R v H, GJ
[2008] SASC 274
•17 October 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v H, GJ
[2008] SASC 274
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kourakis)
17 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
The appellant was tried in the District Court on six counts of sexual offending relating to two victims on six different occasions - trial Judge ruled no case to answer on one count - trial Judge properly directed jury to consider each alleged offence separately and that verdicts are not required to be the same for each count - each count related to different occasions and most counts related to different forms of sexual offending - jury returned verdicts of guilty on three of the remaining counts and not guilty on two counts - appellant appealed to the Full Court of the Supreme Court against the Jury's guilty verdicts on the ground that they were unreasonable by reason of inconsistency between the verdicts of guilty and not guilty.
Held: appeal dismissed - test of unreasonableness of jury's verdicts by reason of inconsistency is one of irrationality and burden of establishing it is on appellant - the verdicts were not inconsistent because they could be rationally explained having regard to the evidence.
Criminal Law Consolidation Act 1935 (SA) s 49, s 58 and s 270A, referred to.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; M v The Queen (1994) 181 CLR 487, applied.
R v JA [2008] VSCA 169, discussed.
Jones v The Queen (1997) 191 CLR 439, considered.
R v H, GJ
[2008] SASC 274Court of Criminal Appeal: Doyle CJ, White and Kourakis JJ
DOYLE CJ: I would dismiss the appeal against the convictions recorded in the District Court. I agree with the reasons given by Kourakis J. There is nothing that I wish to add.
WHITE J: In my opinion, the appeal should be dismissed. I agree with the reasons of Kourakis J.
KOURAKIS J:
Introduction
The appellant was tried in the District Court on five counts of sexual offending against DBF and one count against BG. DBF and BG are cousins. All six counts related to different occasions. The Trial Judge ruled that there was no case to answer on one of the counts relating to DBF. The jury returned verdicts of guilty on three of the remaining counts and acquitted the appellant of the other two. The appellant has appealed on the ground that the guilty verdicts of the jury are unreasonable by reason of inconsistency between the verdicts of guilty and not guilty, and on the ground that they cannot be supported by the evidence. Although there is some ambiguity in the way in which the grounds are expressed, ultimately the appellant did not pursue the ground that the verdicts could not be supported by the evidence independently of the alleged inconsistency between the verdicts. For the reasons that follow I have concluded that the verdicts are not inconsistent. The difference between the verdicts returned on the five counts which were left to the jury can be rationally explained having regard to the evidence. They are not an affront to logic or common sense.[1]
[1] MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ.
The charges
DBF was born on 23 July 1991. DBF gave evidence that he often visited the appellant’s house in suburban Adelaide. The appellant lived at the house with his father and his father’s partner. It was about a 10 to 15 minute walk from DBF’s home, which was in the same suburb as the appellant’s house. DBF said that he was usually invited to the appellant’s house but that he would sometimes visit without an invitation. He said that he often went there unaccompanied and spent time there alone with the appellant. The appellant denied that DBF ever came to the house unaccompanied, or that he spent time with him alone. The evidence of DBF on that issue was corroborated by DBF’s mother and another witness.
The evidence of DBF was that the particular occasions that were the subject of the counts were not the only occasions on which he was sexually assaulted by the appellant. He said that over a period of time the appellant had touched him on his bottom and his penis on “maybe 10 or a bit more” occasions. In his evidence in chief DBF said that the incidents had taken place “probably over a year”. In cross-examination that evidence was challenged by reference to a statement that DBF had made in the week before trial that, as best he could remember, the sexual offending had happened over a period of about six months.
All of the counts, save for the fifth, charged that the offences were committed between the 1st day of June 2004 and 14th day of February 2005. The fifth count alleged that the offence occurred between the 1st day of February 2004 and the 14th day of February 2005. It was on the latter date that DBF’s mother took him to a police station to report the offences. The first date alleged in each count appears to have been selected on the basis of the allegations of DBF, or his cousin BG, the complainant on the fifth count, about the period of time over which the offending occurred.
