R v K, Ma
[2010] SASC 97
•14 April 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v K, MA
[2010] SASC 97
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)
14 April 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant acquitted of five counts of rape and convicted of three counts of rape - appellant acquitted of one count of attempted rape - appellant convicted of two counts of threatening life - whether guilty verdict unsafe and unsatisfactory - whether verdict was against the weight of the evidence - whether it was open for the jury on the whole of the evidence to find appellant guilty beyond reasonable doubt - whether verdicts inconsistent - whether conviction on some counts can be logically explained against acquittals on other counts.
Held: Conviction on the second count of rape cannot be logically explained against acquittal on the third count of rape - verdicts are inconsistent - conviction on the sixth and seventh count of rape and conviction on the counts of threatening life can be logically explained against acquittal on the other counts - verdicts are not inconsistent.
Criminal Law Consolidation Act 1935 (SA) s 19, s 48, s 270A, s 353, referred to.
R v Kirkman (1987) 44 SASR 591; MacKenzie v The Queen (1996) 190 CLR 348; R v Stone Unreported, 13 December 1954; MFA v The Queen (2002) 213 CLR 606, applied.
R v K, MA
[2010] SASC 97Court of Criminal Appeal: Doyle CJ, Sulan and Layton JJ
DOYLE CJ: I agree with the orders proposed by Sulan J. I agree also with his reasons. There is nothing that I wish to add.
SULAN J:
Introduction
The appellant, MAK, appeals against his conviction of three counts of rape of NAK and two counts of threatening NAK’s life. The offences of rape occurred over a period of about three years when the appellant and NAK were married. The first offence of threatening life occurred in 1995 and the second offence occurred in 2000.
The appellant was also charged on the same Information with one count of attempted rape and five counts of rape alleged to have occurred over the same period.
The issue in this appeal is whether the convictions are unsafe and unsatisfactory, having regard to the verdicts which the appellant submits are inconsistent.
The charges
In referring to the charges, I have referred to the complainant as NAK.
The charges and particulars are:
First Count
Statement of Offence
Attempted Rape. (Section 48 and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MAK between the 1st day of February 1992 and the 21st day of February 1992 at Port Willunga, attempted to have sexual intercourse with NAK, without her consent.
Second Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MAK between the 1st day of September 1992 and the 9th day of September 1992 at Bedford Park, had sexual intercourse with NAK, without her consent, by causing her to perform an act of fellatio upon him.
Third Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 1st day of September 1992 and the 9th day of September 1992 at Bedford Park, had vaginal sexual intercourse with NAK, without her consent.
Fourth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 8th day of September 1992 and the 1st day of November 1992 at Plympton or another place, had anal sexual intercourse with NAK, without her consent.
Fifth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 6th day of November 1992 and the 6th day of December 1992 at Plympton or another place, had vaginal sexual intercourse with NAK, without her consent.
Sixth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 1st day of December 1992 and the 31st day of January 1993 at Plympton or another place, had sexual intercourse with NAK, without her consent, by causing her to perform an act of fellatio upon him.
Seventh Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 1st day of December 1992 and the 31st day of January 1993 at Plympton or another place, had vaginal sexual intercourse with NAK, without her consent.
Eighth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 8th day of February 1994 and the 8th day of February 1995 at Morphett Vale, had sexual intercourse with NAK, without her consent, by causing her to perform an act of fellatio upon him.
Ninth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
MAK between the 1st day of July 1993 and the 30th day of June 1994 at Port Adelaide or another place, had sexual intercourse with NAK, without her consent, by causing her to perform an act of fellatio upon him.
Tenth Count
Statement of Offence
Threatening life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MAK between the 1st day of May 1995 and the 31st day of July 1995 at Ingle Farm, without lawful excuse, threatened to kill NAK, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
Eleventh Count
Statement of Offence
Threatening Life. (Ibid).
