R v TK - [2009] NSWCCA 151

No judgment structure available for this case.

Reported Decision: 74 NSWLR 299

Appeal Outcome: Special leave refused by the High Court - 3 November 2009

New South Wales

Court of Criminal Appeal

CITATION: TK v R [2009] NSWCCA 151
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 December 2008

JUDGMENT DATE:
26 May 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 10; Latham J at 204

DECISION: Appeal against conviction dismissed.

CATCHWORDS: CRIMINAL LAW: - particular offences - offences against the person - common assault - using an offensive weapon with intent to commit an indictable offence - intimidation with intent to cause fear of physical or mental harm - sexual intercourse without consent - appeal against convictions - whether convictions unreasonable or unsafe and unsatisfactory - test to be applied - whether mixed verdicts consistent with compromise - whether error in failure of trial judge to direct jury as requested - appeals against conviction dismissed.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Appeal Rules 1968
Jury Act 1977

CATEGORY: Principal judgment

CASES CITED: Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
Jones v The Queen [1997] HCA 12; 191 CLR 439
R v KT (Supreme Court of Victoria, Court of Appeal, 8 October 1998, unreported)
R v Kaboni [2000] NSWCCA 387
HML v R [2008] HCA 16; (2008) 245 ALR 204
Gilbert v R (2000) 201 CLR 414
Black v The Queen [1993] HCA 71; 179 CLR 44
M v The Queen [1994] HCA 63; 181 CLR 487
Mackenzie v The Queen [1996] HCA 35; 190 CLR 348
R v Crisologo (1997) 99 A Crim R 178
Davies & Cody v The King [1937] HCA 27; 57 CLR 170
Chidiac v The Queen [1991] HCA 4; 171 CLR 432
Longman v The Queen [1989] HCA 60; 168 CLR 79
Norris v R [2007] NSWCCA 235
R v Landsell (NSWCCA, unreported, 22 May 1995 )
Gassy v The Queen [2008] HCA 18

PARTIES: TK (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/14973

COUNSEL: P Hamill SC (Appellant)
D Arnott SC (Respondent)

SOLICITORS: Kevin Dwyer (Appellant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/0184

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 6 June 2008

2007/14973

McCLELLAN CJ at CL
SIMPSON J
LATHAM J
Tuesday 26 May 2009

TK v R

Judgment

1 McCLELLAN CJ at CL: I have had the considerable benefit of reading the reasons for judgment of Simpson J in draft. I agree with her Honour’s analysis of the matters relevant to each count and her Honour’s conclusions with respect to the grounds of appeal.

2 The problems associated with trials of multiple counts where the jury returns verdicts of guilty on some counts and not guilty on others, which commonly arises in relation to sexual assault offences, remain notwithstanding the clear statements by this Court in Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82 which was approved by the High Court in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606. As Simpson J points out there are two processes of reasoning which may lead to an appellate court intervening to quash a conviction pursuant to s 6(1) of the Criminal Appeal Act. In one case the court will be concerned with the question of whether the jury applied its collective mind to the consideration of the evidence on each count in accordance with the law as provided by the trial judge’s directions. In the other case the ultimate question will be whether the appellate court, having considered the whole of the evidence and the record of the trial has a reasonable doubt as to the appellant’s guilt on any count upon which he or she has been convicted. This will usually require the appellate court to consider the consequences, if any, for the strength of the Crown case in respect of the counts for which there is a conviction, of the fact that the jury was not satisfied beyond reasonable doubt of the Crown case in relation to another count or counts. The first case is concerned with what has been referred to as “compromised verdicts.” The second case is concerned with whether or not the verdict is unreasonable or cannot be supported having regard to the evidence.

3 In Jones v R (1997) 191 CLR 439 Gaudron, McHugh and Gummow JJ were of the view that implicit in the verdict of acquittal on the second count “was a rejection of the complainant’s account of the events which were said to give rise to that count” (Jones at 453). Their Honours concluded that the “jury’s rejection of the complainant’s account on the second count diminished her overall credibility” (p 453). In the result applying the test formulated by the majority in M “whether the court thought that, upon the whole of the evidence, it was ‘open to the jury’ to be satisfied beyond reasonable doubt that the accused was guilty” (at 451) their Honours determined that the relevant conviction should be quashed.

4 To my mind the decision of the majority in Jones is of confined application. The majority were of the view that having regard to the facts of that case and informed by the fact that the jury did not accept that the complainant’s evidence on count 2 was sufficient to convict the appellant of that count, it was not open to the jury, relying on the complainant’s evidence, to convict on count 1. However, as Spigelman CJ emphasised in Markuleski the decision in Jones is largely dependent upon the factual analysis of the majority. This was also the approach to Jones adopted by Winneke P in R v KT (Supreme Court of Victoria, Court of Appeal, 8 October 1998, unreported). Spigelman CJ emphasised that difficult questions arise when all that appears to differentiate between verdicts of guilty and not guilty on individual counts is whether the jury was satisfied that the complainant’s evidence would support a finding beyond reasonable doubt (see [98] of Markuleski).

