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

1. 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

2. 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.

3. 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.

4. It appears from the evidence that from time to time Mr Hoskins would call in on Ms K, and would drive her to the shops.

5. Sometime before June 2005 Ms K had a partial hysterectomy.  Her evidence was that in June 2005 she was suffering from thrush, and this made vaginal intercourse painful.

6. It was common ground that on the day in question Mr Hoskins came to Ms K’s house, and drove her to and from the shops.  It was also common ground that they had an argument, although their evidence about the reasons for the argument, and what was said, differed.  Nothing turns on that.

7. It also seems to be common ground that Mr Hoskins came to Ms K’s house for a second time at about 7.00 pm.  Mr Hoskins said that he went there at the request of Ms K, and that he then took her for a drive.  His evidence seemed to be to the effect that he was doing her a favour.  He said that he told Ms K “it will cost you”, meaning that he expected to have sex with her in return.  Ms K admitted driving with Mr Hoskins that evening, but denied that it was at her request, or that Mr Hoskins said that it would “cost her”.

8. It was common ground that Mr Hoskins then drove to a nearby country town, apparently called on someone there, and then drove back to P with Ms K sitting in the front passenger seat.

9. Ms K said that instead of driving to her home, Mr Hoskins drove to an isolated part of the town.  She said Mr Hoskins began to behave angrily.  She was asking him why he was not taking her home.  On her evidence, it must have been clear that she wanted to be taken home.  She said that Mr Hoskins stopped the car, and told her to get out.  Mr Hoskins then came around to her side of the car, pulled down her pants and pushed her back into the car.  Ms K was then sitting on the front passenger seat, but facing out through the front left hand door of the car.  She said that Mr Hoskins then pulled his pants down, grabbed her hair and head and put his erect penis into her mouth.  Ms K said that she was “putting up a fight”, and telling Mr Hoskins to stop.  This was the subject of count 1.

10. Ms K said that Mr Hoskins then turned her around or over, so that she was face down on the front passenger seat.  She said that this was done with some force.  She struck her right hand on the console of the car.  She said that she was protesting and resisting.  She said that Mr Hoskins then put his fingers and penis into her vagina.  Ms K said that she continued to protest.  She did not know if Mr Hoskins ejaculated.  When Mr Hoskins stopped, he pulled Ms K’s pants up and drove her home.

11. Mr Hoskins said that he drove to an isolated part of P because that was a place where he and Ms K had often had intercourse in the past.  Ms K denied that.  On his evidence he was expecting some kind of sexual interchange, because he had told Ms K that the trip “would cost her”.  Mr Hoskins said that Ms K was sitting in the car on the front passenger seat, she turned around and then began to suck his penis.  She did not protest.  He did not use any force.

12. Mr Hoskins said that he asked Ms K if he could “root” her.  At first she said “no, I’m seeing a doctor or something”.  Mr Hoskins asked again and she said “yes”.  She had not protested at any stage, and he was not holding her, apart from than the fact that he had his hand on her head.  Mr Hoskins said that Ms K then said “How do you want me?”.  At his request Ms K turned over, so that she was face down across the front passenger seat.  He did not help her or touch her.  He then put his penis in her vagina, entering from the rear.  He did not ejaculate.  He then drove her home.

13. Ms K said that when she got home her son was asleep in bed.  She did not want to tell him what had happened.  She said that the following day she was visited by two friends, and the second one of them who visited her took her to hospital and then to the police.

14. Evidence was given by the first of the women who visited Ms K.  She said that she called in to see her at about 10.30 am, and that Ms K immediately complained to her of having been raped by Mr Hoskins.  She said that Ms K was “crying uncontrollably”, and appeared very distressed.  She told Ms K that she should go to the police.