Particulars of Offence
MAK between the 1st day of April 2000 and the 29th day of August 2000 at Woodcroft, without lawful excuse, threatened to kill NAK, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
Background
NAK met the appellant when she was about 19 years of age. Over the period of their marriage, they had three children, the first who was born on 1 November 1992, the second who was born on 26 October 1996, and the third who born on 31 September 1998. They had a fourth child who was born on 12 August 1995, but died on 19 October 1995.
NAK gave evidence at the trial that she and the appellant had commenced a relationship approximately one or two weeks after their first meeting. She said that when the relationship commenced, the appellant had appeared to be very understanding and quite charming, but that position changed, particularly when he was drunk. She said that the appellant drank every day.
NAK recalled an occasion when she and the appellant had gone to a party at the home of her brother, Mr B. During the party, she was speaking to another man named Jakesy, when the appellant confronted her. He was angry that she had been speaking to Jakesy. He grabbed NAK from behind and slammed her head into a kitchen bench. She went into the bathroom and then left the house. As she walking away from the house, the appellant approached her to go back into the house. She said that she was very shocked and upset, as he had never been violent to her before in that way. That night she slept at her brother’s home. She said that the appellant had threatened to kill her if she were to leave him.
After Christmas 1991, the couple moved into a house in Aldinga. NAK said that during that time the violence towards her continued and the appellant regularly hit and threatened her, almost on a daily basis. She said that she had been too frightened to leave.
As to the first count, NAK described an occasion when they were residing at Port Willunga. They had invited a friend named Pita for a drink to celebrate Pita’s birthday. NAK’s brother was there. During the party, the appellant attacked Pita, who then left. Eventually the other guests departed. NAK said that she had gone to the bedroom and that she recalled the appellant grabbing her head and pounding it into the floor. She recalled being on the bed with the appellant on top of her and with his hands around her throat. She recalled her brother, Mr B, at the door telling the appellant to get off her. The appellant was sitting on her legs while she was lying on the bed.
The next thing she recalled was being at her brother’s home. She said at some point the appellant had appeared at the front window and was trying to get into her brother’s house. He became angry and said that he was going to get a weapon. He then came back a second time carrying a crossbow. NAK said that there was an argument and that her brother had hit the appellant with a shovel as the appellant was trying to get in through the window.
The prosecution case relied upon the evidence of NAK’s brother. He gave evidence that when he had entered the bedroom he had seen NAK and the appellant. He thought that they were having sexual intercourse, and he was about to leave the bedroom when he heard a muffled cry. He realised that the appellant was holding a pillow over his sister’s face. He saw the appellant’s hand around her throat, and he observed that his sister was very distressed. The appellant was wearing jeans which were partially pulled down. Mr B said that he had walked over to the appellant, kicked him and threw him off NAK. He then saw that she was naked. She was distraught and upset. He escorted her out of the house.
Mr B said that, later that day, the appellant had arrived at his home with a crossbow and arrows strapped to his back, and he demanded to see NAK. The appellant pointed the loaded crossbow at him. He said that one arrow was fired in his direction, and that when the appellant was loading the second arrow he had given him an uppercut and then hit him with a shovel and told him to leave the property. Mr B said that after that incident and after he had discovered that his sister had returned to live with the appellant, he had very little to do with him.
The appellant’s version of the incident was that it was Mr B who had been fighting with Pita. He said that he had been upset because NAK had been flirting with Jakesy. This lead to them arguing in the bedroom. He said NAK had hit him across the face, and he had grabbed her arms. He agreed that Mr B had come into the bedroom. According to the appellant, NAK was lying on the bed fully clothed. He had told Mr B that he and NAK had argued about Jakesy. NAK left the bedroom. He had been concerned that their relationship might be at an end. He denied that there was any conduct on his part of a sexual nature.
Later, he went to Mr B’s house where NAK was staying, in order to talk to her. He was not allowed into the house. He says that he was invited by Mr B to talk to him at the window and that, when he did so, he was hit with a shovel. He denied threatening anyone with a crossbow. He said that it was NAK’s brother who was aggressive and had hit him with a shovel.
