R v Lapins - [2007] SASC 281

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LAPINS
[2007] SASC 281
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Vanstone)
24 July 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - PARTICULAR CASES - OFFENCES AGAINST THE PERSON
JURY - THE JURY IN CRIMINAL PROCEEDINGS - GENERAL MATTERS
Appeal against conviction - appellant convicted by jury verdict of the crime of indecent assault and was acquitted on two further counts of indecent assault - after the Judge's summing up the jury indicated they had some questions, the Judge invited them to put the questions in writing, jury delivered verdicts without putting forward any questions - whether the verdict of guilty on the first count was inconsistent with the verdicts of acquittal on the second and third counts, and whether as a result the verdict of guilty was unsafe and should be set aside - whether the interchange between the Judge and jury after the Judge's summing up left a jury question or possible question unanswered, resulting in a risk of a miscarriage of justice - Held: appeal dismissed - the Judge gave clear directions to the jury with respect to the three separate counts - there were material differences in the evidence relevant to each of the counts - the verdicts are not inconsistent - the interchange between Judge and jury after the summing up did not leave any question unanswered - no risk of miscarriage of justice.
MacKenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, CCA Eng, 13 December 1954); MFA v R (2002) 213 CLR 606; R v Kirkham (1987) 44 SASR 591; Phillips v R (2006) 225 CLR 303; R v Hoskins [2007] SASC 92; McCormack (1995) 85 A Crim R 445; R v TAB [2002] NSWCCA 274; R v Hickey 2002) 137 A Crim R 62; R v Von Heytmanek (2006) 96 SASR 97; Longman v The Queen (1989) 168 CLR 79, considered.

R v LAPINS
[2007] SASC 281
Court of Criminal Appeal: Duggan, Gray and Vanstone JJ

DUGGAN J. In my view the appeal on the first ground should be dismissed and the application for permission to appeal on the second ground should be refused.
I agree with the reasons of Gray and Vanstone JJ. However, in the absence of argument on the issue at the hearing of the appeal, I prefer not to express a view on whether the trial judge might have gone further in his directions on the relevance of evidence on one count in relation to the consideration of other counts.
GRAY J.
This is an appeal against conviction.
Introduction
The appellant, Jason Norman Lapins, was convicted by jury verdict of the crime of indecent assault. He was acquitted on two further counts of indecent assault.
The complainant in each count was the same child. The acts the subject of each count were:
-Count 1: – the appellant touching the penis of the complainant with his hand, under the clothing of the complainant;
-Count 2: – the appellant touching the bottom of the complainant with his hand, over the complainant’s clothing; and
-Count 3: – the appellant touching the bottom of the complainant with his hand, over the complainant’s clothing.
The appellant was convicted on the first count and acquitted on counts 2 and 3.
The first count was particularised as having occurred between 1 September 1998 and 30 December 1999 at Port Noarlunga. The second count alleged the same particulars, but the evidence led to support the second count established that the incident occurred on a different occasion. The third count alleged that indecent assault took place again between the same dates. However, on this occasion the complainant said that the location of the alleged offence was at the Murray River.
In respect of the first count, the subject of the conviction and this appeal, it was the prosecution case that the complainant and his twin brother, both aged fifteen years, were visitors to the appellant’s home at Port Noarlunga. They stayed overnight. The complainant, his brother and the appellant retired for the night. They slept on three mattresses side by side. The complainant was nearest to the wall, the appellant in the centre and the complainant’s brother on the mattress furthest from the wall. It was the prosecution case that the complainant woke up to find his fly undone, that the appellant had his hand in the complainant’s boxer shorts and was fondling his penis. The only evidence of the incident came from the complainant. The appellant gave evidence in his defence and denied the allegations.
With respect to the second count, it was the prosecution case that this incident occurred about a week or two after the incident, the subject of the first count. The complainant and his brother went to the appellant’s home and stayed overnight. On this occasion, the complainant said, the sleeping arrangements were different. The complainant again was next to the wall; however, his brother was in the middle and the appellant on the outer. On this occasion, it was the complainant’s evidence that he felt a rubbing on his buttocks. It was the complainant’s account that he saw the appellant reaching over his brother and that he could feel a very large hand. The only evidence of this incident came from the complainant. The appellant in evidence denied the allegations.
