R v Gms - [2002] NSWCCA 275

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v GMS [2002] NSWCCA 275

FILE NUMBER(S):
60870/01

HEARING DATE(S): 7 June 2002

JUDGMENT DATE: 18/07/2002

PARTIES:
Regina v GMS

JUDGMENT OF: O'Keefe J Greg James J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/41/0002

LOWER COURT JUDICIAL OFFICER: His Honour Judge Goldring

COUNSEL:
Appellant - H. Dhanji
Crown - P.J. Power

SOLICITORS:
Appellant - D.J. Humphreys
Crown - S.E. O'Connor

CATCHWORDS:
Criminal law
conviction appeal
apparent inconsistency in jury's verdicts
appellant convicted, co-accused acquitted
whether a rational explanation for apparent inconsistency.

LEGISLATION CITED:
Crimes Act 1900, s61I, 61IJ(1), 61IJ(2)(c)

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60870/01
O’KEEFE J
GREG JAMES J
CARRUTHERS AJ
Thursday, 18 July 2002

REGINA v GMS

Judgment

O’KEEFE J: I agree with Carruthers AJ.
GREG JAMES J: I agree with Carruthers AJ.
CARRUTHERS AJ: GMS appeals against his conviction at the Wollongong District Court on 26 October 2001 upon one count of sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900 which offence carries a maximum penalty of fourteen years imprisonment.
The appellant was arraigned before his Honour Judge Goldring DCJ and a jury of twelve at the Wollongong District Court on 15 October 2001 upon an indictment which contained one count of aggravated sexual intercourse without consent, namely being in the company of PJK, pursuant to s 61IJ(1), (2)(c) of the Crimes Act 1900. The Crown relied upon the statutory alternative of sexual intercourse without consent in the event that the appellant was acquitted of aggravated sexual intercourse without consent. The offence was alleged to have occurred on 6 October 2000 when the complainant was aged fifteen.
A co-accused, PJK, was charged with the same offence in relation to a separate act of intercourse, alleged to have been committed by him immediately after the act relied upon against the appellant.
The appellant and the co-accused each pleaded not guilty. The trial concluded on the ninth day, namely 26 October 2001, on which date the jury returned verdicts of not guilty to the primary charge in relation to both accused. However, the jury found the appellant guilty of the alternative count of sexual intercourse without consent. PJK was found not guilty of the alternative count.
On 7 December 2001 his Honour sentenced the appellant to imprisonment for a term of three years and six months to commence on 26 October 2001 and to expire on 25 April 2005. His Honour fixed a non-parole period of two years and three months to commence on 26 October 2001 and to expire on 25 January 2004.
The complainant was born on 17 December 1984. At the time of the alleged offence she attended a local school.
The appellant was born on 25 September 1972 and was at the date of alleged offence employed as a welder’s assistant.
The Crown case and the defence case were summarised in written submissions to this Court by counsel for the Crown, as follows:
“The complainant and a group of female school friends went to a park on the evening of Friday, 6 October 2000. They had been in contact with the appellant by mobile phone. He and the co-accused joined the girls at the park later in the night. They brought bourbon and Coke, which they and the girls shared. The co-accused bought another bottle of bourbon later in the night.
The complainant became affected by alcohol and she got into an altercation with a young man who was in the park, but not part of their group. She wanted him to tell her where one of her friends had gone. After this incident, the complainant wondered where her friend had gone and the Appellant pointed towards a dark area of the park and indicated that the friend was over there. He and the complainant went in that direction. One of the complainant’s female friends joined them, but was called back. This left the complainant and the Appellant alone.
The complainant alleged that the appellant then grabbed her and forced her to the ground, then had penile-vaginal intercourse against her will. She said that she told him ‘No’ on many occasions, but he continued. The co-accused joined them and tried to put his penis in her mouth. The appellant ejaculated and was not wearing a condom. The co-accused then had penile-vaginal intercourse against her will. During that time, the appellant remained with them and touched and kissed her. Friends of the complainant eventually came over and she was helped to an area near a school and then to a toilet block where she was sick and then complained to several of her female friends that she had been raped by the two men. By this stage, the men had left. The complainant was taken to the Wollongong Hospital. It is apparent that she was in a distressed state and was not examined until approximately 10.15 am on Saturday, 7 October 2000. She had bruising to her arms and thigh and lacerations on her lower vagina, consistent with the history of sexual assaults by the two men that she gave to the medical officer. The DNA from semen samples taken from her trousers was consistent with the appellant’s DNA.”
