Pollard v R
[2011] VSCA 95
•8 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 516 of 2009
| MARK RAYMOND POLLARD |
| v |
| THE QUEEN |
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| JUDGES | BUCHANAN, NEAVE and MANDIE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 March 2011 |
| DATE OF JUDGMENT | 8 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 95 |
| JUDGMENT APPEALED FROM | R v Pollard (Unreported, County Court, Judge Pilgrim, Date of Verdict: 3 December 2008, Date of Sentence: 30 January 2009) |
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CRIMINAL LAW – Conviction – Applicant convicted of counts of rape and attempted rape – Applicant acquitted of another rape count but found guilty of alternative count of sexual penetration of a child under 16 – Consciousness of guilt – Evidence not ‘intractably neutral’ – R v Ciantar (2006) 16 VR 26, applied – Discretion to exclude evidence – R v Christie [1914] AC 545, cited – Probative value not outweighed by prejudice to applicant – Inconsistent verdicts – Single episode of offending – Open for jury to doubt only part of complainant’s evidence – Application for leave to appeal against conviction refused.
PRACTICE AND PROCEDURE – Criminal law – Filing over of new presentment after complainant examined at special hearing – Counts added to new presentment not alternatives to existing counts – Reid v The Queen [2010] VSCA 234, applied – No prejudice to applicant – New counts arose out of same alleged facts – Defence case of denial remained substantially the same – Opportunity to further cross-examine.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann | James Dowsley & Associates |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I agree with Neave JA.
NEAVE JA:
The applicant, Mark Raymond Pollard, was convicted by a County Court jury of counts of rape (count 3), attempted rape (count 5) and sexual penetration of a child under 16 (count 2). The count of sexual penetration of a child under 16 was left to the jury as an alternative to another rape count (count 1), of which the applicant was acquitted. The applicant was sentenced to a total effective term of 5 years and 6 months’ imprisonment, with a non-parole period of 3 years. He now appeals against his conviction.
Background
The offences were said to have been committed on 24 October 2007 against the complainant, AT, who was then aged 15. The applicant was aged 42. He lived next door to the complainant, with his wife and two young children.
There was expert evidence that, in the months before the alleged offences, the applicant and complainant had sent very large numbers of text messages to each other, and that their two phones were ‘paired’ to facilitate communication between them. There was also evidence that each of them had sent sexually explicit images or videos to the other. This evidence is described in more detail below.
In her evidence-in-chief, the complainant said that, a few months before the offences were committed, she was with the applicant in his garage, when he showed her pornographic images on his mobile phone. She walked outside and stood next to her mother. Some time later, the applicant asked for her phone number and sent her some ring tones. She said that later the applicant had asked her to send him videos of herself in the shower and toilet but she had refused. She denied having sent him pornographic images, but then said that she had sent him a picture of another girl’s breasts, because he had kept asking her to send him pictures of herself.
The complainant made three statements to the police. In her second statement, the complainant said she had sent the applicant the picture of a girl’s ‘boobs’. Her third statement was made after the police examined her phone and told her they had found some sexually explicit pictures on it. She then said she had sent the applicant three sexually explicit pictures, which were found on her phone.
In cross-examination, the complainant denied sending the applicant the three images and said that she had only sent him the picture of the girl’s breasts. In cross‑examination, it was put to her that other evidence would be led showing she had used her mobile phone to send the applicant a number of sexually explicit images. In one of the images, the girl depicted was wearing a necklace similar to a necklace which the complainant wore to the special hearing, but she denied that this was a picture of her and maintained that she had only sent the applicant one sexually explicit picture. The defence case was that the applicant had not asked her to send him these pictures.
The complainant also said that the applicant had sent her pornography in the form of videos and pictures, including two images of himself masturbating.
On 24 October 2007, 37 text messages were sent from the applicant’s phone to the complainant’s phone, 27 of which were sent between 4.58 am and 9 am. The complainant herself sent 32 text messages to the applicant, the first being sent at 5.01 am. The complainant’s evidence was that, on that day, she visited the applicant in his garage to ask him to repair a speaker, as he had done on a previous occasion. She said that, after the repairs were completed, they went into his house and he stood in front of her. She said that he had pushed her into a bedroom, pushed her down onto her bed and taken off her trousers and underwear. He then penetrated her lingually and digitally and told the complainant that ‘she wanted it’. She responded by saying that her mother would be home soon and would ‘go off her head’, causing the applicant to stop what he was doing. The complainant pulled her pants up, but before she could do so, the applicant grabbed the complainant’s head in an attempt to force her mouth onto his penis. She refused and pushed her head back to avoid contact with his penis.
The complainant left the house and was told by the applicant that he was sorry. She went home to see whether she was bleeding, and then sent a text message to her friend, VM, to tell her what had happened. There was expert evidence that a number of text messages had been sent by the complainant to VM around the time she said she had sent the message. VM gave evidence that she had received a message from the complainant saying that the applicant had tried to have sex with her and she had tried to push him away. The message was photographed by the police. Its exact content was: ‘When we were going outside so I could leave he tried to have sex with me. I tried my hardest to push him off but he wouldn’t budge. Now I have a really sore pussy and I am scared. Wish you were here with me’. VM said she had told the complainant not to go back to the applicant’s house and to tell someone what had happened.
Three text messages were sent from the applicant’s phone to the complainant’s phone after the alleged events occurred, at 5.23 pm, 5.33 pm and 5.38 pm, and two were sent from the complainant’s phone to the applicant’s phone at 5.25 pm and 5.30 pm. Though the content of those messages could not be recovered, evidence of their contents was led from various witnesses. VM’s evidence was that the complainant had told her that the applicant sent the complainant a message saying ‘Hey baby, I am sorry. You know you wanted it’ and that the complainant had sent a text message back saying ‘I am not your baby’. Senior Constable Brendan Boulton, one of the police officers who executed the search warrant at the applicant’s house after a report had been made, said that there was one message sent by the applicant to the complainant on 26 October 2007 which asked ‘How are you’.
The matter was reported to the police by the complainant and her mother on 26 October 2007. The applicant was interviewed and gave a ‘[n]o comment’ response to most of the questions put to him. He did not give evidence at the trial. At the completion of the interview, he was charged with one count of rape, three counts of sexual penetration of a child under 16 (respectively lingual and digital penetration of the vagina and digital penetration of the anus) indecent act with a child under 16, and, knowingly possessing child pornography and two other offences. I refer to other evidence in the context of particular grounds of appeal.
Ground 1
The first ground of appeal was that: ‘The Learned Trial Judge erred in permitting the Prosecution to file over a new 6 count presentment on 11 November 2008’.