The first count on the information charged the appellant with unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The particulars alleged that the appellant had performed an act of fellatio on DBF between the 1st day of June 2004 and the 14th day of February 2005. The jury returned a verdict of not guilty on that count. It was on that verdict that the appellant primarily relied to support his contention that the verdicts were inconsistent.
The evidence relating to the first count was very brief. DBF was asked whether he was at the appellant’s house just before Christmas 2004. No attempt was made to fix the date with any greater precision. When asked to describe what happened on that occasion DBF said that he was in the family room watching television when the appellant told him that he wanted to show him something in the bedroom. DBF accompanied the appellant to the bedroom. DBF sat down on the bed and took off his pants and underwear. The appellant then fellated him. DBF said that the offending continued until he asked the appellant to stop. He could not recall any conversation before the act of fellatio was performed. He could not remember what he was watching on television before he was asked to go into the bedroom. He could not recall whether he stayed at the house after the incident.
In cross-examination DBF said that although he could not remember the programme that he was watching on television, the channel was MTV. Counsel for the appellant put to him that the household did not have any MTV connection at that time. DBF maintained that it did. The only evidence as to whether MTV was an available channel was the evidence of another witness who said that at some time in 2004 he had seen the appellant watching Foxtel. I do not know whether MTV is available on Foxtel and whether or not the jury would have understood that to be so.
Counsel for the appellant elicited from DBF that he had told police that the floors in the appellant’s bedroom were a creamy white colour. DBF agreed that that is what he recalled the colour to be. It was then put to him that the floor was red or pink but DBF maintained that the floors were a creamy white colour. No other witness described the colour of the floor.
In cross-examination DBF said that he could not be sure whether the offence occurred on a weekday or a weekend but said that it occurred at about 3 or 3.30 in the afternoon. The appellant’s evidence was that he worked in the week ending Friday 24 December 2004 between the hours of 7 am and 3 pm. A bundle of time sheets were tendered in support of that evidence. His evidence was that it took about 15 to 20 minutes to travel from his employer’s premises at Regency Park to his home. He had only 25 minutes for lunch.
The second count charged attempted unlawful sexual intercourse contrary to s 49(3) and s 270A of the Criminal Law Consolidation Act 1935. The particulars alleged that the offence occurred between the 1st day of June 2004 and the 14th day of February 2005. The appellant was convicted of indecent assault on that count.
DBF gave evidence that this offence occurred in a shed that had been converted into a games room at the rear of the house where the appellant was living. DBF said that he was 13 or 14 at the time. DBF recounted that he was sitting down on a lounge when the appellant asked him to have sex with him. DBF said that he knew that by sex the appellant meant that he wanted to put his penis in DBF’s bottom. DBF said that he agreed to engage in sex. DBF undressed and laid down on his stomach. He said that he felt the penis placed around “the area of [his] bottom” but that there was no penetration. DBF could not remember whether the appellant ejaculated. DBF said that the incident came to an end when he asked the appellant to stop. DBF could not recall when the incident that was the subject of count two occurred other than to say that he was “13, maybe 14”.
The third count charged indecent assault alleged to have occurred between the 1st day of June 2004 and the 14th day of February 2005. From the opening it appears that the third count was intended to relate to an occasion when the appellant masturbated DBF. There was no evidence at all of such an occasion. The jury were directed to, and did, return a verdict of not guilty on that count at the close of the prosecution case.
The fourth count charged the appellant with gross indecency contrary to s 58 of the Criminal Law Consolidation Act 1935. The particulars alleged that the act of gross indecency was committed between the 1st day of June 2004 and the 14th day of February 2005 in the presence of DBF. The jury returned a verdict of guilty on that count. DBF gave evidence that he was in the games room on an occasion some time before the Royal Adelaide Show. He was playing a game on the play station. He looked around and saw the appellant masturbating on the couch. He asked him why he was doing it and the appellant replied that it was because he wanted to. DBF continued to play the game. In cross-examination DBF said that the incident occurred “not too long before” the Royal Adelaide Show. Counsel for the appellant challenged that answer by reference to a statement given to police in the week before the trial when DBF had said that the incident “happened up to two months before the Show” and that “it wasn’t just before the Show but I can’t be more exact”.