Both accused gave evidence.
“The appellant agreed that he had penile-vaginal intercourse with the complainant but said that it was consensual. He agreed that he was alone with the complainant in the park after they had started to look for one of the complainant’s friends. He said they started kissing under a lamp, the complainant did not object to this, he felt her under her pants and again she did not object. She kissed him back. They moved to another part of the park and got on the ground where they had consensual penile-vaginal sexual intercourse after he had performed oral sexual intercourse upon her vagina. During the intercourse, she mentioned that she should not be doing this because she had a boyfriend, but on two occasions when the appellant asked her if it was alright to continue she indicated to him that he should continue. The co-accused came up to them and she agreed for him to have penile-vaginal intercourse as well. The appellant tried to help the complainant after her friends came over by offering her a drink and helping to put one of her shoes back on. He and the co-accused left the area to return to a hotel, where they had been planning earlier in the night to go and watch a band and buy CDs.”
There are four grounds of appeal. The first ground is that the verdict of guilty is unreasonable and cannot be supported in light of the verdict of not guilty in relation to the co-accused. It is convenient if I leave this ground until after I have dealt with the remaining three grounds.
Ground 2 is in the following terms:
“There was a miscarriage of justice as a result of the trial judge’s failure to direct the jury as to the significance of an acquittal to the credibility of the complainant.”
This ground was not the subject of a request for a direction by defence counsel at the trial and accordingly leave is sought to rely on the ground pursuant to Rule 4 of the Criminal Appeal Rules.
To support this ground counsel for the appellant relied particularly upon the following passage from the judgment of Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82 at 122.
“It will often be appropriate to direct a jury that where they entertain a reasonable doubt concerning the truthfulness or reliability of a complainant’s evidence in relation to one or more counts, that must be taken into account in assessing the truthfulness or reliability of the complainant’s evidence generally.”
The Chief Justice had earlier referred in his judgment (at p 121) to observations by Fitzgerald JA in R v Robinson (2000) 111 A Crim R 388 at 390 to the same effect.
The first matter to note in this regard is that the Chief Justice did not express the view that in every case where there is more than one count a direction along the above quoted lines is necessary.
In the instant case his Honour gave the jury a specific direction that they should examine the complainant’s evidence “with great care”. His Honour is recorded (at SU 22-23) as having stated:
“Now in this case one witness is essential to the proof of the Crown case namely, [the complainant]. Her evidence is the only evidence led by the Crown to satisfy you that she did not consent to the sexual intercourse and that each of the accused did not know she was consenting and for that reason, because it is the only evidence, you should examine and scrutinise her evidence with great care before you decide that a verdict of guilty should be brought in, if at all and you should only find each of the accused guilty, if you are satisfied beyond reasonable doubt of the truth of the evidence of [the complainant].
I should also say of [the complainant] that if you accept Dr Perl’s evidence you will find that she was affected in many ways by the alcohol that she consumed. One of the things that was affected was her memory and it would be dangerous to bring in a verdict of guilty against either of the accused without scrutinising her evidence with very great care.”
Obviously there is a corruption in the transcript. The italicised words should read “each of the accused did know that she was not consenting”.
