R v LISTER - [2013] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LISTER
[2013] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice David and The Honourable Justice Stanley)
28 March 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Appeal against conviction - appellant was charged with two counts of aggravated indecent assault (counts 1 and 3) and one count of unlawful sexual intercourse (count 2) - the prosecution case against the appellant was heavily reliant upon the evidence of the complainant who was 10 years of age at the time of the alleged offending and 14 years of age at the time of trial - by verdict of a jury the appellant was found guilty on count 1 and not guilty on counts 2 and 3.
Appeal against the conviction on count 1 on three grounds: (1) the verdict was unsafe and unsatisfactory and against the weight of the evidence, (2) the verdict was inconsistent with the verdicts on counts 2 and 3, and (3) the trial judge erred in failing to direct the jury specifically on the inconsistency between the complainant's in-court evidence and her two prior denials of any offending by the appellant - permission to appeal granted in relation to grounds (1) and (2) and ground (3) referred to this Court for consideration.
Held (Per the Court): Appeal dismissed.
Ground (1) dismissed: following a critical assessment of the complainant and her evidence it cannot be concluded that a reasonable jury must have had a reasonable doubt about the appellant's guilt on count 1; there was much evidence in support of the complainant's testimonial evidence.
Ground (2) dismissed: the verdict on count 1 and verdicts on counts 2 and 3 are reconcilable - the verdicts on counts 2 and 3 do not necessarily indicate a rejection of the complainant's evidence but only a lack of preparedness to find the charge proved beyond reasonable doubt on the complainant's evidence alone on account of inconsistencies - any doubts that led to the jury's acquittal on counts 2 and 3 would not necessarily have destroyed the complainant's credibility to an extent that they would have had reasonable doubt about the whole of her evidence.
Permission to appeal on ground (3) refused: the trial judge was not required to direct the jury specifically as to the complainant's prior denials of any offending by the appellant - appellant's counsel had made strong submissions on the topic and the trial judge provided the jury with a general direction on prior inconsistent statements, nothing further could have been added by way of direction.
Criminal Law Consolidation Act 1935 (SA) s 353(1), referred to.
R v Walsh [2012] SASCFC 14; R v Stone (Unreported, 13 December 1954, Devlin J), considered.

R v LISTER
[2013] SASCFC 17
Court of Criminal Appeal: Kourakis CJ, David and Stanley JJ

KOURAKIS CJ: I gratefully adopt the summary of the course of the trial given in the reasons of David J.
Both grounds 1 and 2 are founded on the statutory ground of appeal allowed by s 353(1) Criminal Law Consolidation Act 1935 (SA) that the verdict of the jury “is unreasonable or cannot be supported having regard to the evidence”. I would dismiss both grounds of appeal. In my view, the verdicts reflect an acceptance of the general credibility and reliability of V’s testimony but a reluctance to find that the prosecution’s onus was discharged with respect to the offences on the return journey. There were at least two possible reasons for that doubt. First, the jury may have had a doubt about penetration with respect to the second count. Secondly, the jury may have entertained a doubt about the reliability of V’s account of the return journey because of some inconsistencies between V’s account and the evidence of other witnesses referred to in the reasons of David J. There is nonetheless much evidence which supports V’s testimony.
V’s account of the offending on the journey to the stables is supported in a general way by the description of her demeanour at the stables and her reluctance to return in the appellant’s car. Most importantly, her evidence is strongly supported by her mother’s evidence that she found the appellant in V’s bedroom later that night. I would not doubt V’s account of the assault on the way to the stable because of the inconsistencies on which counsel for the appellant relied. Indeed, they do not cause me to doubt her account of the assaults on the return journey. There are, in my view, reasons why V’s testimonial account of the surrounding circumstances might be mistaken, which would not detract from the reliability of her evidence of the offending itself. However, whatever my view of these matters, the jury’s advantage in hearing V’s testimony is more than capable of rationally explaining their decision to convict on count 1. This is a case in which the jury had the immeasurable advantage of assessing V’s testimony as it was given.
The jury could only have accepted V’s account of the assault on the way to the stable beyond reasonable doubt if they accepted her as being a generally credible and reliable witness. On that premise the not guilty verdicts on the remaining counts can be explained on the basis that the jury extended the appellant the benefit of the doubt because of the inconsistency between V’s testimony and the testimony of the other prosecution witnesses notwithstanding their general acceptance of her evidence. To put it in another way, the verdicts of not guilty do not necessarily indicate a rejection of her evidence but only a lack of preparedness to find the charge proved beyond reasonable doubt, on her evidence alone, because of those inconsistencies.