This ground requires an explanation of the history of the proceedings. The original presentment (Presentment W02947773) filed on 5 March 2008, preferred three counts of rape, comprising lingual rape (count 1), digital rape (count 2), digital penetration of the complainant’s anus (count 3), one count of attempted oral rape (count 4) and possession of child pornography (count 5).
On 8 April 2008, the applicant was arraigned and the complainant gave evidence at a special hearing under s 41G of the Evidence Act 1958. During the hearing, the complainant gave no evidence relating to the act of anal penetration. It was agreed that the count of possessing child pornography should be severed.
Two new presentments were filed over on 10 October 2008. Presentment W02947773.1 preferred two counts of rape (being counts 1 and 2 on the original presentment) and a count of attempted rape (being count 4 on the original presentment). Presentment W02947773.2 preferred a count of possessing child pornography (being count 5 on the original presentment).
On 10 November 2008, when the trial was listed to proceed, counsel for the Crown sought to file over another presentment (Presentment W02947773.3), which included two ‘new’ counts of sexual penetration of a child under 16 (counts 2 and 4) and a ‘new’ count of attempted sexual penetration of a child under 16 (count 6), as alternatives to the counts of rape and attempted rape which were previously in Presentment W02947773.1. The counts in Presentment W02947773.3 were those on which the applicant was presented and the jury returned its verdicts. On 18 November, the applicant sought discharge of the jury, which was granted. The applicant was re-arraigned, and pleaded not guilty to all counts. A new jury was empanelled and the trial proceeded.
Counsel’s submissions
Counsel for the applicant submitted that the judge had erred in permitting the filing over of Presentment W02947773.3. The ‘new’ sexual penetration counts were not alternatives to the original counts at common law or by way of statute.[1] It followed that the applicant was, at the time of the special hearing, entitled to proceed on the basis that he would not be facing counts of sexual penetration of a child under 16.
[1]Counsel relied on R v Fisher (1960) 2 QB 114; R v Salisbury [1976] VR 452, 454; R v Lillis [1972] 2 QB 236, 241-2.
Counsel submitted that, in his ruling on the application to file over the new presentment,[2] the trial judge referred to the cross-examination of the complainant at the special hearing relating to the material sent from her phone to the accused and noted the submission that this cross-examination went to her credit, rather than to consent. Counsel submitted that, in the ruling, the judge had wrongly relied on the fact that the issue of consent had been raised in cross-examination to support the filing over of the presentment.
[2]The ruling was made on 11 November 2008.
The complainant’s cross-examination at the special hearing was based on the applicant’s presentment for rape. The defence case was that no sexual activity between the applicant and the complainant had taken place. It was submitted that if, at the time of the special hearing, the applicant had been presented for sexual penetration of a child under 16, his counsel might have made a different forensic decision as to the scope and nature of the attack on the complainant’s credit at the special hearing.
Further reliance was placed on the fact that, when the Crown filed its opening statement on 27 August 2008, it did not indicate that such convictions would be sought. Nor was such an indication given at the directions hearing on 10 October 2008.
Further, counsel submitted that even if, contrary to his primary submission, the sexual penetration and attempted sexual penetration counts were alternatives to the rape and attempted rape counts,[3] the filing over of a new presentment should not have been permitted because it caused significant prejudice to the applicant. The complainant had already been cross-examined at the special hearing and the presence of the sexual penetration counts would have distracted the jury from its assessment of the complainant’s evidence as to the counts of rape and attempted rape. The addition of the sexual penetration count may have invited the jury to resort to speculation to arrive at compromise verdicts.
[3]R v Walker [2004] VSC 411.
In reply, counsel for the Crown submitted that even if the counts of sexual penetration were not available as alternatives to counts of rape,[4] no miscarriage of justice resulted from the filing over of Presentment W02947773.3. In that respect, counsel relied on the fact that the trial judge’s ruling permitting the filing over of the new presentment gave leave to the applicant under s 41H(7) of the Evidence Act 1958 to re-examine the complainant.
[4]The written submission contended that they were alternatives, see R v Broadbent [1964] VR 733; R v Walker [2004] VSC 411. At the hearing, counsel appeared to resile from that position.
Conclusion on ground 1
If sexual penetration of a child under 16 is an alternative verdict to rape, no miscarriage of justice arose as the result of the filing over of a new presentment containing counts of sexual penetration.
Sections 425 and s 421 of the Crimes Act 1958 deal with alternative verdicts.[5] At the relevant time, section 425(1)(c) of the Crimes Act 1958, headed ‘Alternative verdicts for certain charges of sexual offences’, provided that ‘assault with intent to commit an offence against s 45(1) (sexual penetration of a child under the age of 16)’ is an alternative verdict where a person is charged with rape.[6] Thus sexual penetration of a child under 16 was not a specific statutory alternative to rape under s 425.
[5]See Criminal Procedure Act 2009, s 239.
[6]Emphasis added. Under the current legislation the commission of an assault with an intention to commit an indictable offence is an offence under s 31(1)(a) of the Crimes Act 1958.
Sections 421(2) and (3) of the Crimes Act 1958 provided that:
(2) Where, on a person’s trial on indictment or presentment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged therein, but the allegations in the indictment or presentment amount to or include (expressly or by necessary implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that offence.
(3)For the purposes of subsection (2), any allegation of an offence shall be taken as including an allegation of an attempt to commit that offence.
In R v Walker,[7] Teague J held s 425 did not provide an exclusive code of the alternative verdicts available in sexual offence cases. It followed that the omission of reference to a particular sexual offence in s 425(1)(c) did not prevent that offence from being an alternative verdict under s 421(2) of the Crimes Act 1958.
[7][2004] VSC 411 (‘Walker’).
The issue in Walker was whether rape and sexual penetration counts arising out the same alleged act of digital penetration should be severed, because the offence of sexual penetration of a child under 16 was not an alternative verdict under s 425(1)(c). Teague J declined to order severance. Although the issue in Walker was different from that which arises in the present case, Walker implicitly supports the view that when an accused is prosecuted for rape, s 421(2) permits the jury to bring in the alternative verdict of sexual penetration of a child under the age of 16. His Honour said the following:
The code or exclusive approach seems to me to have little to commend it. The common law developed alternative verdicts. Statutory alternative verdicts were introduced and often amended. Presumably this was because it was the perception of the legislators initially that the common law did not achieve the appropriate balance, and later that the balance could from time to time be improved. The current statutory alternatives are there as a form of guidance to be followed by trial judges. They are not framed, and should not be applied, as a form of code.[8]
[8]Ibid [22].