5 In Markuleski Wood CJ at CL indicated that with the benefit of the analysis by Spigelman CJ the view that his Honour expressed in R v Kaboni [2000] NSWCCA 387 had changed. His Honour, correctly in my view, accepted that Jones was not authority for a presumption that where the only direct evidence of the offences was that of the complainant and where the jury had convicted on only some of multiple counts, the guilty verdict should be regarded as unreasonable.

6 It seems to me that there are problems in an appellate court concluding that because a jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complainant can be drawn. As the judgments in Markuleski point out there may be many reasons why a jury does not convict on a particular count. The High Court has been careful to emphasise that an appellate court must allow for the advantage of the jury when considering questions arising under s 6(1) of the Criminal Appeal Act. The most significant advantage is assumed to be that of observing the witness as they give their evidence. It is a very significant step to conclude that the reason for the jury’s decision to acquit on any count is that they were so unable to accept the complainant’s evidence on that count that her evidence was not capable of founding a conviction on another count. The consequence of such a decision by an appellate court is that the jury has not been faithful to the fundamental directions from the trial judge, namely that the Crown must prove its case beyond reasonable doubt on each count. As the law presumes that the jury has been faithful to a trial judge’s directions (HML v R [2008] HCA 16; (2008) 245 ALR 204 per Kirby J at [52]; Gilbert v R (2000) 201 CLR 414 at 420 per Gleeson CJ and Gummow J), the starting point for any analysis must assume that this is so. The burden of satisfying the appellant court that there has been a miscarriage of justice rests upon the appellant.

7 It is important to remember when considering the problem of inconsistent verdicts that a jury does not have to be satisfied beyond reasonable doubt that all of a complainant’s evidence is an accurate or even truthful account of all of the facts relevant to all of the counts. It may be, and in fact may often be the case, that a complainant’s recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts. As Wood CJ at CL pointed out in Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events. It may be that, having been reminded of the problems of uncorroborated evidence by the trial judge, before a jury convicts on any count where the primary evidence is of the complainant, it will seek out matters in the surrounding evidence which are consistent with the complainant’s account. It may also be that where the jury finds amongst the surrounding evidence that there are some inconsistencies with the complainant’s evidence it will be unable to return a guilty verdict on a particular count.

8 The significance of a finding by an appeal court that, although properly instructed as to the law, a jury’s verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated. There will be cases where the jury’s verdicts bear no analysis other than the decision making process has miscarried. But of itself the fact of the inconsistencies may merely support a conclusion that the jury has accepted its obligations and carefully turned its mind to decide each individual count, rather than indicate that the decision making process has miscarried.

9 I agree with the orders proposed by Simpson J.

10 SIMPSON J: On 18 February 2008 the appellant was arraigned on an indictment that contained twelve counts. Five were of common assault; one of using an offensive weapon with intent to commit an indictable offence; two of intimidation with intent to cause fear of physical or mental harm; and four of sexual intercourse without consent. He entered a plea of not guilty to each count. A jury was empanelled. The trial was subject to the majority verdict provisions introduced by s 55F of the Jury Act 1977. After a trial that ran almost three weeks, the jury returned verdicts of not guilty on one of the common assault counts, both intimidation counts, and two sexual intercourse without consent counts; they were unable to agree with respect to one count of sexual intercourse without consent; they convicted on four counts of common assault, one count of sexual intercourse without consent and the count of using an offensive weapon to commit an indictable offence.

11 The appellant now appeals against the convictions. He has pleaded two grounds of appeal: firstly, that, particularly having regard to the verdicts of not guilty on five counts, the convictions are unreasonable and cannot be supported; and, secondly, asserting error in the failure of the trial judge to give a particular direction concerning the conduct of the jury.

12 There is no application for leave to appeal against sentence.

13 The two grounds of appeal are interlinked, in the sense that they depend heavily upon an understanding of certain events that took place towards the end of the trial and after the jury had retired to consider its verdict.

14 Notwithstanding the number and variety of charges, the facts and circumstances giving rise to the indictment may, in the first instance, be outlined briefly.

Background

15 All offences were alleged to have been committed against one victim, the appellant’s wife (“the complainant”).

16 The appellant and the complainant are of Sri Lankan origin. She is a medical practitioner, he a dentist. They married in 1990. The evidence of the complainant suggests that, although there were difficulties in the marriage by reason of what she described as the appellant’s overbearing and controlling personality, nevertheless the marriage was, for about four years, reasonably happy. Two children were born, in 1998 and 2001. By this time, on the complainant’s account, the appellant’s controlling behaviour was causing real matrimonial difficulty.

