Nguyen v R

[2017] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Nguyen v R [2017] NSWCCA 145
Hearing dates:	5 May 2017
Decision date:	23 June 2017
Before:	Macfarlan JA at [1]; Adamson J at [51]; Campbell J at [55]
Decision:	Application for leave to appeal dismissed.
Catchwords:	CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) Crimes Act 1900 (NSW) but convicted of the statutory alternative of attempt to commit that offence contrary to s 61P – some evidence of complainant referred to an attempt only while other parts of her evidence referred to penetration – whether verdicts inconsistent – whether verdicts the result of an impermissible compromise – verdicts able to be reconciled on a logical and reasonable basis
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J, 61P Criminal Appeal Act 1912 (NSW), s 6
Cases Cited:	Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 Holloway v R [2017] NSWCCA 17 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 MG v R [2017] NSWCCA 14 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Stinson v R [2006] NSWCCA 191
Category:	Principal judgment
Parties:	Van Chien Nguyen (Applicant) Regina (Respondent)
Representation:	Counsel: L Fernandez (Applicant) N J Adams (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/390102
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 February 2016 Before: Yehia DCJ File Number(s): 2013/390102

Judgment

1. MACFARLAN JA: In 2015 the applicant, Mr Van Chien Nguyen, was tried in the District Court before a judge and jury on an indictment alleging that he had committed a number of offences on 29 December 2013 in relation to his then partner.

2. At the commencement of the trial, the Indictment contained the following counts:

1. Intentionally damaging property, namely a mobile phone the property of the complainant.

2. Attempting to have sexual intercourse with the complainant without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence the applicant recklessly inflicted actual bodily harm on the complainant.

3. In the alternative to (2), assaulting the complainant and at the time of the assault committing an act of indecency on her.

4. Assaulting the complainant.

5. Assaulting the complainant thereby occasioning actual bodily harm.

3. The complainant’s evidence at trial was to the effect that the applicant became angry when he returned home on 29 December 2013 to find the complainant speaking on her mobile phone. The applicant took the phone from the complainant and threw it on the ground, damaging it (Count 1). The applicant then grabbed the complainant and pushed her onto the bed. He straddled her with his body and held her down by her arms. She yelled “No” and told the applicant to get off her. The applicant exposed his penis and pulled down the complainant’s underwear. Whether his penis penetrated her vagina was the subject of the evidence referred to below in relation to Count 2. The applicant also struck the complainant a number of times with a torch (Count 4) and with a hammer (Count 5).

4. In light of the complainant’s evidence at the trial, the Crown sought, and was granted, leave to amend Count 2 in the Indictment to remove the words alleging an attempt. The charge thus became one of the commission of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW), rather than an attempt offence under s 61P. The Crown submitted, without contradiction from the applicant’s trial counsel, that if the jury was not satisfied that the applicant had committed the primary offence (aggravated sexual intercourse without consent), it was nevertheless open to it to convict the applicant of attempting to commit that offence. The trial judge subsequently summed up to the jury on that basis, and the jury adopted this approach by returning a verdict of guilty of an attempt to commit the Count 2 offence, rather than guilty of the substantive offence itself. The jury also found the applicant guilty of the offences alleged in Counts 1, 4 and 5. Count 3 did not arise as it was a further alternative to Count 2.

5. The applicant seeks leave to appeal against his conviction on the attempt charge (that is, on the statutory alternative to the amended Count 2) on the grounds that:

“(1)   The verdict was unreasonable, or cannot be supported, having regard to the evidence; and

(2)   The jury’s verdict was the result of a compromise.”

6. In summary, the applicant’s argument in support of his application for leave to appeal is as follows:

1. In her evidence at the trial, the complainant clearly stated that the applicant did in fact have sexual intercourse with her, rather than that he attempted unsuccessfully to do so.

2. The jury’s verdict of not guilty on the amended Count 2 indicates that it formed an adverse view in relation to the complainant’s evidence, that is, it rejected her explicit evidence that the applicant’s penis penetrated her vagina. The applicant subsequently acknowledged that “rejection” in this context referred to the jury not accepting the complainant’s evidence as proving penetration beyond reasonable doubt.

3. As the Crown’s case on the alternative attempt charge was also dependent upon acceptance of the complainant’s evidence, and the quality of the complainant’s evidence regarding the attempt was no higher than that relating to the substantive offence, the jury should have returned a verdict of not guilty to the statutory alternative attempt charge as well. Its verdict of not guilty of the substantive offence was inconsistent with its conviction of the applicant of the attempt offence.