The view that the offences of sexual penetration or attempted sexual penetration are alternative verdicts to rape and attempted rape also derives support from the decision of the House of Lords in R v Wilson.[9] The issue in Wilson was whether it was open for the court to convict an accused of assault occasioning actual bodily harm, where the accused had been charged with maliciously inflicting grievous bodily harm. Their Lordships considered the effect of the general alternative verdicts provision in s 6(3) of the Criminal Law Act 1967 (UK), which is expressed in very similar terms to s 421(2) of the Crimes Act1958.[10] Lord Roskill (with whom the other Law Lords agreed) declined to follow the decision of the Full Court of the Supreme Court of Victoria in R v Salisbury,[11] which held that the offences of assault occasioning actual bodily harm and common assault were not alternative verdicts to the offence of maliciously inflicting grievous bodily harm, in the absence of a specific statutory provision to that effect.
[9][1984] AC 242 (‘Wilson’).
[10]Section 6(3) provides:
Where, on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.
The only significant difference is the addition of the word ‘necessary’ before the word ‘implication’ in the Victorian provision and the closing words of s 6(3).
[11][1976] VR 452 (‘Salisbury’).
The House of Lords held that the use of the words ‘includes expressly or by implication’ in s 6(3) covered the situation where the allegations in the indictment were capable of including an allegation of the lesser offence said to be an alternative.[12]
[12]This was the case even though the offence of ‘inflicting’ grievous bodily harm did not necessarily require an assault to have occurred
In Reid v The Queen,[13] this Court followed the decision of the Full Court in Salisbury holding that :
At common law, which was at relevant times embodied in s 421(2) of the Crimes Act 1958, it is open to a jury to convict an accused of a lesser offence than the charged offence but only if the definition of the charged offence necessarily includes the definition of the lesser offence and it is an offence of the same degree.[14] As was explained in R v Salisbury,[15] the question of whether a lesser offence is necessarily included in the definition of a charged offence must be determined upon a consideration of the terms in which the charged offence has been laid. It follows that, in order to be an included offence, the offence must be capable of being established by proof of the same or less than the facts required to establish the charged offence. In the result, an offence is not an included offence unless one can say of it that the elements of every instance of the charged offence necessarily include all the elements of the included offence.[16]
[13][2010] VSCA 234, (‘Reid’).(Nettle, Harper and Hansen JJA)
[14]R v Taylor (1869) 1 CCR 194; R v Salisbury [1976] VR 452, 454.
[15][1976] VR 452.
[16][2010] VSCA 234, [15].
Reference was made to Wilson in the following terms:
one cannot say that all the elements of recklessly causing injury are necessary ingredients of the offence of intentionally causing injury or, to put it another way, one cannot say that every instance of the offence of intentionally causing injury is constituted in part by all of the elements of the offence of recklessly causing injury.
In England, the position is no longer the same. In R v Wilson the House of Lords held that an offence can be an included offence even though it need not be proved to establish the offence charged. Their Lordships considered that it is sufficient if allegations in the indictment are capable of including an allegation of the lesser offence. Obviously, if that applied here, one could say that the offence of intentionally causing injury included the offence of recklessly causing injury. But although Wilson was based on s 6(3) of the (UK), to which s 421(2) of the Crimes Act 1958 is similar, the decision has been robustly criticised and thus far it has not been adopted in this country. Accordingly, in our view, the judge was in error in leaving the offence of recklessly causing injury to the jury as an included offence.[17]
[17][2010] VSCA 234, [16]-[17] (citations omitted).
I note that there was no provision equivalent to s 421(2) of the Crimes Act 1958 or to s 6(3) of the Criminal Law Act 1967 (UK) when Salisbury was decided. On the other hand, the Victorian parliamentary debates preceding the 1981 introduction of section 421(2) of the Crimes Act 1958, indicate that its purpose was simply to reproduce ‘the common law rule that a person charged with an offence may be convicted of a lesser offence, the ingredients of which are included in the offence with which he is charged’.[18]
[18]Victoria, Parliamentary Debates, Legislative Assembly, 26 March 1981, 6543 (The Hon Robert Maclellan, Minister of Transport). Mr Maclellan pointed out that the provisions were also intended to remove the restriction that a person charged with a felony could not be convicted of a misdemeanour.
Reid is a recent decision of this Court. Somewhat reluctantly, I consider that I am bound to hold that the offence of sexual penetration of a child under 16 is not an alternative verdict to a count of rape. The offence of sexual penetration of a child under 16 is not ‘capable of being established by proof of the same or less than the facts required to established the charged offence’, because it requires the proof of an additional element, that is that the complainant was below the specified age. The fact that the complainant’s age was not disputed and that both rape and sexual penetration of a child under 16 required proof that sexually penetration had occurred did not overcome this problem. As the Full Court[19] said in Salisbury:
Whether the lesser offence is necessarily included in the offence charged is a matter which has to be determined upon a consideration of the terms in which the offence is laid. It is not a matter which depends upon the evidence led at the trial, except to the extent that an accused cannot be found guilty of a lesser charge unless the evidence led supports a conviction on that charge.[20]
[19]Young CJ, Nelson and Harris JJ.
[20][1976] VR 452, 454.
Since the sexual penetration counts and attempted sexual penetration counts were not alternatives to the counts of rape and attempted rape, it was necessary for the Crown to file over a new presentment including the former counts. The question then arises whether there was a miscarriage of justice because the Crown was permitted to file over a new presentment after the applicant had been arraigned and the complainant had given her evidence at the special hearing.
In Walker,[21] Teague J referred to a number of considerations relevant to this question. He said:[22]
there are many statutory provisions which bear on how charges of criminal offences, and alternative charges, are to be presented, interpreted and dealt with by juries. In interpreting those provisions several different interests have to be taken into account. Of prime concern is the interest in securing a fair trial …
There are a variety of principles designed to minimize, if not avoid, the prospect of unfairness to an accused. It would be unfair for an accused: not to be informed in advance with reasonable precision what charges he had to meet; to be burdened with totally unrelated charges which are lumped together by the prosecutor; or, to be charged later after having earlier been put to trial and either acquitted or convicted with respect to that matter. As to the third of those, in Rogers v The Queen,[23] there was an analysis of the various facets of the different rules and maxims including autrefois acquit. At 278, Deane and Gaudron JJ who formed part of the majority referred to: ‘…the doctrines that have developed with respect to the unassailable nature of an acquittal and the need for consistency.’ Those doctrines are aimed in part at preventing a person being prosecuted more than once. The prosecution should not be allowed to make repeated attempts to convict a person. It may be unfair for an accused to be put up for a second trial with lesser charges as to the same matter that could have been heard at the first trial. It is preferable that an accused should have the jury consider such other charges at the first trial. It is preferable that an accused should at one trial rather than multiple trials have alternatives considered. Such a course carries with it a risk that the accused may be less likely to be acquitted on the main charge. It would be unfair for an accused to be punished, and ‘punished’ here includes ‘convicted’ on more than one occasion, or with respect to more than one charge, for what is substantially the same act.
