R v Lovegrove
[2011] SASCFC 111
•14 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOVEGROVE
[2011] SASCFC 111
Judgment of The Court of Criminal Appeal
(The Honourable Justice David, The Honourable Justice Blue and The Honourable Justice Stanley)
14 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
The appellant was charged with aggravated serious criminal trespass and assault in a house – a jury found the appellant guilty of the first charge but not the second – the appellant contends the findings are inconsistent and therefore the guilty verdict on the first charge is unreasonable – whether there is factual or logical inconsistency.
Held: appeal dismissed – the prosecution evidence identified the appellant in the house and suggested the possibility of a second person in the house, leading to a reasonable hypothesis that a second person committed the assault – no inconsistency between the verdicts.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 170(1), referred to.
MacKenzie v The Queen (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606; Phillips v The Queen (2006) 225 CLR 303, applied.
R v Gbojueh (2009) 103 SASR 545, distinguished.
R v Wilkinson [1970] Crim LR 176; R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31; Hayes v The Queen (1973) 47 ALJR 603; R v Kirkman (1987) 44 SASR 591, considered.
R v LOVEGROVE
[2011] SASCFC 111Court of Criminal Appeal: David, Blue and Stanley JJ
DAVID J: I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J: The appellant, Mr Lovegrove, was charged with:
1.aggravated serious criminal trespass;[1] and
2.assault.[2]
[1] Criminal Law Consolidation Act1935 (SA) s 170(1).
[2] Criminal Law Consolidation Act1935 (SA) s 20(3).
A jury returned a verdict of guilty on the first count and not guilty on the second count.
Mr Lovegrove appeals from the conviction of aggravated serious criminal trespass on the ground that the verdict of guilty on that count is inconsistent with the verdict of not guilty on the second count and cannot reasonably be reconciled with it and, because of that inconsistency, the verdict of guilty is unreasonable.
The Facts
The incidents the subject of the charges occurred on the night of 14‑15 December 2009 (“the night”) at a house in suburban Adelaide.
Present in the house on the night were Mr Matthews, his then girlfriend Ms Cirjak and Mr Cutler. Ms Cirjak was previously Mr Lovegrove’s girlfriend.
At trial, it was not in contest that a person broke the glass panel to the side of the front door of the house and entered with the intent of assaulting Mr Matthews. It was also not in contest that a person assaulted Mr Cutler while in the house. The live issue on each count was whether Mr Lovegrove was the person who broke and entered the house and the person who assaulted Mr Cutler.
Mr Cutler gave evidence that, on the night:
1.he was watching television;
2.he heard someone booting on the front door;
3.he walked towards the front door and saw the shadow of a person through the opaque glass;
4.he ran to Mr Matthews’ bedroom to warn him;
5.Mr Matthews ran away;
6.Mr Cutler ran back to the kitchen and, as he was rounding the corner by the fridge, he was punched in the face by a person whom he did not have time to see clearly but of whom he gave a generalised description;
7.he did not recognise that person;
8.when he was punched, he thought he saw a glimpse of a second person, but he was not completely sure;
9.he ran into his bedroom and put his back to the door;
10.he thought he heard conversation between two persons, but again he was not completely sure;
11.he heard a car starting, saw out the front a person running to a car, also saw a shadow out the front (but he was again not completely sure), and saw a person jump in the car which took off the moment that person jumped in.
Mr Matthews gave evidence that:
1.he was awoken by Mr Cutler;
2.he heard someone repeatedly calling his name and saying that he was going to be harmed;
3.he recognised that person’s voice as that of Mr Lovegrove;
4.he responded by running through the dining room, through the kitchen and into the laundry, in the course of which he heard the glass panel to the side of the front door smash and saw a person squeezing through the panel;
5.he recognised that person as Mr Lovegrove;
6.at that point Mr Cutler was between Mr Lovegrove and himself;
7.he continued through the laundry and out through the back door;
8.he did not witness Mr Cutler being assaulted.
Ms Cirjak gave evidence that:
1.she was awoken by the sound of banging and smashing;
2.she saw Mr Matthews go through the dining room, through the kitchen and into the laundry;
3.she followed him into the dining room and then the kitchen;
4.she heard two voices, each of which said “who are you?”;
5.she recognised one voice as that of Mr Lovegrove, and the other voice as that of Mr Cutler;
6.she later saw a person outside Mr Cutler’s bedroom attempting to smash his way through the door;
7.she recognised that person as Mr Lovegrove;
8.she later heard someone say words to the effect, “Come on [Mr Lovegrove], hurry up man”;
9.she did not recognise the voice, and it did not belong to any of Mr Lovegrove, Mr Matthews or Mr Cutler;
10.she later saw a person exit the house through the broken panel next to the front door, whom she recognised as Mr Lovegrove;
11.she did not witness Mr Cutler being assaulted.