17 The first offence on the indictment was alleged to have been committed on an unspecified date during the last three months of 1999. It was an offence of sexual intercourse without consent. All other offences were alleged to have been committed on various dates between March 2003 and July 2005. At about that time the complainant left the matrimonial home.

The trial

18 The principal prosecution witness in relation to all offences was, naturally, the complainant. Supporting evidence was called from the complainant’s mother (a UK resident who had visited the complainant and the appellant on a number of occasions, and was present at relevant times, though never a witness to any actual offence); the complainant’s brother (also a UK resident); the practice manager of the medical practice where the complainant worked; a police officer to whom the complainant eventually reported the offences; another police officer (whose evidence is not material to either of the grounds of appeal); and a gynaecologist who treated the complainant.

19 The appellant gave evidence and denied all the complainant’s allegations. He called as a witness another medical practitioner.

20 Having regard to the grounds of appeal, it is worth recording some introductory observations made to the jury by the judge immediately after the jury was empanelled. Inter alia, he said:

“It’s a trial involving a 41 year old complainant, a lady in this case who was married to the accused, but nevertheless some people have certain fixed views and it’s important that whoever is selected as the jury do keep an open and impartial and a balanced mind so that you don’t jump to any conclusions and that you assess all the evidence fairly and impartially.”

“When you do conduct your deliberations none of you have a greater or lesser weight than the other. Some of you may take notes and some people feel well the fact that somebody else took a note means that they must know more about it, it’s not necessarily the case. Some people have very good memories, some people don’t; some prefer to write, so that’s a matter for you in the way you conduct your affairs.”

21 The Crown prosecutor opened, quite briefly, to the jury. She did little more than outline the twelve separate charges against the appellant, and the factual circumstances alleged. She did not make any mention of the elements of the offences, or what it was necessary for the Crown to prove. In particular, in relation to the charges of sexual intercourse without consent, she did not mention the issue of consent, nor any potential issue concerning the appellant’s belief (or otherwise) that the complainant did consent. She did not refer to the concept of recklessness with respect to consent.

22 At the conclusion of the Crown opening, defence counsel also opened. He outlined the defence. He made it clear that the appellant’s position was that there was never any occasion when sexual intercourse between the parties had taken place in the absence of consent on the part of the complainant. He did not distinguish between absence of consent and any knowledge by the appellant that the complainant was consenting, or belief by him that she was.

23 The transcript of his opening records the following:

“In relation to the sexual assault matters, doing (sic – dealing) with those first, they just did not happen. There was never an instance that there was sexual intercourse without consent during the course of the marriage. That’s the case on behalf of Mr [K] certainly there was sex within the marriage, certainly there are times when sexual intercourse took place in the locations that are suggested by the wife in the course of her evidence. You’ve heard the Crown in the opening indicate that there were times when there were acts or performance which were very similar in nature to what is alleged to have been, without consent. It’s the case on behalf of Mr [K] that at no time did he ever force himself upon his wife, and certainly at no stage did he have sexual intercourse with her knowing that she was not consenting.”

24 The trial then proceeded, apparently smoothly, until its very closing stages. From the beginning, the jury took a keen and active interest in the evidence. This is apparent from the stream of notes through which they communicated with the judge and counsel. They sent the first note early on the second day of the trial, asking if they could ask questions, and posing three specific questions concerning evidence that the complainant had then given. This note was marked for identification 1. The judge responded by inviting the jury to continue to communicate about matters that concerned them. (He referred the specific questions to the Crown prosecutor to deal with in her continued examination of the complainant.) Thereafter, the jury from time to time sent notes identifying areas of the evidence on which they sought clarification.

25 Of particular interest is a note sent on the third day of the trial (marked for identification 2). The note asked for further clarification of the complainant’s non consent to the sexual intercourse alleged to have taken place in “mid January 2005”. I will return to this.

26 On the first day of the trial the complainant gave evidence of the incident that gave rise to the first count on the indictment, an allegation of sexual intercourse without consent, allegedly committed between 1 September 1999 and 31 December 1999 (on which the jury returned a verdict of not guilty).

27 The complainant said that the incident had occurred when her mother had come to visit and had brought a gift of a large tapestry that she had made. The complainant raised the subject of where the tapestry was to be hung to which the appellant replied that he could hang it in the toilet. On the complainant’s evidence, he then pulled her head down, exposed his penis, and forced her to fellate him.

