R v RD & AD - [2009] SASC 276

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RD & AD
[2009] SASC 276
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
4 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - TEST TO BE APPLIED
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - VERDICT - INCONSISTENT, AMBIGUOUS AND MEANINGLESS VERDICTS
The defendants and appellants appealed against convictions arising from a trial in relation to multiple counts of sexual offending with respect to the one complainant - both defendants convicted of separate counts of unlawful sexual intercourse put as an alternative to charges of rape - both defendants jointly convicted of two counts of rape in relation to another incident - whether the guilty verdicts could be supported having regard to the evidence - whether a miscarriage of justice arose - whether all guilty verdicts were unreasonable or unsafe and unsatisfactory having regard to the evidence and verdicts of not guilty on other counts - whether inconsistency between verdicts of not guilty and verdicts of guilty.
Held: appeals dismissed - verdicts of guilty could be supported having regard to evidence - no miscarriage of justice - upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendants were guilty - no inconsistency between the verdicts of guilty and not guilty.
Police v Dorizzi (2002) 84 SASR 403; M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; R v Stone (unreported, CCA Eng, 13 December 1954); MFA v The Queen (2002) 213 CLR 606, considered.

R v RD & AD
[2009] SASC 276
Court of Criminal Appeal Bleby, Gray and Anderson JJ

BLEBY J. In my opinion both appeals should be dismissed. I agree with the reasons of Gray J.
GRAY J:
The defendants and appellants, RD and AD stood trial on multiple counts of sexual offending with respect to the one complainant.
The defendant RD was charged with the offence of rape alleged to have occurred between 5 February 1993 and 31 July 1993. An alternative count of unlawful sexual intercourse with a person of the age of 14 years was also alleged. The act of sexual intercourse particularised was an act of fellatio. The jury by majority verdict acquitted the defendant RD on the charge of rape and by majority verdict returned a verdict of guilty with respect to the charge of unlawful sexual intercourse. The defendant RD has appealed against this conviction.
The defendant AD was charged with the offences of rape and alternatively unlawful sexual intercourse in respect of the same incident. The act of sexual intercourse particularised was vaginal sexual intercourse. He too was acquitted by majority verdict on the charge of rape and convicted by majority verdict on the count of unlawful sexual intercourse. The defendant AD has appealed against this conviction.
The defendants were jointly charged with 13 further counts of rape and in respect of one count, the alternative charge of unlawful sexual intercourse. Finally, the defendant RD was charged with one further count of rape.
Two of those joint counts were alleged to have occurred between 1 September 1993 and 31 January 1994, one particularising vaginal sexual intercourse and the other, anal sexual intercourse. Unanimous verdicts of not guilty were returned.
Two further joint counts were alleged to have occurred between 1 July 1994 and 31 July 1994; both particularised vaginal sexual intercourse. Majority verdicts of not guilty were returned.
The next three joint counts were alleged to have occurred between 25 May 1995 and 25 June 1995, the first two particularising vaginal sexual intercourse, and the third, an act of fellatio. Unanimous verdicts of not guilty were returned.
The next four joint counts were alleged to have occurred between 1 June 1995 and 31 July 1995. The first particularised vaginal sexual intercourse. The second was an alternative charge to the first, particularising unlawful sexual intercourse with a person of the age of 16 years. The third count in relation to the same incident particularised anal sexual intercourse and the fourth as an alternative to the third count, particularised unlawful sexual intercourse. On the first and third of these counts, the charges of rape, majority verdicts of guilty were returned. Having regard to the verdict of the first and third counts, no verdict was taken on the alternative counts. Both defendants have appealed against the guilty verdicts.
The next four joint counts were alleged to have occurred between 1 June 1995 and 31 July 1995. These counts particularised sexual offending on a different occasion to those referred to in the preceding paragraph. The first two particularised vaginal sexual intercourse. The remaining two particularised, in each case, an act of sexual intercourse by the insertion of an object into the complainant’s vagina. In one case the allegation concerned a saucepan handle and in the other, a baseball bat. Unanimous verdicts of not guilty were returned to each of these counts.
Finally, one further count alleged that the defendant RD raped the complainant between 1 June 2000 and 31 July 2001 by inserting a beer bottle into her vagina. On this count, the jury returned a majority verdict of not guilty.