There was no direct evidence from NAK that the appellant had attempted to rape her. She did not recall the events in the bedroom.
As to the later events at Mr B’s house, she said that the appellant had tried to get in the window a couple of times and that Mr B struck him. She said nothing about either a crossbow or a shovel. As the trial Judge pointed out in his summing up, there were differing accounts of this episode, and a number of people had been consuming alcohol. He correctly stated that the determination about the charge “really depends on your assessment of the evidence of Mr B”.
The jury either did not accept Mr B’s evidence, or the jury was not prepared to draw the inference that the appellant was attempting to have sexual intercourse with NAK without her consent.
The prosecution case relied solely upon the inferences to be drawn from Mr B’s evidence.
The verdict of not guilty on this count was not referable to NAK’s evidence, unlike the other counts where her evidence was the only evidence upon which the prosecution relied. The appellant was acquitted of that charge.
The second and third counts are referable to one incident which occurred at the Flinders Medical Centre in 1992. NAK was pregnant and was in hospital. The appellant had visited her. She was in a ward with a number of other patients. According to NAK, the curtain was drawn around her bed. The appellant pulled down his pants and told her to suck his penis. He accused her of “not doing it properly”. He then moved on top of her on the hospital bed and had vaginal sexual intercourse with her. She said that she was afraid and had not resisted after making her initial protest. She had not consented to either act.
The appellant agreed that he had visited her in hospital. He denied the acts described by NAK had occurred. The issue in respect of each count was whether NAK had consented. The appellant was convicted of the second count and acquitted of the third count.
The fourth count relates to an incident which took place at the house in which the appellant and NAK were living at Plympton. NAK described how each day she had lived in fear of what might happen to her. NAK said that some time after her release from Flinders Medical Centre in September 1992, but before her son was born in November 1992, there had been an incident in the bedroom. She was asked :[1]
Q.Can you tell the members of the jury about that.
A.I just recall being on my hands and knees on the bed. I can recall Michael’s penis being at my anus. I can recall saying to him ‘No’. I can recall being teary but that would not phase him anyway and he continued to have his will and he, yes, inserted his penis into my anus and anally raped me.
[1] T 123-4.
She said that it had been very painful, but that she could not recall whether she had expressed that to the appellant. However, she said that he would have realised because she would have shown signs of being in pain. Her account of the incident suggested that she may have been reconstructing some of the detail and that she did not have a clear recollection of the incident.
As to the fifth count, NAK said that after she gave birth to their son in November 1992, she had returned to their home at Marion Road. She said that the appellant had wanted to have sex with her, but she still had stitches from the birth. She said that the appellant had been made aware that she had been advised not to have sexual intercourse for approximately six weeks. Her evidence was vague about how he had been made aware of this fact. She said the appellant had ignored that advice and told her that she would just have to “get used to it”, and proceeded to force her to have vaginal sexual intercourse with him. She described it as being very painful.
As to the fourth and fifth counts, the appellant denied that those events had ever taken place. The appellant denied ever having forced NAK to have sexual intercourse with him in the way she had described. The appellant was acquitted of both counts.
NAK described the appellant as continuing to drink excessive amounts of alcohol throughout this period of their relationship. She said that he would go to the hotel almost every night and that he would come home intoxicated.
As to the sixth count, upon which the appellant was found guilty, she described an occasion when he had come home from the hotel and he had begun to speak about “master and slave”. She was asked:[2]
[2] T 126-8.
Q.I want to talk about that time. Can you tell the members of the jury how that topic came up.
A.I recall the words ‘master’ and ‘slave’ being used but I recall this as the first time that he made me call him ‘master’, yes.
Q.Tell us how that started.
A.I recall his – sitting on the lounge. I recall him making me kneel in front of him with my hands behind my back and I recall him asking me do I hate Asians.
Q.Can I just ask you to stop there for a second. Prior to this episode, had Mr K ever made comments suggesting that he didn’t like Asians.