28 She then gave evidence of the incident the subject of count two, an allegation of common assault, of which the appellant was also acquitted. This was alleged to have occurred on 1 March 2003. Again, her parents were visiting. The complainant said that her father had been working in the garden and had injured himself and that she was attending to the injury. The appellant complained that she was neglecting the children. Later, the two argued about what had happened. The appellant raised his arm as though to hit her and told her she was making him angry. She ran away and telephoned the appellant’s parents, who lived nearby.

29 On the second day the jury sent the note (MFI 1) inquiring about their entitlement to ask questions. After that had been dealt with the complainant resumed her evidence and gave an account of the events the subject of count three, a count of common assault alleged to have been committed in about March 2003, and of which the appellant was convicted. On the complainant’s account, the children had gone to bed, and she and the appellant were sitting on the floor watching television when the appellant began to criticise the way she had handled a situation. She sought to defend herself, he became angry, and she left the room and walked towards the kitchen. The appellant followed her, became abusive, and then, with his hands around her neck, shook her.

30 Immediately thereafter, the complainant gave evidence of the events giving rise to count four, the charge of using an offensive weapon with intent to commit an indictable offence, alleged to have been committed on 27 November 2003, of which the appellant was convicted. This, the complainant said, occurred on her daughter’s birthday. It again involved the appellant criticising her, and the complainant defending herself. The appellant became angry and pushed the complainant against the kitchen sink, telling her he wanted to kill her. She told him that life with him was “just so bad” that she sometimes didn’t care whether she lived or died. The appellant took a pair of scissors which he partially opened and held them against her neck. She was “absolutely terrified”.

31 The complainant then gave evidence of the events the subject of count five, another count of common assault, alleged to have been committed between 1 and 30 June 2004. The appellant was found guilty of this offence. The complainant said that the appellant had severely restricted her contact with her parents and her brother, all of whom lived in London, but that, in defiance of his instructions, she had had a conversation with her brother. She unthinkingly conveyed this to the appellant who became angry about her having had contact with her family and put his hands around her neck and squeezed, and shook her.

32 She then gave evidence of the events the subject of count six, also of common assault, committed between the same dates, and again resulting in a finding of guilty.

33 The complainant said that, in the course of a discussion about the family having a holiday in Sri Lanka, the appellant again became angry. She began to move out of the family room. The appellant told the children to go upstairs, followed her into the corridor, took hold of her hair with both hands, and began banging her head against the wall.

34 The next incident of which the complainant gave evidence was the incident the subject of count seven, a charge of sexual intercourse without consent, said to have been committed between 10 January 2005 and 1 February 2005. This was the count on which the jury failed to reach a verdict. On the complainant’s account it occurred “about mid January” soon after the family had returned from the Sri Lanka holiday. She and the appellant were watching television. He told her to get her clothes off. She said that she did not want to. He became angry. He said to her:

“Sit on me.”

35 The complainant then gave evidence of the events the subject of count eight, another count of sexual intercourse without consent, alleged to have been committed between 20 January 2005 and 1 February 2005. This was a count on which the appellant was acquitted.

36 The complainant’s account of this was that she and the appellant were in bed. She was wearing a nightshirt. The appellant began to make sexual advances to her. She said:

“Not tonight, I’m really quite tired.”

“I didn’t really have a lot of choice about it. And I felt him put his penis into my vagina and he just started having sex and I couldn’t really move. He just had me in a grip.”

37 The complainant then gave evidence of the circumstances of count nine, another count of sexual intercourse without consent, allegedly committed between 14 and 30 April 2005. The appellant was convicted of this offence. The complainant said that this began, again, when they were in their bedroom. The appellant began touching her sexually and she physically removed his hand. He ignored that and returned his hand to where it had been. She said:

“I don’t want to, let’s just have a cuddle.”

38 The complainant gave evidence of the events the subject of count ten, the offence of intimidation with intent to cause fear of physical or mental harm. This offence was said to have been committed between 1 May and 30 June 2005. The appellant was acquitted of this charge.

39 The complainant said that, during 2005, she realised that the marriage was unsuccessful. She raised with him the possibility of separation, asking that he let her go “nicely”. His reply was:

“If you try to leave me I’m going to kill you and the children.”

40 The complainant then gave evidence of the events the subject of count eleven, the count of common assault, committed on 4 July 2005, of which the appellant was convicted. The previous evening she had avoided his sexual advances. She said the atmosphere in the house was not good because there had been no intercourse the night before. She went to work, and when she returned that evening the appellant was “very snappy” towards her. She knew the appellant was angry with her. They argued. She took her handbag and tried to leave through the back door. She was in fear. The appellant intercepted her at the back door, grabbed her by the front of her clothing, and pushed her into the corner. He demanded to know why she had not wanted to have sexual intercourse the previous evening.

