R v R, GJ - [2009] SASC 371

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v R, GJ
[2009] SASC 371
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Kourakis)
8 December 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE
CRIMINAL LAW - PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS - OFFENCES AGAINST THE PERSON
Appellant convicted of one count of indecent assault – jury unable to reach verdict on a count of gross indecency – before hearing commenced appellant sought to subpoena documents relating to counselling provided to the complainant by a school counsellor –whether communications were protected communications within s 67D of the Evidence Act 1929 – whether Judge erred in refusing appellant’s counsel leave to inspect the documents – at trial a police officer who had taken the complainant’s statements gave evidence that the complainant had appeared “traumatised” – whether that testimony caused a miscarriage of justice – whether jury’s verdict on first count and failure to reach verdict on second count inconsistent and against the weight of evidence and the verdict unsafe and unreasonable.
Held (by Kourakis J, Duggan and Bleby JJ agreeing): a trial Judge is not empowered to permit inspection of documents containing protected communications returned on a subpoena before or after the commencement of the trial – school counsellor came within the definition of a counsellor or therapist – communications made in a therapeutic context – communications were protected communications – trial Judge did not err in refusing appellant’s counsel leave to inspect the documents – testimony of police officer did not cause a miscarriage of justice because the trial Judge directed the jury to disregard it almost immediately after it was given – certain inconsistencies in the evidence are reasonably capable of explaining the jury’s verdict on the first count and failure to reach a verdict on the second count – nothing illogical or irrational in the verdict of guilty by reason of the failure to reach a verdict on the second count – appeal dismissed.
Evidence Act 1929 Div 9, s 67D, s 67E, s 67F; Psychological Practices Act 1973 s 32, s 33, s 39, referred to.
MacKenzie v The Queen (1996) 190 CLR 348, applied.
Northern Territory of Australia v GPAO (1999) 196 CLR 553; Jones v The Queen (1997) 191 CLR 439; R v Gbojueh (2009) 103 SASR 545, discussed.
R v Basha (1989) 39 A Crim R 337; MFA v The Queen (2002) 213 CLR 606, considered.

R v R, GJ
[2009] SASC 371
Court of Criminal Appeal: Duggan, Bleby and Kourakis JJ

DUGGAN J: I would refuse permission to appeal on grounds 3 and 6 and dismiss the appeal. I agree with the reasons prepared by Kourakis J.
BLEBY J. I agree with the orders proposed by Kourakis J and with his reasons.

KOURAKIS J: The appellant was convicted of the indecent assault of C between 1 January 2004 and 14 May 2006 at Elizabeth. The jury were unable to reach a verdict on a second count charging gross indecency alleged to have been committed between 1 January 2004 and 24 November 2006. C was not yet 14 at the time of both of the alleged offences. C was 16 years of age when she gave evidence.
The Alleged Offending
The appellant was a friend of C’s mother. Until her 14^th birthday, C often stayed at his home. The offences were alleged to have been committed on two of those visits. The conduct which was the subject matter of the first count was alleged to have been the first occasion on which the appellant indecently assaulted C. On that occasion the appellant approached her whilst she was sitting on a couch playing on a Play Station. C testified that the appellant rubbed his hands against her breast and touched her between her legs.
The offence charged in the second account was alleged to have occurred a few months before C’s 14^th birthday and to have been the last sexual offence committed against C by the appellant. C testified that it was committed about two years before the hearing. The appellant on that occasion went into the bathroom where C was showering. C testified that the appellant again indecently assaulted her. She also gave evidence that the appellant was naked at the time and that she saw a silver piercing ring close to the top of the appellant’s penis. The jury were unable to reach a verdict on that count.
C gave evidence of other occasions on which she was assaulted. On one such occasion the appellant gave her a tablet which he claimed was panadol. C testified that after she took the tablet she felt dizzy and was “blacking out”. She remembered the appellant carrying her to bed and testified that when she woke in the morning she was sore “down there”.
C testified that she first made a complaint about the appellant’s conduct to her friend SJ. C claimed that she had made the complaint to SJ shortly after the shower incident. SJ then told C’s parent’s who arranged counselling for C through her school.
The Application for Inspection
Before the hearing commenced the appellant subpoenaed documents relating to the counselling provided to C by a school counsellor employed by the Minister of Education. The application was called on soon after the arraignment of the appellant. The jury were not empanelled until the following day. The subpoena sought what was described as a “social work file”. In answer to the subpoena an envelope marked “counselling records complete and unexpurgated” was produced to the Court by a representative of the Minister.
