R v BOTTERILL - [2010] SASCFC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOTTERILL
[2010] SASCFC 31
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)
21 September 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ALTERNATIVE VERDICTS
Appeal against conviction – appellant charged with persistent sexual exploitation of a child, unlawful sexual intercourse and indecent assault – appellant found not guilty of persistent sexual exploitation charge – jury unable to reach a verdict in relation to unlawful sexual intercourse charge – appellant convicted of indecent assault charge – whether jury precluded from returning a guilty verdict on that charge by operation of s 50(5) Criminal Law Consolidation Act 1935 (SA) – whether verdict of the jury on the indecent assault charge inconsistent with the verdict on charge of persistent sexual exploitation of a child – whether conviction unsafe and unsatisfactory.
HELD: jury not prevented from returning a verdict of guilty on the indecent assault charge – inconsistency with the verdict of acquittal on the charge of persistent sexual exploitation not established – verdict not rendered unsafe or unsatisfactory as a result of delay, lack of suspicion by the wife of the appellant, or complainant's vague recollection of the appellant's conduct – it was open to the jury to find the appellant guilty beyond all reasonable doubt – verdict not unsafe or unsatisfactory – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 50, s 49(3), s 56, referred to.
MacKenzie v The Queen (1996) 190 CLR 348; R v Kirkman (1987) 44 SASR 591; MFA v The Queen (2002) 213 CLR 606; M v The Queen (1994) 181 CLR 487, considered.

R v BOTTERILL
[2010] SASCFC 31
Court of Criminal Appeal: Duggan, Gray and Kelly JJ

DUGGAN J: The appellant was tried in the District Court on an information which alleged the following offences:
Count 1
Persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) between 1 January 1999 and 31 January 2004.
Count 2
Unlawful sexual intercourse contrary to s 49(3) of the CLCA between 4 October 2002 and 31 January 2004.
Count 3
Indecent assault contrary to s 56 of the CLCA between 4 October 2003 and 31 January 2004.
The complainant in each case is the appellant’s step-granddaughter. She was born on 4 September 1989.
The appellant was found not guilty by majority verdict on the first count. The jury were unable to reach a verdict on the second count. The appellant was convicted by unanimous verdict on the third count.
The appellant appeals against his conviction on the third count. It is argued that the jury were precluded from returning a verdict on that count by the operation of CLCA s 50(5). It is argued in the alternative that the verdict of the jury on the third count was inconsistent with the verdict on the first count and is unsafe and unsatisfactory.
CLCA s 50
Section 50 of the CLCA came into operation on 23 November 2008. The section created the offence of persistent exploitation of a child. Insofar as it is relevant to the issues raised in the appeal, s 50 provides as follows:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)[Irrelevant]
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)     subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)     the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)     the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
The complainant was under the prescribed age defined in the section during the period of the offence alleged in the first count. The acts relied upon by the prosecution to support the offence charged in this count were sexual offences as defined in s 50.
The first ground of appeal is based on the wording s 50(5). It is argued that, once the jury acquitted the appellant of the offence of persistent sexual exploitation charged in the first count, the appellant could not be convicted of the offence of indecent assault charged in the third count, given that the latter offence was alleged to have been committed during the period the appellant was alleged to have committed the offence of persistent sexual exploitation.
In my view the answer to this argument is to be found in s 50(4)(c). It was made clear at the trial that the offence of indecent assault alleged in the third count was charged in the alternative. The trial Judge directed the jury that they could not find the appellant guilty on the third count unless they acquitted him on the first count, but were nevertheless satisfied beyond reasonable doubt that he was guilty of the offence alleged in the third count.
Section 50(4)(c) addresses this precise situation. The prosecution is permitted to include in an information charging a person with persistent sexual exploitation alternative charges for sexual offences committed against the complainant which it alleges were committed during the period of the alleged persistent sexual exploitation. If the jury acquits the defendant on the charge of persistent sexual exploitation they may then consider any of these alternative offences charged in the same information.
However, it is clear that s 50(5) was intended to prevent the prosecution from commencing fresh proceedings after the completion of a trial of an offence of persistent sexual exploitation by charging a defendant with a sexual offence allegedly committed during the period specified in the charge of persistent sexual exploitation of which the defendant was convicted or acquitted at the trial.
It appears that the principal purpose of s 50(5) is to avoid double jeopardy. It would be inappropriate to commence fresh proceedings charging a specific sexual offence alleged to have occurred during the period alleged in a charge of persistent sexual exploitation upon which the defendant had been convicted at a previous trial. The charging of an offence in the alternative as contemplated by s 50(4)(c) avoids double jeopardy by reason of the fact that a defendant cannot be convicted of both offences.
The legislation also addresses the situation of an acquittal on a charge of persistent sexual exploitation. If the prosecution were permitted to commence fresh proceedings alleging a specific sexual offence which occurred during the period of the alleged persistent sexual exploitation after an acquittal on that charge at a previous trial, it is conceivable that the incident giving rise to the subsequent charge was found by the jury not to have been proved at the first trial. This difficulty would not arise if the specific sexual offence was charged as an alternative to the offence of persistent sexual exploitation. Obviously, the jury would not convict on the specific offence if it found that offence had not been proved as a component of the charge of persistent sexual exploitation.
