R v S

[1994] QCA 290

IN THE COURT OF APPEAL [1994] QCA 290

SUPREME COURT OF QUEENSLAND

C.A. No. 149 of 1994.

Brisbane [R v. S]

T H E Q U E E N

v.

S

Appellant

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Fitzgerald P
McPherson J A

Pincus J A

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Judgment delivered 12/08/1994
Separate reasons for judgment of the President, Pincus J.A. and
McPherson J.A., all concurring as to the orders to be made.

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APPEAL AGAINST CONVICTION DISMISSED

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CATCHWORDS:	CRIMINAL LAW - Inconsistent verdicts - appellant convicted on one count of indecent assault, but acquitted on two other such counts and one of attempted anal intercourse - similar circumstances involved in counts 1 and 2 - whether additional statements by the appellant as to circumstances of count 1 tended to support
complainan t's version of events.

Anthony [1982] Qd.R. 284
Jenyns (1981) 3 A. Crim. R. 243
J C.A. No. 264 of 1992, unreported.

W C.A. No. 227 of 1992, unreported.

Counsel:	Mr S Herbert Q.C. for the appellant. Mr P Ridgway for the Crown.
Solicitors:	Roberts Leu & North for the appellant. Director of Prosecutions for the Crown.

Date of hearing: 26 July 1994.
Judgment delivered 12/08/94

The facts and issues on this appeal are set out in the reasons for judgment of Pincus JA., and need not be repeated.

I would prefer to leave for future consideration what was meant by the passage which his Honour has quoted from Jenyns (1981) 3. A. Crim. R. 243 and whether the statements made there are correct. But I agree with the point made by the Victorian Court of Criminal Appeal in Celebicanin and Nyiri (1991) 53 A. Crim. R. 374 at p.377, which his Honour also quotes, which highlights the difficulty faced by a person, acquitted on some charges and convicted on others, who contends that the verdicts are inconsistent. The acquittals mean no more than that, on those charges, the jury "was not satisfied of guilt to the requisite degree". This does not establish that the jury did not accept the complainant or other prosecution witnesses as truthful, or even that they disbelieved the complainant or other prosecution witnesses in relation to the counts on which there were acquittals. It indicates simply that, in respect of those charges, the jury were not satisfied beyond reasonable doubt. There could be many reasons for this, including some doubt as to the reliability, or even veracity, of the evidence of one or other of the prosecution witnesses on some element of the offences upon which verdicts of not guilty were returned. Such doubt does not require doubt also in relation to other parts of the same witness's other testimony; the jury are generally entitled to accept part only of a witness's evidence. See, for example, the earlier decisions of this Court to which Pincus JA has referred; J (C.A. No. 264 of 1992) and W (C.A. No. of

1992) .
In a case like the present, in which the conviction of the

appellant depended on the uncorroborated evidence of the complainant and the jury was accordingly instructed that ".. it would be dangerous ... to convict ..." and that it could only act on the complainant's evidence "... after you have scrutinised his evidence with great care ... ", it is quite obvious how different verdicts could easily result. Such a direction is designed to bring about acquittals unless the jury is completely satisfied, after a meticulous examination, that evidence upon which a conviction depends is truthful and reliable.

In this matter, the jury clearly felt totally convinced only in relation to the first count, which related to the first occasion when the complainant and the appellant were alone on his property, as the appellant's own evidence acknowledged. His evidence also confirmed other parts of the complainant's testimony, including his receipt of money from the appellant. There were conflicts as to a number of matters, including the purposes of the trip and the payment, but the principal issue in dispute between the complainant and the appellant with respect to this occasion concerned whether or not the indecent assault occurred. The jury was plainly satisfied that it did.

On the other counts, there was almost total conflict between the complainant and the appellant, whose denials extended to his presence, on material occasions, at the places where the further sexual misconduct was alleged by the complainant to have occurred. Further, the jury might well have been unimpressed with the complainant's explanations of why he permitted himself to be alone with the appellant after his earlier behaviour. It was quite within the jury's rights, and entirely reasonable, for it to decline to convict on the later counts.
Acquittals on those counts were not, in the circumstances referred to, inconsistent, or difficult to reconcile, with the conviction of the appellant on the first count, and do not make that conviction unsafe or unsatisfactory.

The appeal should accordingly be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the Twelfth day of August 1994

I agree that the appeal should be dismissed for the reasons given by Pincus J.A.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 12/08/1994

The appellant, who was convicted on one count of unlawfully and indecently dealing with a child under the age of 16 years, appeals against that conviction on the ground that the jury's verdict on that count cannot rationally be reconciled with three other verdicts, each of acquittal. These three verdicts related to counts tried with that which produced a conviction. The appellant's contention is that, the only evidence against the appellant being that of a single complainant, the jury must have had a doubt about the truth of that evidence with respect to three counts; there being no substantial basis upon which the jury might be satisfied of guilt on the one count, but not satisfied on the other three, the guilty verdict must, it was argued, be held to be unsafe.