The fifth count charged unlawful sexual intercourse with a person under 12 contrary to s 49(1) of the Criminal Law Consolidation Act 1935. The particulars alleged were that between the 1st day of February 2004 and the 14th day of February 2005 the appellant had anal sexual intercourse with BG. BG was born on 29 December 1995. The jury returned a verdict of not guilty on that count.
BG gave evidence of visiting the appellant at his house and often being in the games room alone with him. He alleged that he was, over a period of time, sexually assaulted on multiple occasions. When asked to describe anything that happened on a visit to the appellant’s house when DBF was also present BG recounted an occasion when the appellant had had anal sexual intercourse, not with him as the fifth count alleged, but with DBF. BG said that the appellant performed fellatio on him after the sexual assault on DBF. DBF’s evidence was that the appellant had had anal sexual intercourse with BG and had asked DBF to video it on his mobile phone. Given the conflicting accounts of the occasion the jury’s verdict is hardly surprising.
Count six charged the appellant with attempted unlawful sexual intercourse contrary to s 49(3) and s 270A of the Criminal Law Consolidation Act 1935. It alleged that the appellant had, between the 1st day of January 2005 and the 14th day of February 2005, attempted to have anal sexual intercourse with DBF. The jury returned a verdict of guilty of indecent assault on that count.
DBF’s evidence was that the appellant was at DBF’s home on the occasion of the Lleyton Hewitt and Andy Roddick semi-final at the Australian Open. He and the appellant went into DBF’s bedroom where the offence was committed. DBF could not remember on what day of the week the incident occurred. DBF gave some detail of the preliminary interaction leading up to the offending. Although DBF described the appellant lying on top of him he again said that there was no penetration.
The Summing Up
The appellant does not complain of any omission or misdirection in the summing up. In particular the appellant accepted the correctness of the following direction given by the Trial Judge:
Ladies and Gentlemen, you must consider each of the alleged offences separately and arrive at your verdict on the basis of the evidence which relates to the particular offence. As I have told you, your verdicts do not have to be the same in each case. Depending on your view of the evidence you can find the accused not guilty of one or more charge but guilty of other charge.[2]
[2] Summing up p 15.
Once it is accepted that that direction was properly given it is difficult to see how it can be contended that the verdicts of guilty were unreasonable by reason of inconsistency. In MacKenzie v The Queen,[3] Gaudron, Gummow and Kirby JJ explained that in the case of different verdicts on different counts in a criminal trial, “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 the ingredients must be proved beyond reasonable doubt”.[4]
[3] (1996) 190 CLR 348.
[4] MacKenzie v The Queen (1996) 190 CLR 348 at 367.
The Trial Judge reminded the jury that the accused was only charged with the five specific incidents which are alleged on the information and not the whole of the course of conduct. They were also warned that it would be wrong to convict the accused of a particular charge simply because they were satisfied that some unspecified sexual activity had occurred. They were directed to consider the evidence relating to each particular charge separately.[5]
[5] Summing up p 6.
The Applicable Principles
The nature of the penultimate ground of appeal in the common form criminal appeal provision, that the verdict of the jury “is unreasonable or cannot be supported having regard to the evidence”, was discussed in the joint judgment of McHugh, Gummow and Kirby JJ in MFA v The Queen.[6] The joint judgment explains that for two reasons, both contextual, a narrow construction should be placed on the word “unreasonable”, even though it appears to state a very broad test. The first is the accepted place of the jury in Anglo-Australian law “as the constitutional tribunal for deciding contested facts”. The second is the need to read the word “unreasonable” together with the final ground of the standard form criminal appeal provision, namely “that on any other ground whatsoever there was a miscarriage of justice”.[7] The joint judgment also observed that a difference of emphasis in the application of the “unreasonable and cannot be unsupported by the evidence” ground had been finally determined in favour of the test stated in M v The Queen[8] to the effect that the question is whether it was open to the jury to be satisfied of the accused’s guilt, applying the criminal law standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict upon the whole of the evidence.[9]
[6] (2002) 213 CLR 606.