Counsel for the appellant made an application to inspect the documents. He contended that the communications were not protected by s 67E of the Evidence Act 1929 and in the alternative that leave to inspect the documents should be given pursuant to s 67F(1)(b)(i).
For the purposes of the appellant’s application the Judge was informed that the school counsellor held a Bachelor of Social Work degree and was contractually engaged to work as a school counsellor. The counsellor’s contract and qualifications were tendered. The services that the counsellor was contracted to provide included counselling of students and parents, advocacy for students, mediation, organising education and social programs, case management of individual students and support for other staff members.
The Judge found that the documents contained protected communications. The Judge refused to allow the appellant’s counsel to inspect the documents because he was not satisfied that the protected communications would materially assist the appellant in the presentation or furtherance of his case.
The Trial
In the hearing that followed the empanelling of the jury, the Director called as witnesses C, C’s mother, SJ, a police officer who had taken several statements from C and a doctor and police officer who were involved in photographing the appellant. The appellant did not give evidence.
In the course of the examination of the police officer who had taken C’s statements, she proffered the opinion that C appeared “traumatised” when the first statement was taken. The appellant contends that that testimony caused a miscarriage of justice. It is convenient to set out that evidence before dealing with the appellant’s complaint:
Q.How long prior to that first interview was it that you met her.
A.It was a little bit over a week, I think it was 13 June 2008.
Q.Where did you meet [C].
A.I met her at her home address.
Q.When you met her on 13 June 2008 how long did you spend with her.
A.I spoke with her for about five minutes, it wouldn’t have been much more than that.
Q.What was her demeanour like that first day that you spoke to her.
A.She was – she didn’t speak easily. She appeared to be upset at what she was talking about and not particularly talkative.
Q.How was her demeanour when you interviewed her.
A.Similar. Having difficulty talking about certain things. In my opinion she was-
OBJECTION: MR RICHTER OBJECTS
HIS HONOUR
Q.It depends what you are going to say, I think. What is the topic you were going to tell us about?
A.Of what [C] and I were talking about.
Q.No, you were asked to tell us about her presentation, her mood.
A.Yes.
Q.And her talkativeness and that sort of thing.
A.She appeared traumatised.
OBJECTION: MR RICHTER OBJECTS
MR RICHTER I renew my objection. That is a matter for expert opinion and none is being proffered.
HIS HONOUR: I don’t know. Can you qualify to give an opinion on people who are traumatised, in her work?
XN
Q.For how long had you been working at the Sturt Family Violence Unit when you interviewed C.
A.At that time it would have been approximately seven months.
Q.Where were you before the Sturt Family Violence Unit.
A.Directly prior to I had been at the Major Crime Investigation Branch for three months. Prior to that I had been working within the Criminal Investigation Branch of Sturt Police for approximately three or four years.
Q.Over that time how many interviews would you have conducted with victims of crime.
A.It would be very hard to hazard a guess. It's a role that is consistent with working in the Criminal Investigation Branch that I would have spoken to victims on a regular basis. I would find it difficult to estimate because of how many I would have spoken to.
HIS HONOUR
Q.Can you tell us what observations you made of her that led you to that opinion, that might be the best way of doing it.
A.While I spoke to her, she would appear to be close to crying. Her eyes would well up. Her face would flush. She would have difficulty describing certain things. Appeared to have difficulty talking about the subject in general. Just her body language looked - made her look uncomfortable to be speaking about that topic.
Q.I might ask the jury to disregard the 'traumatised'. That is perhaps a judgment they can make on the basis of what evidence you just gave.
A.Yes.
The Appeal Grounds
At the hearing of the appeal the appellant maintained only the following grounds of appeal:
Ground 1
That the Learned Trial Judge was wrong at law in characterising communications as between the prosecutrix and a Social Worker as protected communications within Section 67D of the Evidence Act (SA).
Ground 2
The Learned Trial Judge erred in not giving leave to inspect the communications, as between the prosecutrix and the social worker and in the alternative, leave was withheld to inspect for the restricted use of the protected communications and was an error at law.
Ground 3
That the Learned Trial Judge erred in not discharging the jury and declaring a mistrial subsequent to the opinion evidence given by Senior Constable Hockey.
Ground 6
That the findings of the jury were inconsistent, against the weight of evidence and their verdict was unsafe and unsatisfactory.
Permission to appeal had been granted on grounds 1 and 2 and refused on grounds 3 and 6. In this Court, the appellant renewed his application for permission on grounds 3 and 6.