15. The second woman who visited Ms K also gave evidence.  She was employed in P as a carer and provider of support to clients of the company that employed her.  Ms K was one of those clients.  She helped Ms K with “living skills”, and with general guidance.  She visited Ms K regularly.  She said that Ms K telephoned her on the morning of Monday 13 June and complained of having been raped by Mr Hoskins.  She went to Ms K’s home at about 11.40 am.  Ms K was sitting on a lounge “hunched over in a foetal position”.  She was struck by the look of shame on Ms K’s face.  Ms K repeated the complaint, and described the incident to her in some detail.  She took Ms K to the local hospital, and remained with her there.  The police came later.  In cross-examination she agreed that when she arrived at Ms K’s home, Ms K was not crying uncontrollably, nor behaving in the manner described by the first woman who visited her.  She agreed that the appearance as described by that woman was consistent with the appearance of someone who was suffering drug withdrawal symptoms, or who had recently taken a drug.  She was aware that Ms K had been treated for amphetamine addiction. 

16. Certain agreed facts were put before the jury.  They included the fact that Ms K was medically examined late on the afternoon of Monday 14 June.  The doctor observed bruising on the rear of her right hand.  There were no signs of trauma to the genitalia or on an internal examination of the lower vagina.

    Submissions on appeal

17. Ms Burgess, counsel for Mr Hoskins on appeal, submits that the issue at trial was whether the prosecution proved that Ms K did not consent to intercourse, and that Mr Hoskins knew that she had not consented.

18. Ms Burgess submits that the evidence in support of each of the counts was the same, and there was no basis for the jury to differentiate between the counts having regard to the evidence and the manner in which the case was put.  There was no logical or common sense basis on which the differing verdicts could be explained.  If the jury was not satisfied that Mr Hoskins knew that Ms K was not consenting to the act of oral intercourse, there was no explanation for the jury finding that Mr Hoskins was aware that she was not consenting to the act of vaginal intercourse.  She submits that in the circumstances of the case the difference between the verdicts indicates that the jury has compromised in the performance of its duty, or was confused on some basic aspect of the case.

19. 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

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. Factual inconsistency is a conclusion, not a starting point.  Demonstrating factual inconsistency between verdicts may be, but is not always, a step towards demonstrating that a verdict is unreasonable.

27. In MFA v The Queen Gleeson CJ, Hayne and Callinan JJ restated the approach to be taken in a case like the present one. They did so in a lengthy passage, but it warrants repetition. They said at [34]-[35]:

    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 jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. 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. 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.

    It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a 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. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.  (footnotes omitted)

    Separate reasons for joining in the Court’s decision were delivered by McHugh, Gummow and Kirby JJ, but they applied the same principles:  MFA v The Queen at [85]-[89].

28. I now return to the case at trial and to the evidence, for the purpose of considering possible explanations for the different verdicts.

29. I have already made the point that the issue at trial was whether the prosecution could prove beyond reasonable doubt that Ms K did not consent to either act of intercourse, and could prove beyond reasonable doubt that Mr Hoskins knew that she was not consenting.

30. The evidence in support of the two counts was the same.  The prosecution case rested on the evidence of Ms K.  She described a series of events, at the one location, that could only have taken five minutes or so.  There was no evidence to provide independent support for her version of events.  The evidence of bruising on the rear of her right hand might be said to provide some support for her account.  But there was no evidence before the jury as to the age or appearance of the bruise.  And, only on her version of events was there a basis for finding that her hand was bruised during the incident, when, as she claimed, Mr Hoskins roughly turned her over before engaging in vaginal intercourse.  The evidence of the complaints that she made the following morning, to the extent that that evidence demonstrated consistency on the part of Ms K, applied equally to count 1 and count 2.

31. This is, then, a case of factual inconsistency as between the verdicts. 

32. The jury were required to give separate consideration to each count.  But there is nothing on the face of the evidence that explains a different conclusion on each count.  There is nothing in the evidence to support a conclusion that a juror who sought some support for Ms K’s evidence before joining in the verdict would have found that support in relation to count 2, but not in relation to count 1.

33. True, Ms K’s evidence that vaginal intercourse would be painful because she had thrush, was consistent with her evidence that she did not agree to submit to vaginal intercourse.  But Ms K’s evidence was that she made it clear from the outset, and throughout the incident, that she was unwilling to participate in intercourse in any form.  There was no hint in her evidence of any change in demeanour or attitude as the incident unfolded.  If the jury was not prepared to act on her evidence that she did not consent to oral intercourse, and that she behaved in a manner that must have made this plain to Mr Hoskins, Ms K’s evidence about the effects of thrush does not seem to me to provide a basis for accepting her evidence that she did not consent to vaginal intercourse and made that lack of consent plain.