Intermixed with considerations of fairness towards the accused are some other considerations. The public interest in the administration of justice extends to ensuring that the processes of the court are used fairly by State and citizen alike. There is also a public interest in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the processes of the court may lend themselves to oppression and injustice. See Richardson J in Moevao v Department of Labour.[24]
[21][2004] VSC 411.
[22]Ibid [11]-[13]. See also the remarks of Deane J (who dissented in the result) in Saraswati v The Queen (1991) 172 CLR 1, 4-5.
[23](1994) 181 CLR 251.
[24][1980] 1 NZLR 464, 481.
In the present case, a refusal of leave to file over the new presentment would have given rise to the issues identified by Teague J. If the jury had acquitted the applicant of rape, the question would then have arisen whether he could be presented on sexual penetration or attempted sexual penetration of a child under 16. It might well have been regarded as unfair for the prosecution to present the application for sexual penetration or attempted sexual penetration if he had been acquitted of rape and attempted rape at the previous trial.[25]
[25]See R v Dickson [2008] VSCA 271, [45].
But the applicant might have been acquitted of rape, even if the jury were satisfied beyond reasonable doubt that the acts of penetration had occurred. The acquittal could have been based on the fact that the jury were not satisfied beyond reasonable doubt of the complainant’s lack of consent or of the applicant’s awareness of that lack of consent. In such a case, it would erode public confidence in the criminal justice system for the accused to escape conviction for the sexual penetration offences.
In Reid this Court rejected a ground of appeal alleging that there had been a miscarriage of justice because the trial judge had permitted amendment of a presentment to substitute a count of recklessly causing injury for the count of intentionally causing injury, after the jury indicated that they could not agree as to whether the accused was guilty of the ‘intentional’ offence, but had reached a verdict on a count of recklessly causing injury, which the judge was held to have wrongly treated as an included verdict. In the course of rejecting this ground the Court said that:
The presentment in this case was defective because it failed to include a count of recklessly causing injury which was disclosed by the depositions and which was in effect agitated throughout the trial. The result of the defect, had it not been cured, was that the jury would have been prevented from returning a verdict on the count of recklessly causing injury, even though they were plainly persuaded that the applicant was guilty of that offence, and would have been subjected to the dilemma of either convicting the applicant of the more serious count of intentionally causing injury (about which it appears they were intractably disagreed) or acquitting him altogether. To have left the presentment in that state, in those circumstances, would have been ‘discreditable’. …
We add for the sake of completeness that, although the judge considered the possibility of re-arraigning the applicant once the amendment had been effected, he ultimately decided not to do so. With respect, we think it would have been preferable if his Honour had done so.[26]
In the present case the fact that all of the counts arose out of the same alleged facts made it desirable for all of the offences arising, to be dealt with together.
[26][2010] VSCA 234, [26]-[27].
As Reid illustrates, there is no rule prohibiting the filing over of a new presentment during the course of a trial.[27] In R v Lam,[28] Pidgeon J said that ‘[i]f the Crown does in fact file an indictment I would see it as being open at an early stage to substitute a different indictment’.[29] In some circumstances it will be unfair to an accused to give leave to amend a presentment, or to file over a new presentment after the trial has commenced. As the Full Court observed in R v Street:[30]
The time at which an application for amendment is made doubtless provides a consideration, to be taken into account in determining whether the power should be exercised, but the weight to be given to such a consideration must necessarily be varied according to the circumstances of the case.[31]
[27]In R v Harris (No 2) [1990] VR 305 (Ormiston J) it was held that no leave was required if this occurred before arraignment.
[28]R v Lam (1998) 100 A Crim R 188 (‘Lam’).
[29]Ibid 192-3 (Ipp and Wallwork JJ agreeing).
[30][1960] VR 669.
[31]Ibid 671 (Herring CJ, Dean and Little JJ).
Similarly, as McDonald J observed in R v Evans, ‘[t]he later in a trial that an application is made to amend particulars to an indictment, the higher the chance or likelihood that an amendment will cause an injustice to an accused’.[32]
[32]R v Evans [1999] VSC 489, [26] (MacDonald J). See also R v Johal [1973] QB 475, 481.
Similarly, where a trial is underway and an accused has mounted a defence based on the charges contained in the original presentment, it will often be unfair for the Crown to change the case against the accused by filing over a new presentment. However, as Lam[33] demonstrates, no injustice may occur where the new presentment is based on the same evidence as the previous indictment.
[33](1998) 100 A Crim R 188.
In the present case, the complainant had given her evidence-in-chief and been cross-examined at a special hearing but no other evidence had been led by the Crown before the new indictment was filed. Counsel had not yet delivered opening addresses to the jury. Counsel’s argument appears to turn solely on the fact that, because the applicant had been arraigned before the complainant gave evidence at the special hearing and the trial had technically commenced, it was too late for the new presentment to be filed.
I am not persuaded by that submission. The defence case was that the complainant had wrongly accused the applicant of engaging in sexual activities with her, because he had rejected her sexual overtures. The complainant’s credit was attacked in cross-examination for the purpose of showing that the alleged acts of penetration had not occurred. The defence case was not that the sexual acts had occurred with the complainant’s consent, but rather that they had not occurred at all. Denial that the acts had occurred was also central to the defence case on the sexual penetration counts. Thus the defence was not prejudiced in any way.
The applicant did not seek an adjournment or to further cross-examine the complainant, although his Honour ruled that leave would be granted under s 41H of the Evidence Act 1958 to permit the applicant’s counsel to further cross-examine the complainant. The failure to further cross‑examine the complainant clearly shows that there was no real apprehension that the applicant would be prejudiced by the granting of leave to file over the new presentment.
Ground 1 fails.
Ground 2
Ground 2 was as follows:
The Learned Trial Judge erred in permitting the Prosecution to lead evidence of the alleged hiding by the Applicant of his mobile phone — as evidence that was capable of demonstrating a consciousness of guilt in respect of the offences contained in the Presentment.
At the beginning of the trial, the prosecutor told the judge that the Crown wished to rely on the evidence of Michelle Fay Owen, a neighbour of the applicant, as evidence of consciousness of guilt.
Ms Owen’s evidence was that on 26 October (ie, two days after the alleged offences) she was babysitting the applicant’s son at her house, when the applicant came to collect him. After the applicant had been there for some time, the police arrived and the applicant went back to his house and spoke to them for about half an hour.
He then returned to her house and said he was leaving with the police. The applicant handed his keys to Ms Owen, so she could pick up some clothing for his son and came to the door to say goodbye to his son. He leaned in through her front door and put his phone on the top shelf of a shoe rack.