I might say that the above was a particularly favourable direction so far as the appellant is concerned because, as I shall point out later, there was considerable evidence supporting the complainant’s evidence that she did not consent.
As I shall point out subsequently when dealing with the first ground of appeal, this was not a case where the verdicts of not guilty in relation to the aggravated sexual assault charges of both accused, and the acquittal of the appellant’s co-accused in relation to the alternative count, necessarily flowed from a reasonable doubt on the part of the jury concerning the truthfulness or reliability of the complainant’s evidence.
I think it is important when considering the second ground of appeal to note that his Honour gave the jury the following customary direction (SU 14):
“There is no rule you must or should put any witness and his or her evidence in a compartment as being either reliable or unreliable. You have a right as judges of the facts to say of any witness that you accept all of his or her evidence, that you reject all of his or her evidence, or that you accept some part and reject other parts. You may decide that any witness is accurate on some matters and inaccurate or mistaken in respect of others.”
Thus the credibility or otherwise of the complainant was the subject of significant directions by the learned trial judge and I am quite unconvinced in the circumstances of this case that any possible miscarriage of justice could have arisen by reason of the fact that his Honour did not give a direction in the terms suggested by the Chief Justice in Markuleski as quoted above. Accordingly, I would not grant the appellant leave to rely upon this ground.
The third ground of appeal is in the following terms:
“There was a miscarriage of justice as a result of the trial judge’s failure to adequately warn the jury of the dangers of relying on the evidence of the complainant.”
I have already referred in par 15 above to the strong direction which his Honour gave in relation to the credibility of the complainant. At the conclusion of the summing-up Mr Pearsall of counsel for the appellant asked his Honour to supplement the above quoted direction. Counsel said (at SU 54):
“Your Honour other aspects that might be mentioned to the jury to indicate reasons of her potential unreliability apart from just the consumption of alcohol, your Honour, are that she has given accounts on her oath which must be wrong.
She’s given an account on her oath to the police about the movements of [the co-accused] on the night which she concedes to be incorrect. She also gives a sworn account about what was taking place with Eddy, that is that she wasn’t involved in hitting Eddy, she was pretty clear about that. But on the evidence of Eddy and Amanda and maybe some others …”
His Honour interrupted counsel by stating “That’s a matter for the jury Mr Pearsall”.
In this regard counsel sought to develop the submission but his Honour declined to add further to the direction which he gave.
In essence the criticism by counsel for the appellant of the warning which his Honour gave was that it was restricted to the effect of the consumption of alcohol on the complainant’s memory as a factor potentially making her evidence unreliable to the exclusion of other factors. Thus, for example, the jury should have been informed that it may have affected her judgment and emotional lability.
It was submitted that this was a situation to which s 165 of the Evidence Act 1995 applied, in that the complainant’s evidence was of a kind that may be unreliable. The judge was therefore remiss, it was argued, in that having been requested to give an appropriate direction to the jury in accordance with s 165(2)(b) his Honour did not adequately discharge the responsibility which subs (2)(b) imposed upon him, namely to inform the jury of matters that may cause the complainant’s evidence to be unreliable.
The Crown submitted in reply that the warnings which his Honour did give were adequate and focussed upon the phrase “One of the things that was affected was her memory”, in the warning quoted at par 15 above, to support the contention that his Honour clearly was not confining the warning to the effect which alcohol would have had on the complainant’s memory.
The Crown referred the Court to the following passage from the summing-up where his Honour expanded upon the evidence of Dr Perl. Specifically his Honour directed the jury (at SU 38) that the effect of Dr Perl’s evidence was that alcohol may have:

impaired the complainant’s ability to make judgments;
caused the complainant to take risks that she would not take had she not consumed alcohol;
affected the complainant’s ability to perceive;
affected the complainant’s cognitive skills, and
impaired the complainant’s memory.

So far as the question of the effect of the alcohol consumed by the complainant is concerned I am of the view that his Honour’s directions were quite adequate.
Counsel for the appellant contended that further matters should have been the subject of warnings by his Honour. Those matters included inconsistencies in the testimony of the complainant, the difficulty in testing the complainant’s evidence due to the effect of alcohol on her memory, the reasons why the complainant might give a false version of events and the youth of the complainant. The jury should also have been warned, it was argued, that false complaints are sometimes made for reasons which may not be apparent and may never become apparent. As trial counsel did not specifically request directions in the above form, the Crown contends that Rule 4 applies.
I am not persuaded that his Honour failed adequately to warn the jury in the context of this particular case of the factors which might impair the credibility of the complainant.
In my view his Honour gave to the jury a very fair and balanced summing-up that included a very careful survey of the evidence and the appropriate directions of law.
It is important to bear in mind that his Honour carefully advised the jury that if they wished any part of the evidence to be re-read to them that could immediately be arranged. Further, that his Honour was available and anxious to provide any further explanation of the relevant principles of law and how they applied to the evidence before the jury.
I might add that the complainant was cross-examined in such detail and so expansively that her cross-examination extended over eighty-seven pages of transcript. The jury had ample opportunity therefore to make an assessment of her reliability. In the circumstances I would allow the appellant to rely upon this ground of appeal but I would reject the ground.
The fourth ground of appeal is in the following terms:
“There was a miscarriage of justice as a result of the Crown Prosecutor’s cross-examination of the appellant.”
This ground of appeal is based upon the following questions and answers in the cross-examination of the appellant by the Crown Prosecutor:
“Q: Do you recall Detective Warren saying words, ‘I am investigating a sexual assault that occurred at Lang Park, South Beach near Marine Drive, Wollongong either late in the evening of Friday 7 October or early hours of Saturday 8 October. I want you to understand that you do not have to say anything further, as anything that you say or do will be recorded and may be used in evidence, do you understand that?’. Detective Warren says that you remain silent for a short time and Detective Warren said, ‘Do you understand that?’. Then you said, ‘I don’t know what you’re talking about’, do you remember a conversation along those lines?
A: Yes.
Q: When you said, ‘I don’t know what you’re talking about’, were you trying – did you want to not let him know that you were actually at the park at that time?
A: No, it wasn’t.
Q: It (sic) said you remained silent for a short time. You understood what he was saying, though, didn’t you?
OBJECTION: (Pearsall)”
The last question was objected to and no answer was given. However, the appellant contends that the damage was in the question, not in any possible answer.
In support of this ground the appellant sought to rely upon s 89 of the Evidence Act, which relevantly provides that in a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party failed or refused to answer one or more questions, or to respond to a representation put or made to the party in the course of official questioning. Further, subs (2) provides that evidence of that kind is not admissible if it can only be used to draw such an inference.
The appellant seeks to rely upon an affidavit by defence counsel at the trial in which he deposes that having objected to the last-mentioned question, he did not seek a discharge of the jury because, in his view, the trial as a whole was proceeding as well as it could be expected for the appellant. Further, that he did not believe that overall it was in the appellant’s interest to seek a discharge, notwithstanding the damage which may have been done “by the improper question”.
Detective Warren gave evidence in chief, without objection, of the conversation with the appellant, and his reaction, which formed the basis of the opening question quoted above.
His Honour, during the summing-up, made it perfectly clear to the jury that they must under no circumstances draw any inference adverse to the appellant by reason of the fact that he declined to answer questions posed to him by police officers.
This ground of appeal is misconceived in that no question of a breach of s 89 arises.
When the appellant stated “I don’t know what you’re talking about”, this was clearly a reference to the alleged sexual assault at Lang Park which the officer said he was investigating. The phrase used by the appellant was effectively a protestation of innocence and having made that protestation he rendered himself liable to cross-examination on it.
I do not consider that a possible miscarriage of justice arose on this occasion and I would reject this ground of appeal.
I turn then to the first ground of appeal that the verdict of guilty was unreasonable and could not be supported in light of the verdict of not guilty in relation to the co-accused. It was, understandably in light of the evidence, not argued that the Crown failed to establish sufficient evidence upon which the jury could have returned a verdict of guilty against the appellant. The argument was confined to the submission that the verdict of guilty against the appellant could not stand with the verdict of not guilty in relation to the co-accused. The appellant and the co-accused both admitted intercourse. Both said it was consensual. The complainant in evidence denied consent to intercourse with either accused.