4. The conviction on the attempt charge should be quashed because, as the complainant’s evidence could not be relied upon, there was no evidence to support this conviction. The conviction also cannot be reconciled with the evidence of penetration that the plaintiff gave at trial, which was rejected by the jury.

5. Alternatively, for the same reasons, the verdicts indicated that the jury took an impermissible compromise approach to the discharge of its duties.

THE COMPLAINANT’S EVIDENCE CONCERNING PENETRATION

7. The complainant is a native Vietnamese speaker (as is the applicant). She described her English as “80 percent” (T84) and gave evidence with the assistance of an interpreter. Before the complainant gave the presently relevant evidence there were difficulties with the interpreter, resulting in the replacement of the interpreter (T91, 95).

8. There were also difficulties with the second interpreter. The Crown summarised these in submissions to this Court as follows:

“… By way of example, in cross-examination, the complainant was asked whether she went into the bedroom with the applicant and ‘made up’ with him (as in, forgiving him), to this, the complainant responds, ‘I deny. I didn’t make it up.’ [T 295] At another point there is either an interpreting or transcription error when the transcript records, ‘He still kept saying that I was hiding ex-boyfriend’ whereas earlier in evidence the complainant had said, ‘He was shouting – not very loudly, but saying I was hiding things from my ex-boyfriend …’ (emphasis added). [T 192, 196, see also at 263] The trial Judge also interrupts proceedings when she observes the court interpreter translating from the wrong part of the complainant’s statement as it is being put in cross-examination. [T 277-281] See further issues also at T 187 (‘body’ instead of ‘vagina’), T 191 (‘dark mark’ for ‘bruise’), T 199 (exchanges between the complainant and the interpreter), T 204-205 (general comprehension issues) and T 265-267 (difficulties with the translation of the complainant’s statement).”

9. In the quotations of the complainant’s evidence and statements that follow, parts that are of particular importance to my reasoning at the end of this judgment have been put in bold.

Evidence-in-chief

10. The complainant gave the following evidence-in-chief as to what occurred when the applicant was on top of her on the bed:

“Q.   So you told us he was sitting across your hips, I think you said?

A.   INTERPRETER: Yeah, he sat – he sat on my hip, halfway of sitting and lying.

Q.   What part of his body was touching your body?

A.   INTERPRETER: His body was in the position of half sitting and half lying and his penit(?) touched --

A.   WITNESS: My body.

A.   INTERPRETER: My body.

HER HONOUR

Q.   Sorry, his what?

A.   INTERPRETER: His penit. His penit.

TRIAL ADVOCATE

Q.   Do you mean his penis?

A.   INTERPRETER: Penis, yeah. Yes.

Q.   Was his penis inside or outside of his pants?

A.   INTERPRETER: Before I saw his penis but by that time he use his hand to put his penis inside my – inside my vagina but I couldn’t see at that time because my head was pushed down.

Q.   Sorry, at what point did you see his penis?

A.   INTERPRETER: When he pushed me down and I was struggling I saw him taking his penis out.

Q.   What did he do with his penis once he took it out?

A.   INTERPRETER: I yelled out loudly that I didn’t want and I was struggling, kicking him.

HER HONOUR: Was your question what he did or what she did?

TRIAL ADVOCATE: What he did.

HER HONOUR: Can you repeat the question?

WEBB: The question was what did he do with it.

HER HONOUR: Yes.

TRIAL ADVOCATE

Q.   Can you just answer the question. What did he do with his penis once he took it out?

A.   WITNESS: Took it out and wanted to try put in.

HER HONOUR: We’re going to do it in this way, that the question will be interpreted by the interpreter and then answered and then interpreted back through the interpreter please just so that we can have accurate evidence. The question, Madam Interpreter, what did he do with his penis when he pulled it out? Is that right Madam Crown?

TRIAL ADVOCATE: Yes.

HER HONOUR: Yes, that’s the question.

A.   INTERPRETER: He wanted to put it in my vagina.

TRIAL ADVOCATE

Q.   Yes, but if you could please answer my question. What did he actually do with it?

A.   INTERPRETER: His hand was pushing me and his left hand was holding his penit and to put into my vagina. I was struggling strongly.

Q.   So his penis made contact with your vagina, is that correct?

A.   INTERPRETER: I feel that his penit touched my vagina but I was struggling.

Q.   Did it go inside your vagina?

A.   INTERPRETER: I think, yes.

Q.   Why do you say ‘I think’?

A.   INTERPRETER: Yeah, I was – I was strongly struggling but I feel that it was hard inside my vagina” (T116-117).

11. Later in her examination-in-chief, the complainant gave the following evidence:

“Q.   At some stage he had taken his penis out, is that right?

