R v KENNETT

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KENNETT
[2018] SASCFC 112
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Hinton)
25 October 2018
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 - APPEAL ALLOWED
Appeal against conviction. The appellant was convicted on one count of rape returned by a jury following trial. The appellant had been charged with four counts of rape. The jury returned verdicts of not guilty on three counts. The appellant complains that the verdict of guilty is inconsistent with the verdicts of not guilty on the remaining counts and that the verdict is therefore unsafe. The appellant also complains about the adequacy of some of the directions given by the trial Judge and about the admission of evidence before the jury.
Held per Kelly J (Stanley and Hinton JJ agreeing) allowing the appeal:
1) It was not open to the jury to be satisfied beyond reasonable doubt of the complainant’s account in respect of the count on which they returned the guilty verdict.
2) The verdict of guilty is quashed and an order of acquittal is substituted.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, considered.

R v KENNETT
[2018] SASCFC 112
Court of Criminal Appeal: Kelly, Stanley and Hinton JJ
KELLY J:
Introduction

The appellant appeals against a conviction for one count of rape returned by a jury following a trial on 11 December 2017. The appellant had been charged with four counts of rape. The jury returned verdicts of not guilty on three counts, being counts 1, 2 and 4. The two principal complaints made on appeal are that the verdict of guilty in respect of count 3 is inconsistent with the verdicts of not guilty on the remaining counts and that the verdict on count 3 is therefore unsafe. The appellant also complains about the adequacy of some of the directions given by the trial Judge and about the admission of evidence before the jury.
Before dealing with the issues on appeal it is necessary to set out the background.
Background
The appellant was charged with four counts of rape arising out of events which occurred over a night and early the next day on 23 and 24 February 2016. The appellant and the complainant had known each other since early childhood, having been next door neighbours when they both lived in Mount Gambier. The appellant had stayed with the complainant for approximately a month in 1990 and for several months in 2014.
On 23 February 2016 the appellant went to the complainant’s house in the evening and asked if she would babysit his girlfriend’s children. The complainant agreed.
Counts 1 & 2
The prosecution case was that after they arrived at the appellant’s house shortly after 6.30 pm, the appellant directed the complainant to go into his bedroom. He then had a shower. When he returned to the bedroom the complainant alleged he was wearing a blue towel around his waist and a mask over his face whilst he was carrying a knife. The appellant held the knife to her throat. The complainant grabbed the blade of the knife, pulled it out of the appellant’s hand and threw it to the floor.
Thereafter, the appellant pushed the complainant on to his bed and raped her vaginally and anally.
Counts 3 & 4
The complainant gave evidence of two further acts of rape and one count of assault by the appellant. The evidence about those acts was less than clear and at times confusing.
The complainant gave evidence that during the course of the night the appellant punched her after she had woken to find him raping her. She said she was falling asleep at about this time due to medication she was required to take for schizophrenia.
It was not disputed that the appellant punched the complainant, causing injury to the complainant’s right eye and a fractured nose. The appellant admitted punching the complainant. He claimed that he had had sexual intercourse with the complainant on a number of occasions during the relevant period, each of which was by consent.
The prosecution case on grounds 3 and 4 was that count 3 occurred around the time when the complainant was falling asleep and after a break in time following counts 1 and 2. Count 4 on the prosecution case occurred in the morning at about 8.00 am when the complainant awoke to find the appellant on top of her.
It will be necessary to discuss in further detail some of the evidence when discussing grounds 1 and 2.
Grounds 1 and 2 – Inconsistent verdicts and unsafe verdict
Count 3
The appellant complains of inconsistent verdicts by virtue of the jury’s verdict of guilty on count 3 and the acquittals on counts 1, 2 and 4. In this case the determination of the issue which arises on ground 2, that the conviction on count 3 is unsafe and unreasonable and against the weight of the evidence, is so tied up with the question of inconsistency of verdicts in ground 1 that it is convenient to deal with both grounds together.
In considering these grounds of appeal the fundamental principle was articulated by the High Court in MacKenzie v The Queen[1] in the following passages:
Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the “constitutional” tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that jurors, drawn from the community, have done otherwise than their duty as committed to them by law.
On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury’s thinking. This does not arise unlawfully or irregularly. If the result of this insight, is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.
…
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.
…
Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessary required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends on the facts of the case”.
[1] (1996) 190 CLR 348 at [365], [366] and [368].
The principles stated in this case were cited with approval by the High Court in MFA v The Queen[2].
[2] (2002) 213 CLR 606.