Mr Lovegrove did not challenge the evidence of Mr Cutler and did not touch on his evidence regarding the possible presence of a second person. Mr Lovegrove did challenge the evidence of Mr Matthews and Ms Cirjak indentifying Mr Lovegrove, but did not touch upon Ms Cirjak’s evidence of the presence of a second person.
Mr Lovegrove did not give evidence at the trial. He had given evidence at a previous trial on the same charges and that evidence was read to the jury. In that evidence, he denied visiting the house on the night at all.
The cases at trial
The prosecution case at trial was that Mr Lovegrove broke and entered the house on the night with the intent of assaulting Mr Matthews. The prosecution led evidence that Mr Lovegrove had threatened Mr Matthews in the previous month, saying that he knew that Mr Matthews had been seeing Ms Cirjak and that he was going to kill him.
In relation to the issue of identification on the first count, the prosecution relied on the identification evidence from Mr Matthews and Ms Cirjak.
In relation to the issue of identification on the second count, as neither Mr Matthews nor Ms Cirjak witnessed the assault and Mr Cutler did not recognise his assailant, the prosecution relied on an inference that the person who punched Mr Cutler was the same person Mr Matthews and Ms Cirjak saw and heard in the house and identified as Mr Lovegrove.
Mr Lovegrove’s case at trial was that he was not present at the house that night.
The trial Judge in his summing up to the jury emphasised the need for the jury to consider each count independently and to be satisfied beyond reasonable doubt as to each element of each offence. On two separate occasions, the trial Judge referred to the possibility of the presence of a second person.
Inconsistent Verdicts
Legal principles
Two different types of inconsistent verdicts have been identified:
1.legal or technical inconsistency; and
2.factual or logical inconsistency.[3]
[3] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v R [2002] HCA 53; (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ; [84]-[86] per McHugh, Gummow and Kirby JJ.
Mr Lovegrove does not contend that there is legal or technical inconsistency.
Where the issue is factual or logical inconsistency, the following general principles apply.
1.Verdicts cannot be considered inconsistent unless the two verdicts cannot stand together as a matter of logic and reasonableness, to the extent that no reasonable jury applying their mind properly to the facts could have arrived at the composite conclusion.[4]
2.In assessing whether or not two verdicts are inconsistent:
(a) if there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury performed their functions as required, that conclusion will generally be accepted;[5]
(b) if there is some evidence to support the verdicts that are 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;[6]
(c) the possibility must be considered 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.[7]
3.In assessing whether verdicts are inconsistent, or in assessing whether they are unreasonable, an appellate court must consider whether the jury took a “merciful” view of the facts upon one count, applying an innate sense of fairness and justice in place of strict principles of law (as opposed to not properly performing their function by entering into a compromise between themselves).[8]
4.The ultimate test is whether the different verdicts represent, on the public record, an affront to logic and commonsense which strongly suggests a compromise of the performance of the jury’s duty, such that the verdict is unreasonable and intervention is necessarily required by the appellate court to prevent a possible injustice.[9]
[4] MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v R (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ; [84]-[86] per McHugh, Gummow and Kirby JJ.
[5] R v Wilkinson [1970] Crim LR 176; MacKenzie v The Queen (1996) 190 CLR 348 at 367 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v R (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ; [84]-[86] per McHugh, Gummow and Kirby JJ.
[6] Hayes v The Queen (1973) 47 ALJR 603 at 604-605 per Barwick CJ, Taylor and Owen JJ; MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v R (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ; [84]-[86] per McHugh, Gummow and Kirby JJ.
[7] R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40; MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); MFA v R (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ; [84]-[86] per McHugh, Gummow and Kirby JJ.
[8] R v Kirkman (1987) 44 SASR 591 at 593 per King CJ (Olsson and O’Loughlin JJ agreeing); MacKenzie v The Queen (1996) 190 CLR 348 at 366 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351; MFA v R (2002) 213 CLR 606 at [33]-[35] per Gleeson CJ, Hayne and Callinan JJ; [84]-[86] per McHugh, Gummow and Kirby JJ; Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 at [71] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
[9] MacKenzie v The Queen (1996) 190 CLR 348 at 368 per Gaudron, Gummow and Kirby JJ (see also Dawson and Toohey JJ at 351); Phillips v The Queen (2006) 225 CLR 303 at [71] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Analysis
In the present case, there is no factual or logical inconsistency between the two verdicts and no reason why they cannot stand together.
