R v JGVR

[2001] VSCA 8

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 330 of 1999

THE QUEEN

v.

JGVR

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JUDGES:	CALLAWAY, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 February 2001
DATE OF JUDGMENT:	13 February 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 8

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CRIMINAL LAW – Inconsistent verdicts – Indecent assaults – Acquittal on all but a number of counts – No rational explanation for different verdicts – Conviction quashed – Acquittal entered. 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C.	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr G.F. Meredith	Victoria Legal Aid

CALLAWAY, J.A.: 

1. I shall ask Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.: 

1. On 2 December 1999 the applicant was presented for trial in the County Court on a presentment alleging fourteen counts of indecent assault against his wife's niece.  The offences were alleged to have occurred between December 1977 and December 1987, when the applicant was between the ages of 42 and 52 years and the complainant was between the ages of five and 15 years.  The applicant pleaded not guilty to the charges.

1. The principal Crown witness was the complainant.  She said that in summer between January and February 1978 she went to the beach at Frankston with her mother, her sister, the applicant and his wife and their daughter, Jodie, who was a few years younger than the complainant.  While the children were in the water on a li-lo being pushed around by the applicant, the complainant said that she felt the applicant's hard penis "pressed in between the cheeks of my bottom".  This state of affairs continued for 10 or 15 minutes.  Those events constituted count 1 on the presentment.

1. The events constituting count 2 took place that night.  The complainant returned with the applicant and his family to their house at Mooroolbark.  The applicant read a story to the complainant and the applicant's daughter while they were in bed.  The applicant turned off the light and according to the complainant, "The next thing I know he lifted my pyjama top up and started to rub his face all over my stomach. ... He was over the top of me with legs either side, like crouched over me ..."

1. The events constituting count 3 occurred the following night when the complainant was sleeping in the spare room at Mooroolbark.  She was woken from

her sleep by the applicant leaning over her.  The applicant pressed his lips against the complainant's lips, and, said the complainant, "shoved his tongue in between my lips".  The applicant flicked his tongue in and out of her mouth.  While he was kissing her, the applicant felt the complainant's torso with his hand underneath her pyjamas.  That assault was charged as count 4.  The events constituting count 5 occurred on the same occasion when the applicant felt the top of the complainant's vagina, his hands being on top of the complainant's underpants.

1. The indecent assaults the subject matter of counts 6 and 7 occurred on the third night, again at Mooroolbark.  The complainant said that the applicant came into the spare room where the complainant was sleeping, pulled her onto her back, put his lips against hers, moving his tongue in and out of her mouth, while feeling her chest and stomach with his hands.  The complainant said that the applicant then moved his hand down towards her vagina, put his hand or fingers under the left side of her underpants and felt the top of her vagina, so that she felt his skin on hers.

1. According to the complainant the events constituting count 8 occurred in the holidays between 1980 and 1981 at the house of the complainant's grandmother in Frankston.  The complainant said that when she was walking past a bedroom the applicant called out to her.  She went into the room and at the applicant's invitation sat on the bed on which the applicant was lying.  He suggested that they play a game.  The complainant was to guess what was inside the applicant's pocket.  From the outside of his pocket the complainant felt something soft, which she said was a tissue.  The applicant undid his fly and told the complainant to feel the pocket from the inside.  The applicant grabbed her hand and put it on his underpants over his penis saying "Guess what's in there?"  The applicant then produced a deck of cards and gave some to the complainant.  She was told to hold the cards up while the applicant guessed what cards the complainant held.  While she was holding up the cards, the applicant reached under her skirt or dress between her thighs and put his finger inside her underpants and inside her vagina.  He moved his fingers "up and down and in and out".  That assault constituted count 9.

1. The events constituting count 10 occurred on the following day when the complainant, the applicant, the complainant's grandmother and the applicant's daughter were watching television in the lounge room.  The applicant was seated next to the complainant.  She said that he slowly moved his hand under her right thigh and in between her legs.  "He wedged his hand and sort of tried to get underneath my undies and he had his fingers just inside my vagina."

1. Count 11 arose from another game of cards played between the applicant and the complainant a few days after the events the subject matter of count 10.  The applicant put his hand between the complainant's legs and put his fingers inside the opening of her vagina, moving one finger around the opening of her vagina.

1. The events constituting count 12 occurred on Christmas Day 1982 or 1983.  The complainant said that she was at the applicant's house.  When the complainant was playing games on a computer with the applicant's daughter, the applicant came into the room and stood between the girls, looking at the screen.  He reached around to the complainant's right side and felt her right breast with his hand on the outside of her clothing.

