R v Core

[1995] QCA 415

IN THE COURT OF APPEAL  [1995] QCA 415

SUPREME COURT OF QUEENSLAND

C.A. No. 222 of 1995

Brisbane

Before           McPherson J.A.

Thomas J.

Williams J.

[R. v. Core]

T H E     Q U E E N

v.

CHRISTOPHER GORDON CORE

(Appellant)

McPherson J.A.

Thomas J.

Williams J.

Judgment delivered 15/09/95

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS     CRIMINAL LAW - CARNAL KNOWLEDGE WITH A GIRL UNDER 16 - Whether jury had returned inconsistent verdicts - Whether verdicts could stand together - R. v. B (C.A. No. 277 of 1992, 18 December 1992, unreported).

Counsel:G. Long for the appellant

L. Clare for the respondent

Solicitors:Legal Aid Office for the appellant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:           5 September 1995

REASONS FOR JUDGMENT BY THE COURT

Judgment delivered the 15th day of September 1995

The appellant was tried on an indictment charging five counts of unlawful carnal knowledge with a girl under 16 (counts 1 to 5), and one count of maintaining an unlawful relationship of a sexual nature with the same girl (count 6).  Counts 2 and 6 were withdrawn at the end of the Crown evidence at the trial.  The jury returned verdicts of not guilty on counts 1 and 4, but convicted in respect of counts 3 and 5.

The appellant appeals against his conviction essentially on the ground that the verdicts on counts 3 and 5 were inconsistent with the verdicts on counts 1 and 4 and are therefore to be considered unsafe and unsatisfactory.  There is no doubt about the principle to be applied in such a case.  It was stated in R. v. B (no. 346 of 1992) as follows:

"An appellant seeking to persuade an appellate court that a jury had returned inconsistent verdicts has 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 that conclusion.  And this will be so only if there is no rational basis for the apparently inconsistent verdicts.  It is not established merely by showing that the jury must have rejected the complainant's evidence on some counts but accepted it on others: R. v. Watson (Court of Appeal No. 277 of 1992, 18 December 1992, unreported)."

The present case is not one in which it can be said that if the complainant's evidence in relation to one of the counts was rejected, her evidence must or should have been rejected with respect to all of them.  What was alleged in the indictment was a series of separate incidents that occurred on different dates during a period extending from about August 1990 to October 1992.  The jury may well have been satisfied that incidents of the kind described by the complainant in her evidence had taken place, but they might nevertheless have been left with a reasonable doubt about whether she was correct in thinking that the appellant had on each occasion penetrated her vagina with his penis.  In other words they may have considered her to be an honest and generally reliable witness, but one who might have been mistaken in saying that it was the appellant's penis rather than his finger that had effected penetration on each occasion.  Or alternatively, they may have been left with a doubt whether there was, on the two counts on which they acquitted, such penetration as is necessary to constitute the offence.

There was in the evidence a basis on which such a conclusion could fairly have been reached.  The complainant was nine years old at the time of the first incident alleged, and 13 years of age when she gave evidence at the trial.  Her evidence was not lacking in detail of time and occasion.  It was not contradicted.  The appellant himself did not give evidence, although he called his wife, from whom he was separated, to testify about some matters which the jury may have considered peripheral to the general truthfulness of the complainant's account.  By contrast, cross-examination of the plaintiff tended to focus at length on matters of detail.  Some of those details may be thought to have assumed on her part the existence of powers of observation and recollection going beyond what is ordinarily expected of a witness of her age or, indeed, of any witness.  In relation to others, the complainant's answers tended to supply or confirm details which would otherwise not have appeared in evidence.

Perhaps the most perplexing circumstance about the case was that the complainant's hymen showed no indication of any injury.  It and the posterior foreshette bore no signs of tears of bruises on examination.  However, the medical expert who conducted the examination in March 1994 said at the trial that in his experience it was possible for there to be partial penetration by penis or finger without causing a rupture.

Once that possibility is accepted, it became a matter for the jury  to determine whether the oral evidence sufficiently established that the element of penetration by the appellant's penis had taken place on each of the occasions averred in counts 1, 3, 4 and 5.  As regards the occasions involved in counts 3 and 5 (as to which the verdicts of guilty were returned), the complainant said that she first had felt the appellant's penis enter her vagina,  followed by his finger.  She judged the difference by the degree of pain she felt.  In the case of count 5, she also described how the appellant withdrew and ejaculated.  In respect of count 3, she said his penis went in "pretty far".  By contrast, in the case of count 4, penetration was only minimal.  She said his penis had gone in "only a little", "not far", or only "just inside".  Having regard to the position in  which they were lying on that occasion the jury may have been left with a doubt whether penetration had taken place at all.  The first occasion (count 1) was another instance in which the jury may have doubted whether in the particular circumstances actual penetration had occurred.

There were other differences, more or less significant, between the incidents described as constituting counts 1 and 4, and counts 3 and 5, which may have led the jury to entertain a reasonable doubt about whether penile penetration had occurred in the course of the former two incidents without leading them to doubt the general veracity of the complainant.  On the charges in counts 1 and 4 the appellant might perhaps have been found guilty of some lesser offence; but, at the urging of the defence, the trial judge did not instruct the jury with respect to alternative verdicts that were open.  That can give rise to no complaint on appeal, and none was made by the appellant.

The appellant has not demonstrated that the verdicts were inconsistent, or that they were otherwise unsafe or unsatisfactory.  The appeal against conviction must be dismissed.