It was argued that the acquittal of the co-accused represented a rejection of a critical aspect of the evidence of the complainant. A reasonable jury, it was then argued, would necessarily have also experienced a doubt as to the complainant’s evidence in relation to the appellant.
Particular reliance was placed by counsel for the appellant on the judgment of the majority of the High Court in M v The Queen (1994) 181 CLR 487, especially at 494; Jones v The Queen (1997) 191 CLR 439 and R v Markuleski (2000) 52 NSWLR 82, in which Spigelman CJ undertook an analysis of the reasoning in Jones and conducted an extensive review of the cases in which it had been applied.
The Chief Justice concluded in Markuleski (at 100) that the circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have had such a doubt with respect to other counts. However, the Chief Justice said, it does not follow that that must necessarily be the case.
It was argued that in the present case the counts against the appellant and the co-accused were part of a single episode. There was no relevant distinction, it was said, “between the counts against the appellant and the co-accused in relation to the availability of other evidence which might cast doubt on the complainant’s account. Nor was there any relevant distinction in the quality of the evidence relating to the different counts”.
In Osland v The Queen (1998) 197 CLR at 316, McHugh J explained the approach required of an appellate court when considering whether a conviction should be set aside by reason of an apparent inconsistency in the jury’s verdicts. At pp 357-358 his Honour said:
“When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory.
In determining whether the inconsistency points to an unsatisfactory conviction, the appellate court must consider the evidence, the issues, and the directions which the jury were given. In a case where the accused claimed that his conviction should be set aside because of the inconsistency of verdicts, McGarvie J said ‘[i]n considering this question it is vital to consider the way in which the trial Judge charged the jury’. An examination of the directions, issues and evidence may confirm that apparently inconsistent verdicts are in fact inconsistent and demonstrate that the conviction is unsafe. Just as frequently, however, examination of the issues, evidence and directions may show that apparently inconsistent verdicts are not inconsistent and that there has been no failure in the reasoning process of the jury.” [Citations have been omitted.]
It is necessary then to consider the relevant directions, issues and evidence touching upon this question in the instant case.
The onus rested upon the Crown to establish beyond reasonable doubt that at the time and place alleged, the accused had sexual intercourse with the complainant; without the complainant’s consent and knowing that the complainant did not consent.
There was no dispute at the trial in relation to each accused with regard to the first element.
As to the second and third elements, his Honour gave the jury the direction (inter alia) set out in par 15 above.
This was a particularly favourable direction so far as the accused were concerned because there was (with respect) significant evidence supporting the testimony of the complainant that she did not consent.
Firstly, there is the evidence of immediate complaint. After the alleged assaults the complainant was assisted to a nearby toilet where she vomited. Immediately she came out from the toilet she said to her girlfriend, JS, “They raped me and they wouldn’t stop and I said No” (T 17.10.01 p 192). The complainant said that the co-accused tried to “stick his penis in her mouth … and that they wouldn’t stop” (T 17.10.01 p 192).
Another young girlfriend, RP, gave evidence that when she came out of the toilet the complainant said, “They raped me”. When asked “Who raped you?”, the complainant said, “Those two guys that were just with us just then” (T 18.10.01 p 274). This witness said that as the complainant was being assisted toward the toilet she noticed that one of the complainant’s shoes was off and one of the accused was trying to put it back on her foot (T 18.10.01 p 275).
Another girlfriend, AS, saw the complainant near the toilet after the alleged offences. She deposed that the complainant looked “very upset”, was crying and shaking and “She told me that she was just with two blokes and she didn’t want to because she kept saying no because she had a boyfriend” (T 17.10.01 p 177). The witness described the complainant as being “in tears” and “she wouldn’t stop moving and she was like running around and she just kept screaming ‘I said no, but he wouldn’t stop’” (T 18.10.01 p 240).