In applying those principles to the facts which arise here it is necessary to consider in some detail the state of the evidence before the jury.
The evidence of the four acts of rape came from the complainant. The prosecution at trial submitted that the relevance of the punch which the appellant always admitted inflicting on the complainant during the night in question was in relation to the elements of count 4.
The evidence given by the complainant as to the timing of the punch was somewhat confusing.
Counsel for the prosecution when opening the case to the jury on four counts of rape said that they occurred in the course of which “she [the complainant] is hit to the face”.
So here, there are four counts. The first count is the first occasion of the penis/vagina sexual intercourse when he pushes her on the bed. The second count is when he turns her on the side and there is penis/anal intercourse. The third count is the penis/vagina intercourse during which he falls asleep, and the fourth count is when she wakes up the next morning. So they are the four.
…
You will hear her words as to count 1, count 2 and the fact that she has a beating in the middle of it. The broken nose gives you, I would suggest, some assistance on the topic of consent. Count 3, she describes herself falling asleep, being out of it. The question for you is: Is there consent there? Consent needs to be given freely and willingly given. She has just had a beating and he is having sex with her. It’s a question for you as to whether there is really consent. Count 4, she wakes up, he’s on top of her, having sex – no consent there – and you’ll hear the words that she uses when she awakes and finds this happening, and he continues with the sexual intercourse after she said what she has said.
Unfortunately, the complainant in evidence, was even less clear than the prosecutor in the opening, as to the timing of the punch.
After giving evidence of the first two acts of sexual intercourse which were the subject of counts 1 and 2, the complainant gave the following evidence:
Q.     After that what happened next.
A. Then he stopped for a while and I was falling asleep, I was on medication for schizophrenia so I was falling asleep, and I woke up, he started all over again.
Q.     So you woke up and what was happening.
A.     He started all over again.
Q.     When you say 'he started all over again', what was he doing.
A.     Just raping my pussy all the time.
Q.     Where were you.
A.     In the bedroom half asleep.
Q.     And where was he.
A.     In the bedroom.
Q.     Which way were you facing.
A.     I was facing the window.
Q.     And were you lying face towards the ceiling or face-down on the pillow
A.     Face towards the ceiling.
Q.     And where was his penis.
A.    Inside me.
Q.     And when you say inside, you, where was it inside you.
A.     Inside my pussy.
Q.     You have explained that sexual intercourse happened on three separate occasions.
A.     Yes.
Q.     So far.
A.     Yes.
…
Q.     When he was engaged or doing that sex to you, did you say anything.
A.     'Get off'. Then he hit me.
Q.     Where did he hit you on that occasion.
A.     Would have been early in the morning.
Q.     So did he hit on you on one occasion or more than one occasion.
A.     He was going to hit me twice, he said 'I'll give you one hit' and he hit me once.
Q.     And when was that.
A.     On the right side of my face.
Q.    What part of the evening did that happen.
A.     Be about 3, 4 in the morning, something like that.
Q.     And after that happened, was there more sex.
A.     Yes.
Q.     And is that the sex that you've just explained was at 8 the next morning.
A.     Yes, yes.
HIS HONOUR
Q.Just so I understand again; you spoke about the three acts of you said rape the night before. Did the punch that you received to the face, did that occur after those three.
A.     Yes.
Q.     And then the next thing which occurs is in the morning, is that right.
A.     Yes.
The prosecutor led the following evidence from the complainant in chief as to the final alleged act of intercourse:
Q.I just want to take you back to the following morning, you've explained that you woke up, you've explained what you felt and what he was doing, when he was having sexual intercourse with you the next morning did he say anything.
A.No.
Q.     Did you say anything.
A.     'Get off'.
Q.     And did you say that once or more than once.
A.     More than once.
Q.     As best you can exactly what words did you say to him.
A.     I said 'Get the fuck off'.
Q.     Did he respond to that when you said that.
A.     No.
There was nothing in cross-examination of the complainant which tended to clarify the state of that evidence, except that in the course of putting the defence case to the complainant she again asserted that he punched her as he was raping her.
In evidence, the appellant said he had gone to the complainant’s house to ask her to babysit for him. They then called a taxi.
The appellant said they had two acts of intercourse, vaginal and anal intercourse consensually. He denied at any stage threatening the complainant with a knife or carrying the knife. He said there was a knife in the bedroom, which he kept there for protection and to make a bong. He denied ever wearing a face mask.
He said that during the middle of the night they had sexual intercourse again, both vaginal and anal sex, which was also consensual. The appellant admitted punching the complainant in the face in the early hours of the morning. He said this was because the complainant in a conversation he had with her had told him that if he wouldn’t stay with her, she would accuse him of rape. He said that caused him to punch her in the face. He denied that there was any sex in the morning after the punch.
