R v Gbojueh
[2009] SASC 104
•27 April 2009
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; R v JA [2008] VSCA 169; R v Martindale [2009] QCA 24, considered.
R v GBOJUEH
[2009] SASC 104Court of Criminal Appeal: Gray, Sulan and Kourakis JJ
GRAY and SULAN JJ.
This is an appeal against conviction.
The defendant and appellant, Thomas Scott Gbojueh, was charged on an Information with respect to alleged offences arising out of two incidents of sexual intercourse against the same complainant. The first count of rape and the second count of unlawful sexual intercourse related to an incident that occurred on 28 February 2007. Particulars of those counts were provided as follows:
First Count
Statement of Offence
Rape. (section 48 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Thomas Scott Gbojueh between the 1st day of February 2007 and the 28th day of February 2007 at Kilburn, had vaginal sexual intercourse with [the complainant], without her consent.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14 (Section 49(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Thomas Scott Gbojueh in February 2007 at Kilburn, had vaginal sexual intercourse with [the complainant], a person of the age of 12 years.
The defendant was further charged with the offences of rape and unlawful sexual intercourse in relation to an incident that occurred on 29 March 2008. The particulars of the third and fourth counts were as follows:
Third Count
Statement of Offence
Rape. (section 48 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Thomas Scott Gbojueh between the 29th day of March 2007 at Kilburn, had vaginal sexual intercourse with [the complainant], without her consent.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14 (Section 49(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Thomas Scott Gbojueh on the 29th day of March 2007 at Kilburn, had vaginal sexual intercourse with [the complainant], a person of the age of 12 years.
The charging of the defendant with respect to the offences arose as a result of the complainant becoming pregnant. DNA testing on the foetus identified the defendant as the father. The defendant claimed that both acts of intercourse were consensual. He pleaded guilty to the second and fourth counts of unlawful sexual intercourse, but not guilty to the first and third counts of rape.
The rape charges proceeded to trial in the District Court. On the first count, the alleged rape in February 2007, the defendant was acquitted by majority verdict and on the third count, the alleged rape in March 2007, a verdict of guilty was returned. Both verdicts were by majority.
On appeal it was submitted that the guilty verdict returned on the third count of rape was unreasonable and could not be supported, having regard to the similarity of the evidence between the two counts of rape and the fact that the defendant received the verdict of acquittal on the first count of rape. The substance of the complaint was that the two verdicts were inconsistent and irreconcilably so.
The defendant was aged 40 years at the time of the offending. He had arrived in Australia in November 2006, having fled Liberia as a refugee. The complainant was born in Liberia on 1 December 1994 and came to Australia with her mother on 6 June 2006. The defendant formed a friendship with the complainant’s mother. They were, it was suggested, in a sexual relationship between November 2006 and April 2007. The complainant met the defendant in November 2006 and referred to him as “Uncle Thomas”.
The trial Judge summarised the evidence of the complainant with respect to the first count of rape in a way that was unchallenged on appeal:
[The complainant] said that the first incident was in February of 2007. She said that she went to the home of Uncle Thomas, who was watching African movies on television. She asked if she could watch. The accused agreed. She sat on a couch watching the movies. She said that Uncle Thomas went to the door, closed the door, sat near her and, to use her words, started touching her all over. She said she did not want him to touch her and she kept telling him ‘Stop, stop, stop, stop touching me, stop touching me’, but he did not stop and he put his hand over her mouth. She said she started kicking him and telling him to stop and slapping him, but he would not stop. She said she was lying on her back and he was on her legs and she was kicking him with her feet on his back. He took his penis out and put it into her vagina. She told you that she did not want him to put his penis into her vagina and that she did not consent to that. She said that, as he took his penis out of his pants, she was still kicking him and shouting, but he kept doing it, so she bit him on the chest. She said his penis was in her vagina for less than five minutes, although the period is inconsequential; any penetration would be sufficient.
The Judge’s unchallenged summary of the complainant’s evidence in regard to the third count of rape was in the following terms:
[The complainant] said that, after the first incident, the accused continued to visit her home. On the day in question, her mother was in hospital. Her sister came home with her baby and the accused because the hospital would not allow the baby inside. Her sister put the baby to bed and returned to the hospital. That left [the complainant] and the accused at her home to care for the baby. She told you that she went to the toilet to go to bed, the accused followed her and, when she came out of the toilet, the accused grabbed her by the shoulders and pushed her down into a chair. She told you that she kept telling him to leave her alone, but he would not, and she was kicking him. She described the act of intercourse in these words: ‘He got me onto my back. He put his hand over my mouth. Then I started kicking him and kicking him and then I don’t know if he pulled my skirt up or down, but he opened the zip of his trousers, took his penis out and put it into my vagina.’
She told you that she did not want him doing that and that she did not consent to him doing that. She told you that, as he was getting his penis out of his zip, she kicked him, but he was so big and all of his weight was over her. She could not speak because his hand was over her mouth. She thought his penis was inside her vagina for about two to three minutes and did not know whether he ejaculated. [The complainant] was asked how the incident ended and said: ‘I was still kicking him. He wouldn’t stop, so I slapped him over his face, on his face and eyes, like really hard.’ And when she slapped him, he pulled his hand over his eyes and then she moved and he got up and went outside.