The prosecution case in respect to the third count was that this occurred four to five weeks after the second incident. On this occasion, the complainant and his brother went with the appellant to the Murray River. They slept overnight in the back of the appellant’s panel van. There was a mattress in the back of the van. The complainant slept on the driver’s side, his brother in the middle and the appellant on the passenger side. It was the complainant’s evidence that he awoke to find someone rubbing his buttocks. On this occasion, the complainant said, he could not see the hand or an arm. He said that he was facing the panel van wall, and that he didn’t look. Again, the only evidence of this incident came from the complainant. The appellant in evidence denied the allegations.
The Appeal
The appellant sought to agitate two complaints before this Court. He submitted that there were inconsistent verdicts between the verdicts of acquittal on the second and third counts and the verdict of guilty on the first count. He contended that as a result the verdict of guilty was unsafe and should be set aside.
Counsel for the appellant further contended that an interchange between Judge and jury at the conclusion of the summing up left a jury question or possible question unanswered, and that, in the circumstances, a risk of a miscarriage of justice arose.
Permission to appeal has been granted with respect to the first complaint. Permission in regard to the second complaint was refused. The appellant has renewed his application for permission to appeal in respect of the second complaint.
Inconsistent Verdicts
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.
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.
[1] MacKenzie v The Queen (1996) 190 CLR 348.
[2] MacKenzie v The Queen (1996) 190 CLR 348 at 367. (footnotes omitted)
[3] R v Stone (unreported, CCA Eng, 13 December 1954)
[4] MacKenzie v The Queen (1996) 190 CLR 348 at 366.
In MFA,[5] the High Court had occasion to discuss satisfaction beyond reasonable doubt and the problem of suggested inconsistent verdicts with respect to sexual offending. 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].
In MFA, the High Court also 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.
[7] R v Kirkham (1987) 44 SASR 591.
[8] MFA v R (2002) 213 CLR 606 at [34] (footnotes omitted).
In considering whether the verdicts in the present case are inconsistent it is appropriate to consider the directions that the trial Judge gave with respect to:
-whether the whole of the complainant’s evidence need be accepted,
-the need for separate consideration of the counts, and
-the significance of the impact of alcohol and drug consumption upon the reliability of the complainant’s evidence.
The trial Judge, on two occasions, directed the jury that it was open to them to accept part of a witness’s evidence and reject other parts, and that a witness could be untruthful or unreliable about part of his evidence but that it did not follow that a witness ought not to be accepted on other parts of his evidence.
Given that only the complainant and the appellant gave evidence, and given the clear directions that the trial Judge gave as to the onus of proof, it would have been plain to the jury that these directions were particularly directed towards the jury’s evaluation of the evidence of the complainant.
The trial Judge directed the jury in clear terms that each count had to be considered separately and that the verdict on each count need not be the same:
The charges do not fall or stand together. If separate charges are tried together on the one information, it becomes necessary to take special care, ladies and gentlemen, to see that the method by which the guilt of the accused may be established on any one count is done by considering only the evidence which is offered in relation to that count and not the evidence in relation to the information as a whole. Of course to the extent that such evidence indicates the general relevant background, the context, the sequence of events which occurred, you may have regard to such evidence.
However, I do say this: if you found him not guilty of any one of the counts because you have a reservation about the credibility or reliability of [the complainant], that is material you could use, that reservation you had, in dealing with the other counts, because you must consider whether you can be satisfied as to the guilt of the accused on any of the counts. Because, you see, if you are not satisfied as to the credibility of [the complainant] when considering any one count; and here the other counts depend upon his uncorroborated evidence, then that lack of satisfaction may carry over to your consideration of the other counts. I hope I have made that clear.
This direction was of particular significance in the present case. The acts the subject of each count had taken place on separate occasions. Further, the act the subject of the first count was significantly different to the acts the subject of the other counts. The circumstances in which each of the alleged incidents took place gave rise to the need for particular care. These were matters that gave rise to the need for close attention to be paid to the credibility and reliability of the complainant’s evidence. They were matters that could explain the different verdicts.
