R v Gbojueh

Case [2009] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GBOJUEH

[2009] SASC 104

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)

27 April 2009

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED

CRIMINAL LAW - PROCEDURE - JURIES - OTHER MATTERS

Appeal against conviction - defendant and appellant charged with two counts of rape and unlawful sexual intercourse arising from two incidents of sexual intercourse with same complainant - defendant acquitted by jury verdict on one count of rape but convicted on second count of rape - whether verdicts unreasonable and inconsistent - whether verdict of guilty supported by the evidence - whether verdict unsafe and unsatisfactory - whether verdict should be set aside.

Held (per Gray and Sulan JJ agreeing): conviction set aside - verdict of guilty unsafe and unsatisfactory - verdict of acquittal and conviction cannot stand together.

(per Kourakis J dissenting): appeal dismissed - circumstances of each incident were sufficiently different to allow, as a matter of logic and human experience, the jury to be satisfied beyond reasonable doubt of the commission of the second offence but not the first.

Criminal Law Consolidation Act 1935 (SA) s 353(1); Juries Act 1927 (SA) s 33, Sch 6, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, CCA Eng, Devlin J, 13 December 1954); MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591; R v Melville (1956) 73 WN (NSW) 579; Newell v The King (1936) 55 CLR 707; Hocking v Bell (1945) 71 CLR 430; Mechanical & General Inventions Co Ltd & Anor v Austin Motor Co [1935] AC 346; Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708; Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; Ward v James [1966] 1 QB 273; Jones v The Queen (1997) 191 CLR 439; Bushell's Case [1670] 124 ER 1006; Packett v The King (1937) 58 CLR 190; Gammage v The Queen (1969) 122 CLR 444; R v Singh (1977) 17 SASR 73; R v Prasad (1979) 23 SASR 161; R v H, GJ (2008) 102 SASR 82; R v Kelly (1985) 38 SASR 561; R v JA [2008] VSCA 169; R v RAT (2000) 111 A Crim R 360; R v D [2000] NSWCCA 443; R v Liddy (2002) 81 SASR 22; R v KWG [2000] SASC 398; R v Markuleski (2001) 52 NSWLR 82; R v Hare [2007] SASC 427; R v Kelly (1985) 38 SASR 561;

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AGLC
R v Gbojueh [2009] SASC 104
Case
[2009] SASC 104
Decision Date

CaseChat Overview and Summary

The case of R v Gbojueh involved the appellant who was convicted of one count of rape and acquitted of another by a jury. The appellant appealed against his conviction, arguing that the verdicts were inconsistent and unreasonable. The Court of Criminal Appeal was required to determine whether the verdict of guilty was unreasonable due to its inconsistency with the acquittal verdict and whether it was supported by the evidence. Additionally, the court had to decide whether the verdict was unsafe and unsatisfactory, warranting its setting aside.

The court applied the test established in M v The Queen, which requires the court to determine if it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, considering the advantages enjoyed by the jury in seeing and hearing the evidence. The court found that the evidence did not provide a basis for the jury's different verdicts. The court acknowledged that in most cases, a doubt experienced by an appellate court would be a doubt which a jury should also have experienced, but recognised that a court of criminal appeal may conclude that there has been no miscarriage of justice if the jury's advantage in seeing and hearing the evidence resolves a doubt experienced by the court of criminal appeal.

The Court of Criminal Appeal concluded that the evidence did not provide a basis on which the jury reached their different verdicts. The court held that the conviction should be set aside because the verdict of guilty was unsafe and unsatisfactory. The verdict of acquittal and conviction could not stand together, and the appeal was allowed.

The court set aside the conviction and quashed the verdict of guilty, resulting in the appellant being acquitted of the charge of rape.

Orders

Orders of the court

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Background

Background to the litigation

Where an appellant complains that a verdict of guilty is unreasonable because it is inconsistent with a verdict of not guilty given in the same trial, the appellant must show that the verdicts are illogical or irrational.[15] Any suggestion that as a general proposition it is illogical or irrational for a jury to have a doubt about a complainant’s consent on one occasion and not on another must be rejected.[16] Having regard to the evidence and circumstances of this case, I am not persuaded that it was irrational for the jury to give the appellant (who was aged 40) the benefit of a doubt about the first occasion, but to be satisfied beyond reasonable doubt that the complainant (who was aged 12) did not consent on the second.[15] MacKenzie v The Queen (1996) 190 CLR 348 at 366-8, [3]-[5].[16] Jones v The Queen (1997) 191 CLR 439 at 470.Facts and background The facts and background as they were recited in the trial Judge’s summing up to the jury appear in the reasons of Gray and Sulan JJ, and I gratefully adopt that summary.Inconsistent and unreasonable verdicts In MFA v The Queen[17] the High Court explained that the test to be applied in determining whether a verdict of guilty returned by a jury is unreasonable by reason of its inconsistency with a verdict of acquittal delivered in the same trial is the test formulated in M v The Queen..[18] That test is whether the Court of Criminal Appeal thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[19] The majority of the Court in M pointed out that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced”,[20] but they recognised that a court of criminal appeal may nonetheless conclude that there has been no miscarriage of justice “where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal”.[21] The majority in M qualified the proposition that, generally, deference should be accorded to the jury’s advantage in this way:If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.[22] (emphasis added)[17] (2002) 213 CLR 606.[18] (1994) 181 CLR 487.[19] M v The Queen (1994) 181 CLR 487 at 493.[20] M v The Queen (1994) 181 CLR 487 at 494.[21] M v The Queen (1994) 181 CLR 487 at 494.[22] M v The Queen (1994) 181 CLR 487 at 494. Nonetheless, the majority in M explained that in answering the question whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, the Court of Criminal Appeal:… must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary the court must pay full regard to those considerations.…To ask only whether the court [of criminal appeal] has a doubt may place insufficient emphasis upon the fact that the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.[23][23] M v The Queen (1994) 181 CLR 487 at 493-4.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS J (dissent)
We do not consider it to be tenable that the evidence referred to the Director could be said to provide a basis on which the jury reached their different verdicts. The Director accepted that this was the only basis on which it could be suggested that the verdicts could be reconciled. Conclusion In MacKenzie,[9] Gaudron, Gummow and Kirby JJ addressed the dilemma to be resolved by a Court with respect to apparent inconsistent verdicts:Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions[10]. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision[11]. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law[12]. On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx[13], sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly[14]. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.[9] MacKenzie v The Queen (1996) 190 CLR 348 at 365.[10] Newell v The King (1936) 55 CLR 707 at 711; cf Hocking v Bell (1945) 71 CLR 430 at 440, per Latham CJ approving Mechanical & General Inventions Co Ltd v Austin Motor Co [1935] AC 346 at 373.[11] Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825; 50 ALR 519; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708.[12] Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 178-179, 197-199.[13] Ward v James [1966] 1 QB 273 at 301. [14] cf Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 204-205. At trial there was a striking difference between the evidence of the defendant and that of the complainant. The defendant submitted that the complainant consented to the acts of intercourse, the subject of the two charges of rape. The complainant’s evidence was unequivocal - she did not consent, vehemently protested and struggled to resist the defendant. This was not a case where there was a mistake as to consent. Such a conclusion was not open on the evidence.

Ratio Decidendi

Legal Principle Established

Established by:

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