It cannot be said that the verdict of guilty on count 1 is irrational having regard to the verdicts of not guilty on counts 2 and 3. The inconsistencies with respect to the surrounding circumstances of the return journey do not cause me to doubt V’s account of the indecent assault on the way to Maluna Stables. Inconsistencies of the sort relied on by the appellant may indicate a lack of reliability but they might equally reflect a confusion about detail which is a product of the offending. The jury’s decision to give the appellant the benefit of the doubt on the charges most directly beset by that difficulty is not a reason to doubt other parts of V’s testimony.
The Judge in this case directed the jury to give separate consideration to each count and that they may return different verdicts on each count. Once it is accepted that that direction was properly given it is difficult to see how it can be contended that the verdicts of guilty were unreasonable by reason of inconsistency. In MacKenzie v The Queen,[1] Gaudron, Gummow and Kirby JJ explained that in the case of different verdicts on different counts in a criminal trial, “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 the ingredients must be proved beyond reasonable doubt”.
[1] (1996) 190 CLR 348 at 367.
I would also refuse permission to appeal on ground 3. It was not necessary for the Judge to give the jury any direction, or reminder, about the evidence that V had denied any offending when her mother had questioned her about the day’s events. The appellant’s counsel had made strong submissions on that topic. The jury were in a position to evaluate the weight of that evidence and its significance on the basis of their common experience of life and human behaviour. Judges do not have any special knowledge or understanding of such matters to impart to juries by way of direction or warning.
Conclusion
I would dismiss the appeal.
DAVID J: The appellant was charged with three offences against the same female complainant (“V”) who, at the time, was 10 years of age. The charges were; one count of aggravated indecent assault (count 1), one count of unlawful sexual intercourse (digital) (count 2), and one count of aggravated indecent assault (count 3). The three charges concerned events which allegedly took place on an identified afternoon in late 2008 or early 2009 when the appellant had visited the family home of V and she accompanied him on a journey in his car to visit some horses.
Following a trial, the appellant was found guilty by a jury of count 1 but not guilty of counts 2 and 3. The appellant now appeals against the conviction on count 1.
The appellant was granted permission to appeal, and now appeals, against the conviction on count 1 on two grounds. Firstly, that the verdict is unsafe and unsatisfactory and against the weight of the evidence. Secondly, that the verdicts of not guilty on counts 2 and 3, in relation to events that took place close in time to the events of count 1, were so inconsistent with the guilty verdict on count 1as to render the verdict on count 1 unsafe and unsatisfactory. The appellant relies on a further ground of appeal, for which permission was not granted but rather referred to this Court for consideration. This third ground is that the trial judge should have directed the jury on a specific inconsistency in V’s evidence, namely V’s denials of any impropriety on the appellant’s behalf, which she made to her mother on two previous occasions.
Trial
At the time of the events which were the subject of the charge, V was a young female aged 10 years. She lived at Hillbank with her mother (“M”), her sister (“A”) and her brother. Both M and A were called as witnesses.
At the relevant time, the family owned a number of horses which were agisted at Maluna Stables, some distance from the family home.
On the relevant day a family friend (“R”), who was called as a witness at trial, came to the family home at Hillbank and took A to the Maluna Stables to attend to the horses. The appellant was also present at that time. He was described by V as a family friend who used to visit their home often. V gave evidence that the appellant also wanted to go to the stables. As he did not know where to go, M suggested that V go with him to direct him. They left in the appellant’s car, both sitting in the front. It took about half an hour to get to the stables and on the way the appellant kept touching her outside of her clothes in the area of her vagina. V said this happened after they had been travelling for about three or four minutes and continued for the whole of the journey. She was wearing a tank top and basketball shorts and the appellant said words to the effect, “Most girls don’t like it at first but once they get the feel of it they start to like it”. V said that she asked him to stop but he did not.
That behaviour was the subject of count 1 on which the appellant was convicted. On arrival at the stables the family friend, R, and her sister, A, were there and V did not tell them about what had happened. She asked to go back with R but was told that the car was full. V gave evidence that she was told by R that a pizza had been ordered for home and she was asked to go with the appellant to collect it from Bonanza Pizza Bar at the Craigmore Shopping Centre. On the journey from the stables to the pizza bar, he massaged her again in the area of the vagina although that was led as an uncharged act and was therefore not the subject of any charge. There was no complaint at trial or on appeal about the admission of that evidence.
