R v Robertson

[2016] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROBERTSON

[2016] SASCFC 133

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)

8 December 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS

Appellant convicted of one count of rape (fellatio) and acquitted of one count of rape (penile-vaginal intercourse) after trial by jury.

Whether verdict of guilty was inconsistent with acquittal - whether guilty verdict was unreasonable.

Held per Lovell J (Kelly and Peek JJ agreeing) (allowing the appeal):

1. The verdict of guilty in respect of the first count is unreasonable as it is inconsistent with the acquittal on the second count.

2. Conviction quashed. Verdict of acquittal entered on first count. 

Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(ii), s 48(1), referred to.
R v Jones (1997) 191 CLR 439; The Queen v Kelly (1985) 38 SASR 561, discussed.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Gbojueh (2009) 103 SASR 545; R v Kirkman (1987) 44 SASR 591; R v S, DD (2010) 109 SASR 46, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"inconsistent verdicts", "irreconcilable", "unreasonable"

R v ROBERTSON
[2016] SASCFC 133

Court of Criminal Appeal:       Kelly, Peek and Lovell JJ

1. KELLY J:             I agree. 

2. PEEK J:                I would allow the appeal, set aside the guilty verdict and direct a judgment and verdict of acquittal to be entered.

3. I generally agree with the reasons of Lovell J.  However, I do not consider that a consideration of aspects of the judgments in R v Gbojueh[1] necessarily arises in the present case and I abstain from any comment in that regard.

   [1] (2009) 103 SASR 545.

   LOVELL J:

   Overview

4. The appellant, Mr Robertson, was charged with two counts of rape.[2] The first count alleged an act of fellatio and the second count was an act of penile-vaginal intercourse, this occurring very shortly after the act of fellatio. At trial the appellant elected not to give evidence. The appellant’s case, at trial, was that all sexual activity with the complainant was consensual; the respondent’s case was that none of the sexual activity was consensual.

   [2] Contrary to Section 48(1) of the Criminal Law Consolidation Act 1935 (SA).

5. On 11 June 2015 the jury returned verdicts of guilty of count one and not guilty of count two. The appellant appeals his conviction on the basis that the verdicts are inconsistent and therefore that the verdict on count one is unsafe and unsatisfactory. The trial Judge certified the matter as fit for appeal, pursuant to section 352(1)(a)(ii) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). The certified ground of appeal is that in the context of the Crown case the verdict was perverse.[3] It is likely that the trial Judge meant that the verdicts were inconsistent and therefore the conviction on count one was unreasonable. The appeal was conducted on that basis.

   [3]    Appeal Book p 7.

   Relationship background

6. The appellant knew the complainant, Ms Laver, as he worked at the Westland Hotel in Whyalla with her brother. The complainant was interested in a relationship with Matthew Bastian who also worked at the hotel. Matthew was close friends with the appellant. In the days leading up to the incident the complainant was exchanging text messages with Matthew, which later became “sexting”. As discussed it was her hope to start a relationship with him. However he later “stood up” the complainant by failing to turn up to an arranged meeting. Matthew then did not answer her calls and voice messages. It later became known to the complainant that Matthew was just “leading” her on and sending her text messages to make his ex-girlfriend Jackie Skipworth jealous. Ms Skipworth had previously been in a relationship with Matthew and later the appellant.

   Background to offending

7. Several hours before the incident occurred, the complainant had been out socialising with Ms Skipworth. They were with Ms Skipworth’s “boyfriend Lockie” when the appellant began sending messages to her and Ms Skipworth inviting them to his house for drinks. The appellant was infatuated with Ms Skipworth and had tried a number of times to resume their relationship; she had refused.[4] The appellant told the complainant that Matthew would be at his house; he wanted both she and Ms Skipworth to go to his place so he could talk to Ms Skipworth. Ms Skipworth did not want to go to the appellant’s house but the complainant wanted to see Matthew because she wanted to confront him about his behaviour towards her.

   [4]    T105.

8. The prosecutor led evidence from the complainant and Matthew Bastian, although the prosecution case was largely reliant upon the evidence of the complainant. There was also evidence tendered during the course of the prosecution case, which included agreed facts, photographs of the appellant’s residence and text and Facebook messages. The appellant did not give evidence, although he called evidence from his former girlfriend, Jackie Skipworth.