There were material differences in the evidence relevant to each of the counts. In respect to the first count, it was the complainant’s evidence that the appellant was sleeping between the two brothers, that is, directly next to the complainant. However, in respect to the other incidents, the complainant said that the appellant was sleeping in a position where the complainant’s twin brother was between the complainant and the appellant. The need for the appellant to “reach over” the twin brother may, of itself, have caused the jury to doubt the evidence of the complainant.
A further material difference was in the nature of the alleged indecency. What was said to be involved in the second and third counts was the rubbing of the buttocks. This was very different conduct to the fondling of the complainant’s penis through his boxer shorts.
This aspect of the evidence may provide an explanation for the verdicts. The first count involved a far more serious and clearly deliberate conduct. Given the nature of the incident that the complainant described, there was no room for mistake or misunderstanding due to the complainant having been asleep or affected by alcohol or drugs. The same cannot be said for the second and third counts, which were acts of a different type and were very brief.[9] The issue of mistake or accident was a very real issue at trial with respect to these latter counts.
[9] Count 2 - “a few seconds”; Count 3 - “a split second”.
The evidence of the complainant with respect to the second count was that he saw the appellant leaning over his brother. However, the complainant had been inconsistent on this topic. There was a significant inconsistency between his evidence and his police statement upon which he was tested in cross-examination. The defence emphasised this inconsistency in the closing address and in the summing up, directing the jury that inconsistencies went to the credit of the complainant. The jury may have doubted the reliability of the complainant’s account on the second count.
The complainant had not seen the appellant on the occasion giving rise to count three, and the act alleged took place for only a “split second”. This evidence may go to explain the verdict. In addition, the complainant had consumed a large amount of cannabis and alcohol. The consumption of cannabis and alcohol on this occasion was a matter that received particular emphasis at trial. The trial Judge directed on more than one occasion that the consumption by the complainant of alcohol and cannabis was a matter of particular significance in assessing the reliability of the complainant’s account.
A verdict of not guilty does not imply that a complainant was disbelieved or that there was a lack of confidence in his evidence. It may simply reflect a cautious approach to the discharge of a heavy responsibility. Factors that might cause a jury to hesitate in drawing a conclusion that guilt had been established beyond a reasonable doubt might be a complainant’s uncertainty as to matters of detail, or that a complainant has been shown to have a faulty recollection of some matters, or has otherwise been shown to be more reliable about some part of his evidence than about others.[10]
[10] MFA v R (2002) 213 CLR 606 at [34].
The above circumstances are sufficient to provide an explanation for the differing verdicts. The jury may have had some doubt in respect of the second and third counts that arose from the different circumstances. There is a proper way by which this Court can reconcile the verdicts. I would reject the submission that the verdict of the jury on the first count was unreasonable or inconsistent with the verdicts on the other counts. The guilty verdict was open on the evidence and it was not inconsistent with the verdicts of not guilty on the second and third counts.
Finally, it should be observed that, in addition to the above matters, when assessing whether there is a proper way by which this Court can reconcile the verdicts regard should also be had to the possibility that the jury ameliorated strict justice for considerations of fairness.[11] In Phillips, [12] Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ observed:[13]
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.
[11] R v Kirkman (1987) 44 SASR 591 at 593; R v MFA (2002) 213 CLR 606 at [34], [85-86]; MacKenzie v The Queen (1996) 190 CLR 348 at 367-368; Phillips v R (2006) 225 CLR 303 at [71]; R v Hoskins [2007] SASC 92 at [63].
[12] Phillips v R (2006) 225 CLR 303.
[13] Phillips v R (2006) 225 CLR 303 at [71] (footnotes omitted).

I would reject the complaint that count one was unreasonable and inconsistent with the acquittals recorded for counts 2 and 3.
A Jury Enquiry
Before coming to discuss the submissions advanced on the hearing before this Court, it is important to record events that occurred late in the summing up. The transcript records the following:
[His Honour]:  I won’t take a verdict before 2.30 but I ask you now to retire and consider your verdict.
Jury retires 12.55 P.M.