A.Yes, he had.
Q.So after he has said to you ‘Do you hate Asians?’, what did you say.
A.I knew that I had to say ‘Yes’. I knew that that was the answer that he wanted to hear.
Q.Did you hate Asians.
A.No, I don’t.
Q.So what did you say to him.
A.My answer was ‘Yes’ but that was not the right answer for him, although I believed it was. I recall him saying ‘Yes, what?’ and I recall saying ‘Yes, Mike’. I recall him slapping my face ‘Yes, what?’, him demanding again. I can remember ‘Yes, sir’, another hit to the face, ‘Yes, what?’, and then I recall, because he had already used this ‘master’ and ‘slave’ thing, that I clicked onto that’s what he wanted to hear, was the ‘Yes, master’ so I replied with ‘Yes, master’.
Q.Did you remain kneeling at that point or did you go somewhere else in the house.
A.I recall hearing K, who was a few months old at the time, in his bedroom crying. I recall using the excuse to go to the bathroom, hoping that that would be a time for me to escape. I recall Michael taking off his belt. I recall him placing the belt around my neck and I recall him marching to the bathroom, pushing me forward, every now and again saying that I will choke on the belt. I recall the belt still being around my neck. Of course I didn’t need to go to the toilet. It was an excuse hoping for me to escape. I couldn’t pee anyway. I just – there was, yeah, and then I recall being marched back into the – yeah, I can recall being taken back into the lounge room and demanding to take my clothes off and to kneel in front of him again, hands behind my back, where he had put his penis into my mouth. I recall the baby crying. I recall him ordering me to stay knelt on the floor while he got the baby. I recall him taking the baby into the bedroom. I recall him saying to the baby, the baby’s crying, ‘Shut the fuck up or I’ll kill you’. I then got up off the floor, got into the bedroom and I don’t know what word to use, but I needed to pacify Michael, tell Michael that the baby needed to be fed, you know, ‘Please just give me K, let me feed him’ and I can’t recall.
Q.When he ordered you to take your clothes off, did you obey that order.
A.I had to obey that order.
Q.Can you describe how he put his penis inside your mouth.
A.I recall it being rammed into my mouth, yeah. I can’t recall. Oral sex with Michael was an ongoing thing. He would quite often perform or demand oral sex, yeah. These incidences could go on for hours. I can’t recall. I get overwhelmed with –
Q.Let’s just stop there for a second. In relation to this incident that you’ve just described, tell us whether the belt was still around your neck when he forced oral sex on you.
A.I can’t recall. Right here, right now, I can’t recall.
NAK described a number of occasions when the appellant would tie her up using scarves, ropes, socks or belts.
The seventh count involved the appellant threatening NAK with a knife. She was asked about the incident:[3]
[3] T 130-1.
A.I can recall a time of Michael holding a knife to my throat, saying ‘Trust me’. I recall him – he’s nicked my forearm to where it’s bled so that that was – I don’t know what it was part of – but he did that and placed the knife back to my throat. He’s raping me with his penis in my vagina and with the knife up against my throat and I’m just feeling that knife with his movements against my throat.
Q.Did you say anything to him before he penetrated your vagina.
A.I don’t recall saying anything but, once again, I was never allowed to – I was never allowed to – ‘No’ wasn’t an option. Yeah. I can’t explain it. It just – whether I shed tears or would say ‘No’ or ask him to stop, it wouldn’t matter. It was not –
Q.Did you want him to cut your arm.
A.No, of course not.
Q.Whilst he had the knife to your throat, are you able to say whether that cut you or not.
A.I can recall a slight nick but not to where – I can’t recall any blood on my neck, just the cut on my forearm.
Q.About how old was K when that happened.
A.I can’t recall. Right here, right now, I can’t recall but he would have still been a baby, possibly a few months old.
The appellant denied that either incident had occurred.