Count 1, on which the appellant was convicted, and counts 2 and 3, on which he was acquitted, were all charges of indecent dealing. Count 3 was an allegation of an offence committed on the same occasion as count 4, on which the appellant was also acquitted, a charge of attempted sodomy; Mr Herbert QC, who appeared for the appellant, was inclined to accept a suggestion, implicit in the trial judge's report to this Court, that there is greater difficulty in reconciling the verdicts on counts 1 and 2 than in reconciling the verdict on count 1 with those on counts 3 and 4. It seems convenient to concentrate in the first instance on the problem of whether the verdict on count 1 is reconcilable, in any rational way, with that on count 2.

Each of counts 1 and 2 was an allegation of similar conduct, in similar circumstances. The complainant was at the relevant time, in the year 1991, a pupil in grade 8 in a school at Charters Towers and the appellant was part owner of a cattle property, S, in the Charters Towers area. The appellant was described by the complainant as a "friend of some friends" and it was common ground that he was acquainted with the complainant and with the complainant's father. The complainant gave evidence that he was interested in shooting and had spoken to the appellant about that; the complainant said "he would ask me if I wanted to go shooting, me and J...", J being a boy friendly with both the complainant and the appellant.

With respect to count 1, the complainant's version of events was that he was driven out to the property, S, from Charters Towers by the appellant. When they got there the two started shooting at cans with guns owned by the appellant. The complainant said that after the shooting finished he was assaulted by the appellant in the front of the appellant's car.

The nature of the assault was that the appellant grabbed the complainant through his shorts, then pulled his shorts down and began to masturbate him and to suck his penis. The complainant said that he resisted, but "every time I tried to get away, he'd grab one of my balls and twist it". The incident terminated, according to the complainant, when the complainant ejaculated. On the way back to Charters Towers the two stopped at a shop where the appellant bought the complainant a can of soft drink and gave him $10.

At the time of these events, the complainant said, he was living at the home of a family, N, at Charters Towers. It was put to the complainant in cross-examination that before he went to the N’s he was staying with a family named P in Charters Towers and while there he had asked the appellant whether he might go out to the property, presumably meaning the appellant’s property, to go shooting. It was also suggested by the appellant's counsel to the complainant that on one occasion when he was alone with the appellant at the property he assisted the appellant to unload hay to horses; it was not suggested that unloading was the purpose of the trip.

The appellant gave evidence of an occasion - "could have been the end of 1990, maybe 91" which was the first time he could remember the complainant being on S; he denied that he indecently dealt with the appellant, on that or any other occasion. He said that the complainant came to the Charters Towers house at which the appellant was staying and asked if he could come out to the property and help unload some lick and hay. The appellant gave evidence that he was "thankful for the help" and that the two drove to the property and put the lick and hay in a shed; the appellant said he threw three bales into the cattle yards. Then, the appellant said, he acceded to a request by the complainant to let him do some shooting; both people returned to town together, and the appellant bought the complainant a can of Coke on the way. The appellant said :

"I gave him - he was always going on about having no money.
I gave him $10 for helping me to unload the stuff..."

According to the appellant that was the only time, to his memory, at which the complainant and the appellant were alone on the property together. Of course, the purchase of the soft drinks and the gift of $10 tended to identify the occasion of which the complainant gave evidence with that spoken of by the appellant.

Count 2 was based on evidence by the complainant of an assault of a similar character at the same place, S. That is, the complainant's evidence was that he went shooting guns with the appellant at S, that the appellant grabbed one of his testicles and pulled down his shorts, masturbated him and sucked his penis until he ejaculated.

On the second occasion the complainant, if his account was true, must have known of the danger which a trip to S with the appellant would represent, since he had had one experience of the appellant's sexual behaviour. As to that, the complainant said, according to the record, that he went "because I loved shooting so much and I promised myself I wouldn't let him to (sic) it again". The jury might perhaps have thought that an unsatisfactory excuse. Another difference between the two incidents as related by the complainant was that the second assault occurred in a dwelling on S; the first had allegedly taken place in a car. Then, there was no suggestion of any money having passed hands on the second occasion.

The only other difference between the two cases which should be mentioned - and it may perhaps have seemed to the jury to be of significance - was that it was accepted by the appellant, and therefore could hardly be doubted, that the two were alone together at S on the first occasion, but the appellant did not admit there was a second such occasion.