The Appeal
Both defendants advanced three grounds of appeal. It was said that the trial Judge erred in accepting the tender by the prosecution of video footage burned onto a DVD, depicting what the complainant deposed were the rapes committed in respect of which verdicts of guilty were returned. The footage was said to record the first of the incidents between 1 June 1995 and 31 July 1995.
The second ground of appeal complained that the verdicts of the jury on the count of unlawful sexual intercourse returned against both defendants in respect of the incident between 5 February 1993 and 31 July 1993 could not be supported having regard to the evidence, and that alternatively, a miscarriage of justice had arisen.
Finally, it was complained that the guilty verdicts returned by the jury were unreasonable or unsafe and unsatisfactory having regard to the evidence and verdicts of not guilty on the other counts, and that there was an inconsistency between the verdicts of not guilty and the verdicts of guilty.
The prosecution case rested heavily on the evidence of the complainant. She recounted that as a young teenager, she confronted considerable difficulties with her home life and as a consequence, by the age of 14, had become a street child. In these circumstances, the complainant rented a room from the defendant RD. At the time of renting the room the complainant had a boyfriend but within a short time this relationship broke down. She was then comforted by the defendant RD and within a short time, plied with alcohol and taken advantage of sexually. Within a short time, the defendant RD had introduced his friend, the defendant AD, to the complainant, and together, they took sexual advantage of her. Thereafter followed many years of sexual abuse, during which the defendants, from time to time, filmed the sexual activities taking place. During much of the time, the sexual activity was preceded by the consumption of alcohol. During the course of the relationship, the defendant RD married the complainant and there were children from the relationship. The complainant recounted that when she was in a one on one sexual relationship with the defendant RD, she had no complaints and her conduct was consensual. However, when the defendant RD involved the defendant AD in their sexual relationship, she objected and the sexual intercourse that occurred was over her objection. She was not a consenting party.
The complainant gave evidence that she discovered the video footage that she later burnt onto a DVD. It was her case that she only burnt that part of the footage that depicted the defendants raping her. The balance of the video involved images taken of her that she found both degrading and humiliating.
Significantly, there was support for the complainant’s testimony in respect of those charges on which guilty verdicts were returned. The guilty verdicts with respect to unlawful sexual intercourse related to the first of the incidents alleged, being an incident occurring between 5 February 1993 and 31 July 1993. The complainant’s mother gave evidence of visiting the complainant and it being obvious to her that the complainant and the defendant RD were sharing a double bed. There was unchallenged evidence that at this time the complainant was 14 years of age. There was evidence that the complainant made use of a telephone account in the name of the defendant AD and that he was in contact with both the complainant and the defendant RD at this time.
With respect to the guilty verdicts on the charges of rape occurring between 1 June 1995 and 31 July 1995, the complainant’s evidence received support from the images contained in the video footage. Those images displayed evidence supporting a finding that the actus reus of both charges – that is vaginal intercourse and anal intercourse, had occurred. The images disclosed both defendants engaging in sexual intercourse with the complainant.
During the course of the appeal, both defendants abandoned their complaint about the admission of the video footage into evidence. They were right to do so. The video footage depicted the actus reus of the alleged rapes and was plainly admissible. In Police v Dorizzi, I reviewed the relevant authorities and observed:[1]
[1]    Police v Dorizzi (2000) 84 SASR 403 at [37]-[38].
Photographs, tapes, (audio or visual) or film of a crime being committed are admissible[2]. All must be authenticated. There must be evidence to establish their provenance and integrity. In R v Maqsud Ali[3] the court said:
“For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints are taken from negatives that are untouched. The prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of things seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted, and now there are devices for picking up, transmitting, and recording, conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape recording is admissible in evidence. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.”
Photographs of people, objects or scenes are admissible as evidence of the appearance of the matters recorded including any inferences fairly arising. For example, a photograph may contain an image of the victim of an alleged crime. The appearance of the victim may be relevant to the nature of the injury inflicted or to the angle of a blow[4]. A photograph taken by a security camera may be relevant to the identification of an assailant. [5]
In R v Dodson[6] the court said:
“It is he submitted in the best interests of the administration of justice that photographs taken at the moment of an attempted robbery be admitted to evidence. They are an invaluable aid in many respects to identification. Argument about clothing worn and weapons carried is almost certainly thereby eliminated and more often than not the identify of the offender clearly revealed. He too relies upon the quotation to which we have already referred from the judgment in Reg. v. Maqsud Ali. He contends that that demonstrates beyond a peradventure that photographs of this nature are not only admissible but may be used for the purpose for which they were used in the trial of these two appellants.