The eighth count related to an incident when NAK went to the home of a woman by the name of Melissa for the birthday party of Melissa’s daughter. The appellant arrived and demanded that NAK leave. He punched her in the face as they were driving away. He drove to his parents’ home, where he forced her to perform oral sexual intercourse whilst they were in the bathroom. The appellant gave evidence that the incident had not occurred. He said that he had not assaulted her. The appellant was acquitted.
NAK was asked:[4]
[4] T 137-8.
Q.When you got into the car how was Mr K.
A.He as – he was still very agitated. I can recall we are at the end of Melissa’s road, and Melissa’s brother has come around the corner and he has punched me in the face and said ‘There’s your lover boy’. I recall him taking me to – he has gone to a newsagent, a set of shops there on Flaxmill Road where he has gone to check Keno or Lotto tickets, demanded that I stay in the car, and then I recall being back at his parents’ place. I recall his parents weren’t home and I can recall – it is oral sex. He is wanting that oral sex, yeah. I recall I’m sitting on the bath and his pants are down and he is forcing his penis into my mouth.
Q.Did you want to do that.
A.No.
Q.Can you recall if you said anything to him.
A.Once again, it was – I can’t explain how it was. I could never say no. I could never – it was something I knew that just had to be done, like there was no getting out of that situation, saying ‘No’, having tears. There was just no way of getting out of any of those situations. It was something I learnt very much in the beginning, it was just ‘No, no, no, no’.
Q.What would happen if you cried.
A.It would anger him more. At times it would anger him more. At other times it wouldn’t phase him, yeah.
Q.You have said that you went to his parents’ place that night. Does that jog your memory at all as to where you might have been staying at around that time.
A.I’m not sure. I know that there were times in between moving in and out of shelters or to other accommodations that we had stayed at his parents’ place, but I can’t recall. I can say what I believe but I can’t recall.
NAK described an occasion in early 1993 when the appellant had come home with a pizza. She described how the appellant had punched her and had assaulted her and had hit her in the face several times. She had escaped and went to a nearby service station where the police were called. She does not recall where she spent the evening, but she did recall that there were occasions when she had gone to a women’s shelter at Elizabeth.
The ninth count relates to an occasion when NAK and the appellant drove to the Crown Hotel at Victor Harbor and then to the Port Elliot Caravan Park where the sister of the appellant and her boyfriend had been staying. On that occasion, NAK had left the caravan park. She stayed the night at the home of the boyfriend’s parents. The next morning, the appellant arrived to pick her up. As they drove away, he forced her to perform an act of fellatio whilst he was driving. One of the children was seated in the child seat in the back. The appellant forced her head on to his penis. The appellant denied that any such episode had occurred. The jury acquitted the appellant.
The final two counts relate to periods when NAK had been living apart from the appellant. The appellant was, at that time, entitled to have access to the children. On one of those occasions, because it was raining, he had stayed at the house where NAK had been residing in order to take access of the children. He had become very angry and forced NAK against a sink and threatened to kill her. At that time, she was six months pregnant with her second child. After that incident, NAK moved to a women’s shelter in the Riverland and, later, to Port Augusta. The appellant denied ever making threats to NAK and that the episode that she had described had ever occurred. He was convicted of the offence of threatening life.
The eleventh count relates to a period when the appellant was in prison between mid‑1999 and April 2000. NAK visited him at the prison. She said that he had become religious and that their relationship seemed to have improved. That period was rather short-lived.
On an occasion whilst he was in prison, the appellant had threatened NAK to never leave him and said that he would keep her in a box under the bed. NAK then moved to stay with a friend, Nichola. On occasions, the appellant telephoned and, on one particular occasion, had threatened to shoot both Nichola and NAK and drive his car through the house. It was following that threat, the subject of the eleventh count, that NAK arranged to move interstate with her children.
The appellant denied ever making such threats. He gave evidence that NAK’s departure interstate was something of a mystery to him. The appellant was convicted of threatening life.