In cross-examination, it was put to Ms Owen that the applicant was simply divesting himself of his belongings before he went away with the police. She disagreed that this was a possibility. She said that she had a ‘strong suspicion’ when he put the phone on the shoe rack. It was put to her that at the committal hearing she had given evidence that she was ‘slightly suspicious’ when the applicant did this. She said in response that she had been ‘strongly suspicious’ and she knew something was wrong, although she did not immediately call the police.
In re-examination, Ms Owen said that the applicant’s action in putting the phone in the shoe rack was ‘a purposeful act’. The applicant’s wife came to the house and Ms Owen gave her the keys and the phone. The wife returned about 10 minutes later with the phone and Ms Owen then rang the police.
Senior Constable Boulton said that he was about a metre behind the applicant when the applicant said goodbye to his son and did not witness anything suspicious.
At the trial, counsel for Mr Pollard submitted that the evidence about the attempted concealment of the phone should not be admitted because the applicant’s post-offence conduct was equally consistent with him having a consciousness of guilt of the offences of rape and of sexual penetration of a child under 16. He further submitted that because the child pornography counts had been severed from the other counts it was ‘triply prejudicial’ to admit evidence as to any alleged attempt to hide his phone.
The trial judge ruled that the evidence was capable of being regarded by the jury as consciousness of guilt evidence. He gave an Edwards direction in his jury charge. The applicant did not allege that the direction was inadequate.
Counsel’s submissions
Counsel for the applicant submitted that the evidence should not have been left to the jury as consciousness of guilt evidence, because the applicant’s conduct was equally consistent with the fact that he was guilty of the child pornography offences contained in the other presentment.
Counsel further submitted that the applicant was prejudiced by the Crown’s reliance on the hiding of the phone as consciousness of guilt evidence. The applicant could not have explained that he had hidden the phone to conceal the child pornography images on it, because this would have caused him ‘untold forensic damage’. He relied upon R v Cook[34] as an example of a case where the Court excluded consciousness of guilt evidence because of its prejudicial nature.
[34][2004] NSWCCA 52 (‘Cook’), [20]-[49]. See also R v Hartwick (Unreported, Court of Appeal, Charles, Callaway JJA and Vincent AJA, 20 December 1995).
In reply, counsel for the Crown submitted that the judge had properly left the evidence to the jury as evidence of consciousness of guilt of the offences in the presentment. He relied on the judge’s ruling and the judgment of this Court[35] in R v Ciantar.[36] He further submitted that defence counsel did not ask the judge to exercise his discretion to exclude the evidence.
[35]Warren CJ, Chernov, Nettle, Neave and Redlich JJA.
[36](2006) 16 VR 26 (‘Ciantar’).
Conclusion on ground 2
The judge had first to decide whether the evidence that the applicant had hidden his phone was capable of meeting the requirements for admission of consciousness of guilt evidence. If it were not capable of satisfying those requirements, it was inadmissible. If it were capable of being admitted for that purpose, and assuming that defence counsel sought its exclusion because of its prejudicial character,[37] the judge then had to decide whether it should be excluded in the exercise of his Christie[38] discretion because its prejudicial effect outweighed its probative value.
[37]Cook [2004] NSWCCA 52, [24] (Simpson J, Ipp JA and Adams J agreeing).
[38]R v Christie [1914] AC 545.
The applicant’s counsel argued that the evidence was not capable of being admitted as evidence of consciousness of guilt evidence because the hiding of the phone was equally consistent with the applicant’s consciousness of guilt of having committed child pornography offences.
In Ciantar,[39] a bench of five considered whether evidence of lies or post‑offence conduct (compendiously described as post-offence conduct) is capable of being relied upon as evidence from which an inference of guilt may be drawn, where the post-offence conduct may be attributable to the fact that the accused has committed an offence other than the offence for which he or she is being tried.
[39](2006) 16 VR 26.
After a detailed review of the authorities, the Court overruled the decision of this Court in R v Heyes[40] and held that post-offence conduct could be left to the jury as evidence of consciousness of guilt of a particular offence, even where one explanation for the post-offence conduct may be the accused person’s consciousness of guilt for having committed a lesser offence.[41] Nevertheless, the Court recognised that:
there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post‑offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases.[42]
[40](2006) 12 VR 401.
[41](2006) 16 VR 26, 39.
[42]Ibid 39 (citations omitted). See also R v Smart [2010] VSCA 33. Cf Woon v The Queen (1964) 109 CLR 529, 541-2.
The relevant question is therefore whether the applicant’s hiding of his phone, considered in the context of the whole of the evidence, was ‘equally consistent with two or more possible offences’ or ‘otherwise intractably neutral’. If that were the case, the judge wrongly found that it was capable of being admitted as evidence of consciousness of guilt.
When considered in the context of all of the evidence the applicant’s act of hiding the phone was not ‘intractably neutral’ in the sense described in Ciantar. Senior Constable Boulton’s evidence was that when he approached the applicant outside Ms Owen’s house he said:
Mark, we’re from the Pakenham police and I need to speak with you in relation to an incident involving [the complainant] a couple of days ago and I asked him if he knew what I (indistinct) for at which stage he said no. I then said to him, well, in that case you are under arrest for rape and the sexual penetration of a child between ten and 16 years and I asked him if he understood that. He said, ‘What?’ I then said to him, ‘Do you understand that’s the reason why you’re under arrest?’ And he said, ‘Yes.
The alleged hiding of the phone occurred almost immediately after the applicant had been told that he was being arrested for alleged sexual offences against the complainant. The Crown case was that the applicant had shown the complainant pornographic images on his mobile phone and had transmitted images and videos to her as part of a process of grooming her to participate in sexual acts with him. In this context the post-offence conduct could not possibly be regarded as ‘intractably neutral’ in the sense described in Ciantar. The applicant’s conduct in hiding the phone on which he had sent many text messages to the complainant was clearly capable of supporting an inference that the applicant was guilty of the sexual offences on which he was presented.
The more difficult question is whether the judge should have exercised his discretion to exclude the evidence, because of its prejudicial character. Most of the discussion between defence counsel and the judge prior to his Honour’s ruling related to the applicability of Ciantar. In his submissions, the applicant’s counsel did not clearly separate the question whether the evidence was capable of supporting the inference that the applicant had committed the relevant offences, from the question of whether, even if this were the case, it should be excluded. Defence counsel did not address the question whether the prejudicial effect of the evidence that the applicant had hidden his phone outweighed its probative value. Nevertheless I am prepared to assume that this was what was meant by counsel when he said that ‘in these circumstances the post-offence conduct is not just doubly prejudicial but triply prejudicial because the hiding of the phone may equally be referable to the alleged possession of child pornography’ and went on to refer to s 137 of the New South Wales Evidence Act 1995, which is the Uniform Evidence Act equivalent of the Christie discretion.[43]
[43]However, under this provision, the evidence must be excluded if the requirements in it are met.