   Complainant evidence

   The choking incident

9. At about 1:00am on 16 May 2014 the complainant went to the appellant’s house. She arrived alone by taxi and was shown into the house by the appellant. He gave her a can of Woodstock beer and they sat down in the lounge room to talk. The appellant only talked about Jackie. He wanted to know why she had not come with the complainant and whether she was coming over later. He asked the complainant if she could take him to Jackie’s house. The complainant told him that Jackie did not want to see him. She asked where Matthew was and whether he was coming home. The appellant said that Matthew would be home “after work”[5] and continued to ask about Jackie. The complainant told him that Jackie was not coming over. The appellant then walked up to the complainant and started to choke her[6] because he did not like the answer.[7] The appellant did this for about a minute and his hold was sufficiently tight for the complainant to start coughing. The complainant told him to let go and he did; he also said “I’m sorry” and “it won’t happen again”.[8] The appellant had spilt his beer so he left the room to get something to clean up the spill and the complainant sent a Facebook message to Jackie and two of her roommates saying “help”. She said that “help” was the code word her and Jackie used when each other was in trouble. She used the code word because she wanted Jackie to come to the house.

   Count one: the act of fellatio

   [5]    T30.

   [6]    T30.

   [7]    T31.

   [8]    T34.

10. The appellant then returned to the lounge room and grabbed hold of the complainant’s hair and started to pull on it. He dragged her down onto her knees[9] by her hair to his waistline and asked her to look down (indicating his genital area) and she said “no”. The appellant had exposed his penis. The appellant then gripped her hair tight. The complainant said that she had “no choice” but to put her mouth around his penis and “he wouldn’t let go until he was fully erect”.[10]

    Count two: the act of penile-vaginal intercourse

    [9]    T35.

    [10]   T35 lines 31- 32.

11. After the first act the complainant got up and was pushed to the couch by the appellant. He started taking off her ugg boots and pants. The complainant said “no” several times and tried to kick and push him away whilst saying “no” but he was too strong. The appellant ended up on top of her and put his penis into her vagina even though she said “no”. He had sexual intercourse with her for a couple of minutes.[11] The appellant then got off and asked where her clothes were; he asked if she wanted help. It can be seen that the acts of sexual intercourse were very closely connected in time. The complainant and the appellant talked briefly about Matthew. The appellant asked whether she still wanted to sleep with Matthew and she said “no”, she said that she liked Matthew, he then turned on the heater and “crashed” on the floor in front of the couch. The complainant left the house.

    [11]   T37.

12. During cross-examination the complainant strenuously denied having consensual sexual intercourse with the appellant that night.

    Initial complaint: count two

13. After the complainant left the appellant’s house she went to Jackie’s house which was about a two minute walk from the appellant’s house. She knocked on the windows and front door but there was no answer. She went home to contact Jackie by telephone (which she said needed recharging). She contacted Jackie and told her that the appellant “choked” her and “forced himself on top of [her]”.[12] The complainant’s brother Hayden was outside her bedroom window and heard what she was saying to Jackie. She also told her mother that “Jamie hurt [her], forced himself on top of [her]”.[13] On 23 July 2014 the complainant’s mother gave a statement to the police which formed part of the agreed facts of the case.[14] Her mother told police the following:

    Sometime around 6.00 am to 7.00 am on Friday 16 May 2014, I received a phone call from Vera. I could tell Vera was fighting back tears as she tried to speak. Vera told me she’d been sexually assaulted by Jamie. She said he’d grabbed her and got rough with her. Vera told me she and her friend Jackie had been invited to Jamie’s house but Jackie didn’t end up going. Vera wanted to go because there was supposed to be a guy going who she was interested in. She was going to wait for him. Vera spoke very quickly and she seemed upset and agitated. She was only saying bits and pieces about what happened. She wasn’t sure what to do about it. I asked her whether she’d been to the Hospital or to the Police and she hadn’t.

    I asked more about what happened. Vera told me Jamie had grabbed her around the throat and thrown her on the lounge. I also remember her saying something like, “Jamie got it inside me and it hurt but I managed to get him off”.

    It is pertinent to observe that no complaint was made about the alleged act of fellatio.

    [12]   T40 line 17.

    [13]   T41 line 11.

