R v Templeton No. Sccrm-96-438 Judgment No. S6038

[1997] SASC 6038

R v TEMPLETON

Court of Criminal Appeal: Doyle CJ, Prior and Duggan JJ (extempore)

Doyle CJ

I will ask Prior J to give the first judgment.

Prior J

The appellant was tried on an information charging him with two counts of indecent assault and four of unlawful sexual intercourse.  The offences were alleged to have occurred on occasions between 2 February 1992 and 1 December 1995.  A jury returned three verdicts of guilty, three of not guilty.

In this appeal it is complained that the verdicts of guilty on three counts are inconsistent with the verdicts of not guilty on the other three.  It is said the prosecution case depends solely on the uncorroborated evidence of the complainant. The verdicts of guilty are unreasonable because there is no basis to differentiate between those verdicts and those of not guilty.  It is said that on each count the complainant gave evidence of a completed offence. There was no room for doubt about intention.  The quality of the complainant's evidence was the same on each count.  It was also submitted that there was no room for mistake or faulty memory as to the acts charged or the times at during which the alleged offences occurred. 

Whilst a court of criminal appeal will not set aside verdicts of guilty simply because they appeared illogical against verdicts of guilty, an appeal court will intervene where verdicts appear an affront to logic and commonsense which is unacceptable and strongly suggesting a compromise of the performance of the jury's duty. 

The first two counts alleged indecent assault of a boy then aged 13 years. Majority verdicts of guilty were returned on each of those counts.  However, with respect to charges of unlawful sexual intercourse in the remaining four counts, a guilty verdict was returned only on the second of those four counts.  This was a count alleging anal intercourse.  The evidence was that this was the first occasion when anal intercourse occurred between the parties.

The particulars with respect to each of the counts before the jury were very specific.  With respect to the guilty verdict on count four it was alleged that the offence occurred after the appellant had given the boy a condom. There was a further count of unlawful sexual intercourse constituted by anal intercourse.  That resulted in a not guilty verdict.  Again the occasion was particularised. There was reference in the particulars to a discussion of astro travel on the occasion the subject of that particular charge.  The appellant's case to the jury was that there had never ever been a discussion about astro travel just as there had never ever been any sexual impropriety between him and the alleged victim.

The other two matters resulting in not guilty verdicts by majority verdicts were with respect to an alleged act of fellatio and an alleged penetration of the boy with a Texta pen. The fellatio was said to have occurred as the boy was watching a video at his home.  It was said to be the first act of fellatio between them.  All other sexual exchanges were said to have occurred at the appellant's home.  There was no further identification of the occasion the subject of the sixth count when it was alleged a Texta pen was inserted into the boy's anus.  This was a case where detail was pursued, challenged and emphasised. 

No complaint is made about the summing up.  The trial judge completed it in the early afternoon. A little more than an hour later, the jury had three questions, one of which was a request to tell the jury again how to base its verdict.  The question, as phrased by the jury was:-

“Please tell us again how to base our verdict, ie oath versus oath.” 

In his redirection to the jury the trial judge said that the alleged acts occurred in private, with the only two persons said to be involved being present.  Each giving their version of events on oath, the case was one of oath against oath.  He said, as he had earlier in the summing up, there was no independent support for the boy's version of events.  His Honour reminded the jury of the evidence of two doctors and pointed out that there being no independent supportive evidence, it was necessary for the jury to scrutinise the evidence closely and not convict the appellant of a particular offence the jury was considering unless, after careful scrutiny, it was thoroughly convinced as to the reliability of the evidence of the boy and that it established guilt beyond reasonable doubt.  His Honour continued:

“Whereas here it is a case of a young person alleging serious offences have been committed against him in private by an older man you may think it is dangerous to convict without supportive evidence, that is, evidence coming from a source independent of the young person which incriminates an accused and confirms the young person's evidence in some material particular.  But not only has the particular crime, in fact, been committed, but also that the accused committed it.”

This was a repeat of what was already in the trial judge's directions.  His Honour also repeated his earlier direction, in which he said that he did not draw to the jury's attention the danger as in any way a direction to it about the law but only as a matter of experience of courts, adding that it may be the experience of all or some of the jury in dealing with allegations of young people and the reasons or absence of apparent reasons what they say or do or indeed, invention. His Honour repeated that in this case there was no supportive evidence and said that this did not mean the jury could not convict but that it should be specially careful to be thoroughly satisfied that the boy's evidence was so entirely reliable that beyond reasonable doubt the accused was guilty of the particular offence it was considering.  The jury indicated that the redirection was sufficient.  It retired to consider verdicts further.  After the jury had been deliberating for four hours, the trial judge recalled the jury to inform them that majority verdicts were now available on any count. The jury retired for deliberations for almost a further two hours before returning the verdicts said to be inconsistent. 

The prosecution case alleged a relationship beginning some time around the summer of 1992 when the alleged victim was 13 years of age.  The occasion referred to in the first count was said, by the boy, to have arisen after the appellant had shown him some pornographic material, with the appellant masturbating him whilst the two of them watched a video. The relationship was said to have continued through until the end of 1995, when the boy was then around 16 and went to live in Adelaide.  It should be noticed that the second count was said to have occurred within some seven days of the first and that the third count, the first act of fellatio, was as already mentioned, different from the others insofar as it occurred, on the boy's evidence, at his home and not at that of the appellant's.  The other charges, besides the first two were said to be representative of a course of sexual conduct alleged between the appellant and the boy.  It was noticed in the course of argument before us, that a proper understanding of the counts was that they were six particular occasions picked out from a number of others.  Indeed, as is obvious there were unique aspects of the sixth count, in particular, and special facts identified in some of the other five counts. Mr Boylan in his very thorough and conscientious submissions drew to our attention the passages in the evidence which pointed to the course of conduct described by the boy and drew particular attention to the way in which the evidence developed. As already noticed there were specific occasions referred to in the particulars of the three counts alleging unlawful sexual intercourse.  The fourth was hardly a representative count, in the special sense of that word, absent evidence from the boy alleging he had been subjected to penetration of the anus by a Texta pen on more than one occasion. 

