R v M, JW - [2009] SASC 374

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v M, JW
[2009] SASC 374
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Layton and The Honourable Justice Kourakis)
4 December 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appellant tried before a jury on charges of indecent assault and unlawful sexual intercourse, six in number - appellant convicted for three offences and acquitted of balance - argues that one of the acquittals is factually inconsistent with guilty verdicts and for that reason the verdicts are inconsistent and hence unreasonable.
Held: verdicts not inconsistent - each charge alleged to have occurred at different time and place - jury directed to consider each charge separately - impugned acquittal verdict explicable by the evidence relevant to the charge - no implication from acquittal verdict that jury should have entertained a reasonable doubt on charges found proven - appeal dismissed.

CRIMINAL LAW - EVIDENCE - COMPLAINTS - GENERALLY
Appellant seeks permission to challenge directions of trial judge regarding evidence of complaint - whether trial judge should have directed jury to ignore aunt's evidence referring to a complaint - whether trial judge should have directed jury that evidence of complaint could not prove the truth of what was asserted.
Held: evidence referring to complaint not objected to and not of significance - nothing said on topic of complaint by counsel in closing addresses nor by trial judge in summing up - wisest course was for counsel and trial judge to ignore evidence of aunt - no evidence before jury upon which a direction concerning use of complaint could be based - no error shown - application for permission to appeal refused.
Mackenzie v The Queen (1996) 190 CLR 348, applied.

R v M, JW
[2009] SASC 374
Court of Criminal Appeal: Vanstone, Layton and Kourakis JJ