    [14]   Exhibit P6. This was presumably admissible as an elaboration of the initial complaint.

    Other evidence

14. After speaking with the complainant her mother told her to go to hospital for a medical examination. The complainant went to work at Hungry Jacks before attending at the hospital. The complainant was medically examined at the Whyalla Hospital on Friday 16 May 2014; it revealed that she had no injuries.[15]

    [15]   Exhibit P6.

15. The police were later contacted and the appellant was arrested. There was no complaint evidence that related to the first count, namely the act of fellatio. Clothing was seized and it was agreed that the complainant’s DNA was found on the inner crotch area of the appellant’s underpants. The appellant’s DNA was found on the outer and inner waistband of the complainant’s underwear. There was evidence from the witness Matthew Bastian suggesting that, earlier in the evening, the appellant appeared drunk although the complainant did not agree. When asked she said “no he could still walk in a straight line”.[16] Facebook and text messages between the complainant, the appellant and Ms Skipworth were also tendered. They did not materially assist resolution of the issues.

    [16]   T48 line 22.

    The law on inconsistent verdicts

16. The High Court in MFA v The Queen[17] decided that, the test to be applied in determining whether a verdict of guilty returned by a jury is unreasonable by reason of its inconsistency with a verdict of acquittal in the same trial, is the test formulated in M v The Queen.[18] In that case the majority stated:[19]

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

    …

    In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

    (Footnotes omitted)

    [17]   MFA v The Queen (2002) 213 CLR 606.

    [18] (1994) 181 CLR 487.

    [19]   M v The Queen (1994) 181 CLR 487, 493-495.

17. The obligation to establish inconsistency of verdicts rests upon the appellant. In MacKenzie v The Queen[20] Gaudron, Gummow and Kirby JJ stated the test as follows:[21]

    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.”

    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 are 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 the 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.

    …

    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 common-sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. 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”. 

    [20] (1996) 190 CLR 348, 365.

    [21]   Mackenzie v The Queen (1996) 190 CLR 348, 366-368.

18. The principles enunciated in MacKenzie v The Queen[22] were approved by the High Court in MFA v The Queen.[23]

    [22] (1996) 190 CLR 348.

    [23] (2002) 213 CLR 606, 616-617 [33]-[34] per Gleeson CJ, Hayne and Calinan JJ; (2002) 213 CLR 606, 630-631 [84]-[86] per McHugh, Gummow and Kirby JJ.

19. It has been long accepted that juries may ameliorate strict justice for considerations of fairness. In R v Kirkman[24] former Chief Justice King stated:[25]

    …juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.

    [24] (1987) 44 SASR 591.

    [25]   R v Kirkman (1987) 44 SASR 591, 593; the High Court cited with approval the remarks of King CJ in MacKenzie v The Queen (1996) 190 CLR 348.

20. However as Justice Peek in R v S, DD[26] said:

    The first point to be emphasised is that while due regard must be had to the possibility of a difference in verdicts being caused by a variety of possible reasons, if no logical reason for differentiation is discernible then the real possibility of an unreasonable or unsafe or unsatisfactory verdict must be faced and not ignored.

    One possible basis of reconciliation that must be addressed is the Kirkman doctrine as approved by the High Court in MacKenzie v The Queen. However, that approach must not be taken too far. As Gaudron, Gummow and Kirby JJ observed in MacKenzie: 

    Consideration of the factors mentioned by King CJ in Kirkman cannot be elevated to the point that “mercy” on the part of a jury is always sufficient to justify apparent inconsistency between verdicts on alternative counts.

    The Kirkman approach may be apt in cases where convictions have been returned on one or more serious charges proven in a clear and definitive way with acquittals returned on one or more other charges which were possibly viewed as excessively complex or, in a lay sense rather than a legal sense, relating to essentially the same conduct as the serious offences.

    (Footnotes omitted)

    [26] (2010) 109 SASR 46, 86-87 [168]-[170].

1. I agree with the observations of Peek J.

   Submissions

2. As the ultimate question concerns the reasonableness of the jury’s decision, the significance of a verdict of not guilty on one count and guilty on the other must necessarily be considered in the light of the facts and circumstances of this particular case.[27] The complainant gave evidence that she did not consent to either act of sexual intercourse. The appellant’s case at trial (although he did not give evidence) was that both acts of sexual intercourse occurred but were consensual. The jury convicted the appellant on count one (fellatio) but acquitted him of count two (penile-vaginal sexual intercourse).