A.   INTERPRETER: Yes. He put his arm to my chest and then he – he put – he lay his hand against my chest and then he pull out his penis.

Q.   Was that while he was sitting on top of you or at another time?

A.   INTERPRETER: From sitting first and then he totally lay on top of me and then he use his hand – put against my right chest very strongly to keep me down and then--

Q.   What was on – sorry, complete the answer.

A.   INTERPRETER: So that he could do the other action.

Q.   What was the other action?

A.   INTERPRETER: The other action is that pushed his penis into my body and then I tried to kick him out very strongly.

Q.   When you say he pushed his penis into your body, what part of your body?

A.   INTERPRETER: He tried to put – to push his penis into my

vagina.

Q.   You said he tried to push his penis into your vagina – did it go inside your vagina?

A.   INTERPRETER: I felt it inside my vagina already very hard, that's why I tried to squirm out and then I tried to struggle – to push him away from me.

Q.   What did you mean when you said he tried to put his penis in your vagina?

A.   INTERPRETER: When I said he tried, I mean that at first he, you know, he pushed – he held my arms very strongly, very firmly and then he pressed me down so that he could – I couldn't move, and then he could do the other things.

Q.   And what was the other thing he could do?

A.   INTERPRETER: The other thing is putting his penis into my vagina.

Q.   How did it get past your clothing – his penis?

A.   INTERPRETER: He, before that he had pulled my skirt down through my bottom.

Q.   Were you wearing any underwear?

A.   INTERPRETER: Yeah, he pulled – he used his hands and even used his feet – and foot to pull my underwear and my skirt down.

Q.   How did he use his foot to do that?

A.   INTERPRETER: He was acting like this: his hand was pressing down strongly, firmly to my right chest, and then with one of the arm he was holding my arm very firmly and then he used another arm – and then – at first – and then when it was down a little bit he pushed – he used his leg and foot to continue pushing everything down.

Q.   And that was your skirt as well as your underwear, is that right?

A.   INTERPRETER: Correct.

Q.   At what point did you first feel his penis?

A.   INTERPRETER: Then I was so scared. I was so scared. However, I could still feel that he – his penis already in my body because it was very hard.

Q.   When you felt his penis in your body did you say anything?

A.   WITNESS: I not say body. I say vagina. I said in vagina.

A.   INTERPRETER: Already, yes, I scream out--

HER HONOUR: I think the complainant--

A.   INTERPRETER: ‘Please finish, please finish’--

WEBB: Let's just have that clearly.

HER HONOUR: Just stop, please. I think the complainant corrected the interpreter and just said, ‘I didn't say body, I said into my vagina.’

A.   WITNESS: Yes, your Honour.

TRIAL ADVOCATE

Q.   I'll ask the question again, Ms Moore. Did you say anything while his penis was in your vagina?

A.   INTERPRETER: I scream out very, very loudly as I have never, never screamed that loudly.

Q.   What were you screaming?

A.   INTERPRETER: ‘Get out of me’ and then ‘Let go of me.’

Q.   Were you doing anything when his penis was in your vagina?

A.   INTERPRETER: I struggled. I squirmed. I kicked--

HER HONOUR

Q.   Sorry, just stop. ‘I struggled’ what was the second one?

A.   INTERPRETER: Squirmed.

Q.   Thank you. Yes?

A.   INTERPRETER: I kick, I push him away.

TRIAL ADVOCATE

Q.   Did Mr Nguyen say or do anything during this time?

A.   INTERPRETER: He said some dirty word implying that he wanted to have sex using dirty words.

Q.   Do you recall the words he used?

A.   INTERPRETER: ‘Looks like I want to fuck.’

WEBB: Shall we clarify what language that was in?

TRIAL ADVOCATE

Q.   In what language did he say that, Ms Moore?

A.   INTERPRETER: In Vietnamese.

Q.   When you were giving evidence here last Wednesday you told us – this is at page 117, line 42 – that you were struggling but that you felt that ‘it’ was hard inside your vagina, referring to the accused's penis.

A.   INTERPRETER: Yes.

Q.   I asked you what he was doing with his hands at that point and you said, ‘he was holding his penis or something.’

A.   INTERPRETER: Yeah, I saw his hand down there holding his penis.

Q.   Can you just explain for us how his penis was inside your vagina and at the same time he was holding his penis?

A.   INTERPRETER: Because I was struggling, squirming, very strongly and then he did that very, very fast by holding his penis with his right hand, pushing it very fast, very quickly. He did that very, very quickly” (T186-189).