The jury's verdicts convey that a majority was satisfied beyond reasonable doubt as to the two charges of indecent assault and as to one of the charges of anal intercourse; that said to have occurred after the appellant gave the boy a condom.  Again, it was his evidence that this was the first occasion when anal intercourse had occurred between the two.  As was mentioned in the course of argument, it would seem not insignificant that the jury could well have had a greater degree of satisfaction about the certainty of those occasions than those identified in other counts.  The majority not guilty verdicts returned were with respect to the counts alleging fellatio, another particularised act of anal intercourse whilst watching a video and the charge in which penetration with a pen was alleged.

In McKenzie v R[1], the High Court recently stated a number of general propositions with respect to the review of juries’ verdicts said to be inconsistent.  This Court cannot interfere unless satisfied that verdicts cannot stand together, meaning thereby that no reasonable jury, applying its mind properly to the facts in the case, could have arrived at the conclusions that it did.  However, appeal courts are reluctant to accept the submission that verdicts are inconsistent in the relevant sense.  In a criminal appeal, the view may be taken that the jury simply follow the judge's instructions 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.  There are occasions when verdicts returned by a 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 inconsistency rises to the point that the appellate court considers intervention is necessarily required to prevent a possible injustice that convictions will be set aside.  The obligation to establish inconsistency of verdict rests upon the appellant.  I am not convinced that the verdicts returned by the jury in this trial are so inconsistent as to render the resulting convictions unsafe or unsatisfactory. Rather, I see this case as one of the kind referred to by Duggan J in M v R[2], the verdicts reflecting no more than the jury following the instructions of the trial judge, and applying to each count the requirement that all verdicts must be proved beyond reasonable doubt.  Within that, the fact remains that the evidence was plainly very specific with respect to the first two counts, so too the fourth.

[1] (1996) 71 ALJR 91 at 100-102

[2] (1994) 62 SASR 364 at 368

I agree with the submissions put to this court by counsel for the respondent as to the degree of particularity that was available on those counts, in contrast to at least a number of the others.  I would add that, so far as Duggan J made the observations to which I have referred, it would seem to me that it is not uncommon for juries, when given copies of the information and having particulars before them, in a conscientious fashion, to pay very special and close attention to the particulars which are attached to the information itself, calling for a degree of satisfaction about those particulars that perhaps, in this case, was not established for them with respect to those counts where not guilty verdicts were returned.  That can be the explanation for favourable verdicts in those cases against verdicts of guilty in the others.  The evidence clearly established a greater degree of particularity with respect to some counts than others.  Equally, as the Chief Justice mentioned in the course of argument, there seems to be a very significant identification of the three occasions that returned the three verdicts of guilty whereas, with respect to the others, there was some basis upon which it could be said the jury gave the appellant the benefit of the doubt, given the lack of particularity that came from the mouth of the complainant.

I would dismiss this appeal.

Doyle CJ

Appeals on the grounds of inconsistency of verdicts raise difficult issues for an appellate court.

On the one hand, the court must respect the role and the verdict of the jury, a verdict for which no reasons are given.  On the other hand, the court must consider and must be alert to a risk of a miscarriage of justice, and in particular the risk of compromise by the jury, in the sense of the jury convicting on some counts and acquitting on others without regard to the directions given to them by the judge.  The court must also consider the risk of the jury actually reaching decisions that cannot be reconciled, reaching such decisions as the result of confusion on the jury's part.

The result in the present case might be unexpected, but in my opinion there is a basis upon which the jury might well have distinguished between the various counts. In particular, the convictions which were recorded relate to the very beginning of the relationship and then to the first act of anal intercourse.  The jury might well have thought that the victim was more likely to be reliable in terms of accuracy about those incidents, than about other incidents in the course of the relationship between the victim and the appellant.  The incidents upon which convictions were recorded were also described in particular detail, as Prior J has said, especially counts 1 and count 4, and count 2 was closely related to count 1 in time.

It is, of course, not a question of what I would do, but whether one can find a basis within the facts of the case upon which the jury might properly proceed in the manner in which it did.

There is in my opinion, in this case, such a basis in terms of satisfaction on the part of the jury about the accuracy of the victim's evidence about particular incidents the subject of distinct counts.

In my opinion, in terms of what the High Court said in McKenzie v R[3], when one considers the verdicts and the facts, one is not driven to the conclusion here that the results are unacceptable and strongly suggest a compromise in the performance of the jury's duty. Nor, in my opinion, do the results suggest confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal differentiation between the offences, or lack of clarity in judicial instruction on the law.

[3] (1996) 71 ALJR 91 AT 100-102

For those reasons I agree with Prior J that, in this case, the appeal should be dismissed.

Duggan J

I agree that the appeal should be dismissed for the reasons given by Prior J.  I also agree with the observations made by the Chief Justice.

Doyle CJ

Accordingly, the order of the court is appeal dismissed.

JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT OWING TO FAILURE OF FOOTNOTE TRANSFER TO JURIS

(1996) 71 ALJR 91 at 100-102

2 (1994) 62 SASR 364 at 368

1. (1996) 71 ALJR 91 at 100-102