We entertain no doubt that photographs taken by the process installed and operated in the branch office of the building society are admissible in evidence. They are relevant to the issues as to (a) whether an offence was committed and (b) who committed it. What is relevant is, subject to any rule of exclusion - we know of none which is applicable to this situation, prima facie admissible. As for the exercise of any discretion which a judge may have to exclude such evidence in the form of photographs, we have no hesitation in stating that we cannot see any reason why he should do so.
Moreover, we reject the attempt here made to persuade this court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs. Photographs of the same man taken at other times we regard as permissible aids in this process, bearing in mind that some offenders after the commission of crime by one device or another change their appearances.”
[2]    R v Tolson (1864) 4 F&F 103 at 104; R v Cook [1987] QB 417 at 424; R v Nikolovski (1996) 141 DLR (4d.) 647; Phipson on Evidence 15th edition, par 14-05 p 311.
[3]    R v Maqsud Ali [1966] 1 QB 688 at 701; see also R v Dodson [1984] 1 WLR 971 at 977.
[4]    The Queen v Harbach [1973] 6 SASR 427 at 435; R v O’Leary [1946] SASR 175 at 185.
[5]    R v Dodson [1984] 1 WLR 971 at 977.
[6]    R v Dodson [1984] 1 WLR 971 at 978.
The circumstances surrounding the burning onto a DVD of the footage, was the subject of a careful direction by the trial Judge. The acts depicted in the images appearing in the video footage and the inferences that the jury might draw from those images were also the subject of a careful direction.
The defendant RD attacked the complainant’s credit. His counsel cross-examined the complainant at length, suggesting that she bore considerable ill will to the defendant RD and that she was motivated to make false allegations of sexual offending out of revenge. This was said to arise out of their strained domestic arrangements including issues relating to their children. Considerable emphasis was placed on the complainant’s conduct in Queensland, leading to her plea of guilty and conviction for the offence of procuring a person to commit a criminal act, namely the murder of the defendant RD. The alleged act related to harm being caused to the defendant RD and another person.
Much was made of the complainant’s conduct from time to time that was said to be consistent with her consenting to all that occurred. In particular, heavy reliance was placed on other video footage depicting the complainant engaging in an act of fellatio on the defendant RD at a party in the presence of other persons. The defendant RD did not give evidence in the trial and did not call any witnesses as part of his case.
The defendant AD denied being involved at all in the alleged act of sexual intercourse that was said to have occurred between 5 February 1993 and 31 July 1993 and on which a verdict of guilty was returned. In respect of the remaining counts, the defendant AD case was that all acts were consensual. He claimed that the complainant was an active and willing participant in all that occurred. He gave sworn evidence in his defence.
Both defendants claimed that the video footage of the incident with respect to which convictions for rape were returned depicted no more than role-play. It was said that the scene depicted a schoolgirl being punished for cigarette smoking. This claim was not clearly put to the complainant in cross-examination, and only developed late in the hearing, apparently following somebody discerning on the soundtrack the word “teach”. The other image said to support this allegation was that the defendant AD was wearing a baseball cap backwards. When this matter was put to the complainant in some generality, she denied the claim. When questioned about what she was wearing, she explained that it was a smock designed to assist breast-feeding. At the time, she had recently given birth to one of her children. This evidence stood in contrast to the allegation of the defendants that she was wearing an outfit said to represent a schoolgirl’s uniform.
On the hearing of the appeal, counsel for both defendants, both in their written outlines and during oral submissions, emphasised the many matters that were said to be destructive of the complainant’s credit. All were matters that had been put with similar emphasis to the jury in the final submissions of trial. The trial Judge had appropriately addressed these matters in his summing up. No complaint was made about the adequacy of the Judge’s directions in the summing up.
Counsel drew attention to what was said to be images on the video footage from which it could be inferred that the complainant was consenting to all that occurred. Again, the Judge had given an appropriate direction in respect of these submissions when advanced at trial.
