R v A
[1992] QCA 456
•18 December 1992
IN THE COURT OF APPEAL [1992] QCA 455
SUPREME COURT OF QUEENSLAND
C.A. No. 277 of 1992
THE QUEEN
v.
W
Mr Justice Pincus
Mr Justice McPherson
Mr Justice Williams
Judgment of the Court delivered on 18th December, 1992
Appeal against conviction dismissed
JUDGMENT OF THE COURT
Delivered the 18th day of December, 1992
MINUTE OF ORDER:Appeal against conviction dismissed.
CATCHWORDS: Criminal Law - alleged inconsistent verdicts - submitted conviction unsafe and unsatisfactory - McElligott C.A. 101 of 1991 explained - appeal dismissed.
Counsel:P. Nase for appellant
Bullock for Crown
Solicitors:Legal Aid Office for appellant
Director of Prosecutions for Crown
Hearing Date: 4th December, 1992
JUDGMENT OF THE COURT
Delivered the 18th day of December, 1992
The appellant was charged in the District Court at Southport with three counts of unlawfully and indecently dealing with a girl under the age of 14 years; each charge related to the same girl. The jury convicted on count 1, was unable to reach a verdict on count 2, and acquitted on count 3. He has appealed against his conviction on count 1 and the grounds of appeal are stated in the following terms:
the jury's verdict is unsafe and unsatisfactory;
the jury's verdict is against the evidence and the weight of evidence;
the jury's verdict is inconsistent with the verdict in relation to the other two counts on the indictment and therefore cannot stand;
the jury's verdict is unsafe in that it depends solely upon acceptance of part of the complainant's evidence whereas the verdict in relation to the other two counts depends upon a failure to accept her evidence.
Count 1 was based on an incident which occurred when the appellant and the complainant were living in a caravan and annex. At that time the appellant and the complainant's mother were living in a defacto relationship; the complainant's younger brother and sister also were residing there. The evidence was that after showering the complainant was lying on her bed under the covers and with only a towel wrapped around her body. She said that the appellant, who was also only wearing a towel, lay on the bed, placed his hand under the towel around her body and on her bare buttocks, and then moved it towards her vagina. She then got up from the bed and went to where her brother and sister were.
Count 2 related to an incident which occurred after the complainant found a vibrator which belonged to her mother. Her mother was at work at the time. She took the vibrator to the appellant and asked him what it was. Her evidence was to the effect that the appellant then told her to go to the bathroom and he would show her. She said in evidence that while she was sitting on the toilet the appellant put the vibrator against her vagina and turned it on. She said he asked her, "Does that feel good?". She replied, "Yes", but then started crying.
Count 3 related to an incident which occurred at a later point of time when the persons already referred to were residing in a house at Ashmore. The complainant had apparently gone to bed at night wearing a short nightie and no pants. She was lying on top of the bed covers with her buttocks exposed when the appellant entered the room to check that she was alright and asleep. The complainant's allegation was that he touched her on the buttocks with his finger and told her to put some pants on.
The learned trial judge in his summing up defined the term "indecent" for the jury. He told them that indecency should be judged in the light of time, place and circumstance. He told them that it was for them to say whether each of the dealings with the complainant was indecent and that was to be decided having "regard to all the circumstances of the case, particularly the girl's age, the environment in which the dealings occurred and the circumstances surrounding those dealings".
The learned trial judge in his summing up made it clear to the jury that, as he understood the addresses of counsel, each was saying that the complainant girl was not mistaken in any way in giving her evidence; she was either truthful or telling lies. He told the jury that the "outcome of the trial depends almost completely on what you make of" the complainant. He said that their "assessment of that girl is what will decide this case". Later on he said that the trial comes down to one issue - was the complainant girl truthful.
The learned trial judge informed the jury that there was no evidence before them capable of corroborating the complainant's evidence. He then gave full and appropriate directions with respect to such a situation, and no complaint was made about the summing up in that regard.
