Niehus v The Queen

[2018] NTCCA 10

CITATION:Niehus v The Queen [2018] NTCCA 10

PARTIES:  NIEHUS, Frederick Charles

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 20 of 2017 (21437947)

DELIVERED:  4 July 2018

HEARING DATE:  11 April 2018

JUDGMENT OF:  Kelly, Blokland and Barr JJ

CATCHWORDS:

CRIMINAL LAW – Appeal against conviction – accused found guilty of two counts but not guilty of two counts of sexual assault – whether guilty verdicts unreasonable and unsupported by evidence – whether guilty verdicts necessarily inconsistent with not guilty verdicts – not guilty verdicts did not necessarily mean jury disbelieved victim’s evidence of continuing course of abuse – jury may have had doubts about individual counts due to sufficiency or reliability of evidence and not truthfulness – victim not cross-examined nor did appellant give evidence on counts with guilty verdicts – victim gave more detailed evidence about counts with guilty verdicts – verdicts can stand together as reasonable jury who applied their mind properly to facts of case could have arrived at them – appeal dismissed

Criminal Code (NT) ss 410, 411(1), 411(2)
Evidence (National Uniform Legislation) Act (NT) s 101(2)

Jones v The Queen (1997) 191 CLR 439; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; MacKenzie v The Queen (1996) 190 CLR 348; R v James [1999] NSWCCA 191, referred to

REPRESENTATION:

Counsel:

Appellant:J Tippett QC

Respondent:  M Nathan SC

Solicitors:

Appellant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  25

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Niehus v The Queen [2018] NTCCA 10

No. CA 20 of 2017 (21437947)

BETWEEN:

FREDERICK CHARLES NIEHUS

Appellant

AND:

THE QUEEN

Respondent

CORAM:     KELLY, BLOKLAND and BARR JJ

REASONS FOR JUDGMENT

(Delivered 4 July 2018)

THE COURT:

1. The appellant was charged with eight counts of sexual intercourse without consent against two victims. Counts 1 to 4 alleged acts of digital- and penile-vaginal intercourse against JM. Counts 5 to 8 alleged acts of digital- and penile-vaginal intercourse against JM’s younger sister MM. The appellant pleaded not guilty to all eight charges. Following a trial by jury, he was found not guilty of all charges relating to JM. On the charges relating to MM, the appellant was found not guilty of two charges (counts 7 and 8) and, by majority verdict, guilty of two charges (counts 5 and 6).

2. The appellant has appealed against his convictions on counts 5 and 6. The grounds of appeal specified on the notice of appeal were as follows.

   (a)     The findings of guilt by the Jury (sic) are inconsistent and perverse and therefore should be set aside and verdicts of not guilty entered.

   (b) The learned trial judge erred in law in concluding that the prosecution had discharged its onus that possible collusion did not exist contrary to section 101(2) of the Evidence (National Uniform Legislation) Act. (sic)

   (c)     The learned trial judge erred in admitting tendency evidence in circumstances where there was a real possibility of concoction or contamination.

3. On the hearing of the appeal, the appellant was granted leave to amend the notice of appeal to delete these three grounds and to substitute the single ground of appeal that the verdicts on counts 5 and 6 are unreasonable and not supported by the evidence.

4. The appellant’s chief contentions as set out in the appellant’s written outline of argument consist of three inter-related propositions.

   (1)     The verdicts of guilty on counts 5 and 6 should be set aside because they are inconsistent with the verdicts of not guilty on counts 7 and 8.

   (2)     The verdicts of guilty are unreasonable because they are inexplicable on all of the evidence.

   (3)     The guilty verdicts on those two counts are unsafe and unsatisfactory on the principles in M v The Queen.[1]

   On the hearing of the appeal, the appellant’s contentions narrowed down to this: the guilty verdicts on counts 5 and 6 are unreasonable because they are necessarily inconsistent with the not guilty verdicts on counts 7 and 8.

5. The accused was the partner of the woman who was the foster mother of JM and MM. The Crown alleged that counts 5 and 6 occurred on the same occasion, in the house that they were all living in at Mataranka. The acts were said to have occurred in about May 2008, just after they had returned from taking the sister, JM, to boarding school in South Australia. Count 5 was an act of digital-vaginal sexual intercourse and count 6 an act of penile-vaginal intercourse.