In a matter of this sort, where two similar stories are told and the jury accepts one and rejects the other, an argument is open that the evidence of the complainant must not have been regarded as reliable and in consequence the jury should have had a doubt on both counts. Yet the jury are entitled to accept part only of a witness's evidence and of course they are so directed, as they were here. It is also made clear to juries that they must consider each count separately. If the law were such that entertaining a doubt about one count in respect of similar allegations, made by the same uncorroborated complainant, necessarily entails an acquittal on all the allegations, then it would be necessary to direct the jury accordingly.

The onus is on the appellant to show that the two verdicts cannot stand together: Anthony [1982] Qd.R. 284 at 289. In Jenyns (1981) 3 A.Crim.R. 243, Matthews J, delivering the judgment of the Court in an appeal in a cattle stealing case, said:

"...I think it should be observed that the onus is not on the appellate court to seek a rational basis for inconsistent verdicts...

Difficulty in understanding a jury's verdict when comparison is made with a differing verdict returned, is not sufficient to satisfy the onus which the appellant bears..." (245)

In Celebicanin and Nyiri (1991) 53 A.Crim.R. 374 at 377,
Crockett J said for the Victorian Court of Criminal Appeal: "Undoubtedly it would ordinarily be more difficult to

establish a case of repugnant verdicts when the argument rests upon contemporaneous acquittals than when the jury has produced a verdict of guilt said to be inconsistent with another verdict of guilt from the same jury. The latter rests upon a positive finding by the jury, the former means no more than in a given case the jury simply was not satisfied of guilt to the requisite degree. Proof of repugnancy in such a case is not, however, impossible...".

A decision of this Court in which there fell for consideration a number of verdicts relating to sexual offences allegedly committed against a young girl is J (C.A. No. 264 of 1992, McPherson JA, Williams and Derrington JJ. unreported). There, as here, the allegations were uncorroborated; the jury convicted on some of the counts and acquitted on others. The argument was that the same factors which must have affected the complainant's evidence on the counts on which verdicts of acquittal were entered must have affected her evidence with respect to the other counts and should have led the jury to reject her evidence with respect to those counts also. The Court said:

"There is no doubt that it is proper for an appellate court to scrutinise the evidence carefully in cases where a jury has convicted on some counts and acquitted upon others. Such careful scrutiny is clearly called for in cases where there is an absence of corroborating evidence and acceptance of the complainant's evidence is essential to any conviction. But each case must be determined on its own facts; there is no rule of law that a conviction must be regarded as unsafe and unsatisfactory merely because the jury have obviously rejected the complainant's evidence with respect to some counts on the indictment. As with any witness, a jury is entitled to accept part of and reject other parts of the testimony of a complainant".

In discussing the jury's verdict on two of the counts, the Court
said;
"It could not have returned a verdict of guilty on counts

(v) and (vii) on the basis that some unidentifiable sexual incident occurred; the way the charges were particularised meant that if they were not satisfied beyond reasonable doubt that the particular charge had been established they had to acquit".

In its treatment of two other verdicts of acquittal, after referring to some difficulties in the complainant's evidence, the Court said:

"In other words the jury on this particular part of the case may have considered the quality of her evidence not sufficient to satisfy them beyond reasonable doubt as to the elements of the charge in question. That conclusion could be reached without rejecting her evidence generally.

In all the circumstances, verdicts of not guilty on counts (iv) and (vi) do not necessarily mean that they rejected her evidence entirely; such verdicts could merely reflect the fact that the jury were not satisfied beyond reasonable doubt by her evidence in all the circumstances that the particular charges had been proved".

J was briefly discussed in this Court's reasons in W (C.A. No. 227 of 1992, Pincus and McPherson JJA, Williams J, unreported). The Court said of J:

"Therein it was pointed out that there is no principle that a conviction must be regarded as unsafe and unsatisfactory merely because the jury have rejected the complainant's evidence with respect to some counts on the indictment, but accepted it so as to convict on other counts".

Before stating my conclusion on this point, I should refer to some other aspects of the case. The judge held, rightly, that there was no corroboration, nor was there any evidence of fresh complaint. As to the latter, the complainant said, with respect to the incident comprising count 1, that he was too embarrassed to tell anyone and that he first mentioned his encounters with the appellant to school mates in 1993; he said that, after that, he mentioned the matter to his sister who told the complainant's father, in consequence of which the police were spoken to. As to the complainant's motive to lie, a circumstance likely to give rise to animosity was put to the complainant: he was asked if he was aware whether his father and the appellant had any form of falling out over business arrangements. The complainant's response was merely to the effect that he knew that the two and some other man were to set up a business of some sort but did not know why they had not done so. The appellant's evidence was that as the result of an incident relating to a potential business venture he believed there were hard feelings on the part of the complainant's father - implicitly, towards the appellant.