VANSTONE J. The appellant was tried before a jury in the District Court upon an information charging him with four counts of indecent assault and two counts of unlawful sexual intercourse. He was convicted for two counts of indecent assault and one of unlawful sexual intercourse, but acquitted on the balance of the charges.
A judge of this court granted permission to argue that the guilty verdicts could not be reconciled with the acquittals. At the same time, permission was refused upon a ground that the judge erred in failing to provide directions to the jury going to the evidence of recent complaint. The appellant now renews that application for permission, as well as seeking permission on a third, related, ground, namely that the trial judge erred in failing to warn the jury to disregard evidence of the complainant’s aunt, who spoke of the complaint.
Consistency of verdicts
In Mackenzie v The Queen (1996) 190 CLR 348 at 366-367 Gaudron, Gummow and Kirby JJ held that where an appellant alleges factual inconsistency as between verdicts of a jury, the test to be applied is one of “logic and reasonableness”. It was said that “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”. Their Honours noted “the respect for the function which the law assigned to juries”.
Before this Court the appellant’s counsel confined his argument on the first ground to inconsistency as between the acquittal on ground 4, and the guilty verdicts.
It is to be noted that each offence charged on the information was said to have taken place on a different occasion. The offences were alleged to span the period January 1996 to January 2006. The complainant was 20 years of age at the time she gave her evidence in June 2009. Consequently, a period of more than 3 years had elapsed since the last charged conduct. Also of importance is the fact that at two points the judge directed the jury to give separate consideration to each of the charges before them. No complaint is made of those directions.
I consider that the acquittal on count 4 is readily explicable by reference to the particular circumstances of the allegations and is not such as to give rise to any inconsistency. The complainant’s evidence as to count 4 was that it occurred at her home at Belvedere. She said the appellant had arrived at the house with her two brothers, who had been holidaying elsewhere with him. She said that he stayed for about two days. He slept in her bedroom and in her double bed with her. She said that during this visit, both her mother and stepfather were present. While it might be thought to be unlikely that the complainant’s mother would allow the appellant to sleep in her daughter’s bed, the complainant said in evidence that this occurred with her mother’s concurrence. Although the mother and stepfather were apparently present during the trial, neither gave evidence.
She gave evidence that, during one of those nights, she awakened to find the appellant putting the “end of his penis in [her] vagina” and then putting his finger into her vagina. The particulars of the charge alleged penetration by the appellant’s finger, rather than his penis. That was consistent with her police statement. No mention of penetration by the appellant’s penis was made in the prosecutor’s opening. It emerged in cross-examination that, when being spoken to by a solicitor of the Office of the Director of Public Prosecutions in the lead up to trial, the complainant alleged penetration by the appellant’s penis. There was close cross-examination as to why she had not mentioned penile penetration to the police.
In my view, either the unconfirmed claim of the mother’s concurrence, or the prior inconsistent statement, could well have given rise to a doubt as to the reliability of the complainant’s recollection as to this occasion. Bearing in mind that the jury was instructed to scrutinise the evidence of the complainant with great care and to only act upon it if satisfied of its accuracy and reliability, the acquittal on count 4 does not imply that the jury must necessarily have had a doubt about any other count.
Evidence of complaint
I turn to the two grounds upon which permission to appeal is sought.
During the evidence of the complainant, prosecuting counsel elicited that, at some stage, the complainant had told her grandmother, the appellant’s wife, that the appellant had “touched [her] vagina”. She was then asked whether she had informed anyone else and she replied that when she was aged eight or nine years she had told her mother and that she had later told her aunt. There was no objection to any of these questions and answers.
Later in the trial the complainant’s aunt was called to give evidence. Prosecuting counsel led from her that on an occasion in about March 1999 (when the complainant would have been 10 years of age) the complainant visited her at her home and spoke to her in relation to the accused. She said that at this time her husband was also present. The witness said that the complainant “divulged her information to my husband and myself”. Counsel then asked the witness what had been said. At this point the trial judge intervened and the jury was asked to leave the courtroom. There was discussion about whether the evidence that might be elicited would amount to evidence of recent complaint. Then defence counsel advised that he objected to the evidence and the objection was upheld. When the jury re-entered the courtroom, prosecuting counsel indicated that he had no further questions. Consequently, the jury was left with the complainant’s assertions about having told several family members about the touching of her vagina and the bare statement by the aunt that the complainant had “divulged her information” to herself and her husband. As mentioned, the time when these complaints were said to have been made was vague. The jury were also aware, by means of an agreed fact, that the appellant was not arrested and charged with respect to the matter until 21 November 2007.
In this context counsel, now appearing, complains, first, that the judge should have warned the jury to disregard the evidence of the aunt and, second, that the jury should have been directed that evidence of complaint did not amount to evidence of the truth of what was asserted and was only evidence potentially going to consistency.
It is important to note that, in their addresses to the jury, neither counsel sought to make anything of the little that had been said on this topic. The judge did not direct on the issue at all. At the end of his summing up, no complaint was made by either counsel as to any error or deficiency.
I consider that, left in the way the evidence was, the jury would not have been able to make any use of it at all. The complainant gave no detail beyond saying that she had complained of the appellant touching her vagina. The aunt gave no detail at all. Inasmuch as the whole point of complaint evidence is that it comes from an independent witness and confirms that the complainant has made a similar allegation at a time proximate to the event, this evidence was of no value at all. I disagree with the submission put by counsel for the appellant to the effect that the jury should have been directed that the evidence was only capable of showing consistency. On the contrary, there was no evidence before the jury upon which such a direction could have been based. This ground is without merit.
Furthermore, in my opinion, the evidence having come out in the limited way it did, without any objection from defence counsel, the wisest course on the part of both counsel and the judge was to ignore the evidence. That is precisely what was done. There was no need for a direction to ignore the aunt’s evidence. It added next to nothing to the issues. Defence counsel’s decision not to cross-examine or address on the evidence, and to not to seek any particular direction on it, was well open to him. No complaint can be properly made now about the course taken. This proposed ground is also not reasonably arguable.
Conclusion
I would dismiss the appeal insofar as it is based on the ground raising inconsistency of verdicts and I would refuse permission to appeal on the further two grounds.
LAYTON J: For the reasons given by Vanstone J, I agree that the appeal should be dismissed and that permission to appeal should be refused on the additional grounds of appeal.
KOURAKIS J: I agree that the appeal and the application for permission should be dismissed for the reasons given by Vanstone J.