41 Finally, the complainant gave evidence of the events of 9 and 10 July 2005, the subject of count twelve, a count of intimidation with intent to cause fear of physical or mental harm, of which the appellant was acquitted. The appellant was in an argumentative mood. They argued about the complainant’s wish to save some money to enable her to visit her family in England. Their son was in the bath. Despite the complainant’s requests, the appellant refused to allow her to get him out. He maintained a physical presence close to her, pointed his finger, and harangued her about her wish to visit her family. This confrontation continued for about an hour and a half. Eventually, the appellant had a shower, and the complainant telephoned her mother in London and told her of her fears. The appellant’s parents then arrived at the house and she confided in them that the marriage was finished. His mother wanted the complainant to return to their house with her. The appellant refused to let her go, insisting that she was his wife, that he loved her and that he wanted to talk to her. His mother remained with them. The appellant therefore took the complainant upstairs to the bedroom. After a time the complainant, with the two children, went to stay with the appellant’s parents.

42 The complainant gave other evidence to which it is not presently necessary to refer. She concluded her evidence in chief on that day.

43 Her cross-examination commenced that afternoon.

44 It was during the course of cross-examination, early on the third morning of the trial (20 February), and before the court had resumed, that the jury sent the note that was marked for identification 2. This note read:

“In relation to the incident [“incident” is crossed out] alleged incident in mid January 2005, we would like to hear further clarification as to the witness’s non consent to the sexual act. The only refusal [“only refusal” is crossed out] initial refusal to the request remove her clothing was followed by a request to ‘sit on me’. There is no evidence of her not consenting to this request.”

45 Although the note has no signature, it is attributed to “the jury”. It is plain from the reference to the request to “sit on me” that this was a note concerning the incident the subject of count seven.

46 Although the judge acknowledged the note, he did not give any specific reply. He merely told the jury that the complainant’s evidence was not complete and that they would be given specific directions concerning consent in due course.

47 There was nothing in the cross-examination thus far to prompt such a question. To that point, cross-examination (which covers less than 13 pages of transcript) had focussed upon general or preliminary matters, such as the circumstances of the couple’s marriage, and the relationship between them. Nor does the interest of the jury in the issue of consent appear to have been provoked by anything said by the Crown prosecutor, who made only a passing reference to that issue in her opening.

48 Thereafter, the jury made at least two further requests for clarification of particular aspects of the evidence given by the complainant. In all, during the course of the trial, they sent 13 notes.

49 The evening before he commenced his summing up and during the course of the defence address, the judge distributed to each member of the jury two documents. The first, consisting of five pages, was headed “Elements” and set out the various counts, and what the Crown had to prove in order to establish each. This document was marked for identification 11. In relation to the sexual intercourse charge, it included specific directions with respect to consent, and the proof of absence of consent. Under the heading “Knowledge”, there was a specific direction that, if the appellant honestly, although wrongly, believed that the complainant was consenting to intercourse, then he did not have the requisite guilty mind, and if the Crown failed to negative such an honest belief, then the appellant could not be convicted of these charges.

50 The second document is of three-and-a-half pages, and contains further directions, these being specifically related to the evidence and the issues in the trial. This document was marked for identification 12.

51 The next event relevant for present purposes occurred during the course of defence counsel’s final address. This was on 29 February (a Friday). The jury sent a note which was marked for identification 13. This read:

“If we have a jury member who has already made up his mind and is unwilling to debate/discuss any other possibilities, what happens?”

52 After disclosing the note to counsel, outlining the response he considered appropriate, and inviting comment from counsel (who had nothing of substance to add) his Honour directed the jury in the following terms:

“The answer to your note is that we can’t inquire as to your process of deliberations. I’ll be giving you some directions about the general context of that later on, but if I could just urge this on all of you. First of all to remember what I said to you at the outset, you are all equal members of this jury, nobody has a greater or lesser weight or voice than anybody else and secondly to keep an open mind until you’ve heard the conclusion of the address from defence counsel and that will take about 15 minutes Mr Johnston informs me and also the summing-up.

I have spent a fair bit of time on the directions in relation to that. They are important ones and it may be that that will give each of you and all of you an opportunity to rethink the matter. As I say, how you conduct your deliberations are very much a matter for you so I’ll leave it on that basis. Again you are free to send me in another note if you want to, Mr Representative, but that is all a judge can really say in circumstances such as this, all right? Thank you.”

53 At mid afternoon on the same day the jury was charged and retired to consider its verdicts. Shortly after, they sent a note (marked for identification 14) asking to have read to them excerpts from the transcript, “regarding description of events” in respect of counts 7 and 8. On the morning of Monday, 3 March, after discussion as to how to meet the jury’s request, the judge read substantial parts of the transcript to them.