The prosecutor addressed the jury on the basis that the evidence of the complainant was that she was hit “after the second lot of sexual contact”. It is not entirely clear what the prosecutor meant by that reference however, as I read the prosecutor’s address, he was referring to the aftermath of count 3. The prosecutor then went on to address the jury about the state of the complainant at the time of count 4 the next morning.
The appellant’s account was not much clearer. He denied that there was any act of sexual intercourse the next morning after the two awoke. He said that there were two episodes involving four acts of sexual intercourse, each episode involving penis-vaginal intercourse and penis-anal intercourse, all with the complainant’s consent, the last of which occurred around midnight. He admitted punching the complainant in the face in the early hours of the morning.
It can be seen from the foregoing that there was never any real clarity in the state of the evidence as to whether there were three or four acts of sexual intercourse. On one view of the complainant’s evidence it was open to the jury to infer that the complainant herself may have been mistaken on the basis of medication she took for schizophrenia. It was common ground at the trial that the complainant had been taking medication for schizophrenia for a number of years and had taken it that night. She claimed to have fallen asleep during the third act of sexual intercourse, however on one view of her evidence she was also claiming to have been punched in the course of that intercourse.
The only person who sought to clarify some of that confusion in terms of the timing of the punch was the trial Judge when his Honour questioned the complainant specifically as to the timing of the assault by reference to the acts of intercourse.
The complainant asserted at least once when giving evidence that the punch happened “while he was raping me”.
The complainant’s account as to the sequence and timing of the events which gave rise to the third and fourth count of rape was unclear. One of the real difficulties which I have in assessing the complaint made under ground 2 of the appeal is that the jury could only have returned a verdict of not guilty in respect of the fourth count of rape if they entertained a reasonable doubt about the complainant’s honesty or reliability in respect of the events giving rise to count 4. I am not able to discern any real difference in the complainant’s account of the events which she said occurred giving rise to both counts 3 and 4. I have reached this conclusion even without taking into account the implications of the verdicts of not guilty in respect of the first and second counts of rape.
The complainant’s account of the events giving rise to counts 1 and 2 involved allegations that the appellant threatened her with a knife and wore a mask during the commission of the two offences. These are matters about which the complainant is unlikely to have been mistaken. It is evident from the verdicts of not guilty that the jury was unable to accept the complainant’s veracity and/or reliability in respect of her account of those first two acts of intercourse.
This leads to consideration of the difficult question, whether on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt in respect of count 3.
I accept that, if they followed the Judge’s directions, it may well be that the jury’s different verdicts can be accounted for logically. Each of the counts did not necessarily stand or fall together and it was open to the jury to convict on one or more. They were given a very strong warning to scrutinise the complainant’s evidence with special care.
Nevertheless, there are features of the complainant’s evidence which leave me with a real sense of unease about the verdict of guilty on count 3.
It is plain from the verdicts of not guilty that the jury must have rejected key aspects of the complainant’s account in respect of counts 1, 2 and 4. At the very least, the jury cannot have been satisfied beyond reasonable doubt of the complainant’s honesty and/or reliability as to those counts. Given that the nature of the account given by the complainant makes it inherently unlikely that she would have been mistaken, it seems obvious that the jury entertained a real doubt about her credibility on those other counts.
Added to that, the complainant’s account of what happened in relation to counts 3 and 4 was in most respects very similar. She said she was asleep and in both instances she was awoken with the appellant on top of her.
On any view of the evidence, the punch must have occurred on the prosecution case after count 3 and before the commission of count 4 the next morning. I cannot see any real distinction in the quality of the complainant’s evidence about both those counts.
These aspects of the complainant’s evidence have led me to the conclusion, after conducting my own independent assessment of the evidence, that I cannot be satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the complainant’s account in respect of count 3.
For these reasons, I would uphold both grounds 1 and 2 of the appeal.
As the appeal must be allowed in respect of both grounds 1 and 2, I would quash the verdict of guilty on count 3 and substitute an order of acquittal in respect of that count.
In light of the fact that there is not to be any retrial, I do not find it necessary to deal with the remaining two grounds of appeal.
STANLEY J:

I would allow the appeal and set aside the verdict of guilty on count 3 and substitute an order of acquittal. I agree with the reasons of Kelly J.
HINTON J:
I agree with Kelly J for the reasons her Honour gives that the appeal should be allowed. I also agree with the consequential orders that Kelly J proposes.

[2018] SASCFC 112

25 October 2018

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Charge

Consent

Intention

Sentencing

Statutory Construction