The summing up
Throughout her evidence, NAK spoke of additional incidents of violence and sexual attacks upon her, which had not been the subject of any charges. The trial Judge directed the jury that this evidence was evidence to which they were entitled to have regard. The trial Judge directed that the evidence, if accepted by the jury, tended to explain why NAK did not complain when the charged events took place. It also tended to explain why the appellant expected NAK’s cooperation and silence in the face of the alleged attacks upon her. He correctly directed the jury that that evidence might assist them in explaining why NAK might have acted in the way she did during the course of the relationship.
The trial Judge directed the jury that it must focus on the charges and determine whether or not the facts alleged in respect of each charge had been proved beyond reasonable doubt. He directed the jury that the evidence of other uncharged acts was given only to assist the jury in evaluating the evidence relating to the charged acts. He gave the jury a specific direction that they must consider the evidence in relation to each charge separately. It is clear from the verdicts that the jury understood and followed the directions of the trial Judge to consider each charge separately. No complaint is made about the Judge’s summing up.
Counsel for the appellant contends that the verdicts of guilty cannot stand on the ground that they cannot be reconciled and are, therefore, unreasonable. Counsel submits that there is no logical, reasonable or commonsense reason as to why the jury could conclude that the appellant was not guilty of some counts, but guilty of others.
The law
The powers of this Court on appeal are:[5]
[5] Criminal Law Consolidation Act 1935 (SA), s 353(1).
353 – Determination of appeals in ordinary cases
(1) The Full Court on any such appeal against conviction shall 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.
The question is whether this Court considers that the verdicts of guilty on the second, sixth, seventh, tenth and eleventh counts should be set aside on the ground that the verdicts are unsafe and unsatisfactory.
Counsel for the appellant submits that the verdicts are inconsistent and irreconcilable and, therefore, the verdicts of guilty should be set aside.
In R v Kirkman,[6] King CJ observed that appeal courts must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile the verdicts which had been reached by the jury with respect to other charges.
[6] (1987) 44 SASR 591.
The issue of inconsistent verdicts was considered in the High Court in MacKenzie v The Queen.[7] The High Court observed that courts have repeatedly expressed a reluctance to accept a submission that verdicts are inconsistent in the relevant sense. A jury’s conclusion will generally be accepted if there is evidence to support that conclusion and there is a proper way to reconcile the verdicts. The High Court observed that it is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury. If the trial Judge adequately directed the jury that it must consider each count separately, then it is not the role of the Court to speculate about how the jury arrived at its verdicts.
[7] (1996) 190 CLR 348.
The Court adopted the test expressed by Devlin J in R v Stone,[8] when he expressed the test as follows:
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.
[8] Court of Criminal Appeal, 13 December 1954 (Unreported) per Devlin J, as adopted in MacKenzie v The Queen (1996) 190 CLR 348, 366.
The test is one of logic and reasonableness. It is only in cases where the appellant can satisfy the court that, as a matter of logic and reasonableness, no explanation can be advanced to support the verdicts and the court concludes that no reasonable jury could have arrived at the verdicts, that the court will interfere with the verdicts.
In MFA v The Queen,[9] the High Court reaffirmed and applied its observations in MacKenzie. Gleeson CJ, Hayne and Callinan said:[10]
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. (Citations omitted).
[9] (2002) 213 CLR 606.
[10] Ibid, 617.
The question of whether the jury can be satisfied beyond reasonable doubt in respect of the charges upon which the appellant was convicted must be considered, having regard to the evidence in respect of those counts. It is not possible to state hard and fast rules. Each case must depend on its facts.[11] Ultimately, the test is one of logic and reasonableness, having regard to the principle that the court must pay high regard to a jury’s verdict, and that it should only be overturned if the court is satisfied that the verdict is unreasonable and the conviction is, therefore, unsafe and unsatisfactory.
[11] MacKenzie v The Queen (1996) 190 CLR 348.