The defence case was that the complainant was the initiator of the sexual contact on the two occasions. Again the Judge’s summary of his evidence was undisputed and it is convenient to adopt that summary:
The accused told you that, on the day before the first incident in February 2007, [the complainant] went around to his house. He was playing African music, dancing music. He said that [the complainant] ran into him and held him in a very romantic manner and she told him it was what you call the flying dance. He said she collapsed into him romantically, held onto him and they gradually just disengaged one another. His words were: ‘But that romantically arose a relationship between the two of us, but I didn’t want [the complainant] and [the complainant] went home.’
He told you that [the complainant] returned to his house the following day. There was an African movie playing on the DVD. She sat in the chair and requested an ice-cream. He fetched an ice-cream for her and left her to watch the movie while he went into his room to study. He said she went into his bedroom and sat on the foot of the bed, where he was studying. She placed her right hand on his left thigh in a very romantic way. He said he held [the complainant] by the hand. She squeezed his palm and then went to the window and closed the curtain. She returned and laid upon him. They removed their clothing and an act of intercourse took place for four or five minutes.
The accused said that there was never any complaint or hesitation and that the sexual activity was initiated by the actions of [the complainant]. Specifically, he said that she was consenting throughout.
He ejaculated, then left the room. [The complainant] walked out of the room, went to the kitchen, took something from the fridge and said ‘I’m going’, the accused said ‘All right, bye, see you’, and [the complainant] left the house.
...
As to the second incident, the accused said he had gone to [the complainant’s] home with the sister and the sister’s baby. He met the sister at the hospital, where he had gone as a member of the leadership team of the community. The sister returned to the hospital and he went to his home. He went back to [the complainant’s] home after receiving a telephone call for assistance. He helped put the baby to sleep and the two of them watched television. Mr Gbojueh said that [the complainant] told him that the intercourse he had with her was not pleasing to her. He replied ‘Really’. [The complainant] then went to the toilet, then called him to the back of the house where she sat on the sofa. The accused said that [the complainant] said to him, ‘What I was saying to you, I meant it, you are not the person to make me’. He said ‘I was not the person to please her when having sex’, and she said ‘I’m joking, let’s give it a try’. After that she took her clothes off, he took his trousers off and they had sex in the chair. While they were having sex she started to call the name Mohammed. The accused said ‘What happened?’ And she replied, ‘Because when I have sex with Mohammed he pleases me and that way I feel satisfied. That’s why I’m calling Mohammed’s name’. The accused said that after that he got up, said that she had called out Mohammed’s name and said he could not please her and so he felt offended and left.
Mr Gbojueh told you ‘[the complainant] consented to whatever sex we had’, said there was no hesitation whatever and he never had any doubt about it. Mr Gbojueh denied that he ever told [the complainant] not to tell anyone.
The powers of this Court on appeal are set out in section 353(1) of the Criminal Law Consolidation Act 1935 (SA):
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In the present proceeding, the question to be answered is whether this Court considers that the verdict of guilty on the third count - the alleged rape in March 2007 - should be set aside on the ground that it is unreasonable and cannot be supported given regard to the evidence, or alternatively on the ground that the verdict is unsafe and unsatisfactory.
The High Court in M[1] has resolved that when deciding whether a verdict is unreasonable and cannot be supported by the evidence, the test to be applied is whether the appellate Court considers that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. The Court is required to review the evidence at the trial. To repeat, the question before this Court in the present case is whether the guilty verdict on count three, the offence of rape on 29 March 2007, is unreasonable having regard to the evidence and the verdict of not guilty on the first count of rape. In particular, the Court is concerned with the suggested irreconcilable inconsistency of fact between the verdicts.
[1] M v The Queen (1994) 181 CLR 487 at 493.
In MacKenzie,[2] Gaudron, Gummow and Kirby JJ observed with respect to verdicts suggested to be inconsistent:[3]
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. 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. 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. 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.
Their Honours adopted a test of logic and reasonableness and approved the observations of Devlin J in R v Stone:[4]
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 is often cited as expressing the test:
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.
[2] MacKenzie v The Queen (1996) 190 CLR 348 at 367.
[3] MacKenzie v The Queen (1996) 190 CLR 348 at 367. (footnotes omitted)
[4] MacKenzie v The Queen (1996) 190 CLR 348 at 366 citing R v Stone (unreported, CCA Eng, 13 December 1954).
Counsel for the defendant on the appeal submitted that there was no basis to differentiate between the evidence on the two counts of rape. It was said that the complainant’s evidence on both occasions involved an approach by the defendant toward her to have sexual intercourse. On both occasions she violently protested that she did not wish to engage in sexual intercourse and struggled with the defendant throughout the acts of intercourse. On her evidence there could be no question of the defendant being mistaken about her not wishing to engage in intercourse. On the complainant’s evidence there was no difference in substance between the two incidents. They consisted of acts of rape against her express and violent opposition.
Equally, on the defendant’s account the complainant’s conduct was in substance the same. According to the defence case, the complainant was the initiator seeking sexual activity. On his evidence there was no suggestion that the complainant was not consenting. To the contrary she was positively seeking to have intercourse with him. There was no struggle of any kind. It was submitted by the defendant that there was no other evidence that might explain the different verdicts of the jury and the verdicts had all the indicia of compromised verdicts.