In R v Gallagher,[44] Ashley AJA (as he then was) said that ‘[w]here a discretion is exercised not to exclude evidence a convicted person has no easy road on appeal. Review of the exercise of the discretion involves considerations akin to those described, in a different context, in House v R’.[45]
[44][1998] 2 VR 671, 699.
[45](1936) 55 CLR 499.
In the same case, Callaway JA assumed, without deciding, that he would have exercised the discretion to exclude the evidence if he had been the trial judge. However he said that ‘[i]t by no means follows that the point can succeed on appeal. The weighing of probative value and likely prejudicial effect is one of many exercises in the law on which minds may legitimately differ’.[46]
[46][1998] 2 VR 671, 686.
In this case the applicant’s hiding of his phone, immediately after he was told that he was being arrested for alleged sexual offences against the complainant had considerable probative value. As I have said, a central part of the Crown case was that the applicant used his phone to accustom the complainant to thinking about sexual matters and to groom her to participate in sexual activities with the applicant by showing and sending her sexual pictures and videos and asking her to send him similar material.
On the other hand, the revelation that the applicant had pornographic images on his phone would normally be highly prejudicial to a person accused of sexual offending. In the unusual circumstances of this case however, I consider that the explanation that the applicant had hidden his phone because of the pornographic images on it would not have been as prejudicial as appears at first sight. The effect of such evidence has to be considered in the context of the overall evidence which necessarily came before the jury during the running of the case.
The complainant gave evidence that some time before the alleged offences occurred the applicant had shown her videos of porn on his phone when they were in the garage together. She said the videos comprised images of a girl fellating a man, of a girl ’using a dildo type thing’ and of a girl engaged in other auto erotic activity.
Senior Constable Boulton testified that he had found ‘numerous pornographic images and files on the applicant’s phone’ and that he ‘identified a number of video images on the phone which matched the description given by the complainant. These images were shown to the jury.
There was evidence that the complainant had sent five images (three of which were sexually explicit) and three video files to the applicant. She admitted sending him an image of a girl’s breasts, but denied sending him three other explicit images, including one of a woman with her top pulled up exposing her breasts and vagina, one of breasts and a bra and one of a vagina. These images had been stored on the applicant’s phone for a considerable time. He had not deleted them.
The image of a girl wearing a necklace and exposing her breasts and vagina was shown to the jury. There was cross-examination of the complainant directed at showing that she was the girl in this image.
The complainant gave evidence that the applicant had sent her sexually explicit images. There was expert evidence that the applicant had sent videos and picture messages to an undeterminable recipient and that the complainant had received videos on her phone at around the same time, although these images could not be recovered. The expert evidence was that one possible reason for this was that the applicant had deleted these images from his phone.
In those circumstances I am not persuaded that the prejudice caused to the applicant arising from his inability to explain that he had hidden the phone because it had child pornography on it, outweighs the probative value of that evidence.
Counsel for the applicant submitted that there is a distinction between evidence that the accused had pornography on his phone and an admission that it was child pornography. An admission to possessing child pornography was likely to be much more prejudicial than evidence that the applicant had adult pornography on his phone. But this assumes that the jury would not already have been aware that the applicant was in possession of child pornography. This was not the case. If the jury accepted that the complainant had sent the applicant images of herself, which he had stored, they would already have known that he had sexually explicit images of a child on his phone for a considerable time. Further, I would reject the argument that the applicant could not have given any convincing alternative explanation for hiding his phone, without referring specifically to the fact that he did not want the police to discover child pornography. That is not the case. As the trial judge said in his jury charge:
‘One of the propositions put to you by counsel as an alternative, did Mark Pollard in fact hide the phone? Was Mark Pollard in placing the phone simply getting rid of his gear? Secondly, was Mark Pollard divesting himself of his personal effects before he got taken away by the police officers? Was he divesting himself of the phone because he had a belief that there were images on the phone that he preferred the police officers did not see in case it was related to something else?
I therefore consider that it was open to the trial judge, in the exercise of this discretion to decline, to exclude the evidence of the hiding of the phone, although it might have been wiser if he had done so. It follows that the challenge to his Honour’s exercise of the Christie discretion cannot succeed.
Cook,[47] on which counsel for the applicant relied, is distinguishable from the present case. In Cook, the appellant had been convicted of threatening to inflict actual bodily harm by means of an offensive weapon, with intent to have sexual intercourse.[48] At his trial, evidence was admitted after he had allegedly committed the offence, the accused had gone to his former de facto partner’s house and hidden himself in the ceiling. Before doing so, he threatened her with reprisal if the police found him.
[47][2004] NSWCCA 52.
[48]Crimes Act 1900 (NSW), s 61K(b).
The appellant appealed on the basis that this evidence of post‑offence conduct should have been excluded under s 137 of the Evidence Act1995 (NSW) because the probative value of the evidence was outweighed by the danger of unfair prejudice to the defendant.[49] Simpson J (with whom Ipp JA and Adams J agreed) held that there was no general principle that the fact that the explanation for the post‑offence conduct involves revealing other offences, requires evidence of consciousness of guilt to be excluded.[50]
[49]The Court held that s 137 did not involve the exercise of a discretion, unlike the situation which arises in this case.
[50]Her Honour referred to R v Power (1996) 87 A Crim R 407 (Court of Criminal Appeal South Australia) and R v Taranto [1999] NSWCCA 396.
However on the facts of the case, it was held that the evidence should have been excluded because the appellant’s response to the evidence disclosed the fact that he had breached an Apprehended Domestic Violence Order against him, issued as a result of an application made by his de facto partner. His explanation would not only have disclosed that he was a person with a prior criminal record (including a previous breach of an Apprehended Violence Order) but also that he was a person with a history of violence against women. It was accepted in Cook that in cases where the alternative explanation for post‑offence conduct is the commission of a criminal offence, there may be ways of preventing prejudice to the applicant other than excluding the evidence.[51]
[51]As Doyle CJ said in R v Power (1996) 87 A Crim R 407, 410, when problems of this kind arise ‘there are various ways of dealing with them and they do not necessarily result in the evidence being inadmissible’.
In my opinion, Cook is distinguishable because in the present case the jury was aware of the purposes for which the applicant used his phone and had seen examples of the pornography he had upon it. Further, there were other ways of bringing to the jury’s attention the applicant’s explanation for hiding the phone, without revealing that there was child pornography upon it.
Even if I am wrong in that view, I do not consider that any miscarriage of justice arose as a consequence of the admission of that evidence. An alternative hypothesis was put to the jury in the final address of counsel for Mr Pollard, as well as by the judge. It is true that that it did not, and could not, have referred to the presence of child pornography on the applicant’s phone. But in my opinion, the direction provided the jury with a reasonable explanation as to why the applicant hid his phone, without prejudicing the applicant by referring to his possession of child pornography. In these circumstances, no miscarriage of justice arose, even if his Honour should have exercised his Christie discretion to exclude the evidence.