   Respondent’s submissions

   [27]   MFA v The Queen (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ).

3. The respondent submitted that the trial Judge, in his summing-up correctly instructed the jury that they must bring in separate verdicts upon each of the counts. The possibility of separate verdicts was not contradicted by the course of the trial as logically each count referred to a different act. The jury were correctly instructed that the prosecution had to prove the facts necessary to establish each offence beyond reasonable doubt. Further the jury were correctly instructed that the evidence of a witness can be accepted in whole or in part. Thus the respondent submitted that the fact that there were different verdicts on the two counts, of itself, did not necessarily mean the verdicts were inconsistent. The Judge, it was submitted, also correctly instructed the jury as to the onus of proof as to the state of mind of the appellant in relation to each count.

4. The respondent pointed to the question of intoxication of the appellant and how that may have affected his state of mind in relation to the question of consent. It was submitted that the jury may have been prepared to accept, at least as a reasonable possibility that, given the appellant’s state of intoxication, he believed the complainant was consenting to the second act of sexual intercourse.

5. Further the respondent submitted that the jury may have had a doubt about whether the appellant could have removed the clothing of the complainant as she alleged in relation to count two. The respondent also pointed to the evidence that was led by the appellant, namely that the complainant’s friend had suggested to her that she should “sleep” with the appellant to make another male jealous. The complainant replied “I should do that”. It was submitted that the jury may have reasoned that the complainant consented to the second act of intercourse as she had expressed that intention earlier.

6. The respondent further pointed to the lack of any medical evidence supporting the act of penetration the subject of count two. For example there was no evidence of ejaculation which would confirm the act of penetration. The DNA evidence was intractably neutral.

7. Finally the respondent submitted that the jury may have ameliorated strict justice and have seen a conviction on count one as sufficient to adequately reflect the incident.

   Appellant’s submissions

8. On appeal Mr Jolly, counsel for the appellant, submitted that the jury verdict of guilty in relation to count one was so inconsistent with the jury’s acquittal in relation to count two that the verdict of guilty was unreasonable or unsafe. He submitted that on the facts of this case the finding of not guilty on count two must have meant that the jury were not convinced of the complainant’s reliability or truthfulness. As such he submitted that the finding of guilt on count one was unreasonable.

9. Mr Jolly pointed to a number of factors. First the complainant’s evidence was that neither act was consensual. Secondly that the charged acts arise out of the one continuous course of conduct; the two acts having occurred within a few minutes of each other. It was submitted there was little room for the jury to return different verdicts in such circumstances. Thirdly, there was the evidence of the complainant that prior to the act of fellatio (count one), the appellant had tried to strangle her, which he submitted must have been relevant to the question of consent particularly in the mind of the appellant. Fourthly, that the complaint evidence related to count two where the appellant was found not guilty. There was no complaint evidence in relation to count one. Fifthly, that the complainant did not resist verbally or physically to any great extent in relation to the act constituting count one (guilty verdict). That was in stark contrast to her evidence of the struggle she put up in relation to the alleged act constituting count two (not guilty verdict). Sixthly, that there were inconsistencies between the complainant’s statements to the police and her evidence in court. A review of the evidence does not suggest that the inconsistencies were particularly significant. Mr Jolly submitted that there was no logical reason for the different verdicts and that the verdicts are irreconcilable. He submitted that the verdict of guilty was unsafe and unsatisfactory.

   Discussion

10. I accept that it is a necessary consequence of the important function that a jury performs that a guilty verdict will rarely be set aside on the ground of inconsistency alone, particularly where the evidence in support of the counts is substantially different.[28] I also accept that where multiple offences are alleged involving one complainant, a verdict of not guilty on one or more counts does not necessarily mean that a complainant was untruthful or unreliable when giving evidence. An appellate court should not necessarily consider the reasonableness of the verdict on the assumption that the complainant is a person of damaged credibility.[29] Each case depends on its own facts and an appellate court must keep in mind the principles stated in Mackenzie v The Queen.[30]

    [28]   R v Gbojueh (2009) 103 SASR 545, 563 [56] (Kourakis J).