1. The events the subject matter of count 13 occurred on Christmas Day 1984 at the house of the complainant's grandmother.  When the complainant and the applicant's daughter were sitting at the kitchen table colouring in or drawing, the applicant stood between the complainant and his daughter and felt the complainant's right breast outside her clothing, feeling up and down and squeezing.

1. The last count concerned events which took place on Christmas Day 1987.  The families of the complainant and the applicant were all present for a Christmas meal.  The complainant said that at the table the applicant sat opposite the complainant and stroked her feet with his feet until she tucked them out of reach.  That evening the complainant slept in her own room with the applicant's daughter on a stretcher bed beside her.  Early the next morning she awoke to find the applicant stroking and rubbing her ankle and leg.

1. In mid-1990 the complainant told her parents that she had been sexually assaulted by the applicant and accompanied her parents when they confronted the applicant.  The complainant's father, in the presence of the complainant and other members of both families, accused the applicant of indecently assaulting the complainants.  The witnesses gave varying accounts of the accusations, but most of them agreed that the applicant denied any assault, although he said he might have walked in on the complainant in the toilet or shower and might have accidentally exposed himself by coming out of the bathroom with his fly or pants undone.

1. The prosecutor led evidence from other persons as to certain aspects of the surrounding circumstances in which the offences were alleged to have occurred, such as the date of the acquisition of the computer which was referred to in the evidence relating to count 12 and the fact that the complainant and the applicant's daughter spent the night in the complainant's bedroom at Christmas 1987. 

1. At the conclusion of the Crown case the applicant gave evidence denying the charges.  When asked what he said about the complainant's allegations, he replied:

"I deny them completely.  Nothing at all happened;  none of these allegations happened."

The applicant took issue with certain of the circumstances described by the complainant as being the context in which the offences occurred.  The applicant's counsel called evidence from members of his family to support those points and called witnesses as to the applicant's good character.  No witnesses other than the complainant and the applicant could give any evidence of the assaults themselves.

1. The jury returned verdicts of acquittal in respect of all the charges save count 13, on which the jury found the applicant guilty. 

1. The applicant seeks leave to appeal on two grounds, namely, that the verdict on count 13 was unsafe and unsatisfactory and that it was inconsistent with the verdicts on the other counts.

1. It is convenient to consider first the ground alleging inconsistency of verdicts.

1. The verdicts were not legally or technically inconsistent in the sense described by Gaudron, Gummow and Kirby, JJ. in MacKenzie v. The Queen[1].  Rather, in my opinion, this is a case of factual inconsistency where the verdicts cannot stand together in that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion that count 13 had been established beyond a reasonable doubt whereas at least a reasonable doubt existed in respect of all the other counts.  Convictions on all the counts depended upon the evidence of the complainant being accepted as true beyond reasonable doubt.  The jury's finding of not guilty on all but one count entailed a rejection of the complainant's account of the events said to have given rise to the counts.  In my view it was not open to the jury to be convinced beyond a reasonable doubt of the guilt of the applicant with respect to count 13.  There is nothing in the complainant's evidence or the surrounding circumstances or in the evidence of other witnesses which gave any ground for supposing that the complainant's evidence was more reliable in relation to that count than it was in relation to the other counts[2]. Counsel for the Crown concedes, in my view quite properly, that there were no circumstances which logically justified a finding of guilt with respect to count 13 in the light of the acquittals on all the remaining counts.

   [1](1996) 190 C.L.R. 348 at 366.

   [2]See Jones v. The Queen (1997) 191 C.L.R.439.

1. In his charge the trial judge told the jury 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.  In my opinion the jury's verdict is not to be explained as the product of following the judge's instructions.  I do not think it was open to the jury to accept the complainant as a truthful witness but admit the possibility of faulty recollection in respect of all but one count.  Further, although there was conflicting evidence as to some of the circumstances surrounding some of the counts, no such conflict can explain the verdict.  Nor in my view is it open to conclude that the jury took a "merciful" view of

the facts upon all but one count. See R. v. Kirkham[3].  In my opinion it is to be inferred that the jury compromised disputes among themselves or otherwise fell into error.

[3](1987) 44 S.A.S.R. 591 at 593 per King, C.J.

1. Accordingly, in my opinion the impugned verdict should be set aside.  The conviction should be quashed and a verdict of acquittal directed to be entered.

CALLAWAY, J.A.: 

1. I agree.

CHERNOV, J.A.: 

1. I also agree.

CALLAWAY, J.A.: 

1. The formal order of the Court will be as follows:

The application for leave to appeal against conviction is granted. 

The appeal is treated as instituted and heard instanter and is allowed.

The conviction sustained by the appellant on count 13 is quashed. 

The Court directs a judgment and verdict of acquittal to be entered on that count.

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