The appeal
Turning to the appellant’s arguments, as to the second and third counts, counsel submits that the acts alleged took place in a hospital room with at least four other beds in the room. He submits that the charges encompass one continuous incident. I observe that both counsel at trial and the trial Judge dealt with the two counts in this way. In his summing up, the trial Judge dealt with the facts underlying the second and third counts together. He spoke of one event. However, later in his summing up, the trial Judge made it clear that each count must be considered separately.
Counsel submits that when NAK said “No, not here”, at the time the appellant first told her to suck his penis, it is artificial to suggest that her refusal to consent to an act of fellatio could only be interpreted as a refusal in respect of that act, but not in respect of the act of vaginal sexual intercourse, the subject of the third count.
The issue in respect of both counts was whether the acts had occurred at all. It was never suggested by the appellant that he believed that NAK was consenting to the act of vaginal sexual intercourse.
Counsel for the Crown conceded that there may be difficulty in reconciling the verdicts on the second and third counts. They occurred within a short period of time. Counsel accepted that there was an illogicality in reaching a conclusion that NAK did not consent to an act of fellatio, but did consent to the act of vaginal sexual intercourse which occurred immediately following the act of fellatio. Counsel submits that the better way of reconciling the verdicts is to approach them on the basis that the jury must have entertained, as a reasonable possibility, that the appellant had thought she was consenting in respect of the act of vaginal sexual intercourse.
The difficulty with the Crown submission is that it was never the defence case that the appellant thought that NAK was consenting to vaginal sexual intercourse after she had communicated to him that she did not consent to the act of fellatio. In my view, it is quite artificial to attempt to reconcile the verdicts on the basis of the appellant’s belief as to her consent when the appellant gave evidence that the acts simply did not take place.
I accept that the prosecution must prove both that there was no actual consent, and that an accused did not have a reasonable belief that the complainant consented. However, in my view, an attempt to reconcile the verdicts in the manner suggested by counsel for the Crown would, in my opinion, be artificial, having regard to the facts and issues in this case.
The second and third counts are linked in time and place. It is not possible to reconcile a verdict of guilty in respect of one act, but not the other in the circumstances of this case. Often, verdicts which may, at first glance, be considered to be irreconcilable are explicable when considering the evidence in detail. In my view, this is the case in respect of the latter counts, but the same cannot be said of the second and third counts.
It is not always obvious to an observer as to why a jury has arrived at a particular verdict. However, as has been stated by the High Court, it is unhelpful for a court of appeal to speculate about the reasons or the process a jury has followed in arriving at its verdicts.[12]
[12] MacKenzie v The Queen (1996) 190 CLR 348.
The question is whether the appellant has satisfied this Court that no reasonable jury who applied their mind properly to the facts in this case could have arrived at the same conclusion.
In my view, the verdicts in respect of the second and third counts are irreconcilable. To allow the verdicts to stand is an affront to commonsense and would result in injustice. [13]
[13] Ibid, 368.
The question remains whether this Court should enter an acquittal or order a re-trial on the second count. The acquittal on the second count must stand. If a re-trial were ordered on the third count, any conviction would be inconsistent with the acquittal on the second count. At a re-trial, a further complication arises as to whether the jury would be told that the appellant had, in a prior trial, been acquitted of rape in respect of the act of vaginal sexual intercourse. If so, the question arises as to how the jury would be directed on the relevance of that acquittal in respect of the charge alleging the act of fellatio. Should the jury be told that the Court of Appeal regarded the verdicts as irreconcilable? I conclude that a re-trial should not be ordered, and I would enter an acquittal in respect of the second count.
As to the remaining charges upon which the appellant was convicted, NAK gave evidence that the violence and sexual attacks upon her occurred frequently over many years. It is, therefore, not surprising that, in respect of a number of the incidents alleged and, in respect of the uncharged acts, her evidence was vague and non-specific.
The fact that the jury convicted the appellant of the sixth, seventh, tenth and eleventh counts demonstrates that the jury considered NAK to be an honest witness. As the prosecution case depended on NAK’s evidence alone, if the jury had concluded she had been dishonest, then an acquittal would have resulted on each count.