34. I reach the same conclusion about Mr Hoskins’ evidence that when he asked for oral intercourse Ms K initially demurred, referring to the fact that she was seeing a doctor.  That evidence was given by Mr Hoskins in the context of evidence that Ms K was a willing participant in oral sexual intercourse, and then a willing participant in vaginal intercourse.  If the jury was not satisfied by Ms K’s evidence relating to the act of oral intercourse, the remark attributed by Mr Hoskins to her does not, to my mind, provide a basis for accepting her evidence about the act of vaginal intercourse.  The fact remains that the evidence from Mr Hoskins and the evidence from Ms K is in complete conflict.

1. In so reasoning I am not treating the verdict of not guilty on count 1 as necessarily reflecting a view by the jury that Ms K was untruthful or unreliable:  see MFA v The Queen at [34]-[35] set out above. It might be a case in which the jurors looked for some supporting evidence, for something more than Ms K’s word, before being satisfied beyond reasonable doubt on the basis of Ms K’s word. After all, the Judge had told them that because it was a case of oath against oath, that there was no independent support for Ms K’s evidence, they should scrutinise her evidence carefully and that they should not convict Mr Hoskins unless thoroughly convinced as to the reliability of the evidence of Ms K. But in the present case I cannot identify anything in the evidence relating to count 2 that might have provided that support. In the circumstances of the case I do not regard Ms K’s evidence that she was suffering from thrush or Mr Hoskins’ evidence that she initially demurred as, of itself, providing that independent support.

2. Nor is this a case in which Ms K displayed any lesser degree of confidence in her evidence in relation to count 1 compared with count 2.  It is not a case in which there were deficiencies in her evidence in relation to count 1 which did not occur in relation to count 2.

3. Ms Barnett submits that the jury might have given Mr Hoskins the benefit of the doubt on count 1, but still have been satisfied that Ms K did not consent to vaginal intercourse because of her state of health.  The difficulty with that submission is that I cannot find any reason why a doubt might have arisen in relation to count 1, but not have arisen equally in relation to count 2.

4. Ms Barnett also submits that the jury might have taken the view that because this was a single incident, lasting only a few minutes, that justice would be served by convicting Mr Hoskins on one count only.  That is a matter to be considered in some cases:  see MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 and R v Kirkman (1987) 44 SASR 591 at 593 King CJ. As the Court said in Phillips v The Queen [2006] HCA 4; (2006) 80 ALJR 537 at [71]:

   Difficulties in understanding jury verdicts which are explicable on the basis that one of them is "merciful", or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably. The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case. … (footnotes omitted)

5. I am conscious of the fact that it is for Mr Hoskins to satisfy the Court that the jury has inappropriately compromised in arriving at its verdict.  There is necessarily a speculative aspect when considering the possibility of a so-called “merciful” verdict.  In the present case the incident involved two distinct acts of intercourse.  It is not a case of multiple counts, supporting a submission that the ordinary person’s sense of fairness would call for a conviction on some only of the counts that were proved.  I am satisfied that the difference in the verdicts cannot be explained on the basis of a decision reflecting the jury’s “innate sense of fairness and justice”:  Phillips at [71].

6. 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

7. For those reasons I would allow the appeal, set aside the conviction and direct that a verdict of acquittal be substituted.

   GRAY J.

8. 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. 

9. 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.

10. 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? 

11. 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.

12. 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.

13. 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. 

14. 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. 

15. In the event, the appellant drove the complainant to the salt flats.  The complainant raised no protest.  The evidence differed as to what occurred thereafter.  As the trial Judge put to the jury, it was a case of “oath against oath”. 

16. The complainant’s account was that she informed the appellant that she did not want to take part in either fellatio or vaginal intercourse.  She described some force associated with the act of fellatio, but much more force with respect to the act of vaginal intercourse. 

17. On the complainant’s evidence, she said that she did not wish to engage in vaginal intercourse, and that he then physically turned her around and threw her into the car face-down in the front passenger seat in such a way that her right arm and wrist came into heavy contact with the console.  A medical examination revealed bruising to the back of her right hand. 