In my view the intention of the legislature was to recognise the different considerations applicable to the situation where, on the one hand, a sexual offence is charged as an alternative to a charge of persistent sexual exploitation under s 50(4)(c) and, on the other hand, where an attempt is made to charge the specific sexual offence in fresh proceedings in the circumstances referred to in s 50(5).
The intention to provide for each of these situations is also revealed by the grammatical construction of the relevant subsections. Section 50(4)(c) refers to a sexual offence “during the period during which a person is alleged to have committed” the offence of persistent sexual exploitation whereas s 50(5) speaks of a sexual offence “committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation”. The tense used in s 50(4)(c) is appropriate to a current trial whereas the tense used in s 50(5) is apt to describe an allegation made in previous proceedings.
In my view, to attribute to s 50(5) the effect for which the appellant argues would leave no scope for the operation of s 50(4)(c).
It follows that the jury were not prevented by s 50 from returning a verdict of guilty on the third count following a verdict of acquittal on the first count.
Next it is argued that the verdict of guilty of the offence charged in the third count is inconsistent with the acquittal on the first count.
In order to prove the offence of persistent sexual exploitation the prosecution must establish the commission of more than one act of sexual exploitation of a particular child over a period of not less than three days. In the present case the DPP relied upon four types of sexual exploitation which were summarised by the trial Judge in his summing up as follows:
1.That on one occasion he rubbed her on the outside of her vagina without inserting his fingers in her vagina;
2.That on multiple occasions he inserted one of his fingers into her vagina and, on one occasion, inserted two fingers into her vagina;
3.That on one occasion he penetrated her labia majora with his penis; and
4.That on one occasion he procured her to touch his penis with her hand.
The second count in the information was based on an alleged incident during which the appellant penetrated the complainant with his penis. This is the incident referred to in para 3 of the particulars in relation to the first count which are summarised above.
The third count alleged, as a specific offence, one of the multiple occasions of digital penetration referred to in para 3 above. The complainant said that the appellant penetrated her vagina with his finger or fingers on a number of occasions. The occasion relied upon for the third count allegedly occurred while she was sitting with the appellant at the dining room table. She was sitting on the appellants lap and he touched her on the outside of her vagina before putting his finger into her vagina. She said that prior to penetrating her in this way he commented that she was “growing pubes”. She gave evidence that she starting growing pubic hair the year before puberty and that she reached puberty at the age of 12 or 13 years.
It is not suggested that the verdict on the third count suffered from legal inconsistency.[1] However Mr Richter, for the appellant, relies upon factual inconsistency which is said to be inherent in the verdicts. He contends that the finding of not guilty on the first count and the verdict of guilty on the third count suggests that the jury came to some sort of compromise verdict on the third count. He argues that there were many incidents which the jury could have relied upon to establish guilt on the first count if they concluded that the complainant was a credible witness. He points out that there was nothing in the evidence which sets the incident relied upon to establish the third count apart from a number of other incidents of alleged sexual offending deposed to by the complainant.
[1] MacKenzie v The Queen (1996) 190 CLR 348 at 366.
Inconsistency is not a ground of appeal in itself. The relevant test is whether the verdict of the jury is unreasonable.[2] However, it is clear that inconsistency of the type alleged in this case may justify the setting aside of the verdict on the ground of unreasonableness.
[2] cf MFA v The Queen (2002) 213 CLR 606 at [36].
In R v Kirkman,[3] a case in which the offences of rape and indecent assault were alleged, King CJ (Olsson and O’Loughlin JJ concurring) made the following general comments about inconsistency of verdicts:
[3] (1987) 44 SASR 591 at 593.
I mentioned earlier, however, that there was a qualification to the proposition that if there were no other issue in this case but consent, the verdicts would necessarily be inconsistent with one another. The qualification I have in mind is that juries 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. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information.
These comments were quoted with approval in MacKenzie v The Queen, where Gaudron, Gummow and Kirby JJ said:[4]
[4] (1996) 190 CLR 348 at 366.
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[5] is often cited as expressing the test[6]:
“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.”
Their Honours continued:[7]
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[8]. 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[9]. 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[10]. 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[11]. 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[12].
After referring to the remarks of King CJ in Kirkman their Honours said:[13]
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[14]. 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[15]. 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[16]. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”
[5]    Unreported, 13 December 1954, per Devlin J.
[6]    See, eg, R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43^rd ed (1995), vol 1, par 4-457.
[7] (1996) 190 CLR 348 at 367.
[8]    See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sanford Ltd (1919) 19 SR (NSW) 172.
[9]    R v Wilkinson [1970] Crim LR 176.
[10] Hayes v The Queen (1973) 47 ALJRY 603 at 604-605.
[11] R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40.
[12] R v Hunt [1968] 2 QB 433 at 436.