As to the fourth count, an examination of NAK’s evidence demonstrates that she was very vague about the exact circumstances of that incident. She spoke in general terms. Her memory was limited to recalling being on her hands and knees on the bed and the appellant’s penis being at her anus. She recalled being tearful and the appellant inserting his penis into her anus. This was not the only occasion upon which he anally had sexual intercourse with her. Similarly, in respect of the fifth count, her evidence was very general. She was vague as to exactly when the act occurred, other than to recall it was not long after her return from hospital after having given birth to K. She had received stitches in the hospital, and the act was painful.
As to the sixth count, her description was more detailed. She recalled the appellant making her kneel in front of him and asking her whether she hated Asians. She described how she had felt compelled to respond in the affirmative. She described in detail how the appellant had placed a belt around her neck and she had asked to go to the bathroom in order to get away from the appellant. Her plan had failed as he had pushed her and accompanied her into the bathroom. She recalled that when she was in the bathroom she could not go to the toilet. She described how she had been forced to kneel and had been forced into the act of fellatio whilst he held the belt around her neck. She described how he refused to allow her to go to the baby when the baby was crying. In respect of that count, the jury must have had little doubt that it was a violent act, accompanied by violence, and that it was clear that she was not consenting.
As to the events the subject of the seventh count, she recalled that event in some detail. She described how the appellant had held a knife to her throat and how she had received a cut to her forearm. The jury must have been left in little doubt that it was clear to the appellant that she was not consenting, having regard to the violence accompanying the sexual act.
The verdicts of guilty on counts six and seven are explicable on the basis that the jury must have been satisfied beyond reasonable doubt that the acts took place, and that the violence accompanying them left little doubt that NAK was not consenting to the appellant’s demands. Furthermore, her description of the events was sufficiently detailed and different from the other generalised incidents for the jury to be satisfied beyond reasonable doubt that they occurred as she so described them.
As to the eighth and ninth counts, NAK was vague about whether she conveyed to the appellant that she was not consenting to his conduct. The verdict of not guilty is explicable on the basis that the jury rejected the appellant’s version that the incident did not occur but, nevertheless, were not satisfied beyond reasonable doubt of the specific allegation because of the vagueness of NAK’s evidence. There was no evidence of violence, such as the use of a belt or a knife.
The tenth count is of an entirely different character to earlier charges. The event occurred after the couple had separated and when the appellant attended to take access to the children. NAK gave detailed evidence about the occasion and about the threat made by the appellant. She gave evidence that, after the threat, she had been so fearful of the appellant that she moved out of the house to a women’s shelter. As I have observed, the jury must have accepted her as a witness of truth. The incident occurred at a different time to any other incident. NAK recalled that she moved away and took refuge afterwards. There was sufficient evidence to support the jury’s verdict.
Similarly, the events the subject of the eleventh count were specifically identified by NAK. The appellant was in gaol. Again, after the threat, NAK was sufficiently in fear of her life to cause her to move interstate. Once the jury accepted NAK as a witness of truth, it was open to them to be satisfied beyond reasonable doubt that the charge had been proved. I reject the submission that, because some charges were not proved, that fact establishes that NAK is not to be believed in respect of all of the charges, and that her evidence is unreliable. In my view, the verdicts are reconcilable.
In considering the appellant’s submissions, I note that the Judge directed the jury that they must consider each count separately. I have had regard to NAK’s evidence in respect of each count and the detail in which she has described what occurred. I have considered the context in which the evidence was given. I conclude that, as to counts six, seven, ten and eleven, there are explanations for the guilty verdicts, other than that they are unreasonable.
I would dismiss the appeal in respect of Counts 6, 7, 10 and 11.
LAYTON J: For the reasons given by Sulan J, I agree that the appeal against conviction in relation to count two should be allowed and I would order an acquittal on that count. I also agree that the appeals in relation to counts 6, 7, 10 and 11 should be dismissed
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