6. Count 7 was an allegation of penile-vaginal intercourse while the accused and MM were in the accused’s utility parked at the rubbish dump at Mataranka. Count 8 was an act of penile-vaginal intercourse which was alleged to have taken place in Darwin after the foster mother moved there with MM and the accused was visiting.

7. The evidence of MM consisted of a child forensic interview conducted on 9 July 2014, and pre-recorded evidence at a hearing on 24 February 2017 at which she gave some further evidence-in-chief and was cross-examined.

8. Her evidence in relation to counts 5 and 6 can be summarised as follows:

   (a)Child forensic interview:

   The first time it happened was when her sister JM went to boarding school. Then he kept on doing it. She said that the accused “used to do it – try to do it every day”. They were living in Mataranka. Her foster mother would go to the shops. She would lock the door and tell MM, “[The appellant is] laying down, okay, just turn your TV on, put it down low.” She would do that. She was laying on her bed watching TV like she always does. Then the next minute she would hear the door open. The accused would come in and do bad things to her. He would lay down next to her and kiss her and then he would pull the blanket up and tell her to take her shorts off. She was too scared. She had to take her shorts off. Then he would have sex. Sometimes he would lick her privates. He would try to put it in and it wouldn’t fit like that if she wasn’t wet enough. So he would play with it and put his fingers in there. Then he would go down and lick it and then he’d get back up, put his finger back in her vagina and make it more wet and then take his finger out, put his dick inside her vagina and start moving up. Like he puts it in and then he starts moving.

   When he licked her he was holding her belly like he didn’t want her to get up. She wasn’t wet enough so he would try and make her really itchy and try to lick that little thing. (She did not know what it was called.) And he would try. When she tried to get up he would tell her to lay down. If he wanted her to go closer then he would drag her closer or if he wanted her to go back he would tell her to get up and go back.

   Sometimes he would make her bleed and sometimes he wouldn’t. Then after that when he’s finished he’ll just walk out.

   (b)Pre-recorded evidence (XXN):

   There was no cross-examination regarding the specific allegations constituting counts 5 and 6.

9. The appellant gave evidence. He was asked, “These two girls have made sexual assault allegations against you [Mr N]. Are those allegations true?” The accused answered, “No.” That was the extent of his evidence in relation to the allegations in counts 5 and 6.

10. MM’s evidence in relation to count 7 can be summarised as follows:

    (a)Child forensic interview:

    Her foster mother told her to jump in the car, and go to the dump with the accused to unload the palm fronds. She would unload them, putting them on the big hill, and he used to grab her and just put her on the passenger side car seat and smile and then try to do it. He would lift her legs up. Then he would tell her to lay down and he would put his dick inside her in the vagina. And then he tried to wear a condom but it didn’t work so he threw it away and then did it again. And then sometimes cars would come and sometimes they wouldn’t. When cars came he wouldn’t worry about it. He would just say, “Come on. Jump in,” and tell her to climb over the other side.

    Earlier in the child forensic interview she was asked if the appellant ever used a condom. She said no, he tried but his thing was too big and every time he tries, like when he comes he just takes it off. She was asked to tell about that and she said he would try to put his condom on but it was too small so he tried and tried. Then he put baby oil on it and then he wiped the oil on her private part and then he couldn’t put it on so he had to put his thing in ‘cause it didn’t work. She was asked when he had tried to use a condom and she said it was when they went to the tip to unload the palm fronds. That led into her evidence of what had happened at the tip.

    (b)Pre-recorded evidence (XXN):

    It was suggested to her in cross-examination that “the allegations arising from the dump are not true”. She said, “Excuse me, it is true.” It was also suggested to her that council employees were working at the dump on a daily basis. She did not agree. It was suggested to her that there were houses built fairly close to the dump and she said there weren’t. It was suggested to her that people were coming and going from the dump and she said that the dump was mostly quiet.

11. The accused gave evidence in relation to the specific allegations in count 7. He denied having assaulted MM at the tip/dump. He said that he had gone to the tip with her from time to time taking armfuls of rubbish and that that happened every time the foster mother went down to Mataranka; he estimated about half a dozen times. He said that MM helped him load and unload the vehicle because he could not bend down to pick anything up, and that she had to ask the foster mother’s permission to go with him. He was shown some photos of the dump which had been tendered by the prosecution[2] including an aerial photo. The photographs were taken in 2018 and the appellant described what he said were differences between the dump as it was in 2008 when he went there with MM and as it was in the photographs. In particular he said that the area was flat at that time and that the mounds in the photographs were not present. He also gave evidence that he had never worn a condom and that he had a penis about the size of his thumb, not a large one.