V gave evidence that after they left the pizza shop the appellant slowed the car to a stop at a dirt patch on the side of the road. This was very shortly after they left the pizza shop. At about the same time V said she heard the appellant’s mobile phone ring and she saw on the screen R’s name. The appellant said words to the effect that they were on the way home having been to the pizza shop. V gave evidence that the appellant was still on the phone when he pulled the car off of the road and onto the dirt patch and it was shortly before or just after this that he got his right hand and put her hand on his penis. That behaviour was the subject of count 3. V gave evidence that when the car had stopped at the dirt patch they took off again and the appellant put his fingers inside her vagina. That behaviour was the subject of count 2.
V gave further evidence that after returning home to Hillbank and eating dinner she went to bed but was awoken by the appellant in her room. She said that he shook her to wake her up but almost immediately her sister threw the door open and got their mother, who ordered him from the room. V said that she went to her mother’s room to sleep but after some period of time the appellant came into the room and sat on the bed and asked her if she would kiss him, which she refused. The appellant was then seen by M again and told to get out of the room.
V gave further evidence that after the appellant had gone, M asked her if he had touched her and she replied “No”. V said she said “No” because she was scared that the appellant was going to hurt her as he had been drinking and smelled of alcohol. She said in cross-examination that the next morning before she went to school her mother once again asked whether the appellant had touched her and she also denied it.
V gave evidence that the first person she told about the assault was a friend of hers, Brooke. She told Brooke on 10 September 2011, which was V’s 13th birthday, when Brooke was sleeping over at V’s house. V then also told Jessica, the basketball coach of V and Brooke, who was also around at V’s house that night. V’s mother was subsequently told later that same evening.
In cross-examination a number of inconsistencies were suggested to V between her evidence in court and what she said on other occasions. I will enumerate those when I turn to the grounds of appeal. It was also put to V that the appellant had never touched her in an indecent way.
Both Brooke and Jessica were called concerning the complaint made on the night of V’s 13^th birthday. M also gave evidence about the complaint made on the night of V’s 13^th birthday in 2011. She also gave evidence that she saw the appellant in V’s room on the night of the alleged offending and she told him to go away. She also confirmed the evidence of V; that V had initially denied that the appellant had touched her. Her mother, M, in evidence did not say anything about there being a second confrontation in M’s bedroom as described by V.
Both R and A were called. Both gave evidence about going to the Maluna Stables and seeing the appellant and V arrive. According to R they had tacos for dinner that night and there was no request for pizzas and, in fact, she prepared the tacos for dinner. There were certain other aspects of her evidence which I will refer to when dealing with the grounds of appeal. Similarly, A gave evidence about being at the stables with R and both the appellant and V arriving about 10 minutes later. Like R, there was no mention in A’s evidence of getting pizzas for dinner and she in fact said spaghetti bolognese was prepared.
The appellant gave evidence on oath and called two character witnesses. He gave evidence that he knew the family and that he had driven members of the family to Maluna Stables but he could not recall ever having driven V alone to Maluna Stables. He said that he had never driven V to Bonanza Pizza Bar to collect pizza for her family and he denied ever having touched V on the vagina or in any sexual way. He said that he had been to Maluna Stables on about five to 10 occasions but M had always been present with them. He denied ever having been told to get out of V’s bedroom or M’s bedroom. He also denied ever having had R’s phone number or ever having spoken to her on his mobile phone. That evidence has become significant when dealing with the grounds of appeal.
It is clear that the prosecution case depended almost entirely upon the evidence of V.
Appeal
I set out the grounds of appeal as amended.
1.The verdict was unsafe and unsatisfactory and against the weight of the evidence.
2.The verdict of guilty on count 1 is inconsistent with the verdicts of not guilty on counts 2 and 3.
3.The learned trial judge erred in failing to properly direct the jury that the denials by V to M were relevant to her credit as prior inconsistent statements.
I will deal with each ground in turn.