I should add that on my reading of the complainant's evidence, the story told by him, considered as a whole, does not strike one as inherently improbable; his evidence reads reasonably well.

The question is whether it was open to the jury, if it found the complainant's evidence generally credible, to convict on count 1 but nevertheless to acquit on count 2 as a matter of caution, because there was no support for the complainant's story that there was a second occasion on which the two were alone together at S, or because there were circumstances associated with the first count but lacking from the second, which told in favour of acceptance of the complainant with respect to the first count - or on the basis of a combination of these factors. It is, as it seems to me, important to keep in mind that it is the view a jury might take of such circumstances, not the view the court itself takes of them, which matters. There are circumstances which, in my opinion, the jury might rationally have thought went against the credit of the appellant's denial, with respect to the first count; he admitted a payment of $10 in circumstances where the jury might have thought the appellant should, on his version of events, have felt under no obligation; the appellant's story, connected with the payment of $10, that the purpose of the journey to S was to obtain the assistance of the complainant in unloading hay and molasses from a utility may not have seemed plausible. As to the latter, the jury might have noticed that the complainant was said to be a boy half the appellant's size and the appellant said to be a very powerful man. It should also be noted that after the complainant gave evidence in chief concerning the second count, he was referred to the fact that he had said the first event took place in Grade 8 and was asked: "When was the second one?". He replied: "Think it was in Townsville, at Ignatius Park, or Pimlico". One could not assume that this answer, inconsistent with his other evidence about count 2, did not provide the jury with reason for concern about the firmness of the complainant's recollection of the facts relating to count 2.

Accepting, as was held in Jenyns, that difficulty in understanding a jury's verdict does not necessarily satisfy the onus of showing inconsistency, I am of opinion that the jury may rationally have concluded that it was not safe to convict on the second count, but felt satisfied about the first. In reaching this view I have kept in mind that one cannot assume that the jury failed to apply strictly the judge's directions based on the absence of corroboration, which I quote in part:

"...it would be dangerous for you to convict this accused of any of these four charges.

That is not to say that you may not act on the evidence of the complainant alone. However, you could only do so if, after you have scrutinised his evidence with great care, and paid full heed to that warning which I just gave you, you were nevertheless satisfied beyond a reasonable doubt of the truth and the accuracy of his account".

It remains to be considered whether it should be held that there is inconsistency between the conviction on count 1 and the acquittals on counts 3 and 4; that must of course be considered keeping in mind the acquittal on count 2.

Counts 3 and 4 concerned an occasion when, according to the complainant, he was attacked in a flat in Townsville, in the following year - i.e. 1992, the year after the occurrence of the events alleged to constitute counts 1 and 2. It appears to me, as Mr Herbert's argument perhaps implied, that this part of the case presents a lesser obstacle to the respondent than that relating to count 2.

Counts 3 and 4 were alleged to have occurred in a flat in Townsville after a birthday party which the complainant and the appellant both attended. It had been arranged that the complainant would stay the night at the place where the party was held and go home in the morning, but according to his evidence in chief something came up and the appellant offered to take him home. When the two got to the flat where the complainant lived, the appellant, it was alleged, asked to have a look around and then commenced an assault similar to those which were said to have occurred at S. During the course of that the complainant answered a phone call, after which the appellant resumed his assault; at the conclusion of this the appellant tried to put first a finger and then his penis into the complainant's anus. When asked what he did when the appellant tried to put his penis in, the complainant said that he told the appellant to stop because it hurt too much.

The complainant was cross-examined about the events in the flat and points tending somewhat to favour the appellant emerged. The complainant told the cross-examiner that he was not too sure "who asked who", when questioned about his initial version that it was the appellant who asked to have a look at the flat. He was not prepared to deny that he might have asked the appellant to come up and have a look at the flat. He was then asked to suppose that it was the appellant who had asked to look around the flat and asked: "I suppose you would have said no, would you?" The answer was "No.". He was cross-examined about the circumstances in which the appellant left the flat after the assaults and said the appellant "had to leave and go do something". The complainant said he did not think he had asked the appellant to leave.

If one disregards demeanour and considers the alleged assaults at the flat objectively, there might have seemed to the jury room for doubt about the proposition that, merely for reasons of convenience, the complainant accepted the appellant's offer of a lift home and might, on his version, even have asked the appellant in. By this stage of their relationship, on the complainant's version of events, it must have been evident that being alone with the appellant created a risk of further assaults of the kind to which he had previously been subjected.

This is not to conclude that the jury must have disbelieved the complainant with respect to counts 3 and 4, said to have taken place at the flat; they may merely have thought that in view of the improbabilities which I have mentioned, and having regard to the warnings the trial judge had given, they could not properly convict on those counts.

In my opinion the appeal should be dismissed.