12. MM’s evidence in relation to count 8 can be summarised as follows:

    (a)Child forensic interview:

    When they moved to Darwin, the accused came up because they had moved. He was there for two days but he didn’t do anything. Then on the third day “he’ll come and he’ll do it”. She would be sitting down in the lounge room and then she would go to the toilet and go to her bedroom. She would lay down and go to sleep and he would come in and do it again. The TV was still on when he came in so he turned it off. That’s how she recognised he was in her room. He snuck up really quiet like. Then he started taking her shorts off. Then he started doing it – like start having sex. And then he’d finish. She knew he had ejaculated because she could feel it and because all the time she used to go to the toilet all yuk and slime.

    (b)Pre-recorded evidence (XXN):

    It was suggested to MM in cross-examination that the accused had never stayed in the house in which she was living, that when he came to Darwin he would stay with his daughter. MM did not agree.

13. The accused was asked specifically if he had assaulted MM at the Darwin residence and he said he had not. Then he gave evidence about health problems he had had including a hip replacement in 2008 before and after which he said he had problems bending, but not lifting, and surgery for prostate cancer. He said that before the surgery for prostate cancer he had not had an erection for 14 years.

14. In addition to cross-examination about the specific allegations, MM was cross-examined with a view to damaging her credit generally. She was asked questions about an incident in which she was said to have stolen a car and made up a story about it. She was also asked about an incident in Darwin when she had run away with her new boyfriend and got drunk and when she came home she “flogged” her foster mother and smashed up the house. She agreed that that had happened and gave a long explanation in which she partly agreed with propositions put by counsel and partly disagreed. It was suggested to her that after that had occurred, the foster mother had said she was no longer prepared to look after MM. MM agreed. It was suggested to her that she didn’t like that but MM said she did because she wanted to be away from the accused – as well as because of some cruelties she said had been practised by the foster mother. This exchange followed:

    COUNSEL: I suggest to you that your allegations are merely an attempt to punish [the foster mother] for her rejection of you. That was one of your problems wasn’t it? She rejected you?

    MM: No. She was going to keep me. She wanted to keep me, but she died from cancer.

    Contentions of the parties

15. The appellant submitted that the verdicts of guilty in relation to counts 5 and 6 are inconsistent with the verdicts of not guilty on counts 7 and 8. The basis of this contention is that counts 5 to 8 were said to be part of a course of conduct the complainant said the appellant did to her “every day”. Each of the four charges represented instances of this continuing course of conduct and the quality of the complainant’s evidence upon counts 5 and 6 was no higher than her evidence on counts 7 and 8. The appellant contended that this is not a case where there was some corroboration in relation to the charges on which the appellant was found guilty but not in relation to the charges on which he was found not guilty. There was no corroboration of MM’s evidence at all. Accordingly, the appellant submitted, the jury was bound either to accept MM as a witness of truth (and therefore reliable) or to reject her as a witness of truth (and therefore find her evidence unreliable). It was not open to them to be satisfied beyond reasonable doubt on some only of her evidence.

16. Mr Nathan SC for the respondent submitted that that proposition is incorrect. The jury’s task is to assess the credit of each witness. This involves not only a consideration of the witness’s honesty but also her reliability. A jury may accept that a witness is honest and doing her best to tell the truth but find that the evidence or part of the evidence given by the witness is unreliable for a variety of reasons independent of honesty (including matters that are dependent upon a particular incident).

17. The respondent submitted that the verdicts are explicable and not inconsistent. The verdicts of guilty to counts 5 and 6 both relate to the same incident and the verdicts of not guilty relate to two separate incidents. MM was unshaken under cross-examination in her evidence relating to counts 5 and 6. (In fact she was not cross-examined about the details of those allegations at all.) The cross-examination of MM significantly focused attention on matters that may have caused the jury to doubt the reliability of the witness’ evidence in relation to counts 7 and 8. Counsel for the respondent contended that it was open to the jury to find the evidence given by MM in relation to counts 7 and 8 was insufficient (as distinct from untruthful) or that the evidence was unreliable given the matters raised in cross-examination specific to those counts and for those concerns to cause the jury to experience a reasonable doubt about those counts. That does not mean the jury necessarily found that MM was untruthful in relation to all (or indeed any) of her evidence.