His Honour:                Any matters arising?
[Defence counsel]:        Not for me.
[Prosecution counsel];     No.
His Honour leaves bench 12.55pm
His Honour returns to bench 3.05pm
His Honour:  [Defence counsel, prosecution counsel], I have had a note from the jury to say as follows: ‘Can we please have transcript of the judge’s directions to the jury’. Now, what I propose to tell them, unless you want to say anything different to me, is they can’t have the transcript but that I invite them – on the assumption that they do not want the whole of my summing up to be re-read to them, to identify what directions they are particularly concerned about. Are you content with that?
[Defence counsel]:                Yes.
[Prosecution counsel]:    Yes.
His Honour:  Then once we have done that, we will talk about what we should say afterwards.
[Prosecution counsel]:    Yes, your Honour.
Jury enters court 3.07pm
His Honour:  Thank you very much, ladies and gentlemen. I received the note. The question whether a transcript of my directions can be given to you, the practice of the courts is that a transcript not be given. I assume, I hope correctly, that you do not wish me to repeat my summing up to you in total. Are there any particular points, particular directions, that you want to seek directions about? Can someone tell me that?
Juror:I think it was more; there were three directives. There were three. We were stuck on the third one. There was –
[Prosecution counsel]:    Maybe if the jury write a note.
His Honour:  I would be very grateful if you could do this: the question you asked a moment ago. Firstly, do you want me, and I assume you do not, to repeat my summing up? If there are specific directions which you seek for me to read out to you or to repeat to you at all, could you go back into the room and write down, as best you can frame them, the directions you seek. Once you have done that then I will receive your note, and I will discuss it with counsel and then bring you back in due course. Do you understand that? So please go back inside. Write out in a note what you seek directions on and I will then discuss it with counsel.
Jury leaves court 3.04pm.
[Prosecution counsel]:    Sorry, I did not mean to interrupt.
His HonourNo, it was quite proper, [prosecution counsel]. All right, I think all we can do then is simply wait for a note to come out. Then we will reconvene and discuss what we do with it. Do you agree with that, [defence counsel]?
[Defence counsel]:                Yes.
His Honour leaves bench 3.10pm.
His Honour returns to bench 5.11pm.
Jury not present
His Honour:  Just to make sure: we agree, do we not, that the four hours was up at about 4.55?
[Prosecution counsel]:    Yes.
[Defence counsel]:                Yes.
Jury returns 5.12pm
Verdict (Count 1) (Majority) Guilty
Verdict (Count 2) (Unanimous) Not Guilty
Verdict (Count 3) (Unanimous) Not Guilty
Counsel for the appellant submitted that the jury request was made in respect of directions on law as opposed to a request for a clarification of evidentiary material. Counsel drew attention to the observations of Mahony P in McCormack:[14]
A trial judge should, as a general principle, ensure that no further directions are sought or given before he asks the jury to consider their verdict. ... It is possible that, in the exigencies of a trial this cannot be ensured, but a judge should take positive steps by inquiry of counsel and otherwise to prevent such problems arising.
[14] McCormack (1995) 85 A Crim R 445 at 449-450.
Counsel for the appellant also made reference to TAB[15] where the New South Wales Court of Criminal Appeal made the following observations:[16]
In these cases it can be seen that within the framework of the matter of principle referred to by Mahoney P in McCormack: (a) a jury should not formally be asked to consider its verdict until all applications for further directions have been dealt with conclusively; (b) in circumstances where the jury asks a question that indicates that further directions as to law are required and which indicates some uncertainty in the corporate state of mind of that tribunal, the trial judge should ensure that no verdict is taken before that question is answered…
[15] R v TAB [2002] NSWCCA 274.
[16] R v TAB [2002] NSWCCA 274 at [72] (Levine J with whom Mason P and Sully J agreed).
Counsel for the appellant submitted that a distinction should be drawn between a request for a clarification of evidence and requests for further directions. Counsel said that in the present case the trial Judge permitted the jury to consider and reach verdicts without clarifying whether any further direction was sought. Further, counsel contended that in this circumstance a risk of a miscarriage of justice arose, such that the verdict in respect of the first count should be set aside.
