R v Hoskins - [2007] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOSKINS
[2007] SASC 92
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
16 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT
Appeal against conviction - jury delivered inconsistent verdicts on two counts of rape - factual inconsistencies as between the verdicts - the appellant appeals on the basis that the verdict of guilty, returned on count two, is unreasonable and cannot be supported having regard to the evidence in relation to each count and to the verdict of acquittal on count one - powers of the appellate court to interfere with jury decision - no reasonable basis for the differentiation in verdicts.
Held: appeal allowed, conviction set aside and verdict of acquittal substituted.
Criminal Law Consolidation Act 1935 (SA) s 353, referred to.
Fleming v The Queen (1998) 197 CLR 250; MFA v The Queen (2002) 213 CLR 606; M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; R v Kirkman (1987) 44 SASR 591; Phillips v The Queen (2006) 80 ALJR 537; R v Stone [1954] CCA ENG (unreported, 13 December 1954), considered.

R v HOSKINS
[2007] SASC 92
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ. Mr Hoskins was tried before a District Court Judge and jury on an Information alleging two counts of rape committed on 12 June 2005. Ms K was the complainant in relation to each count. There was no dispute that two acts of intercourse occurred. The issue was whether the prosecution could prove that Ms K did not consent, and that Mr Hoskins knew that she was not consenting, or was recklessly indifferent as to whether she was consenting. (Hereafter I will, for convenience, refer only to the knowledge of Mr Hoskins.) The jury acquitted Mr Hoskins on the first count, and convicted him on the second count. The appeal raises the question of whether the verdict of guilty is unreasonable, having regard to the evidence in relation to each count and having regard to the verdict of not guilty.
Facts
In summarising the facts, I will limit myself to the facts necessary to deal with the ground of appeal. I will omit details that were part of the evidence of Ms K and Mr Hoskins, but which do not bear on the ground argued.
Mr Hoskins and Ms K lived in a country town, P. They had known each other for about 20 years. There had been a sexual relationship between them in the past. Ms K’s evidence was that the relationship had ended about four years before June 2005. Mr Hoskins appeared to say that their relationship was continuing.
It appears from the evidence that from time to time Mr Hoskins would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hoskins

Details

AGLC: R v Hoskins [2007] SASC 92
Case: [2007] SASC 92
Decision Date: 16 March 2007

CaseChat Overview and Summary

The appeal by Graeme William Hoskins challenges his conviction on the second count of rape, following an incident that occurred on 12 June 2005. The appellant was acquitted on the first count of rape and convicted on the second count, both verdicts returned by a unanimous jury. The appellant argues that the verdict of guilty on count two is unreasonable and insupportable given the evidence presented and the acquittal on count one. The appeal rests on the contention that the jury's verdicts are inconsistent and irreconcilable.

The legal issues before the court were whether the verdict of guilty on count two is unreasonable, considering the evidence and the acquittal on count one, and whether there is a miscarriage of justice warranting interference by the appellate court. The court had to consider whether the verdict was supported by the evidence, as required by the statutory provisions, and whether the verdicts were factually inconsistent in a manner that suggests a compromise of the jury's duty.

The court found that the verdicts delivered by the jury were inconsistent in a way that defied logic and common sense, making it clear that the jury's verdict on count two was unreasonable. There was no satisfactory explanation for the differentiation in verdicts, and no basis in logic, common sense, or fairness could justify the differentiation. The court concluded that the appeal should be allowed, the conviction set aside, and a verdict of acquittal substituted for the guilty verdict on count two.