18. The respondent pointed out that the trial judge had appropriately directed that the jury were entitled to accept or reject some or all of a witness’ evidence,[3] and that each count was to be considered separately;[4] also that if the jury found the evidence of a witness in relation to a particular count to be unsatisfactory or untruthful then that should be taken into account when considering the evidence in relation to each of the other counts on the indictment.[5]

19. The respondent contended that, consistent with those directions, whatever concerns the jury had about the evidence in relation to counts 7 and 8 that caused them to experience a reasonable doubt in relation to those charges, it was open to the jury to find the evidence given by MM in relation to counts 5 and 6 was honest and reliable and to be satisfied beyond reasonable doubt of those charges.

    Principles

20. A person found guilty on indictment may appeal to this Court with the leave of the Court, or upon the certificate of the judge of the Court of trial that it is a fit case for appeal, against the finding of guilt on any ground of appeal that involves a question of fact alone or question of mixed law and fact.[6] In this case the trial judge gave a certificate pursuant to s 410 of the Criminal Code, obviating the need for a separate leave application.

21. On any such appeal against a finding of guilt the Court is to allow the appeal if it is of the opinion that 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.[7] This is sometimes referred to as the “unsafe and unreasonable” ground of appeal.

22. The requirements for this ground of appeal are set out in M v The Queen.[8] The effect of that decision has been helpfully summarised by the majority in Jones v The Queen[9] in the following terms:

    The test for determining whether a verdict is unsafe or unsatisfactory

    In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was “open to the jury” to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:

    in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

    The majority judges explained the application of the test as follows:

    In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

    Gaudron J agreed with the majority formulation of the test, as did Brennan J, although his Honour said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.

1. In Libke v The Queen[10] Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:

   But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

   Inconsistent verdicts

2. A guilty verdict may be challenged as “unsafe and unsatisfactory” on the basis that it is inconsistent with a not guilty verdict in the same trial. That is the basis of the challenge to the verdicts on counts 5 and 6 on this appeal. In MacKenzie v The Queen,[11] the majority set out the following (relevant) principles with respect to appeals on the ground of inconsistent verdicts.

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

   …

   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. ….

   [emphasis by underlining added]

3. In written submissions, the appellant has submitted that the approach to be adopted by the Court in this case should be very similar to, if not identical to, the approach the High Court took to the evidence and the verdicts in Jones v The Queen.[12] In that case the accused (a gymnastics coach) was charged with three counts of sexual intercourse with a child who was aged between 10 and 16 years. He pleaded not guilty to each count and following a trial by jury, was found guilty on counts 1 and 3 and not guilty on count 2. In the special circumstances of that case, on the application of the principles in M v The Queen, the High Court set aside the guilty verdicts on counts 1 and 3 as unsafe and unsatisfactory. The circumstances included the complainant’s delay of 2 ½ years in making the complaint (which affected the recall of the appellant’s wife and led to her conceding that there may have been a day on which she was not present at the gymnasium where the offence was alleged to have taken place at the time it was said to have occurred) and the lack of any corroborative evidence, in particular, the absence of any medical evidence.[13] Importantly, it also included the Court’s assessment 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.[14] This in turn depended on the facts of the case and the Court’s view that in the circumstances of that case there was unlikely to be any other explanation for the not guilty verdict than that the jury had disbelieved the complainant’s evidence in relation to that count.[15] As a result, the Court concluded:

   It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is 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 counts than it was in relation to the second count.[16]

4. The appellant also relied on the decision on the New South Wales Court of Criminal Appeal in R v James.[17] In that case too, guilty verdicts on three charges of indecent assault on a female under the age of 16 were set aside as being inconsistent with a not guilty verdict on another count charging the same offence. In that case, too, Simpson J (with whom Bell J agreed, Beazley JA dissenting) came to the conclusion that the only possible explanation for the not guilty verdict was that the jury must have disbelieved the complainant’s evidence in relation to the charge on which the appellant had been found not guilty. (The complainant had given detailed evidence about an alleged assault said to have taken place 21 years earlier in a house on a particular block of land. The evidence included a very detailed description of the house. It was demonstrated by independent evidence that there was no house on the block at the time.) Simpson J concluded that where there was any positive material to create a doubt about the complainant’s claims, the jury doubted her credibility, and that:

   As in Jones, if they had a doubt about her credibility on the fourth count ... then, axiomatically, they must (or ought) to have doubted her credibility generally.[18]

5. However, as counsel for the respondent has pointed out, in MFA v The Queen[19] Gleeson CJ, Hayne and Callinan JJ observed at [35]:

   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. (footnotes omitted)

6. In MacKenzie the issue was whether verdicts of guilty on charges of knowingly making a false statement on oath were inconsistent with not guilty verdicts on the more serious charges of committing perjury intending to procure the acquittal of a person of a serious offence. Mr MacKenzie was a solicitor who gave evidence at the trial of his client which was found to be false. After setting out the above principles, the majority in the High Court dealt with the issue this way:

   The verdicts were not necessarily inconsistent

   When the foregoing principles are applied to the facts of this case, we are not convinced that the verdicts returned by the jury in the trial of the appellant are so inconsistent as to render the resulting convictions of the appellant unsafe or unsatisfactory.

   It is true that, in the way the trial was conducted, it is difficult to see what other “intent” the appellant, as the solicitor for Mr Barbaro, could have had in giving deliberately false evidence other than to secure his client's acquittal. It is difficult in this case to suggest, as a matter of fact, that the appellant would not have had sufficient insight into the consequences of giving deliberately false evidence.

   …

   We accept the comment that, at first sight, the differentiation between the jury’s verdicts appears a little difficult to understand. They were not technically inconsistent. But there is an element of factual inconsistency, at least in the way in which this particular trial was conducted. Nevertheless, we are not convinced that the verdicts are so repugnant and irreconcilable that they invite, or require, intervention.

   There are a number of available explanations for the differentiation in the verdicts which are consistent with the assumption that the jury approached their task in a proper manner and did not simply compromise their function.[20]

7. Applying the principles in these authorities to the present case, the onus is on the appellant to establish a necessary inconsistency between the verdicts on counts 5 and 6 and the verdicts on counts 7 and 8. For the appellant to succeed “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 possibly have found the appellant guilty of counts 5 and 6 and simultaneously not guilty of counts 7 and 8. It is not the role of this Court to substitute its opinion of the facts for one which was open to the jury. If there is a proper and reasonable way to reconcile the verdicts, allowing this Court to conclude that the jury performed its functions as required, then it should be accepted that the jury has so performed its functions.

8. The appellant’s case depends upon the acceptance of the proposition that the not guilty verdicts on the counts on which the appellant was acquitted necessarily entailed the jury disbelieving MM’s evidence that the accused had sexually abused her in a continuing course of conduct over a number of years. We do not agree that the not guilty verdicts necessarily meant that the jury disbelieved that evidence of MM.

9. Counsel for the respondent pointed to a range of logical and common sense reasons the jury may have had for having a reasonable doubt about counts 7 and 8 which did not entail disbelieving the evidence of MM about the appellant’s continuing abuse and were not, therefore, inconsistent with accepting her evidence in relation to counts 5 and 6 beyond reasonable doubt. He pointed out that MM was cross-examined about details of the circumstances surrounding counts 7 and 8 and that the appellant gave evidence about those matters. (See paras [10] and [12] above.) By contrast, MM was not cross-examined about the details of counts 5 and 6. The closest to cross-examination touching counts 5 and 6 was the general suggestion that she had made the allegations to punish the foster mother for rejecting her. (See [14] above.) Further, the appellant gave no evidence about those matters. The closest he came was a general denial of all allegations. (See [9] above.)