Another girlfriend, TM, gave evidence that earlier in the evening it was clear to her that the appellant liked the complainant and was interested in her. She deposed that she heard him say to the complainant “I am going to get you drunk so I can take advantage of you”. The complainant replied, “I don’t think so” (T 18.10.01 pp 238-239).
Another young female friend, RP, went into the toilet with the complainant. She said in evidence of the complainant, “She was crying and she was mumbling something and I told her to like settle down a bit and just, she started relaxing and then she just mumbled something again and I go like, ‘What are you saying?’, and she goes ‘They raped me’”, then she started crying. The witness asked her, “Who raped you?” and she replied, “Those two guys that were just with us just then” (T 18.10.01 p 274).
More direct evidence was given by JS. She observed the following events when she came across the alleged assault. She said she saw the complainant on the ground and the appellant on top of her “and she was like fidgeting …”, and she saw the complainant’s legs move “like she didn’t want to be there”.
The witness observed that “one of her legs pants (sic) was off and one of her shoe (sic) was on and the other wasn’t”. She then went to contact one of the other girls (T 17.10.01 p 188).
The two accused left the scene and the complainant was driven to the Wollongong Hospital. The complainant gave evidence that she had fingerprint bruises on the tops of her arms, her back was swollen and there was a big bruise on the inside of her right leg (T 15.10.01 pp 12-13).
Evidence was given that the complainant arrived at the Emergency Department of the Wollongong Hospital around about 1 am on the morning of 7 October accompanied by her friend JS. She was seen by a doctor at 1.45 am, a sexual assault counsellor, and was found to be in a confused, agitated state and unable to give a verbal consent for forensic examination at that time.
At 10.15 am on 7 October the complainant was examined by Dr Jill Timbs, a legally qualified medical officer attached to the Sexual Assault Services, Wollongong. Dr Timbs observed the complainant was dishevelled. She was drowsy but able to give a clear history. The complainant said that she had some memory blanks and some details were confused.
Dr Timbs gave evidence of bruising which she found on the complainant’s body.
Examination of the external genitalia revealed several small lacerations on the left introitus. Foreign material present in the vulva was collected.
Dr Timbs concluded that the pattern of injuries to the complainant’s body was consistent with the history which the complainant gave of sexual assault by two men and lacerations of the introitus. She was of the opinion that the findings on examination were consistent with a history of sexual assault as detailed to her.
In cross-examination Dr Timbs said: “Yes it’s true that robust sex can cause those injuries” (T 17.10.01 p 170).
Dr Judith Perl, a member of the Clinical Forensic Medicine Unit with the New South Wales Police Service gave evidence. Dr Perl is a highly qualified pharmacologist.
Reviewing the case notes, Dr Perl noted that upon her admission to the Emergency Unit at the hospital, the complainant appeared “confused, agitated, fearful and was crying”. She was sedated with five milligrams of diazepam at 2.25 am and a further five milligrams was administered about 5.15 am.
A blood sample was taken from the complainant some time after 10.15 am on 7 October. That was analysed and in relation to alcohol in that blood sample there was an amount of 0.031 grams per 100 millilitres of blood.
Dr Perl deposed that the residual blood alcohol concentration found in the complainant’s blood after 10.15 am on the following morning suggested that:
“She was grossly intoxicated by alcohol earlier that night, especially when one considers that she vomited several times shortly after the incident. Vomiting would have expelled a significant amount of unabsorbed alcohol from her stomach, thus had she not vomited she probably would have had an even higher blood alcohol level.”
Dr Perl calculated that at about 1 am the complainant’s blood alcohol concentration would have been around 0.17 grams per 100 millilitres.
Dr Perl said:
“At this blood alcohol concentration all people, but in particular a young person relatively inexperienced with alcohol, would be significantly impaired in cognitive and motor functions. I would expect very significant impairment to have been present in the victim including impaired memory, impaired judgment and decision making, impaired co-ordination and impaired reactions.” (T 17.10.01 p154)