Cross-examination

12. In cross-examination, the complainant confirmed that she had told the truth in a written police statement provided to Detective Constable Everett on 30 December 2013. The statement included the following:

"Van then approached me in the bedroom. He grabbed me by my upper arms and pushed me onto the bed. Van sat on top of my hips. He said lots of dirty things to me. He was holding my upper arms really tight. This could feel pain in my arms. I said, ‘Get off me. I can't breathe.’ Van undid his pants and removed his penis. I kicked him off me. Van then lay down on the bed and closed his eyes. [Then the next paragraph starts] I went into the kitchen and got a drink" (T236-237).

13. When given the opportunity to clarify an earlier answer that she had given in cross-examination, the complainant said through the interpreter:

“INTERPRETER: What I would like to say is that when I was asked about the incident that happened on the bed, the fact was that I tried to push him away but didn't succeed until he had already put – had his penis in my vagina” (T246).

14. When cross-examined about the absence of reference in the police statement taken by Detective Constable Everett to the applicant’s penis being pushed on or into her vagina, the complainant said:

“Q.   I've read out what you've told Everett, and I'll just read it again so it's clear to you: 'I said, ‘Get off me. I can't breathe.’ Van undid his pants and removed his penis.’

A.   INTERPRETER: Yeah, he pulled his penis out and push it in.

Q.   And what – push it in?

A.   INTERPRETER: And push it in me.

Q.   But you didn't tell Constable Everett that, did you?

A.   INTERPRETER: I did say to the Constable that he tried to rape me (T249).

…

A.   INTERPRETER: I did tell the police that his penis was so hard he –

and then he push in to make me – to hurt me. That's why I was struggling, I was striving, I was squirming (T274-275).

…

Q.   … Is there anything in there about the penis being pressed on the vagina?

A.   INTERPRETER: This one – reading that one out, I would – that fact as you said was not written in here but because my English is not so good I said it but maybe I didn't have a chance – I didn't express it well enough but in fact was that – the fact was that his penis, yes, did go into my vagina” (T275).

15. The complainant asserted that she had told another police officer, Detective Sergeant Plumridge, that the applicant’s penis had penetrated her vagina (T252-3). She agreed that, as recorded in a written statement taken by Detective Sergeant Plumridge on 9 January 2014, she had told him that the applicant pressed his penis against her vagina and said “I’m not sure if he pressed it more than once, but my vagina was dry and it would not go in”. However she added in her oral evidence that “[h]is penis did go inside” (T260).

16. Counsel then put to the complainant that she had told Detective Sergeant Plumridge the following:

“Q.   ‘He pressed it against my vagina. I could feel that it was hard. I am not sure if he pressed it more than once, but my vagina was dry and it would not go in. There was enough force that if it was wet, he would have went in.’ Again, ‘There was enough force that if it was wet, he would have went in.’ Those are things that you told Plumridge in English, aren't they?

A.   INTERPRETER: Can I say now?

Q.   Yes.

A.   INTERPRETER: Yes, I spoke to Mr Plumridge in English. But what I meant was that because his penis was so hard and then I didn't want it and that's why I felt it was so dry and then I felt hurt” (T261).

17. She gave the following further evidence in cross-examination:

“Q.   … there was never any intercourse or attempt at intercourse with you on the 29th, was there?

A.   INTERPRETER: Yes. It happened. Unagreed. Because it happened – because he tried to do it by pressing me down on my arms, and then I felt so hurt. Please look at the photographs on which it shows very clearly that I was injured during” (T262).

18. The complainant gave the following evidence in re-examination:

“Q.   You were asked questions about not putting in the Everett statement the accused putting his penis in your vagina. If I understood your answer correctly, you said something that your English wasn't good and you didn't express it well enough. Can you just explain what you meant by that?

A.   INTERPRETER: What I meant is that he used force to try and put his penis into my vagina. That's what I meant, but I was struggling, I was squirming, I was striving against him.

…

Q.   You were asked questions about paragraph 6 of the Everett statement where you don't mention anything about the accused putting his penis in your vagina? You agreed that it wasn't in the statement, and you said that the reason was that your English wasn't good, and you didn't express it well enough?