[7] MFA v The Queen (2002) 213 CLR 606 at 620-2 [47] – [51].
[8] (1994) 181 CLR 487.
[9] MFA v The Queen (2002) 213 CLR 606 at 623 [57].
The whole court in MFA approved[10] the approach articulated in MacKenzie to the “unreasonable” ground when it is contended that verdicts are inconsistent.
[10] MFA v The Queen (2002) 213 CLR 606 at 616 [33] per Gleeson CJ, Hayne and Callinan JJ, and at 630-1 [84] – [85] per McHugh, Gummow and Kirby JJ.
In MacKenzie, Gaudron, Gummow and Kirby JJ framed the test applicable in the case of different verdicts in terms of “logic and reasonableness”.[11] The joint judgment then continued:
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. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. 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’.[12]
[11] MacKenzie v The Queen (1996) 190 CLR 348 at 366.
[12] MacKenzie v The Queen (1996) 190 CLR 348 at 367-8.
In MFA the High Court rejected the submission that its earlier decision in Jones v The Queen[13] was authority for the proposition that where multiple offences are alleged against the same complainant, verdicts of not guilty on some counts necessarily reflected the view that the complainant was untruthful or unreliable, and that a jury must either accept or reject the whole of the complainant’s evidence.[14]
[13] (1997) 191 CLR 439.
[14] MFA v The Queen (2002) 213 CLR 606 at 617-8 [35] per Gleeson CJ, Hayne and Callinan JJ, and at 632 [89] per McHugh, Gummow and Kirby JJ.
In MFA the appellant was charged by counts one to three of a single information with indecent assault and homosexual intercourse, relating to one occasion in 1993 or 1994, and by counts four to six with similar offences relating to an occasion in 1995 or 1996. Verdicts of not guilty were returned on all of those counts. The appellant was also charged by counts seven and eight of the same information with indecent assault and homosexual intercourse alleged to have occurred on an occasion in mid 1997 when another juvenile was present. The jury returned verdicts of guilty on counts seven and eight. In their joint judgment Gleeson CJ, Hayne and Callinan JJ made the following observation about whether a difference between verdicts on counts relating to different occasions can properly be regarded as a factual inconsistency:
In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. In the present case, if there had been a verdict of guilty on count 2 and not guilty on count 3, where the charges were supported by substantially the same evidence, then there would have been factual, even though not technical or legal, inconsistency. However, the evidence in support of counts 7 and 8 was materially different from the evidence in relation to counts 1 to 6 and count 9. The complainant was, to a significant extent, supported by MA.[15]
[15] MFA v The Queen (2002) 213 CLR 606 at 616-7 [33].
In R v JA,[16] the Victorian Court of Appeal set aside a single verdict of guilty returned on the first count of an information. The jury had acquitted the appellant on the remaining three counts. The count on which the appellant was convicted had been committed on the same occasion as the second count on which the appellant had been acquitted. Counts three and four related to a different occasion altogether. In that context the court observed:
The complainant’s VATE tape evidence in relation to counts 1 and 2 was fuller and significantly more detailed than her evidence in relation to counts 3 and 4, which was extremely vague. Although the different outcomes on counts 3 and 4 were formally included as a ground of appeal, as the applicant essentially conceded, the extremely slight and undetailed nature of the complainant’s evidence on those counts would sufficiently answer a complaint of inconsistency, provided that there had been a guilty verdict on both counts 1 and 2.