Dr Perl added that in addition to the impairment of those functions emotional lability is common. Further, there would be slurred speech and most likely very incoherent speech. For someone who was inexperienced with alcohol at that sort of level “They’d be sort of semi conscious”. Also the process of reasoning would be affected. (T 155)
DNA analysis of semen samples taken from the complainant’s underpants at the Wollongong Hospital on 7 October 2000 and the appellant’s blood (which he voluntarily gave after his arrest) showed that the DNA in the semen samples was consistent with the appellant’s DNA.
It is important to note in the context of Dr Perl’s evidence, that the complainant said during the course of her evidence that she just kept “like blacking out, like I was really scared and stressed” (T p 10). She said that she could not recall the co-accused saying anything before he placed his penis in her vagina. She was asked what happened after that. She replied,
“Then, it’s more blurry after that, like I can remember them like, them just keep talking and changing and things like that but I’m not like full sure after that, it was more, like it got blurry and, but then I remember (the co-accused) just on top of me and then after a while then I remember [J and R] coming over to me.” (T p 11)
I turn then to the directions which his Honour gave in relation to the third element which the Crown was required to prove to establish the subject offence. His Honour said relevantly (SU pp 6-8):
“The third ingredient of what the Crown must prove against each accused is knowledge. The Crown must prove to you beyond reasonable doubt that the accused knew that the complainant did not consent. …
However, if you are satisfied that she did not consent then the Crown must also prove that each accused … knew that [the complainant] did not consent.
And this is a subjective, not an objective test, it is not what a reasonable person might think, it is what [the appellant] thought, what [the co-accused] thought.
You might ask, in the absence of an admission by the accused, if the Crown can prove that he was aware that she did not consent and the Crown ask you to infer that from other facts which it has set out to prove. If you find that [the complainant] did not in fact consent then [the appellant’s] state of mind at the time of the act of intercourse must be that he knew, actually, that she was not consenting and if the Crown satisfies you that that was the state of [the appellant’s] mind at the time of the act of intercourse then the third element of the charge has been made out. The same applies of course to [the co-accused].
On the other hand an accused person’s state of mind might be that he honestly, though wrongly, believed that [the complainant] was consenting to the intercourse. That is not a guilty state of mind. It is for the Crown to prove that the accused had a guilty mind and if the Crown has failed to prove that at the time of intercourse each of the accused did not honestly believe that the complainant was consenting, then you would have to say that this element of the offence is not made out and return a verdict of not guilty of this charge against that accused.”
The Crown has led evidence on which the jury could be satisfied beyond reasonable doubt that the complainant did not consent to intercourse with either accused. The Crown also placed before the jury cogent evidence from which they could find to the requisite standard that the appellant knew that the complainant was not consenting. It is significant that the appellant was the first of the two accused to have intercourse with the complainant.
To my mind the acquittal of the co-accused can only reasonably be explained by the fact that the jury were not satisfied to the requisite standard that the co-accused subjectively knew that the complainant was not consenting to intercourse with him.
As the complainant kept blacking out and her speech was slurred and incoherent due to the effects of the excessive consumption of alcohol, the jury may have allowed for the possibility that the co-accused believed there was no significant resistance by her to his having intercourse with her. To my mind this is a rational explanation for the apparent inconsistency in the verdicts.
If, as I consider likely, this was the approach taken by the jury it does not require a conclusion that the jury had doubts about the credibility of the complainant.
In my view, to adopt the words of McHugh J in Osland, examination of the issues, evidence and directions shows that the apparently inconsistent verdicts are not inconsistent and there has been no failure in the reasoning process of the jury. I would therefore reject this ground of appeal.
In my opinion the appeal should be dismissed.

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LAST UPDATED: 19/07/2002