Protected Communications (Grounds 1 and 2)
Division 9 of the Evidence Act 1929 establishes a scheme for the protection of the confidentiality of communications made for the purpose of counselling, and otherwise providing therapeutic support to victims of trauma in the following way:
Division 9—Protected communications
67D—Interpretation
In this Division—
committal proceedings means proceedings for the preliminary examination of a charge of an indictable offence;
counsellor or therapist means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field);
protected communication means a communication that is protected by public interest immunity under section 67E;
psychiatric or psychological therapy includes counselling;
therapeutic context—a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if—
(a)     the communication is made—
(i)    to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)     for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
67E—Certain communications to be protected by public interest immunity
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)However, the following communications are not subject to public interest immunity:
(a)     a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)     a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)     a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3)     A public interest immunity arising under this section cannot be waived by—
(a)     the counsellor or therapist; or
(b)     a party to the protected communication; or
(c)     the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
67F—Evidence of protected communications
(1)     Evidence of a protected communication—
(a)     is entirely inadmissible in committal proceedings; and
(b)     cannot be admitted in other legal proceedings unless—
(i)the court gives permission to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c)     is not liable to discovery or any other form of pre-trial disclosure.
(2)On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that—
(a)     the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and
(b)     there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3)For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a)     to provide written answers to questions;
(b)     to produce written materials relating to the relevant protected communications;
(c)     to appear for oral examination.
Exceptions—
1     If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2     An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4)     The following provisions govern the conduct of a preliminary examination:
(a)     the preliminary examination is to be conducted—
(i)    in the absence of the jury (if any); and
(ii)     in a room closed to the public; and
(b)     the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c)     no record of the preliminary examination is to be available for public access.
Section 67F(1)(c), which exempts protected communications from discovery or any other form of pre-trial disclosure, is the cornerstone of Div 9. The terms “discovery” and “pre-trial disclosure” are not defined. In the ordinary course, discovery refers to a pre-trial procedure where one party to proceedings makes available for inspection all relevant documents to the other parties. However, having regard to the statutory purpose of Div 9 of the Evidence Act 1929, there is no sensible reason why the prohibition against disclosure should operate differently depending on whether a subpoena is made returnable on a day before the trial commences or on a day during the course of the trial. I would construe the phrase “discovery or other pre-trial disclosure” in s 67F to mean any disclosure, other than by way of the examination or cross-examination of witnesses, or the tender of some other evidence, in the trial. That construction allows the provisions of the Division to operate coherently; protected communications are not discoverable other than to the extent that their contents are disclosed through evidence that is adduced with the permission of the trial Judge. Were it otherwise, protected communications could be sought without any limitation, other than the common law discretions, by way of subpoena or Basha enquiry[1] after the trial had commenced.
[1] R v Basha (1989) 39 A Crim R 337.
The power of a trial Judge is limited by s 67F to granting permission to adduce evidence and, for the purpose of exercising that discretion, undertaking a preliminary examination of the relevant evidence. The power of the Judge to undertake a preliminary examination of the relevant evidence is conditioned by s 67F(2) on the satisfaction of the Judge that the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence and that there is an arguable case that the evidence would materially assist the applicant. The term “adduce” in the context of curial proceedings refers to the leading of evidence and not to the processes of discovery. The High Court held in Northern Territory of Australia v GPAO[2] that the provisions of the Evidence Act 1995 (Cth) which regulated the adducing of evidence did not affect the right or obligations of persons arising out of the issue and service of a subpoena.[3] Section 67F(2) does not provide for a preliminary examination of evidential material for the purpose of deciding whether to give an applicant permission to inspect or see that material so that the applicant may then consider whether to adduce it or not. Similarly, all of the powers given by s 67F(3) are calculated to allow the Court to ascertain, with some certainty, the nature and scope of the evidence that would be adduced in the trial if permission were given.
[2] (1999) 196 CLR 553.
[3] Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 571, [16] per Gleeson CJ and Gummow J; at 606, [135] per Gaudron J; at 629, [199] per McHugh and Callinan JJ.
For the above reasons, I would hold that a trial Judge is not empowered to permit inspection of documents containing protected communications returned on a subpoena before or after the commencement of the trial. The power is limited to permitting evidence of those communications to be received by asking a witness in the trial to describe them or by the admission of a written record of the communications already in the possession of a party to the proceedings. It follows that if the documents recorded protected communications, the Court simply had no power to grant permission to inspect them. It is to that issue to which I now turn.