The trial Judge did not take verdicts without answering the jury’s request for further directions. Having been invited to put any request in writing, the jury did not do so. There is no reason to conclude that, as a result, the verdict on the first count is unsafe.
The authorities upon which the appellant relies are distinguishable. In McCormack, verdicts were taken before a misdirection that had been identified had been corrected. In Hickey,[17] and TAB, the jury had made clear the issue upon which they required assistance. In Hickey the further direction that had been requested and was to be given was not given before verdicts were taken.[18] In TAB, it was unclear whether the jury’s request had been met, but it was held that there was no miscarriage.[19]
[17] R v Hickey (2002) 137 A Crim R 62.
[18] R v Hickey (2002) 137 A Crim R 62 at [20]-[53].
[19] R v TAB [2002] NSWCCA 274 at [67]-[74].
The request of the jury was for a copy of the summing up. The Judge correctly advised the jury that the provision of a copy of the summing up to the jury did not accord with the practice of the Court. Accordingly, the Judge declined that request. However, the Judge advised the jury that, if they wished to have a particular part of the summing up read, they should put their request or question in writing and he would do his best to assist.
The jury did not respond to the Judge’s invitation. Several hours passed before their verdict. It is unclear as to what particular concerns led the jury initially to request a copy of the summing up. However, it is clear that the Judge expressly invited the jury to formulate any request they had in writing and that he would then do his best to assist. The jury did not do so.
It has not been established that there was any unanswered or unresolved issue with respect to which the jury wished to have assistance. I would refuse this application.
Permission to appeal should be refused.
Conclusion
This appeal should be dismissed.
VANSTONE J:
Introduction
Jason Norman Lapins was tried in the District Court before a judge and jury on an information charging him with three counts of indecent assault, each on a different occasion, upon the one complainant. He was convicted of the first count but acquitted of the subsequent two. He appeals, with permission, against that conviction, arguing that the verdict on the first count is unreasonable in that it is factually inconsistent with the acquittals. He seeks permission to appeal upon another ground, to the effect that the learned trial judge erred in taking the jury’s verdicts without first dealing with a request for further directions. A single judge of this Court previously refused permission to appeal on this ground.
Background
The counts on the information all alleged an indecent assault occurring within the period September 1998 to December 1999, at a time when the complainant (“M”) was 15 years of age. The allegations were not reported to police until April 2005. By the time of trial, M was 24 years old. He had a twin brother “T”. Both boys met the appellant while fishing at the Onkaparinga River at Port Noarlunga when aged about 13 years. They became friendly with him. By the time of their fifteenth birthday, T was living with the appellant. Apparently, he still does.
On the occasion of the first count, M said he was visiting the appellant’s home and was asked to stay the night by his brother. During the evening they played video games, watched a movie and smoked four or five cones of cannabis. The three of them slept on mattresses lined up on the floor of the lounge room. The appellant was between the two boys. M said that during the night he awakened to find the fly of his jeans undone and the appellant’s hand fondling his penis through his boxer shorts. M said he moved away and he saw the appellant roll over, away from him. In the morning he said nothing of the incident.
The second count was described as occurring a week or two later. Again M was at the appellant’s home at the invitation of his brother. Again, he consumed a quantity of cannabis. When the brothers and the appellant went to go to sleep in the same room as before, M said he made sure that T was between himself and the appellant. However, he said he was awakened in the night by something which he took to be a large hand rubbing his buttocks outside his trousers. He immediately rolled away and then turned to see the appellant drawing back from a position in which he had been reaching over T. He said the contact lasted “a few seconds”.
The third count was said to have taken place four or five weeks later when the appellant, M and T went away overnight together. During the evening M consumed significant quantities of both cannabis and spirits. He said he felt “stoned”. They all slept in the back of the accused’s panel van. M said that his brother again slept in the middle. He related that during the night he was awakened by the appellant rubbing his bottom over his clothing. He acknowledged in cross-examination that he did not turn to see the appellant but pushed the hand away. He said the touching lasted “a split second”.