A.   INTERPRETER: Correct.

Q.   My question is, what did you mean by that? That your English wasn't good, and you didn't express it well enough?

A.   INTERPRETER: Because my English is not good enough to express the whole detail, but what I meant was that he tried to use his force. Continue. In pushing his penis into my vagina, and then it hurt so much – that's why I scream out, and I struggle against him” (T304).

19. Detective Constable Everett said in evidence that the complainant did not tell him that the applicant had penetrated her with his penis. Detective Sergeant Plumridge did not give evidence.

CLOSING ADDRESSES

20. The Crown submitted to the jury that if it was not satisfied of each of the elements of Count 2 as stated in the amended Indictment, it was entitled “to consider whether the accused intended and attempted to commit the offence of sexual intercourse without consent in circumstances of aggravation” (T376).

21. In indicating to the jury that it was open to it to return a verdict of guilty on Count 3 (indecent assault), the Crown said:

“If you find that the accused pressed his penis against Ms Moore's vagina, but did not enter it, then you may find this element satisfied. In this regard you may recall Ms Moore was cross-examined about her second statement to police about the accused trying to put his penis into her vagina, but wasn't able to do so because her vagina was dry. In that statement there was contact between the accused's penis and Ms Moore's vagina that was unaccompanied by penetration” (T377).

22. In his closing address the applicant’s trial counsel referred to the inconsistency between the complainant’s oral evidence concerning penetration and the statements that she gave to the police. He suggested that if there were incorrect assertions in the statements about the lack of penetration, the complainant would have drawn the Crown’s attention to the incorrect assertions in a conference with the Crown prior to the trial, at the very latest.

23. In response, the Crown submitted that it was open to the jury not to be satisfied beyond reasonable doubt that penetration had occurred, but to accept the remainder of the complainant’s evidence. The effect of its submission was thus that any adverse view that the jury may ultimately reach in relation to the complainant’s evidence of penetration was not a view that the jury should necessarily take in relation to the remainder of the complainant’s evidence.

THE SUMMING UP

24. In summarising the Crown’s submissions, the trial judge noted that “[w]ith respect to count 2, the amended count, the Crown relied upon the evidence of [the complainant] as to penetration, i.e. sexual intercourse” (p 28). Her Honour also referred to the Crown’s submission that the statutory alternative of the attempt charge was available if the jury was “not satisfied beyond reasonable doubt that sexual intercourse took place” (p 29).

25. The trial judge’s directions to the jury included the following as to the amended Count 2 and its statutory alternative:

“If you are not satisfied beyond reasonable doubt that the accused did have sexual intercourse with the complainant, or put another way, if you are not satisfied beyond reasonable doubt that there was penetration to any extent of the genitalia of the complainant by any part of - here by the penis of the accused, then you must find the accused not guilty because that would mean that element one has not been established.

If you are satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant, so if you are satisfied beyond reasonable doubt there was penetration in the way I have described, then you must go on to consider the second element, that is, whether the Crown has proved beyond reasonable doubt that the complainant did not consent” (p 10).

…

“There is what is referred to as a “statutory alternative” available for your consideration which is not contained on the indictment. It is important that I explain to you its legal elements.

The statutory alternative to count 2 which is no longer on the indictment is the allegation of attempt sexual intercourse without consent knowing she was not consenting in circumstance of aggravation, which, in this case, it was the original count 2.

Technically it is not on the indictment any longer but it is a statutory alternative that is available for your consideration and because it is available for your consideration, it is important that I give you the legal directions with respect to that charge.

If you are not satisfied that the Crown has proved beyond reasonable doubt the element of sexual intercourse in relation to count two, you must find the accused not guilty of count 2. You would then turn to consider the statutory alternative of attempted sexual intercourse without consent” (p 13-14).

26. Having instructed the jury to consider each charge separately and informing it that it would be required to return a separate verdict of guilty or not guilty for each charge, the trial judge continued:

“Giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a good reason in the evidence for that outcome. There may well be a logical reason for returning a verdict of guilty on one charge and not guilty on another charge. That said, the way in which the case has been run here, if you accept beyond reasonable doubt what Ms Moore said occurred, then the elements with respect to each of the charges will be proved.

If you have a reasonable doubt concerning the truthfulness or reliability of Ms Moore’s evidence in relation to one or more counts, that doubt must be taken into account in assessing the truthfulness or reliability of her evidence generally; that is, when deciding whether or not you have a reasonable doubt with respect to all five counts. The reason for this is that the Crown case in relation to each of the five counts relies upon the evidence of Ms Moore. Whilst you must consider each count separately, there must be a logical consistency in your verdicts” (p 26).