54 Late in the afternoon the judge received another note from the jury – more accurately, from one member of the jury, not the foreperson. It became apparent that this was the juror to whom the earlier note (MFI 13) referred. This note read:

“I [name] Will not be ‘Possible” able to be any more time in this case for Personal reasons and further more the situation in the Jury Room became umberable (sic).”

This note was marked for identification 15.

55 After discussing this note with counsel, the judge recalled the jury. He disclosed to them the substance of the latest note, including that part in which the juror said that the situation in the jury room had become unbearable. He emphasised to the whole jury the need to remain impartial. He invited the author of MFI 15 again to communicate in writing, specifying the nature of the problem he/she was experiencing.

56 The jury retired again. The judge and counsel continued to discuss the alternative scenarios that might emerge. During that time defence counsel invited his Honour:

“ … to add that it is not appropriate if there is a disagreement to be placing undue pressure on one particular party. You’re entitled to have open and frank and persuasive discussions but they shouldn’t reach the stage where an attempt is made to overbear the opinion of one or more of you.”

57 The transcript is not quite clear about what next occurred. Shortly after this, and before the jury as a whole returned to the court, a juror, who had apparently expressed to a court officer some uneasiness about his command of the English language, was brought into court, in the absence of the other members of the jury. (This meant that there was at that time no opportunity for the judge to give the direction proposed by counsel.) This was the juror who had written the note MFI 15. The juror was sworn and examined by the judge. In answer to an invitation to disclose the “personal reasons” for his inability to spend more time on the case, he said:

“The reason for that because on my belief your Honour said we’re all independent, we all charge everyone, every single, the twelve charges, and we all have different opinions. It came to me to the case which I’ve already been charged as one-sided from day one. I don’t agree with that. I definitely do not agree with that. The situation becomes unbearable because certain elements will not accept the reasons why I may agree or disagree with whatever.”

58 The whole jury then returned to the court. It was now 4.23pm, and it was agreed that the jury would be permitted to separate for the evening, and resume deliberations the following morning. Before they dispersed, the judge directed them:

“The only thing that I would stress is this that as I said to you at the beginning you have all taken an oath or affirmation to act as judges and that means respecting everybody’s views and consider everybody’s recollections and interpretations of the evidence and the processes that you follow and I am sure you will be able to do that in the morning.”

59 The following day (4 March), deliberations resumed. During the course of the morning (it is not possible to ascertain how long into the deliberations) the jury sent the judge a further note (marked for identification 16). This note read:

“It has come to notice, by admission, that a jury member has contravened instructions as follows.

(1) Attempted to search internet data base.

(2) Conducted an experiment to assist in decision making.

We are concerned given the requirement to report at direction number 7. signed ‘The Jury’.”

60 The jury was recalled again. The judge read the note to the jury and requested the jury member concerned to identify himself or herself and return to the court, while the other members of the jury remained in the jury room. One juror did return to the court. It is common ground that this was the same juror who had previously been examined, who had complained about the atmosphere in the jury room. He denied conducting any internet searches – and denied it emphatically. However, he also said:

“I did said, if you allow me, I did say to them that there’s no information about this case anyway. That’s what I said to them and that was last week, not today. That was last week.”

61 When asked how he knew that there was no information he replied (unresponsively):

“Anyway, that’s exactly that. He said no, nothing mentioned on the papers anything. That was on conversation with them actually.”

“The jury said that because I did say to them and that’s I repeat, that last week we were talking in our break, our lunch break and I said ‘There’s no information regarding this case anyway’.”

“I didn’t find that in any papers or anyone talking about or whatever. That’s what I meant to.”

62 Later, in an apparent reference to conventional directions given at the opening of the trial by the judge, he said that he had been putting his “life experience” towards the resolution of the charges.

63 The juror then left the court but remained separated from the balance of the jury and the judge discussed with counsel the direction he should give the entire jury. Defence counsel put this submission:

“But to continue, if the jury is to resume they are to be given directions by you that the environment should not be overbearing and that they should tolerate differences in the jury room and that they should have free and frank discussions amongst them, but if it has come to the stage where the contact is beyond that then that is not proper.”

“ … your Honour then needs to say that if – encourage them to return to their deliberations and encourage them to do so frankly but without any overbearing conduct on behalf of any of the jurors.”

64 This was the third time that defence counsel had made a request, in essentially similar terms, for directions concerning the behaviour of members of the jury towards one another. The judge determined that no basis for discharging that juror had been established. He did not respond to the request, or submission, concerning directions.