10. As is not uncommon in cases of this kind (ie historical sex cases involving child complainants) the jury would have had a difficult task because of the nature of the evidence given by MM. This largely involved generalised descriptions of what appears to have been an ongoing course of sexual abuse and a consequent difficulty in giving details of what occurred on the particular occasions represented by the individual counts. A partial exception is the evidence given in relation to counts 5 and 6 in which MM was able to recall that the first time the appellant sexually assaulted her was just after her sister had gone to boarding school[21] and to provide some details[22] – and even in relation to that occasion she lapsed from time to time into the language of generality, saying “he would” rather than “he did”.[23] Given this difficulty, it is not necessarily surprising that, in considering each count separately, as they were directed to do, the jury had reasonable doubts about individual counts for various reasons including the sufficiency of the evidence (as distinct from its truthfulness), or its reliability (again as distinct from truthfulness) in relation to timing or other details. This is consistent with the directions given to the jury by the trial judge not only that each count was to be considered separately, but that the accused was entitled to the benefit of any reasonable doubt they may have, and that they were entitled to accept or reject some or all of a witness’ evidence. They were also warned that if the jury found the evidence of a witness in relation to a particular count to be unsatisfactory or untruthful then that should be taken into account when considering the evidence in relation to each of the other counts on the indictment. This warning was given towards the end of the summing up and would have been fresh in the minds of the jury when they retired.

11. We are not satisfied that the guilty verdicts cannot stand together with the not guilty verdicts, or that no reasonable jury who had applied their mind properly to the facts in the case could possibly have found the appellant guilty of counts 5 and 6 and simultaneously not guilty of counts 7 and 8. The co-existence of the guilty and not guilty verdicts is not an affront to logic and common sense. The not guilty verdicts on counts 7 and 8 did not necessarily mean that the jury disbelieved the complainant’s evidence of continuing sexual abuse over a number of years. We agree with the contention by the respondent that there is a proper and reasonable way to reconcile the verdicts - a range of logical and common sense reasons the jury may have had for having a reasonable doubt about counts 7 and 8 which did not entail disbelieving the evidence of MM about the appellant’s continuing abuse and were not, therefore inconsistent with accepting her evidence in relation to counts 5 and 6 beyond reasonable doubt. It was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. This is not a case in which the jury, acting reasonably, was bound to have a reasonable doubt about the guilt of the appellant on counts 5 and 6.

12. The appeal should be dismissed.

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[1] [1994] HCA 63; 181 CLR 487 at 494

[2]      Exhibits P4 and P5

[3]AB 544.

[4]AB 529.

[5]AB 545.

[6]      Criminal Code (NT) s 410

[7]      Criminal Code (NT) s 411(1); This is subject to the proviso in s 411(2) that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[8]      [1994] HCA 63; (1994) 181 CLR 487 at 493

[9][1997] HCA 56; 191 CLR 439 at 450-451

[10] [2007] HCA 30; 230 CLR 559 at 596-597 para [113]

[11] [1996] HCA 35; (1996) 190 CLR 348 at 366-368

[12](1997) 191 CLR 439

[13]Jones v The Queen (1997) 191 CLR 439 at 453

[14]    Jones v The Queen (1997) 191 CLR 439 at 453

[15]    Jones v The Queen (1997) 191 CLR 439 at 453

[16]     Jones v The Queen (1997) 191 CLR 439 at 453

[17][1999] NSWCCA 191

[18] R v James [1999] NSWCCA 191 at [64]

[19][2002] HCA 53; 213 CLR 606

[20]     MacKenzie v The Queen (1996) 190 CLR 348 at 369

[21]    By contrast, the jury may not have been sure that the description of what occurred at the tip was a description of one incident or a number of incidents. MM started by describing an incident in which the appellant had tried to use a condom and failed, but then spoke about there being other cars there sometimes. Also she said that when other cars were there “he wouldn’t worry about it.” He would just say, “Come on. Jump in,” and tell her to climb over the other side. On one view of the evidence this would seem to indicate that on the occasions when they were at the tip and there were witnesses, he would not sexually assault her – just tell her to get in the car and they would go. However, if the jury thought MM was giving evidence about one occasion only, they may well have become confused by this evidence.

[22]As counsel for the respondent pointed out, those details included precisely the kind of details one might expect a child to recall namely sensations in particular, the description of the preliminary acts of digital penetration and licking and the feeling of being held down; making her really itchy and trying to lick “that little thing”; dragging her closer.

[23]    This occurred even in MM’s evidence in relation to count 8 which was alleged to have occurred between 2011 and 2012 much closer to the time of the child forensic interview and when MM was older. The jury may well have had doubts about the specifics of that charge (as distinct from the general veracity of MM) because she was unable to pin the date down closer than a two year window. They may also have been influenced by defence counsel’s emphasis in closing to the effect that the appellant was in particularly bad health during 2011 to 2012. (T 503). He also made specific submissions about counts 7 and 8 but no submissions directed at counts 5 and 6.