The Director of Public Prosecutions drew attention to the heavy onus carried by a defendant seeking to challenge a verdict as being irreconcilably inconsistent with another verdict. The Director drew attention to the observations of the Court in MFA,[5] where the High Court had occasion to discuss satisfaction beyond reasonable doubt in sexual cases and the problem of suggested inconsistent verdicts. Gleeson CJ, Hayne and Callinan JJ observed:[6]
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. ... 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.
[5] MFA v The Queen (2002) 213 CLR 606.
[6] MFA v The Queen (2002) 213 CLR 606 at [34]. (footnotes omitted).
In MFA, Gleeson CJ, Hayne and Callinan JJ also approved the remarks of King CJ in Kirkman.[7]
Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: 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.
[7] MFA v The Queen (2002) 213 CLR 606 at [34] citing R v Kirkman (1987) 44 SASR 591.
It is possible, it was said, that such further considerations may have arisen in the present case and influenced the jury verdict.
The Director submitted that, in any event, the verdicts could be reconciled. There was, he submitted, no such inconsistency as to lead to the conclusion that the guilty verdict on the third count - the rape on 29 March 2007 - should be set aside. The Director drew attention to the defendant’s evidence of events that occurred prior to the incident leading to the first count of rape on 28 February 2007. It was said that the defendant described the complainant acting in a provocative manner. Reference was made to the evidence of her dancing with the defendant and of her going to the defendant’s home alone. It was contended that similar conduct from the complainant was not evident prior to the incident in March 2007.
The Director submitted that this conduct by the complainant prior to the first count of rape, if accepted by the jury, could have caused the jury to consider there was a doubt as to the question of the defendant’s state of mind. It was suggested that the alleged conduct of the complainant could have led the defendant to believe that she was leading him on, so that he was in a state of mind that she was consenting when in fact she was not. It was further said it was open to the jury on that evidence to conclude that there was a doubt as to whether the defendant had the necessary criminal intent, and in particular that the prosecution had not disproved that the defendant was not recklessly indifferent as to whether the complainant was consenting. To put it another way, that the jury may have taken the view that the prosecution had not excluded a reasonable hypothesis consistent with innocence.
The difficulty confronting this submission is that it stands in sharp contrast to the basis on which the trial was conducted. The submission in our view was no more than speculation. There was no evidence to support the submission. It was not the defence case that the defendant may have been mistaken about the complainant’s consent. The issue at trial was whether or not there had in fact been consent. Neither counsel referred to the possibility of a mistake or a lack of intent on the part of the defendant. The respective versions positively excluded any possible misunderstanding. The question did not arise. The trial Judge did not raise any such question during his summing up or suggest that any such issue arose for the jury’s consideration. An appeal in this Court is not to be treated in isolation or ignoring how the trial proceeded before the jury. An appeal court should have regard to how the case was conducted at trial. An appeal is not an academic or intellectual exercise to be conducted in a vacuum. It is intended to deal with the merits of the case as it was presented before the jury.[8] Generally, the parties are bound by the way in which the case was presented at trial, although there are instances where the incompetence of counsel in presenting the defence case may result in the appeal court considering matters not raised at trial. As we have observed, the theory advanced by the Director bears no resemblance to the manner in which the evidence unfolded.
[8] R v Melville (1956) 73 WN (NSW) 579, 581 per Street CJ.
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.
In these circumstances, the verdicts on the two counts of rape cannot stand together. There was no evidence, other than the complainant’s, to support the third count – the alleged rape in March 2007. No reasonable jury that had applied their mind properly to the facts in the case could have arrived at a verdict of guilty on one charge and not guilty on the other charge. There is no proper way to reconcile the verdicts. The verdict of guilty is unsafe and unsatisfactory.
Accordingly, we would order that the conviction on the count of rape returned on the third count be set aside and that a verdict of not guilty be entered to that count.
In these circumstances the defendant is to be convicted, on his pleas of guilty to the second and fourth counts – the offences of unlawful sexual intercourse with a person under 14 years of age. The defendant should be remanded for sentence with respect to those offences. The matter should be remitted to the trial Judge for the defendant to be re-sentenced.
KOURAKIS J The appellant was charged in the District Court on two counts of rape. The first count was alleged to have been committed some time in February 2007. The second was alleged to have occurred on 29 March 2007. The appellant was acquitted by majority verdict of the first count and convicted, again by majority, on the second. The appellant appeals the guilty verdict on the ground that it was unreasonable. The issue at trial was consent. The appellant admitted that he had had sexual intercourse with the complainant on both occasions. The only evidence against the appellant was the testimony of the complainant. The appellant gave evidence and swore that the sexual intercourse was consensual. On the complainant’s account of the occasions there was no room for any mistake about her lack of consent.
The appellant does not contend that there is some aspect of the evidence led at trial that should cause this Court to doubt the appellant’s guilt. It is not suggested, for example, that having proper regard to the jury’s advantage in seeing the witnesses, this Court should nonetheless set aside the verdict and substitute an acquittal because of a doubt that it should entertain. Rather, the appellant contends that the verdict of not guilty on the first count renders the verdict of guilty on the second unreasonable.