Documents Recorded Protected Communications – Ground 1

A communication is protected if it is made in a therapeutic context. A therapeutic context is defined by s 67D to mean a communication made to enable a counsellor or therapist to assess the nature of the trauma suffered by a victim, or for the purposes of providing psychiatric or psychological therapy to a victim. The definition of “psychiatric or psychological therapy” given in s 67D does not limit the ordinary meaning of those words. To the contrary, it expressly expands them to include “counselling” which, in turn, is not defined in any limited way. It may be accepted that “psychiatric therapy” refers to treatment administered by someone who is skilled in treating mental illness. It may also be accepted that a Bachelor of Social Work does not establish possession of that skill. On the other hand, the term “psychological therapy” is wider. It includes the therapeutic management of states of mind and behaviours which are not illnesses. It is commonly accepted that trained professionals other than psychologists can manage such conditions. Social workers and other counsellors provide therapy for a wide range of mental states and behavioural dysfunctions including alcohol and drug abuse, anxiety, depression and relationship difficulties to name but a few.
There is no reason to limit the term psychological therapy in s 67D of the Evidence Act 1929 to therapy provided by a person who is registered under the Psychological Practices Act 1973. Indeed, that Act does not prohibit the provision of psychological therapies in general by persons who are not registered. Section 32 of the Psychological Practices Act 1973 prohibits any person, other than a registered psychologist, from holding himself out as competent to undertake or carryout prescribed psychological practices and from using or having in his or her possession any prescribed instrument or device. Section 33 of the Psychological Practices Act 1973 prohibits a person, other than a registered psychologist, from advertising or holding himself or herself out to be skilled in the practice of psychology. Section 39 of the Psychological Practices Act 1973 also prohibits the practice of hypnosis other than by registered psychologists, legally qualified medical practitioners, dentists or prescribed persons approved by the Psychological Board. Those limited prohibitions on the activities of non-registered persons reflects the community’s acceptance of the provision of treatment, of a psychological nature, by a range of persons, who have specialist training, but who are not registered psychologists.
The restriction found in the definition of “counsellor or therapist”, which limits those terms to persons “whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma”, provides an important limitation on the scope of the term “therapeutic context”. It would not, for example, include communications made to a relative or friend, unless that friend or relative also happened to engage in work which included the provision of therapy to victims of trauma. Even though element (ii) of the definition of “therapeutic context” does not expressly limit psychiatric or psychological therapy to therapy provided by a counsellor or therapist as defined, that limitation should, in my view, be implied. It would be anomalous if the range of persons to whom protected communications could be made was greater with respect to the provision of treatment than the range of persons who could make protected enquiries to ascertain the nature and severity of a victim’s trauma for the purpose of determining whether or not treatment was appropriate.
Accordingly, I would confirm the findings of the Trial Judge that the school counsellor came within the definition of counsellor or therapist and that the communications were made in a therapeutic context. The communications were therefore protected communications within the meaning of that term in Div 9 of the Evidence Act 1929.
Exercise of Discretion – Ground 2
It follows from my construction of Div 9 of the Evidence Act 1929 that the Judge simply did not have power to give leave to the appellant’s counsel to inspect the documents which contained protected communications; therefore there was no discretion to exercise. It is nonetheless appropriate to record my view, that, on what I have held to be the mistaken assumption made below that the Judge had power to permit inspection, the discretion was properly exercised in this case. I am prepared to accept that there was a legitimate forensic purpose for the inspection of the documents. However, it is not arguable that the inspection would have materially assisted the appellant in the presentation or furtherance of his case. The only forensic purpose identified by the appellant was that C mentioned the tablet incident when she made a complaint to SJ but did not refer to that incident in several subsequent statements made to police in 2008 and on 22 May 2009.
The appellant contended that the counselling notes might record the allegations made by C against the appellant. I am prepared to accept that there was an arguable case that that was so. However, the appellant’s further contention that an inconsistent account might have been given in those notes is no more than speculation. C mentioned the tablet incident in a statement she gave to police on 29 May 2009. The appellant’s contention that access to the notes would have assisted him to exploit the late report of the tablet incident to the police is completely answered by the following written submission of the Deputy Director of Public Prosecutions:
25.On the issue put forward as the foundation of the application (what had been said about being given a tablet) – two results were possible as a consequence of the notes being made available. Those results were:
25.1 That the tablet was mentioned by the complainant. This information would not have materially assisted the appellant. To the contrary, it would have undermined the significance of the subsequent prior inconsistent statements made to police and would have allowed the significance of those inconsistent statements to be defeated by a second prior consistent statement.