The appellant gave evidence in his defence. He acknowledged that M had stayed overnight at his home two or three times but said that had occurred in a period before T was living at his home. He agreed the three of them had slept in the lounge room. He agreed they had been on a camping trip together, but could not recall the sleeping arrangements. He agreed he had provided cannabis, but not whiskey, to the boys. He denied any indecent touching of M on any occasion.
No other witnesses were called.
Suggested inconsistency of verdicts
The ground of appeal asserts that the verdict on count 1 is “unreasonable and cannot be supported having regard to the evidence”. This formula is derived from s 353 of the Criminal Law Consolidation Act 1935. The particulars of the ground allege inconsistency with the acquittals on counts 2 and 3. The real complaint then is that the verdict on count 1 is unreasonable in that there is factual inconsistency between that verdict and the acquittals on the other counts. This complaint necessitates a consideration of whether it was open to the jury to be satisfied that count 1 was proved in the light of the whole of the evidence and the directions given, notwithstanding that the jury was not prepared to convict on counts 2 and 3. This question must be examined within a context which recognises the system within which juries operate, including the seriousness with which they are encouraged to undertake their task and the special respect and legitimacy which is accorded to jury verdicts: MFA v The Queen (2002) 213 CLR 606 at [34], [49]; Mackenzie v The Queen (1996) 190 CLR 348; R v Hoskins [2007] SASC 92, [20]-[27].
Having considered the matter in this way I have reached the view that the guilty verdict was not unreasonable. There was a material difference in the nature of the allegations comprising count 1 as against the other counts. The acquittals on counts 2 and 3 do not necessarily indicate any lack of confidence in M’s honesty. The jury might have had a doubt, though, about his perception of what occurred in circumstances where the touchings described took place after M consumed large quantities of cannabis and, on the last occasion, alcohol, and where the touchings were extremely brief, over clothing and in a confined area. Even if the jury believed the touchings occurred, the circumstances could have raised a doubt as to the deliberateness of the appellant’s conduct. In respect of the later counts there was perhaps also a question in relation to proof of the identity of the person who touched M.
Furthermore, even if the jury was satisfied that the later touchings occurred, it still had to consider whether they took place in circumstances of indecency. Whereas count 1 had the hallmarks of a determined, blatant and invasive episode, counts 2 and 3 were of a quite different character. The jury would have been entitled to view counts 2 and 3 as demonstrating something short of indecency, or at least to have entertained a doubt as to that matter.
That the jury might have given effect to a difference in the quality of the evidence concerning count 1 as opposed to counts 2 and 3 is only reinforced when the directions given by the judge are considered. The judge instructed the jury in strong terms to view each count separately. Indeed, in my view the direction went too far in instructing the jury not to have regard to the evidence of all the counts when considering a particular count. The direction was as follows:
Ladies and gentlemen, as you know, the accused, Mr Lapins, is being tried on three separate counts on the one information. That is the document which you have with you. Each count charges a separate offence. Each must be treated separately on its merits, even though all the evidence comes from the same witnesses. Ultimately, when you return your verdicts you will be asked successively in relation to the counts, starting with the indecent assault charge on count 1, whether you find the accused guilty or not guilty of that charge. Where an accused, as here, is charged with more than one count, it does not follow that if you happen to be satisfied of his guilt on one count, that he is guilty of another count.
The charges do not fall or stand together. If separate charges are tried together on the one information, it becomes necessary to take special care, ladies and gentlemen, to see that the method by which the guilt of the accused may be established on any one count is done by considering only the evidence which is offered in relation to that count and not the evidence in relation to the information as a whole. Of course to the extent that such evidence indicates the general relevant background, the context, the sequence of events which occurred, you may have regard to such evidence.
However, I do say this: if you found him not guilty of any one of the counts because you had a reservation about the credibility or reliability of [M], that is material you could use, that reservation you had, in dealing with the other counts, because you must consider whether you can be satisfied as to the guilt of the accused on any of the counts. Because, you see, if you are not satisfied as to the credibility of [M] when considering any one count; and here the other counts depend upon his uncorroborated evidence, then that lack of satisfaction may carry over to your consideration of the other counts. I hope I have made that clear.