The complainant’s coherent description of the lead up to and general background circumstances set the scene for counts 1 and 2, in a way which was entirely lacking for counts 3 and 4. The complainant clearly described her wakefulness, her visit to the applicant, her attempt to tire herself by playing with cards, and (when that proved unsuccessful) her second arrival in the lounge room where she occupied the couch with the applicant while watching a video. She also gave, at the outset, an explicit description of the central acts comprising counts 1 and 2.[17]
[16] [2008] VSCA 169.
[17] R v JA [2008] VSCA 169 [59] – [60].
Even though the court in R v JA ultimately held that the verdicts returned on the first two counts relating to the same occasion were inconsistent, the reasons of the court demonstrate the fact-sensitive nature of the relevant enquiry. The reasons of the court show that the court found it impossible, in the circumstances of that case, to identify any meaningful difference between the evidence given by the complainant about the two offences that she had said were committed on the same occasion. [18] It followed that there could be no rational explanation for the different verdicts. The Court of Appeal concluded:
In all the circumstances, the different verdicts on counts 1 and 2, which allegedly occurred in close sequence on the same occasion, appear explicable only as a compromise. That view is fortified by, but does not depend upon, the jury’s statement late in the afternoon of 7 December 2007, that it was unlikely to be able to reach a verdict on counts 1 and 2.[19]
[18] R v JA [2008] VSCA 169 [65] – [68].
[19] R v JA [2008] VSCA 169 [69].
The submissions on appeal
The appellant conducted the appeal “on the basis [that] there is nothing on the face of the evidence in relation to counts one, four, two and six that could explain satisfactorily a different conclusion on each count”. It must immediately be observed that the words “explain satisfactorily” are a further gloss on the statutory ground of appeal and the explication of that ground in MacKenzie and MFA. In particular, insofar as the words “explain satisfactorily” suggest that the Court of Criminal Appeal must be satisfied that the jury’s differentiation between the counts was “reasonable” in the wider sense of that word referred to in MFA,[20] the submission should be rejected. Such a test would trespass on the jury’s constitutional function as the tribunal of fact. The test is significantly higher and the burden of establishing it is on the appellant. It is one of irrationality.
[20] MFA v The Queen (2002) 213 CLR 606 at 621-2 [47].
The appellant contended that there was nothing about DBF’s evidence that gave any ground for treating the quality of his evidence any differently in respect of the occasions that were the subject of counts two, four and six, on which there were convictions, and the occasion that was the subject of the charge in count one, on which the jury returned a verdict of not guilty. The appellant submitted that any difference in the amount of detail given about peripheral matters relating to each count was insignificant.
The Director of Public Prosecutions submitted that the jury’s verdicts can be explained on the basis that DBF was accepted as a truthful and reliable witness but that some features of the evidence, particular to each count, explained why on some counts the jury was prepared not only to accept his evidence generally but to find the charge proved beyond reasonable doubt whereas on other counts they were not. The Director contended that the acquittal on the first count may be explained by the absence of precision in the evidence of DBF on such matters as what he was watching on television, what was discussed, who else was at home and whether he stayed on at the appellant’s home after the offending. DBF’s poor recollection of details on the first count was contrasted with the detail he gave on counts two, four and six. The Director also contended that as to counts two and six, independent evidence of an SMS text message referring to anal intercourse sent by the appellant to DBF provided some corroboration that they had engaged in that particular sexual activity. With respect to count four the Director submitted that the matter of fact way in which the description of the offending was given by DBF, free from any embellishment, had the ring of truth about it.
Discussion
It is of paramount importance in this case that each count related to a different occasion and, apart from counts two and six, a different form of sexual offending. In those circumstances it is very difficult to establish that it was not open to the jury to rationally reach different conclusions about the degree to which they were persuaded of the commission of the particular offending alleged, having regard to the context of the pre-existing relationship between the accused and the complainant, the circumstances of the particular occasion and the particular sexual conduct alleged. When multiple offending is charged over a period during which it is also alleged that the accused committed a number of uncharged acts against the complainant, it is also open to a jury, acting reasonably, to return a verdict of not guilty because they are not satisfied beyond reasonable doubt that the complainant was recounting a particular identified occasion as against generally describing the conduct that had been committed on multiple occasions in the course of the relationship.