25.2 The tablet was not mentioned by the complainant. This would not have materially assisted the appellant. There were already three occasions upon which the complainant had failed to tell the police this detail. The point sought to be pressed by the appellant was not going to be made stronger. Further, the significance of this inconsistency can be overstated. This was not a case where the relevant incident had been mentioned for the first time in evidence or shortly before trial. In assessing the weight that might have been attached to the fact that the complainant had not told the police about the tablet on three occasions, it must to [sic] be remembered that she had mentioned it in her first complaint about two years before speaking to the police and had told the police about it before giving evidence. Had the complainant not told the counsellor about the tablet and been cross-examined about that omission – the complainant’s credit could have been restored by reference to the fact that she had told [SJ] of this allegation when she first spoke of being abused and before going to the counsellor or to the police. (footnote omitted)
Failure to Discharge the Jury – Ground 3
I have set out that part of the evidence in which the police officer testified that C appeared traumatised on the occasion of her first interview in [13] above.
By ground 3 the appellant complains that there has been a miscarriage of justice because the jury was not discharged after hearing the inadmissible opinion evidence of the police officer to the effect that C appeared traumatised. The short answer to the appellant’s complaint, so framed, is that there is no reasonable possibility that the jury were influenced by that evidence because the Judge directed them to disregard it almost immediately after it was given.
The jury should be taken to have understood and followed that direction having regard to the nature of the testimony and the context in which it was given. The context to which I refer is the earlier cross-examination of C about alleged inconsistencies appearing in her statement. That challenge to C’s credit made her state of mind during her first interview relevant so that the weight to be given to any inconsistency could properly be assessed. I have no doubt that the jury would have considered that issue only on the basis of the police officer’s description of what she saw and heard. It is not arguable that there has been a miscarriage of justice. I would refuse permission to appeal on this ground.
Inconsistent verdicts – Ground 6
An appeal on the ground that the appellant’s conviction on one count is inconsistent with a verdict of not guilty given on another count is, in effect, a complaint that the guilty verdict is unreasonable.
The unreasonable verdict ground represents the most intrusive ground on which a jury’s verdict is reviewed. It is the ground that most obviously is designed to “afford a mechanism against [the] prospect that … an innocent person has been wrongly convicted”.[4] However, it is one thing to set aside a jury verdict where the Court of Criminal Appeal’s own appraisal of the evidence leaves it with a doubt that cannot be explained by the jury’s advantage in hearing and seeing the witnesses. It is quite another thing to set aside a verdict where, as in this case, the evidence itself does not suffer from any discrepancy or is not, for any other reason, weak, inadequate or inherently improbable. The determination of guilt or innocence in a case like the one presently before the Court rests entirely on whether the “constitutional tribunal of fact” is prepared to accept that the testimony of the complainant proves the offence beyond reasonable doubt. In such a case it is a serious step and a huge leap to say that the jury’s very assessment of the evidence that leaves it in no doubt with respect to one count, but with some doubt in another, is reason enough to set aside the verdict of guilty on the former count.
[4] MFA v The Queen (2002) 213 CLR 606 at 624, [59] per McHugh, Gummow and Kirby JJ.
It is not surprising, therefore, that the burden carried by a convicted person who appeals on the ground of inconsistency alone is a heavy one. A verdict of guilty will only be unreasonable if it is illogical having regard to a verdict of not guilty returned in the same trial. In MacKenzie v The Queen,[5] the test was described in these terms by Gaudron, Gummow and Kirby JJ:
3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. …
4.Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, 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. If there is some evidence to support the verdict 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. In a criminal appeal, 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 of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries. …
5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. … It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case’.[6] (emphasis added, footnotes omitted)
[5] (1996) 190 CLR 348.
[6] MacKenzie v The Queen (1996) 190 CLR 348 at 366-8.
In this case the jury did not return a verdict of not guilty on the second count; the jury was discharged without reaching a verdict. The passage cited immediately above from MacKenzie suggests that a mere failure to reach a verdict should not be treated in the same way as a verdict of not guilty. Where a jury has failed to reach a verdict there is not, “on the public record”, an inconsistent verdict which is “an affront to logic and commonsense”. The very fact that the jury has been discharged before and without reaching a verdict means that all that can be said is that no verdict was reached. There is very little if any force in the proposition that a verdict of guilty is rendered illogical by the failure of a jury to reach a guilty verdict on another count within the same period of time. I am, however, prepared to deal with the appellant’s appeal as if the jury had returned a verdict of not guilty on the second count.
