R v Manche

[2001] QCA 386

[2001] QCA 386

COURT OF APPEAL

McPHERSON JA
CHESTERMAN J
ATKINSON J

CA No 86 of 2001

THE QUEEN

v.

STEPHEN JOHN MANCHE  Appellant

BRISBANE

..DATE 13/09/2001

JUDGMENT

McPHERSON JA:  The appellant was tried in the District Court on two counts of rape, which were counts 1 and 2 in the indictment, and one of indecent treatment, count 3, of a girl aged under 12 years.  The jury acquitted the appellant of the charge of indecent treatment in count 3 but found him guilty of the two counts of rape.  He now appeals on the ground that those verdicts are irreconcilably inconsistent.

The incidents giving rise to these charges took place between about May 1991 and September 1992.  The complainant's parents were at times during that period working long hours at the Exhibition which took them away from the home.  The appellant, who was a friend of the family, was engaged to look after the children at their home during the parents' absence.  The complainant was then about 9 to 10 years old and the applicant, it appears, was a man of some 32 years of age at that time.

Both acts of rape were alleged to have taken place in the bathrooms of the home.  The details are not of particular relevance for present purposes except to say that, although uncertain of dates, the complainant gave what I see as cogent evidence of each incident.  She was better able to fix the date of the third incident - that is, the indecent treatment count - because it coincided with a birthday party for her Uncle Roger.  Others were out of the house at the time and she was seated on a couch in the lounge or family room watching television with a blanket over her because it was July and it was cold.

The appellant came in and sat down next to her and pulled the blanket over him so that it was covering him or part of him as well as her.  He then put his hand under her clothing and started touching her vagina.  At about that time, Roger's girlfriend, Janine, suddenly came into the room.  She said words to the effect, "What the hell are you doing?", at which the appellant got up and rushed out of the room.

Janine gave evidence at the trial.  Her recollection of what she saw when she entered the room was rather different from the account of it given by the complainant.  She said she saw the appellant standing behind and to the side of the complainant with his right hand behind the complainant looking as if it was inside her shorts.  When asked what was happening the appellant said something about there being a tag in the complainant's pants.

The appeal is based on the ground that the guilty verdicts on counts 1 and 2 are inconsistent with the acquittal on count 3.  As to that, the rule laid down in R v. Maddox (CA No 29 of 1998) and derived, of course, from decisions of the High Court, is that it is only where there is no rational or logical basis for distinguishing between opposite verdicts on different counts that convictions will be set aside on the ground that a reasonable jury, properly applying their minds to the facts, could not have arrived at those different verdicts or at that result. 

In my opinion the appellant's appeal does not satisfy that test.  It is plain that the jury accepted the complainant as an honest witness for they convicted on counts 1 and 2.  Their task was made easier by the fact that the complainant's evidence was uncontradicted.  At the trial the appellant did not give evidence denying that any of these incidents had taken place, so that the complainant's evidence, certainly on the first two counts, was unaffected by anything by way of testimony at the trial going against it.

On count 3, however, Janine gave evidence.  While it seems plain that something suspicious had taken place or was taking place, her version differed in its particulars from that of the complainant.  The jury might very well have taken the view that, although the complainant was being truthful or honest, there were differences between her evidence and that of Janine as to what had taken place in the incident constituting count 3, and those differences may have left them with a reasonable doubt as to exactly what in fact had taken place.

There was no problem of that kind in relation to counts 1 and 2 where the evidence was, as I have said more than once, completely uncontradicted.

The jury were entitled, if not bound, to approach the matter in that way.  If they had a reasonable doubt on count 3 because of the differences between the evidence of the complainant and the other witness, they were bound, of course, to acquit. 

I can see no such inconsistency in the three verdicts that were returned in this case as would justify this Court in setting aside those verdicts.  I would therefore dismiss the appeal against conviction.

CHESTERMAN J:  I agree.

ATKINSON J: I agree. The test to be applied in such a case was set out by the Court of Appeal in R v. P [1999] QCA 411; CA No 130 of 1999, 28 September 1999, by Thomas JA and Chesterman J who held that:

"The effect of the authorities on this point was summarised by this Court in R v. Maddox (CA No 299 of 1998, 4 December 1998) by saying that it is only where a reasonable jury, who had applied its mind properly to the facts of the case, could not have arrived at the verdicts, that there will be inconsistency.  This will be so only where if there is no rational basis for distinguishing between verdicts." 

The verdicts by the jury in this case showed that they properly applied their minds to the task of considering each count separately and weighing the strength of the evidence of each before determining whether they were satisfied the appellant was guilty on that count beyond reasonable doubt.  For the reasons given by McPherson JA there was a logical and rational basis for the different verdicts in this case, and for that reason the appeal should be dismissed.

McPHERSON JA:  The order is that the appeal against conviction is dismissed.

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