The directions given in this case expressly drew the jury’s attention to the possibility of reaching different verdicts on different counts and warned the jury against convicting on a particular count merely because it was satisfied that some offending was committed on one occasion or another. The different verdicts in this case may simply be the result of the jury following those directions.
It can be accepted that the difference in the degree of detail in the evidence relating to each count, to some extent, may be a function of the way in which the questions were asked and the nature of the sexual offending alleged. Moreover, the lack of detail in this case was not confined to the first count. For example, even though DBF was able to identify the precise date of the offending in count six by reference to the Australian Open semi-final, he was not able to be at all precise with respect to the date of the occasion that was the subject of the second count. However, the jury are not bound to place the same significance on the absence of detail about one occasion as they are prepared to do on another. It is not difficult to appreciate that the account of the offending alleged in the first count may have seemed strange and disjointed because of the lack of detail but that the account of the events relating to the second count may have been convincing notwithstanding the uncertainty about the date.
There is another aspect of the evidence that may explain the verdict of not guilty on the first count. In his summing up the Trial Judge reminded the jury that the defence relied upon the time sheets to show that there was no opportunity for offences to have been committed during the week. He directed the jury that it was for them to decide whether the time sheets, or the hours which the accused worked, excluded all opportunity for the offences to take place. The jury may have taken the view that they were not satisfied beyond reasonable doubt about the occasion that was the subject of the first count because the appellant was at work in the days “just before Christmas”.
It is true that a jury could have convicted on count one on the basis that “just before Christmas” might have meant about a week before and not just a day or so before Christmas or on the basis that the offending occurred later in the day. However, there is nothing irrational about the jury reasoning that given that the prosecution case was put on the basis that the incident occurred just before Christmas and between 3 pm and 3.30 pm, they should give the appellant the benefit of the doubt because he had proved that he was at work for the five working days before Christmas and could not have committed the offence at the time alleged.
There are several other rational explanations for the jury’s verdict. The jury’s verdict may have been influenced by the nature of the sexual conduct alleged in count one. No other act of fellatio was alleged by DBF. His evidence was that the other offending involved the appellant touching his bottom and penis. The jury may therefore have been left in some doubt about the isolated instance of the offending alleged in the first count.
Finally the cross-examination about whether or not the house was connected to MTV, the colour of the appellant’s bedroom floor and DBF’s demeanour when answering those questions may have left the jury with some doubt about the commission of that offence, even though they had accepted that DBF was generally a witness of truth.
The above factors individually and in combination provide rational explanations for the jury’s verdict of not guilty on count one, and the guilty verdicts on counts two, four and six.
The alternative verdicts of guilty of indecent assault returned by the jury on counts two and six do not in any way reflect adversely on DBF’s evidence. The jury could have accepted DBF’s evidence on those counts in its entirety and still have reasonably concluded that the mental state that was a necessary element of the offence of attempted unlawful sexual intercourse had not been proved beyond reasonable doubt.
The acquittal of the appellant on count five is readily explicable on the basis that the jury accepted the description by DBF of the sexual assault committed on BG but were not prepared to find that charge proved beyond reasonable doubt because BG himself gave evidence that the appellant had engaged in sexual intercourse, not with him, but with DBF. Plainly it was open to the jury to allow for the possibility that BG or DBF were mistaken about the sexual offending that had occurred on that particular occasion, even though they accepted the evidence of both of them that the appellant had engaged in a course of sexual offending against them.
Conclusion
For the above reasons it cannot be said that the verdicts of guilty on counts two, four and six are an affront to common sense having regard to the verdicts of not guilty on counts one and five. The verdicts are not unreasonable. I would dismiss the appeal.
6
1