Counsel for the appellant conceded that there was evidence before the jury which, if accepted, would support a verdict of guilty on count 1.
The argument addressed to the court in support of the appeal was that, as there was no rational basis upon which the jury could have accepted the girl's evidence on count 1 and rejected it on counts 2 and 3, the verdict on count 1 was so unsafe and unsatisfactory that it ought not be allowed to stand. That was said to follow from the decision of the Court of Criminal Appeal in McElligott, C.A. No. 101 of 1991, judgment delivered 27th August 1991.
The reasoning in that decision was recently considered by this Court in J, C.A. No. 264 of 1992, judgment delivered 4th December 1992. Therein it was pointed out that there is no principle that a conviction must be regarded as unsafe and unsatisfactory merely because the jury have rejected the complainant's evidence with respect to some counts on the indictment, but accepted it so as to convict on other counts. There were a series of cases, of which R. v. Anthony [1982] Qd. R. 284 is an example, wherein it was held that an appellant seeking to persuade an appellate court that a jury had returned inconsistent verdicts had the burden of establishing that the verdicts could not stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion; once it appeared that they were an unreasonable jury, or that they could not reasonably have come to the conclusion, then the convictions could not stand. But an appellate court must now go further, at least where it is contended that the verdicts are unsafe and unsatisfactory; that follows from the judgments of the High Court in Morris v. The Queen (1987) 163 C.L.R. 454 and Chidiac v. The Queen (1991) 171 C.L.R. 432. What McElligott decides is that in those circumstances the appellate court should consider whether there is some rational basis for the apparently inconsistent verdicts. The convictions could only be set aside on the ground they were unsafe and unsatisfactory if, after undertaking an independent assessment of the evidence, the court concluded that there was no rational basis for the apparently inconsistent verdicts.
The acquittal on count 3 here is entirely explicable without there being any rejection of the complainant's evidence. The conduct alleged against the appellant was of such a nature that a reasonable jury may well have concluded that it did not satisfy the test of indecency. The jury might have had a doubt as to whether what occurred was worse than what a reasonable man in loco parentis to the complainant girl might have done.
Section 626 of the Criminal Code empowers the court to discharge the jury without giving a verdict where they are unable to agree. That is obviously what happened with respect to count 2. Courts have consistently refused to receive evidence, by way of affidavit or otherwise, as to what happened in the jury room. Thus a court would never know why the jury was unable to reach agreement. The last vote may have been 11 to 1 either for conviction or acquittal. There may have been one juror who (accepting all that was said by the complainant girl) regarded it as not indecent for the appellant to have demonstrated to her, at her request, how a vibrator was used. In the police interview of the appellant which was recorded on video tape, he denied any incident at all of the type the basis of count 1, whereas he did admit that the girl produced the vibrator and asked him what it was. According to his reply in the interview, he immediately told her to put it back where she found it. One or more of the jurors may have considered that there was some significance in his different responses to those allegations put to him. Those matters are mentioned to highlight that it is impossible for any court to draw any inference at all from the mere fact that the jury was unable to reach a verdict.
As a necessary foundation of the appellant's argument here the court was asked to draw the inference from the failure to reach a verdict on count 2 that the jury must have had at least serious doubts as to the credibility of the complainant girl. For the reasons given that inference cannot be drawn. It would be pure speculation to say that the jury in this case rejected, or at least had serious doubts about the complainant girl's evidence.
On that analysis there is no inconsistency at all established as between the three verdicts.
After an independent assessment of the evidence before the jury the court cannot conclude that the verdict of guilty on count 1 is unsafe and unsatisfactory. There was clear evidence given by the complainant girl which, if accepted, established that charge; so much was conceded by counsel for the appellant. The "not guilty" verdict on count 3 is readily explicable on the basis indicated above. As the failure to agree upon a verdict on count 2 does not necessarily involve any rejection of the complainant girl's evidence, there is no inconsistency between the result achieved on counts 1 and 2.
It therefore follows that no ground has been made out for setting aside the conviction. The appeal should be dismissed.
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