hairbrushes had been purchased by the appellant as a gift for the complainant,[17] and were at her home when the complainant was interviewed by the child witness interviewer.[18] They were taken by police from the complainant's home for the purposes of the testing to which I have referred.[19] On the other hand, the appellant stated to police, and in his evidence given in his defence, that as far as he was aware, the complainant had never seen or touched either the dildo or the vibrator which were kept in his room.[20] The complainant stated in evidence that she had never been into the appellant's room when he was not there.[21]
[17] Trial ts 238, B/GAB 27 - 28, 33 - 34.
[18] B/GAB 66 ‑ 67, 107.
[19] Trial ts 45, 165 - 166.
[20] Trial ts 234.
[21] Trial ts 49.
The appellant gave evidence in which he emphatically and consistently denied all allegations of sexual penetration and indeed any form of improper dealing with the complainant.
The directions to the jury
The appellant makes no complaint with respect to the directions given to the jury by the trial judge. In those directions the trial judge drew the jury's attention to the various inconsistencies in the complainant's evidence upon which the defence relied.
The verdict
The jury convicted the appellant on counts 2 and 7, being the counts relating to the use of the black dildo and the silver vibrator, respectively. The appellant was acquitted on all other counts.
The ground of appeal
The only ground of appeal asserts that the verdicts of guilty in relation to counts 2 and 7 were inconsistent with the acquittal on all other counts.
Inconsistent verdicts - the legal principles
The legal principles applicable to an appeal brought on the ground that a verdict is unsafe or unsatisfactory because it is inconsistent with another verdict given by a jury are now well established. Following a discussion of Jones v The Queen,[22] a case in which the High Court quashed the appellant's convictions on the basis of their inconsistency with his acquittal on a third count of the same offence, the applicable principles were conveniently summarised by Owen JA in DPJB v The State of Western Australia:[23]
[22] Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439.
[23] DPJB v The State of Western Australia [2010] WASCA 12 [73] - [82].
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.
It is appropriate to now apply these principles to the circumstances of the present case, as summarised above.
Disposition
In this case there is a clear and obvious factor which differentiates the counts of which the appellant was convicted, and the counts of which he was acquitted. That factor was the scientific evidence which enabled, indeed compelled, the jury to conclude that DNA from the complainant was found on each of the black dildo and the silver vibrator. The appellant did not give evidence of any occasion upon which the complainant might have made physical contact with either item and denied to police that she had ever seen them in his presence.[24] The evidence as to the location of these items within the appellant's bedroom made it highly unlikely that the complainant would ever have had innocent contact with either item, and she denied that she had ever been into the appellant's room when he was not there.[25] Couched in legal terms, on the evidence, there was no reasonable hypothesis consistent with the innocence of the appellant which was capable of explaining the presence of the complainant's DNA on each of the black dildo and the silver vibrator. In those circumstances, the jury was entitled to regard the scientific evidence relating to the presence of the DNA on those items as strongly corroborative of the evidence given by the complainant with respect to counts 2 and 7.
[24] B/GAB 27 - 28, 33 - 34.
[25] Trial ts 49.
In the course of oral argument, counsel for the appellant did not dispute the availability of this line of reasoning to the jury. However, he submitted that the acquittal of the appellant on counts 3 and 4, being the counts relating to sexual penetration using the hairbrushes, was inconsistent with the appellant's conviction on counts 2 and 7, because the scientific evidence also indicated the presence of the complainant's DNA on each of the hairbrushes.[26] Counsel was nevertheless obliged to concede that there is an obvious distinction between the significance of the evidence establishing the presence of the complainant's DNA on the hairbrushes and the significance of the evidence establishing the presence of the complainant's DNA on the black dildo and the silver vibrator.[27] That obvious and significant difference lies in the evidence which establishes that the complainant was in possession of the hairbrushes from which it could be inferred that she used them from time to time for their intended purpose, and had them in her possession at the time they were taken by police for testing. In light of that evidence it was open to the jury to conclude that there was a reasonable hypothesis consistent with the innocence of the appellant which explained the presence of the complainant's DNA on the hairbrushes, and which deprived that evidence of the corroborative weight properly attributed to the evidence relating to the presence of the complainant's DNA on each of the black dildo and the silver vibrator.
[26] Appeal ts 3.
[27] Appeal ts 3.
For these reasons, this is one of those cases in which the jury might have considered, quite reasonably and consistently with the directions of law given to them by the trial judge, that, having regard to the
inconsistencies in the evidence given by the complainant, they were not satisfied beyond reasonable doubt of the truth of that evidence unless and to the extent that it was corroborated by other objective evidence. Such corroborative evidence was adduced in respect of counts 2 and 7, in the form of the scientific testing of the swabs taken from the dildo and the vibrator. There is no reasonable hypothesis explaining the presence of the complainant's DNA on those items which is consistent with the innocence of the appellant. On the other hand, the evidence with respect to the presence of the complainant's DNA on the hairbrushes was not of the same character or significance, given the ready availability of an explanation for the presence of the complainant's DNA on those items which is consistent with the innocence of the appellant. Further, as counts 2 and 7 were each said to have occurred on occasions separate to the occasions upon which the other counts were allegedly committed, in the circumstances of this case the acquittal of the appellant on those other counts casts no doubt upon his conviction on counts 2 and 7.
For these reasons, the sole ground of appeal has no reasonable prospect of success. The application for leave to appeal, and the appeal, should be dismissed.
MAZZA JA: I agree with the Chief Justice.
MITCHELL JA: I agree with the Chief Justice.
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