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.
The importance of these passages in the judgment of the majority emphasising the regard that the Court of Criminal Appeal must have for the jury verdict is underlined by the reasons for dissenting from the majority statement of the test given by Brennan and McHugh JJ.[24]
[24] M v The Queen (1994) 181 CLR 487 at 504-5 per Brennan J, and at 525 per McHugh J.
In MFA McHugh, Gummow and Kirby JJ, after referring to the High Court’s decisional history concerning the standard form criminal appeal provision and the various statements of the test propounded in those decisions, concluded:
Ultimately, the additional formulations exist only to assist courts of criminal appeal to discharge their statutory functions. Those functions are stated, relevantly, in s 6(1) of the Act. In the end, that sub-section is designed to afford a mechanism against a prospect that our community and its courts continue to regard as intolerable, namely that an innocent person has been wrongly convicted upon unreasonable and unsupported evidence and has thereby suffered a miscarriage of justice. The interpretation and application of the sub-section must always keep that purpose in mind. But it involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.[25] (underlining added, footnotes omitted)
[25] MFA v The Queen (2002) 213 CLR 606 at 624, [59] per McHugh, Gummow and Kirby JJ. See also references to the jury as “the constitutional tribunal for deciding contested facts” [48], and the “serious step of setting aside a conviction based on the verdict of a jury” [51].
The High Court’s elucidation of the principles governing the application of the common form appeal provision suggests that the several grounds of appeal prescribed by that provision share a common element. That element is the existence of a factor that vitiates the special status that a jury verdict ordinarily enjoys. An error of law made by the trial Judge perhaps most obviously has that effect. On an appeal on the miscarriage of justice ground, a court of criminal appeal will generally set aside a jury verdict and order a re-trial in those cases where there is some evidence, or a feature of the directions of the trial Judge, that is likely to have so misled or diverted the jury from its function that the special status of its verdict is undermined.
The unreasonable verdict ground represents the most intrusive ground on which a jury’s verdict is reviewed. It is the ground that most obviously is designed to “afford a mechanism against [the] prospect that … an innocent person has been wrongly convicted”.[26] It is one thing to set aside a jury verdict where the Court of Criminal Appeal’s own appraisal of the evidence leaves it with a doubt that cannot be explained by the jury’s advantage in hearing and seeing the witnesses. It is quite another thing to set aside a verdict where, as in this case, the evidence itself does not suffer from any discrepancy or inadequacy, or is not, for any other reason, weak or inherently improbable. The determination of guilt or innocence in a case like the one before us rests entirely on whether the “constitutional tribunal of fact” is prepared to accept that the testimony of the complainant proves the offence beyond reasonable doubt. In such a case it is a serious step and a huge leap to say that the jury’s very assessment of the evidence that leaves it in no doubt with respect to one count but with some doubt in another is reason enough to set aside the verdict of guilty on the former count.
[26] MFA v The Queen (2002) 213 CLR 606 at 624, [59] per McHugh, Gummow and Kirby JJ.
It is not surprising, therefore, that the burden carried by a convicted person who appeals on that ground is a heavy one. A verdict of guilty will only be unreasonable if it is illogical having regard to a verdict of not guilty returned in the same trial. In MacKenzie v The Queen[27] the test was described in these terms by Gaudron, Gummow and Kirby JJ:
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. …
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. 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. 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. 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. 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.
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. … 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. It is impossible to state hard and fast rules. "It all depends upon the facts of the case".[28] (underlining added, footnotes omitted)
[27] (1996) 190 CLR 348.
[28] MacKenzie v The Queen (1996) 190 CLR 348 at 366-8, [3]-[5].
The test in MacKenzie was approved by the High Court in MFA.[29] The appellant in MFA had submitted that the earlier decision of the High Court in Jones v The Queen[30] was authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect the 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.[31] The High Court in MFA unanimously rejected that submission and emphasised the fact-sensitive nature of the enquiry where a verdict is appealed on the ground that it is unreasonable because of inconsistent verdicts.
[29] MFA v The Queen (2002) 213 CLR 606 at 616-7, [33]-[34] per Gleeson CJ, Hayne and Calinan JJ; at 630-1, [84]-[86] per McHugh, Gummow and Kirby JJ.
[30] (1997) 191 CLR 439.
[31] MFA v The Queen (2002) 213 CLR 606 at 618, [35] per Gleeson CJ, Hayne and Callinan JJ; and 632, [89] per McHugh, Gummow and Kirby JJ.
Merciful verdicts
The references sometimes made to the constitutional right of a jury to bring in a merciful verdict[32] should not be thought to be a sufficient reason to allow an otherwise illogical verdict to stand. Speaking of the “right” of a jury to bring a verdict of not guilty may mislead. The Juries Act 1927 (SA) requires jurors to take the oath prescribed by that Act.[33] By that oath jurors bind themselves to “honestly, conscientiously and to the best of our ability … render a true and honest verdict in accordance with the evidence”. The constitutional “right” of a jury to bring in a merciful verdict of not guilty cannot mean, in the face of that oath, that the jury is entitled to return a verdict of not guilty if in fact, they are satisfied of guilt.