Finally counsel placed weight on what was said to be inconsistent verdicts. It was claimed that there was no material difference between those counts on which not guilty verdicts were returned and those where guilty verdicts were returned. It was said that there was no evidence that corroborated or supported the complainant’s claimed lack of consent.
The High Court in M[7] has resolved that when deciding whether a verdict is unreasonable and cannot be supported by the evidence, the test to be applied is whether the appellate Court considers that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the defendant was guilty. The Court is required to review the evidence at the trial.
[7] M v The Queen (1994) 181 CLR 487 at 493.
In the present proceedings, the further question before this Court is whether the guilty verdicts to the alternative counts of unlawful sexual intercourse occurring between 5 February 1993 and 31 July 1993 and the guilty verdicts returned with respect to the charge of rape occurring between 1 June 1995 and 31 July 1995, are unreasonable having regard to the evidence and the verdicts of not guilty with respect to all other charges.
In MacKenzie,[8] Gaudron, Gummow and Kirby JJ discussed the role of the appellate court in assessing verdicts said to be inconsistent:[9]
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.
(footnotes omitted)
[8] MacKenzie v The Queen (1996) 190 CLR 348 at 367.
[9] MacKenzie v The Queen (1996) 190 CLR 348 at 367.

Their Honours adopted a test of logic and reasonableness and approved the observations of Devlin J in R v Stone:[10]
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. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.
[10] MacKenzie v The Queen (1996) 190 CLR 348 at 366 citing R v Stone (unreported, CCA Eng, 13 December 1954).
The approach to assessing the reasonableness of the jury’s decision was discussed by the Court in MFA.[11] Gleeson CJ, Hayne and Callinan JJ observed:[12]
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. ... In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
(footnotes omitted)
[11] MFA v The Queen (2002) 213 CLR 606.
[12] MFA v The Queen (2002) 213 CLR 606 at [34].
In my view, the submission that the verdicts of the jury were unreasonable and could not be supported having regard to the evidence or that there was a miscarriage of justice, and the submissions based on inconsistency of verdicts, should be rejected.
The different verdicts related to different incidents at different times. The Judge directed the jury that they should take great care in their consideration of the various counts and warned the jury against entering convictions on the unsupported evidence of the complainant. To my mind it is significant that the convictions were recorded when it was open to the jury to find support for the complainant’s account.
With respect to the verdicts of guilty returned against both defendants for the offence of unlawful sexual intercourse, there was the earlier referred to supporting evidence as to the domestic arrangements between the complainant and the defendant RD, the involvement of the defendant AD with both the defendant RD and the complainant, including the involvement of the defendant AD in relation to the telephone expenses of the complainant. Further there was the unchallenged evidence of the complainant’s age at that time. I consider it was open to the jury on the evidence to return the verdicts of guilty to the alternative counts of unlawful sexual intercourse occurring between 5 February 1993 and 31 July 1993 at Goodwood. It was open to the jury to accept and act on the complainant’s evidence and to find that the defendant RD caused the complainant to perform an act of fellatio upon him while at the same time the defendant AD engaged in vaginal sexual intercourse with her. No basis has been established to undermine these verdicts.
I consider that the images on the video footage provided strong support for the complainant’s account of rape occurring between 1 June 1995 and 31 July 1995. The images confirm the complainant’s evidence as to the actus reus of each count of rape. It was open to the jury to infer from the images that the complainant was not consenting to the sexual acts that were taking place. As the Director pointed out on the appeal, it was open to the jury to infer that on several occasions the complainant could be seen to be shaking her head in apparent objection to what was occurring and it was open to the jury to conclude that the soundtrack included a recording of her objection. Counsel for both defendants suggested that there were actions by the complainant that were said to be consistent with her consent. In particular, reference was made to her placing her right leg in a manner so as to encourage the defendant RD in an act of intercourse. Even if such an inference could be drawn, it was open to the jury to reject the suggestion. For my part, I could not draw any support for the defence case from any of the pictures depicted in the video footage. Again, these were matters that were adequately canvassed in the course of the Judge’s summing up to the jury. In my view, it was open to the jury to find that the complainant’s testimony was materially supported by the footage.
For these reasons, the appeal of both defendants should be dismissed.
ANDERSON J. I also agree that both appeals should be dismissed for the reasons given by Gray J.