27. The trial judge added:

“… I direct you that you should not regard the availability of alternative counts as an invitation to compromise your verdict. For example, it would be quite wrong for you to determine to find the accused guilty of the alternative count simply because some of you find that the accused was guilty of the principal count but others were not so satisfied and would enter a verdict of not guilty of that charge. It would be unfair and in contravention of your oaths in these circumstances to decide to break the deadlock by convicting the accused on the alternative count. Put another way, it would be quite wrong to simply compromise your verdicts in order to come to a decided view. That would be quite wrong” (p 27).

THE SUBMISSIONS ON APPEAL

28. The applicant submitted that the complainant gave clear oral evidence that penetration had occurred and in doing so resiled from her previous statements to police that were either silent as to sexual intercourse, or referred to the applicant attempting to have sexual intercourse (see above at [12] and [15]). He submitted that, as the jury found the applicant not guilty on the amended Count 2, it must not have accepted the complainant’s evidence in relation to the actual penetration. He submitted that the “quality of the victim’s evidence was no higher in respect of the original Count 2 [attempted sexual intercourse] than the quality of her evidence in relation to the amended Count 2 [sexual intercourse without consent]” (at [70]). On his submission, in these circumstances the jury should also have found the applicant not guilty on the statutory alternative attempt charge, as the Crown case on that count was wholly dependant upon the complainant’s evidence. Therefore, on the applicant’s submission, the conviction on that count should be quashed. The applicant recognised that the position was otherwise in respect of Counts 1, 4 and 5 where the complainant’s evidence was corroborated by physical evidence (damage to the phone and the injuries on her body).

29. The applicant submitted that, unlike the position in Stinson v R [2006] NSWCCA 191, there was no basis in the evidence for the jury concluding that the complainant was mistaken as to there having been penetration.

30. The applicant submitted in the alternative that the jury’s verdicts on the amended Count 2 and the statutory alternative indicated that it had engaged in an impermissible compromise. He did not however advance any submissions as to how, if his unreasonableness ground of appeal (Ground 1) failed, his compromise ground (Ground 2) might succeed. In my view, if Ground 1 fails, Ground 2 must also fail as there would be in those circumstances no basis remaining for an argument that a compromise had occurred.

31. For its part, the Crown submitted that the evidence revealed logical reasons why the jury might not have been satisfied beyond reasonable doubt that penetration had occurred, yet have been duly satisfied of the elements of the attempt charge.

DISPOSITION OF THE APPLICATION FOR LEAVE TO APPEAL

Basis of proposed appeal

32. Ground 1 of the appeal for which leave is sought is founded upon s 6 of the Criminal Appeal Act 1912 (NSW). This section obliges this Court to set aside a conviction if the verdict of the jury upon which it is based “is unreasonable, or cannot be supported, having regard to the evidence … or that on any other ground whatsoever there was a miscarriage of justice”. In determining such a ground, this Court is required to make “an independent assessment of the evidence, both as to its sufficiency and its quality” (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]).

33. The application for leave to appeal in this case is advanced on the limited basis described in [6] above, namely that the jury’s verdicts of not guilty of aggravated sexual assault but guilty of attempt to commit aggravated sexual assault were inconsistent, and accordingly the attempt conviction was unreasonable. The applicant did not suggest any other basis upon which it was not open to the jury to accept the complainant’s evidence. Nor did he suggest that the complainant’s evidence, if accepted, would be insufficient to ground the verdicts on each count. In these circumstances it is appropriate to deal with the appeal on the limited basis upon which it is put.

Legal principles to be applied

34. In Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Gaudron, Gummow and Kirby JJ said that the test of whether there is inconsistency between jury verdicts upon different counts “is one of logic and reasonableness” and 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” (at 367).

35. Their Honours indicated that appellate courts should not be too ready to conclude that verdicts could not be reconciled but that:

“[n]evertheless, 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” (at 368).

36. In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 the accused was acquitted of sexual intercourse with a female child (the second count in an indictment), but convicted on the first and third counts. The Court found that, in light of the jury’s finding on the second count, it was not open to it to be satisfied beyond reasonable doubt of the accused’s guilt on the first and third counts. The quality of the complainant’s evidence on the second count was held to be no higher than that upon the first and third counts.

37. Gaudron, McHugh and Gummow JJ considered that the jury’s finding of not guilty on the second count “damaged the credibility of the complainant with respect to all counts in the indictment” and that there was “nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those [first and third] counts than it was in relation to the second count” (at 453).