[32] Mackenzie v The Queen (1996) 190 CLR 348 at 367.
[33] Juries Act 1927 (SA) s 33; sch 6.
What is sometimes described as the jury’s “right” is more strictly an immunity. Juries have been protected from proceedings brought against them with respect to their verdicts for so long that it is not widely known that that was not always the common law position. In the early development of the common law jurors were subject to the writ of attaint. By that writ a suitor could secure the reversal of the jury’s verdict and the imposition of punishment, including imprisonment for a year, on the jurors in the first trial. The attaint jury would comprise 24 jurors, which presumably was necessary to provide their impeachment of the verdict of 12 jurors with some credibility.[34] The proceedings that fell within the scope of the writ of attaint were extended over time to most civil actions. It was never suggested that the writ would lie against jurors who had returned a verdict of guilty upon an indictment, but Bracton and Hale did suggest that it might lie against a jury who had acquitted.[35] In 1670 that possibility was denied by Vaughan CJ in Bushell’s Case.[36]
[34] By 1467 it was settled that the attaint jury could only look at evidence that had been before the original jury.
[35] W.S. Holdsworth, A History of English Law (3rd Ed, 1922, Volume 1) 340.
[36] Bushell’s Case (1670) 124 ER 1006 at 1010.
Over time, the disadvantages caused by the writ of attaint for the administration of justice, not least of which was the discomfort of jurors, led it to fall into disfavour. The writ of attaint ceased to be used in the 17th century.[37]
[37] W.S. Holdsworth, A History of English Law (3rd Ed, 1922, Volume 1) 342. It was not until 1825 that it was abolished by statute.
Jurors were still, however, subjected to punishment for various reasons by Judges during the course of trials, and in particular after they had returned verdicts of not guilty. In the 16th century the Star Chamber assumed some supervision of jury verdicts, and tended to treat any verdict of acquittal which it considered against the weight of evidence as corrupt. After the Restoration, the common law courts continued to assert a right to punish jurors for wrong verdicts. Public opinion, however, was so against the exercise of the power that the courts soon accepted that a jury ought not be exposed to penalties merely because it had found a verdict contrary to the direction of the court or contrary to the evidence.[38]
[38] W.S. Holdsworth, A History of English Law (3rd Ed, 1922, Volume 1) 343-344.
It is necessary to return briefly to Bushell’s Case. Bushell was one of twelve jurors who persisted in acquitting the Quakers Penn and Mead of unlawful assembly against the directions to convict given by the Justices, including the Mayor of London, who had presided over the trial. For that decision Bushell was imprisoned until he was finally released by an order of the Court of Common Pleas made on a writ of habeas corpus. The reasons given by Vaughan CJ for holding that judges presiding over a jury trial have no power to punish the jury for returning a verdict that does not accord with the judge’s own view derived from his opinion that the jury had exclusive authority to decide disputed questions of fact by a verdict that is effectively inscrutable.[39] It is that principle, I think, that is the foundation of two important Australian decisions, given almost 300 years later, on the relationship between the judge presiding over a criminal trial and the jury.
[39] Bushell’s Case (1670) 124 ER 1006 at 1012-14.
In Packett v The King[40] Dixon J drew a distinction between directing a jury, quite properly, that the evidence does not appear to the trial Judge to support a particular verdict, in that case a verdict of manslaughter instead of murder, and a direction that the jury does not have a power to return that verdict. Dixon J explained that even though a jury verdict may be unsound and wrong in the sense that it is against the weight of, or not supported by, the evidence, it remained within their power to return it because of the exclusive function of the jury to determine the facts. A trial judge cannot impinge on that right by directing a jury not to bring in a particular verdict. In short, the power of a jury to return such a verdict is the result of its exclusive jurisdiction to determine questions of fact, and to determine those questions, finally and conclusively, subject only, in modern times, to an appeal to a court of criminal appeal.
[40] (1937) 58 CLR 190.
In Gammage v The Queen,[41] Barwick CJ explained Dixon J’s observations in Packett in a similar way. He said:
As his Honour points out, if there be no material capable of forming a basis for a finding of provocation the jury should be so advised. They should in that connexion, in my opinion, be told that a verdict of manslaughter could not properly be returned by them for the reason of provocation alone: and if the case be one, as on relatively rare occasions it might be, in which, because of its particular facts and circumstances, only a verdict of murder or one of acquittal is possible on any view of those facts and circumstances, they should be told that there is no basis on which they could properly find manslaughter. Of course, if a jury improperly returns a verdict of manslaughter when there is in fact no material on which such a verdict may properly be returned, the trial judge may request their reconsideration of the matter: but if they persist in the verdict, he must in the end accept it. His Honour covered this situation in his judgment in Packett v The King by the sentence “But, under the code as at common law, it remains within the power of the jury to find a verdict of manslaughter even though it means disregarding the direction”. This sentence properly understood lends no support, in my opinion, to the view that the jury may properly return such a verdict though they are satisfied that the crime of murder was committed. … It seems to me that some misunderstanding is possible of the reference to the right of a jury to return a wrong verdict. They have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict.