Ground 1 – The verdict was unsafe and unsatisfactory and against the weight of the evidence
Principles involving whether an appellate court should set aside a jury’s verdict as being unsafe and unsatisfactory and against the weight of the evidence are now well established. In M v The Queen,[2] the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ said:[3]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Footnotes omitted)
Also, McHugh J said:[4]
In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused’s guilt. To ask whether it was open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt is to come perilously close to applying the test for determining whether there was a sufficiency of evidence to convict the accused. To go beyond asking whether a reasonable jury must have had a reasonable doubt about the accused’s guilt would be an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial. The court must make an independent assessment of the evidence and consider the sufficiency, quality and nature of the evidence. However, before coming to the conclusion that a reasonable jury must have had a reasonable doubt about the accused’s guilt, the court must give due weight to the advantages that the jury had in regard to the evidence and the atmosphere of the trial. If, after considering the evidence, the court concludes that a reasonable jury must have acquitted, the verdict is unreasonable even though there may be sufficient evidence, in law, to support the verdict.
(Footnotes omitted)
[2] (1994) 181 CLR 487.
[3] (1994) 181 CLR 487 at 493.
[4] (1994) 181 CLR 487 at 493 at 525.
Mr Heffernan, counsel for the appellant, argues before this Court that the verdict was unsafe and unsatisfactory because of the following matters:
1.The prosecution relied almost entirely upon the evidence of a 10 year old girl who told of events that allegedly happened almost four years earlier.
2.Much of her evidence on significant topics was inconsistent with other evidence called by the prosecution.
3.On a number of topics her evidence was inconsistent with the previous statements that she had made.
4.Although it is a separate ground of appeal, the appellant also relies upon the fact that the jury found the appellant not guilty of counts 2 and 3, and therefore had reservations about her credibility at least on those two counts.

The differences between the evidence of V and other witnesses included:
1.R’s description of the clothes worn by the appellant on the day in question was different from the description given by V.
2.There was no mention by any prosecution witness of the fact that the appellant and V were asked to go and get a pizza for dinner and in fact did so. It was pointed out that the evidence was to the contrary in that both R and A said that dinner that night was prepared at home. Mr Heffernan argues that because this was such an important aspect of V’s evidence, at least on counts 2 and 3, such an inconsistency irreparably damages her credibility.
3.The evidence of V that the appellant had a conversation on his mobile phone with R was inconsistent with R’s evidence that there was never any suggestion that they were having pizzas for dinner and therefore no need for the telephone conversation. R also said in evidence that she did not have his mobile phone number.
4.There was a discrepancy between V’s evidence and that of R and A as to who arrived home first after visiting the stables.
5.M gave no evidence of confronting the appellant in M’s bedroom.
6.When V finally spoke to M about the matter, M gave evidence that V denied that the appellant had put his fingers inside her.
7.Brooke gave evidence that when V complained to her and was describing the incident with the appellant, she pointed with one of her hands “to the area of her boobs”. Mr Heffernan points out that this is inconsistent with her description of any of the counts.
On top of those inconsistencies between V’s evidence and that of other prosecution witnesses, Mr Heffernan also relies upon previous inconsistent statements made by V, namely:
1.Her evidence at trial was that the phone call to the appellant’s phone, presumably from R, came before the car stopped on the dirt patch. It was established that she said to the police in a statement on a previous occasion that the phone rang when they were already parked on the dirt patch.
2.Her evidence in court as to the digital penetration which was the subject of count 2 was that it happened after they had taken off from the dirt patch. In a previous statement to the police she said that it happened while they were parked on the dirt patch.
3.She had never told anyone previously including investigating police officers of the fact that the appellant came into her bedroom later on in the evening, nor of the appellant coming into her mother’s bedroom when she was asleep shortly afterwards.
I have carefully read the evidence and considered the detailed criticisms of V’s evidence by Mr Heffernan. In making an independent assessment of all of the evidence including a critical assessment of V, as I am required to do, I cannot conclude that a reasonable jury must have had a reasonable doubt about the accused’s guilt on count 1. V was a 10 year old child recalling events that happened almost four years earlier and the inconsistencies in her evidence set out above do not persuade me that a conviction based upon her evidence could be determined to be unsafe and unsatisfactory. The case of course is complicated by the fact that the jury acquitted the appellant of counts 2 and 3. A number of the inconsistencies involved her evidence on those counts. The question is whether those verdicts combined with the arguments set out above are such that the conviction should be overturned. I now turn to that question as it is raised by the second ground of appeal.