38. In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Spigelman CJ emphasised first that “[w]hether or not the failure of the jury to accept the complainant’s version in one respect ought to have led … the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances”, and secondly that the High Court held in Jones that “on the facts of that case the acquittal necessarily undermined the credibility of the complainant’s evidence about other alleged incidents” (at [65], emphasis added). His Honour said further that the “case law since Jones has frequently concluded that a jury was not obliged to have a reasonable doubt about the complainant’s credibility in general, when it did not accept her (it is usually ‘her’) version of events to the criminal standard in some respect or respects” (at [79]).

39. In the same case, Wood CJ at CL said that Jones “does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness” (at [212]). Amongst his Honour’s list of possible bases for juries differentiating between verdicts, his Honour included the situation where a complainant resorted “to a degree of exaggeration in order to reinforce his or her account” (at [235]).

40. In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said that “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” and continued:

“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 … 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” (at [34]).

41. Their Honours instanced a situation in which a complainant had been shown to be “more reliable about some parts of his or her evidence than about others” as a factor 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” (ibid).

42. McHugh, Gummow and Kirby JJ expressed similar views, emphasising that Jones was “a very fact-specific case” and concluding that, in the case before their Honours, there was “a logical and reasonable basis for sustaining the differentiation that the jury drew” (at [89]).

43. In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, the jury returned differential verdicts on 12 counts in the indictment. The Court rejected the proposition that the acquittals on some counts could be taken as signifying a general doubt about the complainant’s credibility. Simpson J (with whom Latham J agreed) said that “[e]ven if (which I do not accept) [the jury] took the view that [the complainant] had exaggerated incidents that were relatively common place in the marriage, that does not necessarily damage her credibility in relation to the other counts” (at [184]). Simpson J said that “the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. If such an explanation can be found then Jones has no application” (at [130]).

44. McClellan CJ at CL did not appear to agree with the qualification that excluded doubts about the complainant’s credibility. His Honour appeared to consider that it was sufficient if the appellate court could discern any rational basis for the jury’s differentiation between verdicts. Thus his Honour emphasised that “a jury does not have to be satisfied beyond reasonable doubt that all of a complainant’s evidence is an accurate or even truthful account of all of the facts relevant to all of the counts … [A]s Wood CJ at CL pointed out in R v Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events” (at [7]).

45. In MG v R [2017] NSWCCA 14 the jury returned differential verdicts on 14 counts of child sexual assault and related offences. After reviewing relevant authorities, Hoeben CJ at CL (with whom Johnson and Latham JJ agreed) observed that “[i]f there is a proper way by which the appellate court may reconcile verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted” (at [88]). His Honour found that there was “a logical and reasonable explanation for why the jury might not have been satisfied beyond reasonable doubt as to the occurrence of the incident in count 4 (penile-vaginal intercourse)” (at [90]). His Honour noted that the sequence of events described by the complainant in relation to this account, whilst not being physically impossible, was unlikely to have occurred. His Honour referred to the “implausibility” and the “discrete shortcomings” of this evidence (at [90]-[93]) compared to that relating to the counts upon which guilty verdicts were returned.

46. In respect of other counts upon which the jury returned verdicts of not guilty, his Honour observed that the complainant’s evidence lacked the corroboration which existed in relation to counts upon which a guilty verdict was returned. He concluded that this provided a reasonable and logical explanation for the differential verdicts.

47. The decision in Holloway v R [2017] NSWCCA 17, delivered by the same bench on the same day as MG v R was delivered, provides a further illustration of this Court finding reasonable explanations for differential verdicts. In that case, Latham J (with whom Hoeben CJ at CL and Johnson J agreed) said that “[f]ar from an inconsistency in the application of the mens rea requirements of each offence, the jury’s verdicts demonstrate a conscientious approach to the directions of the trial judge and a careful consideration of all of the evidence” (at [32]).

Conclusions

48. These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see Mackenzie at [34] above), that is, if there is “a logical and reasonable basis for sustaining the differentiation that the jury drew” (see MFA at [42] above). Such a basis may exist if the quality of the complainant’s evidence in a case involving sexual offences varied between counts (compare Jones at [36] above). There are many reasons why this may occur. One is that in some respects a complainant may have resorted “to a degree of exaggeration in order to reinforce his or her account” (see Markuleski at [39] above; TK at [44] above). Alternatively, the complainant’s account of events concerning a particular count may be implausible because of the nature of the events described (see MG at [45] above). Further, if parts of a complainant’s evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant’s evidence as compared to other parts (see MG at [46] above). Such considerations may lead the court to the conclusion that a jury’s differential verdicts are the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count (see Holloway at [47] above).