One other source of misunderstanding is the occasional judicial use of the expression “merciful verdict of manslaughter”. Such an expression might, in my opinion, be intended to mean and ought to be read as meaning no more than that the jury may have been unduly swayed, maybe by feelings of humanity, to feel doubt as to implications of the evidence adverse to the accused. But, in my opinion, such an expression because of its ambiguity should have no currency in the criminal law.[42] (footnotes omitted)
[41] (1969) 122 CLR 444.
[42] Gammage v The Queen (1969) 122 CLR 444 at 450-1.
In my respectful opinion the reasons of Bray CJ in R v Singh[43] are to the same effect. This Court in R v Prasad[44] acted on the same principle when it held that to direct a jury to bring in a verdict of not guilty when there is evidence capable in law of supporting a conviction is to infringe one of the basic principles of trial by jury.
[43] (1977) 17 SASR 73 at 78.
[44] (1979) 23 SASR 161 at 162.
Because references to the power of a jury to return a merciful verdict can mean no more than that it is the exclusive province of the jury to determine the facts free of dictation by the trial Judge, the existence of that power or right can rarely be a complete answer to a complaint that a jury’s verdict is unreasonable by reason of inconsistency. That is so because although a trial judge has no authority to control a jury’s verdict at trial, the Full Court is bound by s 353 of the Criminal Law Consolidation Act 1935 (SA) to reach its own view about the reasonableness of the jury’s verdict, and is empowered to set aside any verdict that it finds to be unreasonable or unsupported by the evidence.
If the right of a jury to return a merciful verdict were to be taken too literally and too far it would negate the power to set aside a verdict on the ground that it is unreasonable by reason of inconsistency. The reference to merciful verdicts in the judgment of the High Court in MacKenzie was not intended to be so applied. Rather, it is meant to act as a practical reminder that there are many reasons why an acquittal by the jury on one count might not cast any doubt on the guilty verdict brought in on another count, even though the evidence on both was substantially the same. Where, for example, the prosecution evidence on all counts is overwhelming and the offences charged are committed by largely the same conduct, the Court of Criminal Appeal may conclude that the apparent doubt and acquittal of the appellant on some counts does not reflect adversely on the prosecution evidence, but instead is a product of the jury’s concern about the “overloading” of the indictment.[45] Similarly, it may appear that a jury has been influenced to return verdicts of a lesser offence on some counts but not others out of its “innate sense of fairness”.[46] A court of criminal appeal may have regard to that possibility in finding that the verdicts are not inconsistent[47] unless the verdicts are legally or technically inconsistent.[48] However, that is not the case here, where the trial was one of oath against oath. If a logical basis on which to distinguish between the different verdicts cannot be found, then the acquittal on the first count must ineluctably leave the second charge in doubt.
[45] R v Kirkman (1987) 44 SASR 591 at 593 per King CJ.
[46] R v Kirkman (1987) 44 SASR 591 at 593 per King CJ.
[47] Mackenzie v The Queen (1996) 190 CLR 348 at 367-368 per Gaudron, Gummow and Kirby JJ.
[48] Mackenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ.
Compromise Verdicts
Even though the illogicality of verdicts of guilty and not guilty returned in the same trial may suggest that the verdicts are a compromise,[49] it is no part of the function of a court of criminal appeal to embark upon an inquest into the jury’s verdicts to determine whether as a matter of fact they were returned because of a compromise. The verdict of a jury is necessarily, and for good reason, inscrutable. It is practically not possible, and against all legal principle, for a court of criminal appeal to speculate about the way in which the jury performed its function on the basis of questions asked or statements made by the foreperson when the jury is brought back for further directions. A court of criminal appeal should not be asked to consider whether a guilty verdict was returned by way of a compromise in exchange for a not guilty verdict on another count; a finding to that effect would be a finding that the jurors were not faithful to their oaths.
[49] MacKenzie v The Queen (1996) 190 CLR 348 at 368, [5].
The test must remain an objective one; it is whether on the evidence led on both counts the existence of a doubt on one count as a matter of logic and rationality necessarily entails a doubt on the other. If the answer is yes, then the verdicts are illogical and irrational.
It might be observed here that as a matter of logic and common sense the irrationality of the jury verdict must be demonstrable both on the basis that a doubt on one count must lead to a doubt on the other, and on the basis that if there is no doubt on one count there could be no doubt on the other. To say that on the evidence presented the verdicts of guilty on one count and not guilty on the other are illogical is but another way of saying that such is the similarity between the evidence on both counts that the jury could only rationally bring in the same verdict on both.
It follows that if the conclusion is reached that it was irrational for the jury in this case to convict on the second count, having acquitted the appellant on the first, then it must also be possible to say that it was irrational for the jury to acquit on the first count having convicted on the second. The latter proposition reveals the difficulty in demonstrating irrationality and illogicality given the high standard set by the criminal onus of proof.