65 The foreman of the jury was then called into court, in the absence of the balance of the jury. The purpose of this, apparently, was to conduct further inquiries into the conduct of the individual juror. The judge stressed that the foreman should not give any details of the jury deliberations. He asked what was the factual basis for the assertion of internet searching and experimentation contained in the note. The foreman said that the juror had said that he “looked up” on the PC computer but that he had not seen anything. Despite further questioning, he did not give any details about any experimentation. He did, however, say:

“Well, the way I can only put and I will be truthful but he broke the law. That’s the way I see it.”

66 The judge then said this:

“And then finally this, Mr Representative, you can take it that in every jury, or many jury trials, there’s a degree of tension. There’s a degree of anxiety which you’d expect in a situation where a trial of this nature involving these sorts of issues, sometimes gives rise to tensions and sometimes there are vehement arguments.

But I need to make sure that the jury is able to continue its deliberations in a way which is fair and rational so that both the community and the accused are getting the benefit of a group of twelve judges who are able to think about things, able to deal with the evidence, able to assess all the evidence and do it objectively and dispassionately and fairly.

that its not unknown for judges to have full scale brawls among themselves in other courts

67 He then asked the foreman if he were able to say that the jury was still able as a group to participate properly in its deliberations. The foreman affirmed the jury’s ability to do so.

68 The judge recalled the entire jury and told them that he had taken evidence from the foreman and another member and had resolved not to take any further action and asked them to continue with their deliberations. He then said:

“Could I say this to you though – as I said to both the jurors that have come in and it is no secret – it is not uncommon that in jury deliberations that there can be tensions, there can be pressures, there can be arguments.

you can take it that judges frequently disagree and sometimes there are raised voices, sometimes really raised voices particularly in other areas

It is a serious matter and I am satisfied that you are giving it the real attention that has been indicated right throughout the trial by some of your notes.

But could I just urge you to particularly respect each others views at this time. You can take it that some views have been expressed that you would like to get on with it. That is what has been put to me and I can relate to that. But I want to make sure that you are able to consider all the evidence on all twelve counts appropriately.” (italics added)

69 The jury resumed deliberations. At some time during the course of the day they sent another note to the judge. This note informed the judge that they had reached unanimous agreement in the first six charges, were divided (giving figures, but no indication whether the majority favoured conviction or acquittal) in respect of three counts, and were at “stalemate” in respect of the remaining three counts. The note added that the stalemate was “due to varying opinions not conflict.” This note was marked for identification 17. It also contained a question about the future course of the trial.

70 After discussing the note, and the further procedures, with counsel, the judge recalled the jury. It seems that he misunderstood the import of the note, because he began by mentioning that the jury was unable to reach verdicts “on the totality of the counts”.

71 He then proceeded to give the direction prescribed by the High Court in Black v The Queen [1993] HCA 71; 179 CLR 44. He made no mention of the possibility of majority verdicts on all or any counts, although the transcript reveals that that was very much in the minds of the judge and counsel.

72 The transcript is unhelpful about what happened next. Marked for identification 19 is a note from the jury indicating their wish to adjourn for the day and resume deliberations the following day. This is what happened. Before that happened, the jury sent yet another note. This read:

“We have been deliberating since 9AM. We are comfortable that the position we are now in will not change with further discussion. The current position is as follows: …”

73 The judge then discussed again with counsel the question of giving a direction with respect to a majority verdict, available under s 55F of the Jury Act. The judge recalled the jury and the foreman was affirmed. He confirmed that, on five counts, the jury was unable to deliver a unanimous verdict. His Honour then addressed the jury. He said:

“I have the power to discharge you from giving a verdict, but I should only do so if I am satisfied there is no likelihood of genuine agreement being reached after further deliberation and you have heard the evidence as have I. The circumstances that have arisen in which I may take a majority verdict, now that is not just a question of the time elapsing, the time here has well and truly elapsed, but I need to discuss that with counsel when you retire.

I direct you that should you continue to be unable to reach a unanimous verdict that is on the other five matters, you may return, and I must accept, a verdict of 11 of you, as the verdict of the jury in this case.

However you should consider that it is preferable that your verdict be unanimous and you should continue to strive to reach unanimous verdict. Again, as I said to you yesterday, experience has shown that juries can often agree if given more time to consider and discuss the issues. But if after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of the other jurors, you must give affect [sic] to your own view of the evidence. Again, that is not just meant as a formal matter. You may be interested to know that the High Court decision which established this particular area of law, said that jurors who in fact hold out, or jurors who, in fact, have a different view and want that view expressed and maintained are very much giving voice to the oath or affirmation that they take.

So it is an important matter that you take into account.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility and I have made a number of comments to that affect [sic] before, I have also said to you and it is my observation that you have done it, you have a duty to listen carefully and objectively to the views of every one of you [sic] fellow jurors. Calmly weigh up each other’s opinions and the evidence and test them and you have also heard me say and again it is my observation, that you have been doing that.