48. In my view the inference to be drawn in the present case is that the jury returned differential verdicts as a result of its careful attention to the trial judge’s directions and the evidence, rather than as a result of some inappropriate compromise or other departure from its duties. Therefore the differential verdicts can be reconciled on a logical and reasonable basis. This conclusion is supported by the following circumstances:

1. The complainant’s evidence at trial concerning penetration contained inconsistencies. On a number of occasions, she said that penetration did not occur (these statements have been put in bold in the quotations above). In other parts of her evidence she said that penetration had occurred. Nevertheless both parts of that evidence were consistent with the applicant having, at least, attempted to have sexual intercourse with the complainant. The doubt that was raised only related to whether there was in fact penetration. The jury were well entitled to find that the attempt was proved beyond reasonable doubt, whilst its success was not.

2. It was not suggested before this Court that the complainant’s evidence on other aspects of the applicant’s conduct demonstrated any inconsistency.

3. The complainant’s evidence clearly suffered from language and interpretation difficulties. These are evident from the quotations above and are reflected in the Crown’s submissions concerning the difficulties experienced with the second interpreter (see [8] above). These difficulties may have caused the jury to be particularly cautious in accepting the complainant’s evidence on a topic in relation to which her evidence appeared to have been inconsistent.

4. Unlike her evidence on other topics, the complainant’s evidence at trial that penetration occurred was not corroborated by the statements she gave to the police. The first of those statements did not make any suggestion that there had been actual or attempted penetration and the second indicated that there had been attempted but not actual penetration (see [12] and [15] above). The statements were made within a matter of weeks after the events of 29 December 2013, whereas the complainant’s evidence at trial was not given until almost two years after those events. The jury would have been well entitled to take the view that the police statements (one of which referred to an attempt to have intercourse) were likely to be more reliable than the complainant’s evidence at trial.

5. The complainant’s evidence as to the general circumstances of what occurred was corroborated by evidence of bruising and other injuries to her body. Although there was not shown to be any bruising in her genital area, this evidence supported her description of what, on her evidence, was at least an attempt to have sexual intercourse in the course of the applicant holding her down on the bed. There was no corresponding evidence corroborating her evidence of penetration.

50. For these reasons, the applicant has not established that there is a conflict between the jury’s verdicts, or that the jury engaged in an impermissible compromise. As a result, the application for leave to appeal should be dismissed.

51. ADAMSON J: I have had the benefit of reading the reasons of Macfarlan JA in draft. I agree with his Honour’s conclusions that there is no inconsistency between the jury’s verdicts and that, accordingly, the verdicts were not unreasonable. I wish to add a few remarks of my own.

52. I am indebted to Wood CJ at CL’s detailed analysis in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [202]-[238] in which his Honour explained, by reference to authority and his lengthy judicial experience at trial and on appeal, what can be drawn from jury verdicts; how an inconsistency can be discerned; and how an apparent inconsistency can be explained. For present purposes, the following summary suffices. What can be drawn from a verdict of not guilty is that the jury was not satisfied beyond reasonable doubt of the particular charge. It cannot be inferred from a “not guilty” verdict that the jury “rejected” the evidence of the complainant on that charge since the jury may have been satisfied that the offence probably occurred as she described in her evidence but retained a reasonable doubt.

53. In the present case, the jury’s verdict of “not guilty” of the amended charge 2 (sexual intercourse with the complainant without her consent in circumstances of aggravation (recklessly inflicting actual bodily harm)) can be explained by the possibility that the jury retained a reasonable doubt about penetration. The jury’s verdict of “guilty” on the statutory alternative to the amended charge 2 indicated that the jury was satisfied beyond reasonable doubt that the applicant had attempted to have sexual intercourse with the complainant without her consent in circumstances of aggravation (recklessly inflicting actual bodily harm). The jury was not required to be satisfied beyond reasonable doubt that the applicant had penetrated the complainant when it considered the statutory alternative to the amended charge 2. There is no inconsistency between the verdicts.

54. I propose that leave to appeal be granted but that the appeal be dismissed.

55. CAMPBELL J: I agree with Macfarlan JA for the reasons his Honour gives that the applicant has not demonstrated that the jury’s verdict is unreasonable because it is tainted by compromise or otherwise. I agree with the order his Honour proposes.

**********

Decision last updated: 23 June 2017