Sound reasons for different verdicts
Courts of criminal appeal faced with the problem of apparently inconsistent verdicts have often attempted to reconcile the verdicts by reference to an item of objective evidence or the existence or absence of corroboration. Plainly, if a difference of that nature can be identified the apparent inconsistency can be explained and there is no irrationality. However, it is fallacious to reason that because the existence of some objective difference in the evidence offered in support of each count can justify different verdicts, its absence means that the verdicts must be illogical. It must not be forgotten that verdicts will often be reached simply on the basis of the jury’s view of the inherent probabilities or improbabilities of the events that are in dispute. The degree of confidence that a jury will have in a witness’s testimony on a particular matter will be critically affected by the extent to which that witness’s account conforms with the life experience of the jury. A jury might not be satisfied that all innocent possibilities have been disproved beyond reasonable doubt, even if there is no evidence from which an inference consistent with innocence can be drawn. It must be remembered that proof beyond reasonable doubt is a high onus. A doubt need not be based on any factual finding or even on an item of evidence. On the contrary, it is simply a failure to be satisfied to the requisite degree.
An accused need not point to some objective evidence to be given the benefit of the doubt. It would be a misdirection to tell a jury that they must find some feature of the evidence that is inconsistent with the prosecution case before they can acquit. A jury can properly acquit for no other reason than that by applying their experience of human affairs and the workings of the natural world they are not satisfied that the prosecution evidence has excluded all possibilities consistent with innocence. It is for that reason that juries are commonly told that they can properly come to different verdicts on each count.
In Jones Kirby J explained the difficulty in finding that different verdicts in the same trial are necessarily illogical in this way:
Either on the basis of the uncertainty and confusion about when this incident occurred or, more likely, on the footing that it had not been proved to the requisite standard, the jury, conforming to their duty, could have rejected that count without necessarily rejecting the complainant's testimony as a whole. For example, they might have considered that the incident probably did occur but, in conformity with the instruction about the standard and burden of proof, they could properly conclude that they should acquit on that count.
Any other hypothesis would require a conclusion that, in all cases of this kind, complainants must be wholly believed or wholly disbelieved. That would put at naught the need for separate verdicts on the separate counts of the indictment and the principle of particularity and the proof of separate offences charged upon such separate counts. That principle necessarily posits the possibility (at least in the way this trial was conducted) that different verdicts may be returned on different counts, as occurred here. It would also overlook the practical way in which juries often approach different charges expressed in different counts of an indictment.[50]
[50] Jones v The Queen (1997) 191 CLR 439 at 469-70.
It is a necessary consequence of the important function a jury performs in a common law criminal trial and the criminal onus of proof that a verdict of guilty returned by it will rarely be set aside on the ground of inconsistency alone where the evidence in support of the different counts is substantially different.[51] I drew attention to the difficulty in concluding that verdicts returned on charges relating to different occasions were factually inconsistent in R v H, GJ,[52] a judgment with which Doyle CJ and White J concurred. It is not surprising that true factual inconsistency has been more commonly found where there are different verdicts on counts relating to a single incident.[53]
[51] MFA v The Queen (2002) 213 CLR 606 at 616, [33].
[52] (2008) 102 SASR 82.
[53] R v Kelly (1985) 38 SASR 561; R v JA [2008] VSCA 169. The decision in Jones v The Queen (1997) 191 CLR 439 was not based on inconsistency in the verdicts alone.
The deference accorded to juries to determine the facts and to differentiate in their verdicts between counts is also illustrated by the decisions of the State courts of criminal appeal on the directions that should be given on the effect that the existence of a doubt on one count should have on their deliberations on the remaining counts. In R v RAT[54] it was suggested that following Jones juries should be directed that if they were not satisfied beyond reasonable doubt that the complainant was telling the truth in relation to one count, then it was not open to them to convict on the remaining counts. That proposition, at least as a universal rule, has been rejected.[55]
[54] (2000) 111 A Crim R 360.
[55] R v D [2000] NSWCCA 443; R v Liddy (2002) 81 SASR 22 at 68, [185].
In some cases it may nonetheless be appropriate to direct a jury that they should bear a doubt that they have about the complainant’s evidence in mind when considering the remaining counts.[56] However, whether it is appropriate to do so must depend on whether or not there is a perceptible risk of miscarriage.[57]
[56] R v KWG [2000] SASC 398 at [7]-[8] per Lander J, [82] per Martin J; R v Markuleski (2001) 52 NSWLR 82 at [185], [191].
[57] R v Liddy (2002) 81 SASR 22 at 73, [191]; R v Hare [2007] SASC 427 at [21].
No illogicality in this case
In this case, I have reached the conclusion that the different circumstances of the offences charged in the respective counts were sufficient, as a matter of human experience, to allow for satisfaction beyond reasonable doubt of the commission of the second offence but not the first.
On the first count, of which the appellant was acquitted, the appellant testified that the complainant had visited his flat on the day before and had danced to music. The complainant denied visiting the appellant on that day, but testified that she visited his flat on the day of the alleged rape to watch television. As to that occasion, the appellant claimed that the complainant made sexual advances towards him and consented to sexual intercourse, whereas the complainant alleged that she was raped.