In relation to the first count, the guilty verdict depended upon the jury:
1.accepting the direct evidence of identification of Mr Lovegrove by Mr Matthews and Ms Cirjak as the person who broke the glass panel and entered the house and vowed to do harm to Mr Matthews;
2.rejecting the defence case that Mr Lovegrove was not present at the house at all on the night; and
3.being satisfied beyond reasonable doubt as to the identification of Mr Lovegrove.
By contrast, there was no direct evidence identifying Mr Lovegrove as the person who assaulted Mr Cutler. Mr Cutler did not clearly see, and did not recognise, his assailant. Mr Matthews and Ms Cirjak did not witness the assault, its prelude or aftermath. Assuming that the jury were persuaded beyond reasonable doubt that Mr Lovegrove was present within the house on the night, the prosecution case on the second count depended entirely upon the jury being persuaded to draw the inference that it was Mr Lovegrove, and not someone else, who assaulted Mr Cutler.
Given the unequivocal evidence from Ms Cirjak that there were two persons present, and the four suggestions by Mr Cutler that a second person may have been present, a jury who were satisfied beyond reasonable doubt that Mr Lovegrove was present in the house could well have entertained the reasonable doubt that there were two people present in the house on the night and that it was the second person who assaulted Mr Cutler.
In assessing the jury’s performance of their duty, there is a proper way by which the verdicts can be reconciled. The different verdicts do not represent an affront to logic or commonsense, and there is no reason to believe that there was any compromise of the performance of the jury’s duty.
Mr Lovegrove contends that the hypothesis that there may have been two persons present in the house (and consequently that it may not have been Mr Lovegrove who assaulted Mr Cutler) ought not to be entertained because the trial was not conducted by either party on that basis. The prosecution case was that Mr Lovegrove committed both offences, and the defence case was that he committed neither.
Mr Lovegrove relies upon the decision of the Full Court in R v Gbojueh.[10] In Gbojueh, the accused was charged with two counts of rape of the complainant. The sole issue at trial was consent. The evidence of the complainant was essentially the same as to both counts, as was the evidence of the accused. The jury returned verdicts of not guilty on the first count and guilty on the second count. The prosecution accepted on appeal that, subject to a single hypothesis advanced by the prosecution on appeal, the verdicts could not be reconciled.
[10] R v Gbojueh [2009] SASC 104; (2009) 103 SASR 545 at [18]-[21] per Gray and Sulan JJ.
The hypothesis advanced by the prosecution was that, on the defendant’s evidence, the defendant may have honestly believed that the complainant was consenting in respect of the first count when in reality she was not. Gray and Sulan JJ said that this hypothesis was contrary to the manner in which the trial was conducted by both parties: the sole issue contested by the parties was consent.[11] The possibility of a mistake or lack of intent on the part of the defendant was not raised at trial. The respective versions of the complainant’s and defendant’s evidence positively excluded any possible misunderstanding.
[11] R v Gbojueh (2009) 103 SASR 545 at [20] per Gray and Sulan JJ.
By contrast, in the present case, the evidence of the prosecution witnesses positively suggested the possibility (and, in the case of Ms Cirjak’s evidence, the reality) of the presence of a second person in the house. None of the witnesses identified the person who assaulted Mr Cutler. Hence, the hypothesis that a second person, and not Mr Lovegrove, committed the assault is entirely consistent with the above two aspects of the prosecution’s case. Put another way, there was prima facie factual inconsistency in Gboujeh which could not be rebutted by a fanciful hypothesis, given the evidence and the manner in which the case was conducted. By contrast, in the present case, there is no prima facie factual inconsistency in the first place.
In the present case, it was the entitlement, and indeed constitutional role, of the jury to decide for themselves (regardless of the manner in which the prosecution and the defence conducted their cases) whether they were satisfied beyond reasonable doubt that Mr Lovegrove was guilty of neither offence, the criminal trespass offence only, or both offences.
Conclusion
There is no basis on which to conclude that the jury’s verdicts were inconsistent, irreconcilable or unreasonable.
I would dismiss the appeal.
STANLEY J: I have had the advantage of reading the reasons of Blue J. For the reasons given by his Honour I would dismiss the appeal.
Key Legal Topics
Areas of Law
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Criminal Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Charge
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Sentencing
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