18. In MacKenzie,[1] the High Court observed with respect to verdicts suggested to be inconsistent:[2]

    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.

    [1] MacKenzie v The Queen (1996) 190 CLR 348.

    [2] MacKenzie v The Queen (1996) 190 CLR 348 at 367. (footnotes omitted)

19. The Court adopted a test of logic and reasonableness and approved the observations of Devlin J in R v Stone.[3]  The Court observed:[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.

    [3] R v Stone (unreported, CCA Eng, 13 December 1954)

    [4] MacKenzie v The Queen (1996) 190 CLR 348 at 366.

20. The jury were informed in the usual terms that it was open to them to accept part of a witness’s evidence but reject other parts.  The jury were also advised to consider each count separately when reaching their verdicts.  In this direction, the trial Judge directed the jury that all of the evidence was relevant to each count.

21. The jury could reasonably have reached the view that it was possible that the appellant reasonably believed that the complainant was consenting to sexual activity, given their past history and the drive to the salt flats.  To put it another way, with respect to the count of fellatio, there was a reasonable hypothesis open that was consistent with innocence.  It is possible that the jury gave the appellant the benefit of the doubt.  The jury may well have taken the view that the complainant did not consent, but that it was a reasonable possibility that the appellant did have a reasonable belief that she was consenting, or that he was not recklessly indifferent as to whether she was consenting.  It was open to the jury to accept the complainant’s evidence with respect to count one but still to acquit. 

22. However, with respect to the second count there was further evidence.  On the complainant’s account, the appellant used much more force in the course of the conduct giving rise to count two than on count one.  The evidence of bruising to the back of the complainant’s right hand, although not fully explored, was an item of circumstantial evidence supporting her account. 

23. As earlier noted, on the appellant’s evidence, the complainant informed him that she was having medical treatment.  This evidence may have been treated by the jury as directly relevant to a reckless indifference on the part of the appellant.

24. There was a further item of evidence that the jury may have considered important.  During the course of the act of vaginal intercourse, the complainant’s evidence was that she continued to object.  The appellant rejected this suggestion.  However, he went on to agree that he did say to the complainant that she was enjoying the act of vaginal intercourse as she was “wet”. 

25. It would be reasonable to infer that this remark of the appellant was made in response to a statement by the complainant that suggested that what was taking place was not an enjoyable experience and possibly one in which she did not wish to participate.  It is to be accepted that this analysis involves a degree of surmise, but in the circumstances this is a surmise that is both reasonable and logical. 

26. In MFA,[5] the High Court had occasion to discuss satisfaction beyond reasonable doubt in sexual cases and the problem of suggested inconsistent verdicts.  The court applied the observations in MacKenzie.  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 R (2002) 213 CLR 606.

    [6] MFA v R (2002) 213 CLR 606 at [34].

27. The above matters, or some of them, could well have led the jury to conclude, with respect to the second count, that the appellant did not have a reasonable belief that the complainant was consenting, or, alternatively, was recklessly indifferent as to whether or not she was a consenting party.

28. In my view, the differing verdicts are not necessarily inconsistent.  There were reasons for the jury convicting on count two but acquitting on count one. 

29. In MFA, the High Court approved the remarks of King CJ in Kirkham.[7]  Gleeson CJ, Hayne and Callinan JJ observed:[8]

    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.

    It is possible that such further considerations may have arisen in the present case and influenced the jury verdict.

    [7] R v Kirkham (1987) 44 SASR 591.

    [8] MFA v R (2002) 213 CLR 606 at [34]. (footnotes omitted).

30. There is a proper way by which this Court can reconcile the verdicts.  The conclusion can be reached that the members of the jury performed their functions properly.  The jury verdict on count two should be accepted.  It is not for this Court to substitute its option for one that was open to the jury.

31. For these reasons, I would reject the submission that the verdict of the jury on count two was unreasonable or inconsistent with the verdict on count one.  It was a guilty verdict that was open on the evidence and a verdict that was not inconsistent with the verdict of not guilty on count one.

32. For these reasons, I would dismiss this appeal.

33. DAVID J.               I agree with the reasons of the Chief Justice. I would allow the appeal, set aside the conviction and direct that a verdict of acquittal be substituted.