In its consideration of that evidence, it would not be irrational of the jury to accept the complainant’s evidence but to give the appellant the benefit of the doubt that events may have occurred as he claimed. The fact that the complainant visited the appellant’s flat on her own and stayed there when she realised he was alone may have left the jury, or one or more of them, with a doubt. Equally, the jury may have thought that the appellant’s account of the visit the day before was at least possibly true because it would explain why the complainant visited the appellant on her own the following day and stayed on at his flat to watch television. The jury, or at least most of its members, may have thought that, allowing for the possibility that the complainant had visited the day before, they could not be certain of the events that transpired on the following day when the complainant and the appellant were watching television, and that for that reason they would give the appellant the benefit of the doubt. Even if the jury found the complainant’s account of the events of that day generally more credible, its members may have been left in some doubt by a particular part of the complainant’s evidence. The complainant testified that even though she had struggled with the appellant throughout the incident, it was only at about the moment of ejaculation that she was able to bite him and by so doing stop the attack. The prosecutor was concerned enough about that evidence to address the jury on the topic.
Far from being irrational, considerations of the sort to which I have referred arise out of the combined experience of human affairs which juries are expected to bring to the cases they hear. The accused is entitled to receive the benefit of any doubt their consideration of the matter yields.
In turning to the second count, neither the jury nor this Court is bound to regard the complainant’s credit as damaged because of the verdict of not guilty on first count. So much is clear as a matter of commonsense and logic; a verdict of not guilty does not necessarily imply a rejection of the complainant’s evidence. If authority be needed it can be found in the judgment of the High Court in MacKenzie and its rejection of the very submission to that effect which was made in that case.[58]
[58] MacKenzie v The Queen (1996) 190 CLR 348. See also R v Markuleski (2001) 52 NSWLR 82 at [79]-[80].
There are several features that distinguish, as a matter of human experience, the second count from the first. First, intercourse took place in the complainant’s home and not the appellant’s flat. Secondly, the complainant’s mother was in hospital at the time, and the complainant had been left with the care of her niece, who was a baby; it was an unlikely occasion for this young girl to seduce the appellant as he claimed. Thirdly, the jury may have thought the appellant’s account that the complainant had called him over to help settle the child to be quite improbable. Fourthly, it was common ground that the complainant had not visited the appellant again after their first sexual encounter; the jury may well have thought it much more probable therefore that it was the appellant who opportunistically took advantage of the absence of the complainant’s mother than the complainant.
Fifthly, the jury may well have taken the view, again based on their combined wisdom in matters of human behaviour, that the appellant’s claim that the complainant had goaded him about his sexual prowess sounded more like the fabrication of a 40 year old man than the actual conduct of a 12 year old girl. Keane JA made a similar observation about how a jury might regard such a claim in R v Martindale[59] in disposing of an appeal on the ground of inconsistent verdicts. Keane JA explained:
The complainant's account of the incidents the subject of counts 1 to 8 was supported, to a considerable extent, by the appellant's own statements to police, including his clumsy attempts at self-exculpation. One can readily understand that the jury would have regarded as unworthy of belief the appellant's awkward attempt to put an innocent explanation on his admitted intimate touching of the complainant. Further, the jury might well have regarded the appellant's statement that the complainant spoke to him of her sexual experiences with other men as a self-serving denigration of the complainant suggestive of a willingness on her part to engage in sexual contact with him. The jury might have regarded this self-serving evidence as revealing a glimpse of a sexual interest in the complainant on the part of the appellant.[60]
[59] [2009] QCA 24.
[60] R v Martindale [2009] QCA 24 at [42].
I acknowledge that some of the matters of differentiation between the counts to which I have referred did not receive prominent attention at trial. However, that is of no consequence for two reasons. Firstly, the general rule of appellate practice that a party cannot put a case on appeal that was not presented at trial has no application to the very different question that is presented by an appeal on the ground that verdicts are inconsistent. In considering whether there is a logical explanation for the jury’s verdict, the Court of Criminal Appeal is not bound to look only at the points made by counsel, precisely for the same reason that a jury’s consideration of the facts is not constrained by the addresses of counsel and the charge of the trial Judge. To declare a jury’s verdict irrational because, although it can be explained by applying common sense and human experience to the evidence, it cannot be explained by reference to a point made by counsel or the trial Judge, would be a significant and unjustified intrusion into the exclusive fact finding function of the jury. The second reason is that as a practical matter prosecuting counsel should not be obliged to make a submission along the lines “even if you have a doubt about count 1 you should not have a doubt about count 2 for these reasons.”
Conclusion
In all of these circumstances, the doubt of the jury, or at least 10 or 11 of them, on the first count did not demand as a matter of logic, common sense or human experience that a similar doubt be entertained on the second. Allowing for the possibility of consensual intercourse on the first occasion does not in any way entail a finding, or any acceptance, that the complainant did in fact consent on that occasion. Even if one were to treat the existence of a doubt as in some way being the equivalent of a weak finding that there was consensual intercourse on the first occasion, the jury were entitled to find that the circumstances of the second offence dispelled any doubt that the acquittal on the first count may have otherwise generated on the second.
In short, the jury’s verdicts can be explained on the basis that the appellant was given the benefit of the jury’s keen appreciation of the high criminal standard of proof on the first count because of the circumstances which led to the complainant being in his flat on that day. On the other hand, the jury must have been satisfied, that even on the most strict application of that onus, some weeks later the complainant, a girl of 12, who had been left to mind her niece in her own home whilst her mother was in hospital, did not go about seducing the appellant, a man of 40, in the way he described. I find nothing irrational about such a process of reasoning.
I would dismiss the appeal.
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