Ground 3
Ground 3 alleged that:
The guilty verdicts on counts 3 and 5 are inconsistent with the not guilty verdict on count 1.
The complainant’s evidence-in-chief about the events which occurred on 24 October was as follows:
COUNSEL:What happens inside the bedroom?
WITNESS:He pushed me onto his bed.
…
COUNSEL:What happens then?
WITNESS:He pulled down my pants.
…
COUNSEL:And is there any conversation between you or him at this time?
WITNESS: I was swearing at him and asking him what he was doing.
COUNSEL: Did he say anything?
WITNESS: No he didn’t.
COUNSEL: What happens with your pants?
WITNESS: He pulled them down to my ankles.
COUNSEL: Did you have anything else on under your school pants?
WITNESS: Yes, I had my boxers and my undies on underneath.
COUNSEL: What happened with them?
WITNESS: He pulled them down as well.
COUNSEL: What were you doing at this time?
WITNESS: Trying to get him off.
COUNSEL: How?
WITNESS: Trying to push him off.
COUNSEL: Where were you putting your hands?
WITNESS: On his chest.
COUNSEL: Did you push him off?
WITNESS: No.
COUNSEL: What happens then?
WITNESS: Then he spread my legs.
COUNSEL: How did he do that?
WITNESS: With his hands.
COUNSEL: And what happens next?
WITNESS: The he started licking me.
COUNSEL: Whereabouts?
WITNESS: In my vaginal area.
COUNSEL:When you say your vaginal area, where was contact being made?
WITNESS:In my vagina.
COUNSEL: What’s your position at this time?
WITNESS: I was on my back.
COUNSEL: Where are your arms?
WITNESS: Beside me trying to get him off.
COUNSEL: Where are your legs?
WITNESS: Dangling over the edge.
COUNSEL: Approximately how long did this licking take?
WITNESS: I don’t know – a couple of minutes.
COUNSEL: What happens next?
WITNESS: Then he put his fingers in me.
COUNSEL: Whereabouts?
WITNESS: In my vagina.
COUNSEL: Are you able to say which hand?
WITNESS: It was right.
COUNSEL: Are you able to say which finger or fingers?
WITNESS: The pointer and his middle.
COUNSEL: What’s happening with them?
WITNESS: He’s putting them in and out.
COUNSEL: What feeling is that having as far as you’re concerned?
WITNESS: Horrible.
COUNSEL: Were you saying anything to him at this time?
WITNESS: Yes, I was telling him to get off.
COUNSEL: Was he saying anything to you?
WITNESS:He said that he knew I wanted it.
COUNSEL:After the fingers in the vagina, what’s the next thing that happens?
WITNESS:I was telling him that mum was going to be home soon and that if she finds out she’s going to go off her head and then he stopped and he let me pull up my pants and then while I was bending over to pull them up he was pushing my head down to his penis.
COUNSEL: Anything being said by him at that time?
WITNESS: He said for me to give him head.
COUNSEL: Anything being said by you?
WITNESS: I was saying no.
COUNSEL: Could you see his penis?
WITNESS: Yes.
COUNSEL: What state was it in?
WITNESS: It was erect.
COUNSEL: Approximately how far away from his penis is your head?
WITNESS:About 10 centimetres.
COUNSEL:I think you said something about putting your pants back on, is that right?
WITNESS: Yes.
COUNSEL:Does that mean your pants had come off or where [sic] they still around your ankles?
WITNESS:They were still around my ankles.
COUNSEL:At the time, just going back a bit to where he’s got his fingers in your vagina, what’s his body position?
WITNESS:Half of him was leaning over me and the other half was – he was still standing, with his fingers in.
COUNSEL: How did you come to get up?
WITNESS: I tried fighting him off but it didn’t work.
COUNSEL: Yes?
WITNESS:So I said that mum was going to be home soon and that he’d better let me go because she’s come straight over looking for me and he let me go to pull up my pants and – yes.
COUNSEL:You’ve indicated he was pushing your head towards his penis, anything being said by him or by you at that time?
WITNESS:He was saying that I wanted it and I was telling him that I didn’t. And I was fighting back at that time.
COUNSEL: How were you fighting back?
WITNESS: I was pushing my head backwards so I’d stay away from it.
COUNSEL: How did you have contact with your head?
WITNESS: He had his hands on the back of my head.
COUNSEL: What happened after that?
WITNESS:I almost started crying and then he let me up and he let me go pretty much – to pull up my pants and he walked me to the front door and I walked home.
COUNSEL: Anything said by you or by him on the way to the front door?
WITNESS: He said he was sorry.
COUNSEL: Did you say anything to him?
WITNESS: No.
COUNSEL:When you got back home, what was your position in terms of feeling in your body?
WITNESS: I felt really sore.
COUNSEL: Where?
WITNESS: In my vagina.
COUNSEL: Did you do anything in relation to that?
WITNESS: I went to the toilet to see if I was bleeding.
COUNSEL: Were you?
WITNESS: No.
Counsel for the applicant submitted that the acquittal on count 1 (rape) and the jury verdict of guilty on the alternative count of sexual penetration of a child under 16 meant that the jury must have rejected the complainant’s evidence that, from the time the applicant began to pull the complainant’s pants down, she was swearing and trying to push him away.[52]
[52]He relied on Jones v The Queen (1997) 191 CLR 439, 453.
Since the complainant had said she had resisted the applicant in relation to count 1 and this was rejected by the jury, there was no evidentiary basis on which the jury could conclude that there was consent (or awareness of lack of consent on the part of the applicant) when the offence covered by count 1 occurred, but find that the elements of rape or attempted rape were satisfied in relation to counts 3 and 5. Thus the jury’s acquittal of the applicant on count 1 necessarily dictated his acquittal on counts 3 and 5.[53]
[53]R v JA [2008] VSCA 169, [48]-[49].
Counsel further relied on the following matters, which were said equally to apply to all of the counts:
(a) the alleged sexual activity was part of a single episode of offending;
(b) there were no witnesses to any of the sexual activity;
(c) the applicant denied that any sexual activity took place; and
(d) there was no medical evidence suggestive of force in relation to any of the counts.