Ground 2 – The verdict of guilty on count 1 is inconsistent with the verdicts of not guilty on counts 2 and 3
Mr Heffernan argues that all counts were part of one course of action and any verdict which impinges upon the credibility of V must apply to all counts. In other words, by not accepting her evidence beyond reasonable doubt in relation to counts 2 and 3 it is illogical and inconsistent that a jury could find the appellant guilty of count 1.
I make clear at the outset that I reject that argument. There are a number of authorities which make it clear that a verdict will only be set aside for inconsistency if the inconsistency is to such an extent that it establishes that the verdict is unsafe or unsatisfactory.[5] The onus is on the appellant to show that the verdicts cannot stand together.[6]
[5] R v Blair [2005] SASC 319.
[6] R v Walsh [2012] SASCFC 14 at 3; Mackenzie v The Queen (1996) 190 CLR 348 at 366; R v Stone (Unreported, 13 December 1954, Devlin J).
In my view, the verdicts here are reconcilable. The first part of the journey which involved the subject of count 1 amounted to an almost continual course of touching from shortly after the appellant’s car left V’s house until the arrival at the stable. That is to be contrasted with counts 2 and 3 which were discrete specific incidents, namely the placing of his fingers in her vagina and the placing of her hand on his penis. The jury obviously had reservations to the point of acquitting the appellant on those two counts because of inconsistencies about the evidence of collecting the pizza in relation to those two events, all of which took place in a short duration of time. That is to be contrasted with the more drawn out factual basis in relation to count 1. The fact that the jury had doubts about those specific incidents would not necessarily destroy her credibility to such an extent that they would have a reasonable doubt about the whole of her evidence. It was very much a matter for the jury. Indeed, they were merely following the very careful directions that the trial judge gave them about considering each count separately. His Honour said in his charge:
As you know the accused is charged with three separate and distinct offences. Notwithstanding this, the charges do not rise or fall together and your verdict on one charge cannot predetermine your verdict on the others and it follows that you must give separate consideration to each charge and ask yourselves in relation to each charge ‘am I satisfied that the evidence presented in relation to this charge proves the charge beyond reasonable doubt or not?’. It also follows that it is open to you, if you see fit to do so, to find the accused guilty of all three charges, guilty of one but not the others, guilty of two but not the third or guilty of none as you see fit. When I come to consider the evidence I will identify for you the evidence to which each charge relates.
Additionally, and arising out of the need for you to give separate consideration to each individual charge, if you were to be satisfied that the accused was guilty of one of the charges, then you would nonetheless be strictly forbidden to reason that just because he was guilty of that charge he is therefore the sort of person who is likely also to have committed the other offences charged. I want to make it plain that it would be illogical and wrong for you to engage in any such line of reasoning.
I would dismiss grounds 1 and 2.
Ground 3 – The learned trial judge erred in failing to properly direct the jury that the denials by V to M were relevant to her credit as prior inconsistent statements
In the course of his summing up the trial judge gave detailed directions on the use to be made of previous inconsistent statements by a witness, especially relating to V’s evidence. His Honour said to the jury:
As you will recall [V] and her sister were cross-examined so as to demonstrate that there are inconsistencies between what they said in evidence and what they said in their statements to the police. Mr Heffernan has pointed to these inconsistencies and submitted that they should cause you to doubt [V’s] credibility and reliability. The way in which those inconsistencies might impact upon her credibility and reliability is really nothing more than a matter of logic and common sense, and the question of whether you think any inconsistencies or combination of inconsistencies have the capacity to impair your confidence in [V] as a witness and if so, to what extent are matters of fact and thus entirely and exclusively for you.
Mr Heffernan now submits that the admitted inconsistency between V’s evidence at trial and her earlier denials of any impropriety on the appellant’s behalf, which she made to her mother on two previous occasions, both on the evening of the alleged incident and on the following morning, was not specifically referred to in the trial judge’s summing up. Mr Heffernan’s argument is that such an inconsistency was so important that the omission of a specific reference to it when giving directions about the use of inconsistent statements amounted to a miscarriage of justice.
I reject the argument. I do not rely upon the fact that counsel at trial did not ask the trial judge to refer specifically to that inconsistency. That inconsistency was emphasised in defence counsel’s address and, along with the general summing up about the use of inconsistencies, the jury would have had no misapprehension as to its importance.
I would refuse that ground of appeal.
Conclusion
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice and David J.