The final orders of the court were to allow the appeal, set aside the conviction on count two, and direct that a verdict of acquittal be substituted. This decision reflects the court's conclusion that the verdict on count two was unreasonable and not supported by the evidence, especially in light of the acquittal on count one.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOYLE CJ DAVID J (dissent)

I am persuaded that this is one of those cases where the different verdicts represent “an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”: MacKenzie v The Queen at 368. There is no satisfactory explanation for the differentiation in the verdicts. I can find no basis in logic or common sense or in the jury’s sense of fairness for the differentiation in the verdicts.Conclusion For those reasons I would allow the appeal, set aside the conviction and direct that a verdict of acquittal be substituted. The appellant, Graeme William Hoskins, was charged with two counts of rape. Both counts arose out of the one incident, which occurred on 12 June 2005. The appellant was acquitted on count one and was convicted on count two, both by unanimous jury verdict. The appellant has complained on appeal that the verdict of guilty on count two was unreasonable, having regard to the verdict of not guilty on count one and having regard to the evidence leading in relation to each count. In essence, the appellant said the verdicts were inconsistent and irreconcilably so. At trial, there was no issue as to the actus reus with respect to either count. At issue before the jury was whether the female complainant consented to the act of fellatio, the subject of count one, and the act of vaginal intercourse, the subject of count two. A further issue to be decided by the jury related to the appellant’s state of mind - did he believe on reasonable grounds that the complainant was consenting to the acts, the subject of the counts, or was he recklessly indifferent as to whether the complainant was consenting or not? I adopt the summary of facts set out in the reasons of Doyle CJ. I refer to the facts only insofar as necessary for an understanding of my reasons. The appellant and the complainant had known each other for many years. There had been a sexual relationship between them. They both lived in the same country town, and in their past their sexual relationship had taken place, according to the appellant’s evidence, inter alia, at a site known as the “salt flats”, some distance from the town. There was a dispute between them as to the currency of the sexual relationship. On the complainant’s evidence, the relationship had come to an end some four years before the subject incident. On the appellant’s evidence, the sexual relationship was ongoing. According to the appellant’s evidence, following the act of fellatio and before the act of vaginal intercourse, he asked the complainant whether he could “root” her. At first, she responded by referring to her medical treatment, at least in a general way. Evidence had been led from the complainant that some time before the subject incident she had undergone a partial hysterectomy and that she was suffering from thrush, necessitating the use of a vaginal cream. It was her case that vaginal intercourse was painful for her. It was common ground between the appellant and the complainant that on the day of the incident the appellant had driven with the complainant to a nearby country town. On their return, they had headed to the salt flats. On the appellant’s case, because of the drive he proposed to undertake with the complainant, he had said to her “it’ll cost you”. According to his evidence, this was a clear reference to the fact that he intended to have sexual intercourse with her.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ,

Ms Barnett, counsel for the Director of Public Prosecutions on appeal, submits that there are aspects of the evidence that satisfactorily explain the differing verdicts.Consideration of submissions The powers of this Court on appeal are set out in s 353 of the Criminal Law Consolidation Act 1935 (SA), a provision which is found in much the same form in most Australian States and Territories. By subs (1) the Court is to 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 recent times the High Court has emphasised that appellate courts should attend to the terms of the statutory formulation of their powers, avoiding synonyms and alternative formulations derived from case law or elsewhere: Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [11]-[12], Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [46] McHugh, Gummow and Kirby JJ. The issue in the present case is whether the verdict of guilty on count 2 is unreasonable, or cannot be supported having regard to the evidence, in light of the evidence on count 1 and count 2, and in light of the verdict of acquittal on count 1. In deciding whether the verdict is unreasonable or cannot be supported, the test to be applied is whether the Court considers that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487 at 493. This requires the Court to review the totality of the evidence at trial. This was recently confirmed in MFA v The Queen: at [25] Gleeson CJ, Hayne and Callinan JJ and at [55] McHugh, Gummow and Kirby JJ. A doubt experienced by the appellate court in most cases will be a doubt that a jury ought to have experienced, although an appellate court must recognise that the jury’s advantage of seeing and hearing the evidence will, in some cases, lead an appeal court to conclude that it should not interfere. So the issue in the present case is whether the guilty verdict on count 2 is unreasonable, having regard to the evidence and the verdict of not guilty on count 1. This is not a case of legal inconsistency. The verdicts are capable in law of standing together. The Court is concerned with what is usually described as factual inconsistency between the verdicts. It is sometimes said that when two charges are supported by substantially the same evidence, differing verdicts give rise to factual inconsistency.