Courts of Criminal Appeal faced with the problem of apparently inconsistent verdicts have often attempted to reconcile the verdicts by reference to distinguishing objective circumstances. Plainly, if a difference of that nature can be identified, the apparent inconsistency can be explained and there is no irrationality. However, it is fallacious to reason that because the existence of some objective difference in the evidence offered in support of each count can justify different verdicts, its absence means that the verdicts must be illogical. It must not be forgotten that verdicts will often be reached simply on the basis of the jury’s view of the inherent probabilities or improbabilities of the events that are in dispute. The degree of confidence that a jury will have in a witness’s testimony on a particular matter may be critically affected by the extent to which that witness’s account conforms with the life experiences of the jury, even in the absence of any directly inconsistent evidence. In addition, even though it is generally accepted that care must be taken not to place undue weight on a witness’s demeanour, a jury is still entitled to give effect to a doubt that is engendered by a subtle change in demeanour when a witness testifies about different incidents. It should also be remembered that a jury might not be satisfied that all innocent possibilities have been disproved beyond reasonable doubt, even if there is no evidence from which an inference consistent with innocence can be drawn. Proof beyond reasonable doubt is a heavy burden. A doubt need not be based on any factual finding or even on an item of evidence. On the contrary, it is simply a failure to be satisfied to the requisite degree.
In Jones v The Queen,[7] Kirby J explained the difficulty in finding that different verdicts in the same trial are necessarily illogical in this way:
Either on the basis of the uncertainty and confusion about when this incident occurred or, more likely, on the footing that it had not been proved to the requisite standard, the jury, conforming to their duty, could have rejected that count without necessarily rejecting the complainant's testimony as a whole. For example, they might have considered that the incident probably did occur but, in conformity with the instruction about the standard and burden of proof, they could properly conclude that they should acquit on that count.
Any other hypothesis would require a conclusion that, in all cases of this kind, complainants must be wholly believed or wholly disbelieved. That would put at naught the need for separate verdicts on the separate counts of the indictment and the principle of particularity and the proof of separate offences charged upon such separate counts. That principle necessarily posits the possibility (at least in the way this trial was conducted) that different verdicts may be returned on different counts, as occurred here. It would also overlook the practical way in which juries often approach different charges expressed in different counts of an indictment.[8]
[7] (1997) 191 CLR 439.
[8] Jones v The Queen (1997) 191 CLR 439 at 469-70.
In R v Gbojueh,[9] I drew attention to the difficulty in finding illogicality in different verdicts returned with respect to different incidents and occasions in these terms:
It is a necessary consequence of the important function a jury performs in a common law criminal trial and the criminal onus of proof that a verdict of guilty returned by it will rarely be set aside on the ground of inconsistency alone where the evidence in support of the different counts is substantially different. I drew attention to the difficulty in concluding that verdicts returned on charges relating to different occasions were factually inconsistent in R v H, GJ, a judgment with which Doyle CJ and White J concurred. It is not surprising that true factual inconsistency has been more commonly found where there are different verdicts on counts relating to a single incident.[10] (footnotes omitted)
[9] (2009) 103 SASR 545.
[10] R v Gbojueh (2009) 103 SASR 545 at 563, [56].
The two counts charged in this case concerned very different occasions. The conduct alleged in count 2 occurred more than a year after the conduct alleged in count 1. It was an incident of a very different nature. C’s evidence about the conduct and what she saw of the appellant’s penis was challenged in these respects by reference to her earlier statements about the incident which were arguably inconsistent with her testimony. First, the bathroom incident was not mentioned to SJ when C first complained to her even though on C’s evidence it had taken place shortly before the complaint was made. Secondly, in her first interview with the police, C was asked whether she had seen the appellant’s penis but gave a non-verbal response suggesting that she had not. Thirdly, C gave differing accounts about precisely where the piercing on the appellant’s penis was. Those inconsistencies were emphasised in the closing address of the appellant’s counsel.
The inconsistencies to which I have referred are reasonably capable of explaining the jury’s failure to reach a verdict on the second count even though they had accepted her as a witness of truth; for that reason there is nothing illogical or irrational in the verdict of guilty by reason of the failure to reach a verdict on the second count. I would refuse permission to appeal on this ground.
Conclusion
I would refuse permission to appeal on grounds 3 and 6 and dismiss the appeal.