To the extent that the jury were instructed to give separate consideration to the elements of each count before returning a verdict of guilty, the direction was entirely appropriate. However, inasmuch as the direction prohibited use of the whole of the evidence going beyond “general relevant background, the context, the sequence of events”, the direction was too restrictive. In this respect it verged on a direction as to permissible and impermissible use of evidence going to prove other counts. As was observed in R v Von Heytmanek (2006) 96 SASR 97 the function of a separate consideration direction is not to restrict usage of evidence. It is not a direction about admissibility. In this trial, plainly all the evidence of the complainant was admissible on all counts and it was available for the jury’s use in consideration of the complainant’s credibility and reliability as a whole.
Bearing in mind that the jury convicted of the first and most serious count, the rather favourable directions which I have just set out, including, but going beyond a separate consideration direction, could only have advantaged the appellant when the jury came to consider counts 2 and 3. The verdicts indicate that the jury approached their task in accordance with these directions. In those circumstances, and bearing in mind the different nature of the evidence on which count 1 was based, I think this Court should be slow to imply that there was any compromise in reaching the verdicts or that the acquittals were necessarily based on doubt about M’s honesty. As was observed in Mackenzie at 367:
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.
Mr Boucaut for the appellant drew attention to the fact that a warning in terms of Longman v The Queen (1989) 168 CLR 79 was given. No complaint was made about the terms of that warning. Counsel argued that in a case where it is necessary to warn the jury of forensic disadvantage occasioned by the lapse of time since the events, the Court should be more ready to give effect to doubts entertained by the jury in one area and to imply that the verdicts are inconsistent.
I consider that this argument is not well founded. The fact that the jury were warned in strong terms about the significance of the lapse of time and the need to scrutinise M’s evidence and were further warned that “events occurring in childhood or early adolescence [are] frequently mistaken and liable to distortion” was all the more likely to encourage the jury to give effect to any infirmity in the evidence going to prove any count, despite a general readiness to accept the honesty of the complainant.
For these reasons I consider that the differences between the evidence in proof of count 1, as against that going to prove counts 2 and 3, render the difference in the verdicts readily understandable. In my view there is no relevant inconsistency.
Request for further directions
The second ground complains that the verdicts were taken at a time when a request by the jury for further directions remained outstanding. So it is said that this was a material irregularity rendering unsafe the verdict on count 1.
The suggested principle sought to be invoked in this ground is that once a jury has requested assistance upon an issue, that assistance should be given before any verdict is taken: R v Hickey (2002) 137 A Crim R 62; R v TAB [2002] NSWCCA 274 [72].
In this matter the jury retired at 12.55 pm, after a summing up of about 50 minutes. At just after 3 o’clock the judge returned to the bench indicating that he had a note from the jury requesting a “transcript of the judge’s directions to the jury”. The jury was brought in and the judge told them that it was not the practice of the court that such a transcript be given to them. The judge then asked the jury:
Are there any particular points, particular directions, that you want to seek directions about? Can someone tell me that?
At that, a juror, presumably the foreperson, gave this answer:
I think it was more; there were three directives. There were three. We were stuck on the third one. There was –
At that point the judge suggested that if there were specific directions which the jury would like read they should go back into the jury room and frame them in writing. Then, he said that he would receive the jury’s note, discuss it with counsel and bring the jury back. The jury then retired at 3.04 pm. Nothing more was heard from them until 5.11 pm, at which time they indicated that they had reached their verdicts.

The question for decision is whether this course of events is such as to raise the application of the general principle mentioned above.
In my view it is not. The interaction between judge and jury indicates that the request they made – that a transcript of the summing up be provided – was not one which the judge considered the practice of the court permitted fulfilling. Having advised the jury that that was the position, the judge indicated that he would receive any specific request for assistance. None was forthcoming. This is not a case where the jury was denied assistance. Apparently the jury decided not to pursue the enquiry. Therefore there was no outstanding request at the time when the jury’s verdicts were delivered.
I consider that leave to appeal on this ground was properly refused.
Conclusion
For these reasons I consider that there was no relevant inconsistency between the verdicts rendered by the jury and the ground of appeal should be dismissed. In respect of the second proposed ground leave should be refused.