[13] (1996) 190 CLR 348 at 368.
[14] R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; 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 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153.
[15] R v Zundel (1987) 35 DLR (4d) 338 at 401-402, applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313.
[16] R v Drury (1971) 56 Cr App R 104 at 105.

The amendment to the CLCA which created the offence of persistent sexual exploitation of a child came into operation on 23 November 2008. The purpose of s 50 was to overcome the difficulty occasioned in many cases where a child complains about a continuous course of sexual abuse, but is unable to readily identify particular occasions which can be made the subject of individual counts in the information.
Despite the fact that the alleged conduct cannot be fully particularised, a charge under s 50 may be proved by establishing the occurrence of more than one act of sexual exploitation of a particular child over a period of not less than three days.
It is to be expected that, in some prosecutions under this provision, the child complainant will have difficulty in particularising individual incidents which are claimed to form part of a course of conduct. The legislature has attempted to overcome this difficulty by providing an alternative to the charging of specific offences. However, in those cases where specific offences are included in the information as alternatives, there may be a tendency on the part of a jury in a particular case to focus on the specific offences if there is some concern about convicting on allegations of a more general nature led in evidence to support a charge of persistent sexual abuse.
If alternative specific offences are charged they are likely to contain some feature which enables the incident to be identified. This is illustrated in the present case by the charging in the second count of the only incident in which it is alleged there was penile intercourse. In like manner, the offence of indecent assault charged in the third count can be identified by the allegation that it occurred after the appellant’s observation about “growing pubes”.
Mr Richter submits that the incidents charged in the second and third counts are no more specific than a number of other incidents described by the complainant which were part of the evidence against the appellant on the charge of persistent sexual exploitation. However, the fact remains that these other incidents were not made the subject of separate charges. In my view the verdict on the third count might well be explicable on the basis that the jury were not prepared to convict the appellant of the more general and amorphous charge of persistent sexual exploitation and instead turned their attention to the specific offences charged in the second and third counts. They were unable to agree on count two, but convicted the appellant on count three.
It is also relevant to observe that the trial Judge said in his summing up that the jury could accept parts of the complainant’s evidence and reject other parts and, more relevantly, that they were to consider each count separately.
In my view it has not been established that the verdicts are inconsistent so as to render the conviction of the appellant on the third count unsafe or unsatisfactory.
Finally, it is argued that the verdict on the third count is unsafe and unsatisfactory by reason of a combination of factors.
Mr Richter pointed out that the alleged offending was not reported to the police until December 2008. The trial Judge directed the jury on the delay in the following passage:[17]
Well, ladies and gentlemen, there is a further direction that I must give you by reason of the lateness of [the complainant] not putting her allegations to the police until some six years after the last act of sexual abuse is said to have occurred. I have said that you should draw no inference adverse to her credibility on that topic but that does not mean that the lateness of her complaint is entirely irrelevant. You must, as Mr Stewart forcefully argued, in the course of his closing address, appreciate the effects that the failure to make a prompt complaint to the police might have upon the ability of an accused person to defend himself against allegations of this nature. You must take into account the possibility that because so much time has passed that it was difficult for him to recall the details of relevant events and circumstances when he was interviewed by the police. If a prompt complaint had been made to the police he may have been in a position for example to remember whether he was in the house; if he was in the house, what part of the house he was in, what he was doing, who may have been present, or in the vicinity, when an incident is said to have taken place.
Furthermore, the passage of time has meant that the witnesses called by the prosecution experienced difficulty in recalling the detail and circumstances of relevant events. In particular, you should take into account that the general nature of [the complainant’s] evidence would have made it more difficult for the defence to probe her honesty and reliability by closely examining the detail of her allegations, so they are matters that you can legitimately take into account when you consider the lateness of her allegations to the police.
The verdict is not rendered unsafe by reason of the delay itself and the directions on delay were appropriate.
[17] Summing up at 32.
Another factor was said to be that, according to the evidence, the complainant’s grandmother was sitting at the table or was nearby when some of the alleged offending took place. She said in her evidence that she did not become suspicious about her husband’s behaviour. The trial Judge reminded the jury of the comments which defence counsel made in relation to this aspect of the evidence. The evidence did not go as far as establishing that the complainant’s grandmother must have seen what was occurring.
Further, counsel for the appellant argued that the complainant’s vague recollection was a factor capable of contributing to an unsafe verdict. Although the complainant was unable to recall specific details of many of the acts of sexual abuse which she said took place, she was able to identify the occasion on which the incident charged in the third count was based by reference to the accompanying conversation. Again, the jury were instructed on the approach to be taken in considering the evidence in the light of the criticism of vagueness in the evidence of the complainant.
In my view, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt on the third count.[18]
[18] M v The Queen (1994) 181 CLR 487.
It follows that the verdict was not unsafe or unsatisfactory.
I would dismiss the appeal.
GRAY J:
I would dismiss the appeal. I agree with the reasons of Duggan J.
KELLY J:
I would dismiss the appeal. I agree with the reasons of Duggan J.