    [29]   MFA v The Queen (2002) 213 CLR 606, 617-618 [35] (Gleeson CJ, Hayne and Callinan JJ).

    [30] (1996) 190 CLR 348.

11. It must be borne in mind that the evidence relating to the two counts disclosed that the conduct of the appellant was, in effect, one continuing course of action. The two acts of penetration occurred close in time.

12. The major problem facing the respondent is the fact that the guilty verdict was returned on count one. Thus having found that the complainant did not consent to the act of fellatio, and that the appellant knew she was not consenting or was recklessly indifferent to the question of consent, the jury found the appellant not guilty of the act of penile-vaginal intercourse despite the clear evidence of the complainant that she did not consent. Further the not guilty verdict could not have been based on the state of mind of the appellant. It was, as discussed, a continuous course of conduct. He had choked the complainant and then forced her to commit an act of fellatio. To suggest that in his intoxicated state he immediately considered, even as a reasonable possibility, that she may have been consenting to an act of penile-vaginal intercourse in those circumstances, flies in the face of common sense and logic.

13. It must also be borne in mind here that the alleged acts of intercourse were not denied. The only issue before the jury was the question of consent. There was no issue in relation to the second count of penetration. The complainant gave clear evidence on that topic and it was not denied.

14. What weight an appellate court should give to the manner in which the case was presented before the jury was discussed in R v Gbojueh.[31] Although the Court in that case was divided on the question, its resolution of that question was not strictly necessary to the decision: the remarks on that issue are strictly obiter.[32] Logically, the approach of the parties will affect the way in which the evidence is produced and therefore it has relevance in that sense. I accept that an appeal is not an “academic or intellectual exercise to be conducted in a vacuum”.[33] However as Kourakis J (as he then was) stated:[34]

    I acknowledge that some of the matters of differentiation between the counts to which I have referred did not receive prominent attention at trial. However, that is of no consequence for two reasons. First, the general rule of appellate practice that a party cannot put a case on appeal that was not presented at trial has no application to the very different question that is presented by an appeal on the ground that verdicts are inconsistent. In considering whether there is a logical explanation for the jury’s verdict, the Court of Criminal Appeal is not bound to look only at the points made by counsel, precisely for the same reason that a jury’s consideration of the facts is not constrained by the addresses of counsel and the charge of the trial judge. To declare a jury’s verdict irrational because, although it can be explained by applying common sense and human experience to the evidence, it cannot be explained by reference to a point made by counsel or the trial judge, would be a significant and unjustified intrusion into the exclusive fact-finding function of the jury. The second reason is that, as a practical matter, prosecuting counsel should not be obliged to make a submission along the lines “even if you have a doubt about count 1 you should not have a doubt about count 2 for these reasons”.

    [31] (2009) 103 SASR 545.

    [32] The remarks at paragraph [20] are not strictly necessary to the decision at paragraph [23].

    [33]   R v Gbojueh (2009) 103 SASR 545, 553 [20].

    [34]   R v Gbojueh (2009) 103 SASR 545, 565 [66].

15. I agree with the remarks of the Chief Justice.

16. I have considered the evidence in the case and the submissions of counsel. I generally accept the submissions of the appellant. In my view the jury’s finding of not guilty on count two, on the particular facts of this case, must have damaged the complainant’s credibility with respect to count one. Implicit in the jury’s finding on count two is a rejection of the complainant’s account which was said to give rise to the charge. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of count two. I am unable to see, on the facts of this case, how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first count. There is nothing in the complainant’s evidence or the surrounding circumstances, given that it was in effect one course of conduct, which gives any basis for considering that her evidence was more reliable on the first count as opposed to the second count. There is nothing in the complainant’s evidence that suggests the quality of her evidence was higher in respect of the first count as opposed to the second.[35] Indeed the evidence suggests the contrary.

    [35]   R v Jones (1997) 191 CLR 439; The Queen v Kelly (1985) 38 SASR 361.

17. I am satisfied that the appellant has discharged the onus in this case. Given the jury’s finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first count. In my view there was no logical reason for the different verdicts. The verdicts are irreconcilable. The verdict on count one is unreasonable.

    Orders

18. The conviction on count one should be set aside on the basis that it is unreasonable. In the circumstances of this case I would order that a verdict of not guilty be entered in relation to count one.