R v MAR

[2001] VSCA 165

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 187 of 2000

THE QUEEN

v.

M.A.R.

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JUDGES:	WINNEKE, P., ORMISTON and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 September 2001
DATE OF JUDGMENT:	19 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 165

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Criminal Law - Verdicts - Whether inconsistent or unsafe and unsatisfactory - Sexual offences - Verdict of guilty on one count of committing an indecent act with a person aged between 10 and 16 - Verdicts of not guilty on 10 counts, some similar and some alleging penetration - No reasonable explanation for differing verdicts.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D.McArdle, Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J.Croucher	Stary Myall

WINNEKE, P.: 

1. I will invite Ormiston, J.A. to give the first judgment in this application.

ORMISTON, J.A.:

1. The applicant was found guilty on one count of having committed an indecent act with a child under the age of 16, pursuant to s.47(1) of the Crimes Act.  That verdict was given by the jury after considering a presentment which, so far as the complainant was concerned, contained some 14 counts in respect to which the learned judge had already directed the jury to bring in verdicts of not guilty on three of those counts, being counts 4, 7 and 13.  The verdict in respect of count 1 was rendered at the same time as the jury rendered verdicts of not guilty on counts 2, 3, 5, 6, 8, 9, 10, 11, 12 and 14.  The counts in question alleged both indecent acts with a child under the age of 16, as in the first count, and counts of sexual penetration of a child aged between 10 and 16, pursuant to s.46, which was the relevant count in each other case which the jury had to consider.

1. The judge, after the jury brought in their verdicts, expressed, if obliquely, some dissatisfaction with those verdicts, but sentenced the applicant on count 1 to six months' imprisonment, suspending that for a period of 12 months.

1. It is not necessary to examine a great deal of the evidence.  The child who was the complainant was, at the time of the alleged offences, between 11 and 15 years of age, and the offences took place, so it was alleged, between April 1993 and the latter part of 1996.  The applicant, who is now aged 38, was some 29 to 33 years of age at the relevant time.  The complainant alleged that the applicant came to her room and either committed these alleged indecent acts with her or went further and had penetration of her on a number of occasions.  It is unnecessary to say much more of those facts.  The evidence was of a short compass and the cross-examination brief.  There were questions directed to one or two of the counts, including the first count, but in broad terms the cross-examination was directed to show that, despite these

alleged attacks by the applicant, the complainant nevertheless continued to live in the household where he lived with her sister as his de facto, and that she continued to exhibit friendliness, at the least, towards him at various times.  There were other questions put which suggested that she had manufactured the allegations against the applicant.

1. So far as this application is concerned, the grounds relied on by the applicant are that the verdict was perverse, the verdicts (that is, on all counts) were inconsistent and that the conviction was unsafe or unsatisfactory.  Having regard to the observations of the trial judge and to the attitude taken by the prosecutor today, it is unnecessary to examine these grounds in detail.  There is, in my opinion, no technical inconsistency in the verdicts, but as a matter of fact they are hard to justify, and in particular the verdict of guilt on count 1 is hard to justify.  I am loath to reach a conclusion that verdicts of a jury, brought in after they have been, as I would understand the matter, properly directed, are perverse or unsafe or unsatisfactory.  At least there has been no objection made to the directions, which were quite full and detailed in all the circumstances.  So I would be loath to reach the conclusion in ordinary circumstances that the verdicts are perverse or unsafe or unsatisfactory.  However, the only logical explanation in the present case is that the ultimate conviction on count 1 was a compromise verdict, a conclusion which I do not so find difficult to reach because, less than an hour after the last direction was given to them, the jury indicated to the judge that they had reached an impasse.  They were sent home overnight and returned next morning to continue their deliberations, and during the latter part of the day they did bring in their verdicts, as I have said, finding the applicant not guilty on all counts other than count 1.

1. One can briefly state that the unease properly to be felt in this case arises from the fact that, having said at one stage that they could not agree, there seems to have been no reason why the jury should have been persuaded about the allegations in count 1 and not about the other counts.  The only witness was the complainant, and the cross-examination for the most part was general and seemed not to give grounds to justify a view that she should be believed on this count but not to justify the view that the other counts should be treated differently.  The complainant was obviously not believed on the other counts.  It might be said that this first count was a less serious count, as indeed it was.  It alleged in effect that the applicant had come into the room and had touched the complainant with his hands over her body and in particular her vagina, but there was no allegation of penetration.  But count 1 was not the only count on the presentment in which it was alleged that there had been this kind of indecent act with the complainant, and similar allegations were made to support count 6 and also in relation to count 9, although I think it must be said there was some further sexual activity which was alleged in relation to that count.  But on those two counts, and in particular count 6, the jury brought in not guilty verdicts.  I cannot, therefore, find that there is a proper explanation for their finding the applicant guilty on count 1. 

1. In the circumstances, I am of opinion that the verdict was unsafe and unsatisfactory and the conviction on that count should be quashed.

WINNEKE, P.: 

1. I agree.  This is one of those rare cases, I think, where the Court is entitled to feel some unease about the satisfactoriness of the verdict on count 1.  It seems to me that the Crown's concession made to this Court in respect of that matter is well founded.

BUCHANAN, J.A.: 

1. I agree.

WINNEKE, P.: 

1. The formal order of the Court will be as follows:

The application for leave to appeal against the jury's verdict on count 1 of the presentment is allowed.  The appeal itself is allowed.  The jury's verdict in respect of that count is quashed and in lieu thereof we direct that a verdict of acquittal be entered.