In reply, counsel for the Crown submitted that the verdicts were not inconsistent. He submitted that the not guilty verdict on count 1 (rape) and the guilty verdicts on counts 3 and 5, (rape and attempted rape) were open to the jury because in the victim’s evidence about the first count, she said she had sworn at the applicant and asked what he was doing when he was undressing her, and attempted to push the applicant off her by placing her hands on his chest. That evidence, it was said, could be contrasted with the later ‘more robust rejection of his advances’. Counsel for the Crown further submitted that the jury might have believed the complainant’s evidence in relation to the digital penetration (count 3) because she had said that it was ‘horrible’ and that she felt ‘really sore,’ and checked for bleeding when she went home. Counsel submitted that this would not have been the case for the lingual penetration and the complainant did not say that the applicant caused her pain when he licked her vagina. Counsel for the Crown also referred to the evidence of the complaint made by the complainant to her friend.
Conclusion on ground 3
When an appellate court is required to consider whether the jury verdicts on different counts in the same presentment are factually inconsistent, ‘the test is one of logic and reasonableness’.[54] In Mackenzie v The Queen,[55] the High Court said that the respect accorded to the fact-finding functions of juries should make appellate courts reluctant to find that jury verdicts are factually inconsistent. Gaudron, Gummow and Kirby JJ said:
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.[56] 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.[57] 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.[58] 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 …[59]
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[60]. 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.[61]. 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.[62] It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.[63]
[54]MacKenzie v The Queen (1996) 190 CLR 348 (‘MacKenzie’), 366.
[55]Ibid 367.
[56]See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580, 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172.
[57]R v Wilkinson [1970] Crim LR 176.
[58]R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31, 40.
[59]R v Hunt [1968] 2 QB 433, 436. See also R v Kirkman (1987) 44 SASR 591, 593 (King CJ, Olsson and O'Loughlin JJ concurring).
[60]R v Irvine [1976] 1 NZLR 96, 99; R v Morgan [1981] 2 NZLR 164, 168-9; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada (1983), §15.212, requiring that the verdicts be ‘so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion’: R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M & W 600; Bedford v Crapper [1949] 3 DLR 153.
[61]R v Zundel (1987) 35 DLR (4d) 338, 401-2, applying R v McShannock (1980) 55 CCC (2d) 53, 55‑6; cf Mack v Elvy (1916) 16 SR (NSW) 313.
[62]R v Drury (1971) 56 Cr App R 104, 105.
[63](1996) 190 CLR 348, 367-8.
In my opinion the jury verdicts of not guilty on count 1 (rape), but guilty on count 3 (rape) and count 5 (attempted rape) were not ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[64]
[64]Ibid 368.
The defence case was that the complainant had attempted to inveigle the applicant into having sex with her, but that none of the alleged sexual acts took place. The applicant’s conviction on count 2 (sexual penetration of a child under 16) indicates that the jury accepted the complainant’s evidence that the alleged act of lingual penetration had occurred. Although the defence case was not that the complainant consented to the alleged offence covered by count 1, but rather that it did not occur at all, the jury was not required to consider the evidence solely by reference to the defence case but was ‘entitled to work out for themselves their view of the case’.[65]
[65]R v Munro [2005] VSCA 260, [6] (Eames JA) (citations omitted).
The verdict of not guilty on count 1 did not necessarily mean that the jury rejected the complainant’s evidence in its entirety. As Gleeson CJ, Hayne and Callinan JJ pointed out in MFA v The Queen:[66]
In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman,[67] and referred to in later cases:[68] it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.[69]
[66](2002) 213 CLR 606 (‘MFA’).
[67](1987) 44 SASR 591, 593.
[68]See, eg, MacKenzie (1996) 190 CLR 348, 367-8.
[69]Ibid 617; see also 630-2 (McHugh, Gummow and Kirby JJ).
The jury verdict on count 1 could have been based either on the jury’s failure to be satisfied beyond reasonable doubt that the complainant did not consent to lingual penetration, or on its failure to be satisfied to the requisite standard that the applicant was aware that the complainant was not consenting or might not have been consenting. The fact that the complainant had voluntarily gone to the applicant’s garage on the day the alleged offences occurred and that each had sent the other large numbers of text messages on that day, may have led some or all members of the jury to conclude that the complainant had consented to lingual penetration, or that even if she had not consented, the applicant did not have the necessary intention to allow his conviction on count 1.
Further, even if the jury rejected the complainant’s evidence that count 1 occurred without her consent, this did not necessarily require the rejection of her evidence that she did not consent to the digital penetration or to the applicant’s attempt to have her fellate him. A doubt held by the jury as to the credibility of the complainant’s account of count 1 did not require the rest of her evidence to be rejected. Credit is not a ‘homogenous and indivisible whole’.[70] As Gleeson CJ, Hayne and Callinan JJ said in MFA:
It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski[71] 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.[72]
[70]R v Ware [1997] 1 VR 647, 650 (Hedigan AJA, Winneke P and Hayne JA agreeing).
[71](2001) 52 NSWLR 82, 96-9.
[72](2002) 213 CLR 606, 617-18.
McHugh, Gummow and Kirby JJ also disagreed with the submission that
Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified.[73]
[73]Ibid 632.
The complainant’s evidence was that she tried to push the applicant off her before count 1 occurred and that she continued to resist him. She was fighting him off while he was digitally penetrating her and had told him that her mother was going to be home soon and ‘that he’d better let me go’. The jury might well have been satisfied beyond reasonable doubt that by the time the digital penetration had occurred, the applicant was aware that the complainant was not consenting or might not be consenting, while he was at the same time telling her that she ’wanted it’. Nor is there anything improbable in the evidence that the complainant, who was only 15 at the time of the alleged offences, was trying to push her head backwards to avoid contact with the applicant’s erect penis and that she said ‘no’ when he asked her to ‘give him head’.
The jury was also entitled to give some weight to the complainant’s evidence that she was sore when she got home as support for the fact that she had been raped digitally, even though they may have had a doubt as to whether she had consented to lingual penetration. They were also entitled to take account of the evidence that she had sent her friend a text soon after she went home complaining that the applicant had tried to rape her.
The fact that there were no witnesses to any of the sexual activity, and no medical evidence of rape does not assist the applicant. There are rarely witnesses to sexual offences. Further, Senior Constable Boulton gave evidence that he did not arrange for a medical examination of the complainant because he was informed by a forensic medical officer that, because there was no allegation of penile penetration, no evidence of ejaculation and no injury or bleeding, a medical examination would not be of any value in ascertaining whether the offences occurred.
Nor does the fact that the alleged sexual activity was part of a single episode of offending necessarily establish that the verdicts were inconsistent. As I have said, the applicant’s conviction on count 2 meant that the jury found that the alleged sexual acts occurred. Even if the jury were not satisfied beyond reasonable doubt of the complainant’s lack of consent in relation to count 1, this did not require them to
find that all subsequent sexual acts were consensual. It is not inherently improbable that the complainant consented to one sexual act, but did not do so to the acts which followed.
For the above reasons, I would dismiss the application for leave to appeal against conviction.
MANDIE JA:
I agree with Neave JA.
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