Calm and objective discussion often leads to a better understanding of the differences of opinion you may have and may convince you, your original opinion was wrong. Here you have obviously changed your views in relation to some matters during the course of deliberations. So that is something that has obviously come to pass and as I have said, I am not suggesting to you that you can – if you consistently with your affirmation as a juror, if you do not honestly and genuinely think it is a correct decision then you must go with your own views.

As I have said, experience has shown jurors are able to agree in the end if they give more time to considering and discussing the evidence. Therefore I am asking you re-examine the matters that you have already taken into account.

Now, importantly as I have said, you should continue deliberations with the view to reach unanimous verdict.

If however, that becomes plainly impossible and you are able to reach a verdict by agreement of 11 of you, you may return such a majority verdict in this case, that is to say a verdict of 11 out of 12 of you. And those are the alternative ways and the only ways in which you may return a verdict according to law.”

At 11.30am the jury returned with the verdicts I have set out above.

The appeal

Ground 1: unreasonable verdicts:

74 Ground 1 is framed as follows:

“The verdicts of the jury in relation to counts 3, 4, 5, 6, 9 and 11 are unreasonable and cannot be supported having regard to the evidence and the verdicts of not guilty on counts 1, 2, 8, 10 and 12.”

75 In written submissions, in respect of this ground, the following was put:

“It is submitted that the course and length of the deliberations, the communications from the jury and the mixed verdicts are consistent with, and strongly indicative of, compromise.”

76 No submissions were then made suggesting that the verdicts of guilty were unsatisfactory or unreasonable on any other basis.

77 However, in oral submissions, counsel took a different direction. They invoked the principles stated by the High Court in M v The Queen [1994] HCA 63; 181 CLR 487, Jones v The Queen [1997] HCA 12; 191 CLR 439, MFA v The Queen [2002] HCA 53; 213 CLR 606; Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 and by this Court in Markuleski v R [2001] NSWCCA 290; 52 NSWLR 82.

78 When pressed on this, counsel conceded that their argument drew considerable support from the diversity of verdicts and would not have the same force had the jury convicted on all counts. In other words, the diversity of verdicts was integral to their contention that the verdicts were unreasonable or unsafe and unsatisfactory. This was because the differential verdicts added weight to the proposition that compromise could be read into the approach taken by the jury. And this, in turn, was because the verdicts of the jury were heavily dependant upon acceptance of the complainant as a credible witness. Central to the appellant’s argument was adoption of the reasoning process in Jones that led the majority of the High Court to conclude that, in not dissimilar circumstances, a mixture of verdicts rendered those of guilty unsafe and unsatisfactory (to use the language that then prevailed): that is, that, since the verdicts of not guilty signified doubts about the complainant’s credibility in respect of those counts, then logic demanded that that doubt be translated to the other counts. The argument depends upon there being no rational explanation for the differential verdicts.

79 I find it necessary to analyse with some particularity the argument advanced on behalf of the appellant. It has, on analysis, a number of strands.

80 The submission was, essentially, that the diversity of verdicts must be taken to reflect compromise on the part of a divided jury. Counsel then invoked a number of well-known authorities to support the proposition that the verdicts of guilty were unreasonable.

81 The proposition that the verdicts reflect compromise, and the proposition that verdicts are unreasonable are not identical, and are not two sides of the same coin. Not only do they involve different processes of analysis, and different principles of law; if made out, they have different consequences. A conclusion by an appellate court that verdicts of guilty are unreasonable has the inevitable consequence that verdicts of acquittal will be entered. A conclusion by an appellate court that verdicts of guilty are the result of compromise by a divided jury will properly result in orders for a new trial on those charges: see R v Crisologo (1997) 99 A Crim R 178.

82 The ground, as framed, also involves two separate issues: firstly, that, by reason of the nature and quality of the evidence, the verdicts of guilty are unsustainable (M v The Queen); secondly, that, by reason of the verdicts of not guilty, the verdicts of guilty are unsustainable (Jones v The Queen).

83 It was also urged on behalf of the appellant that the different verdicts were inconsistent, in the sense considered by the High Court in Mackenzie.

84 These arguments cannot be disposed of globally. Each needs to be considered and analysed separately. Although they are all put as part of the contention that the convictions are unreasonable, they involve different paths to that result. There is, however, in the authorities upon which reliance was placed, considerable overlap. It is therefore convenient to set out, chronologically, the relevant decisions, and to extract the relevant passages.

Authorities

M v The Queen

85 M was decided when the ground now identified as an assertion that a conviction is unreasonable and cannot be supported, was known as an assertion that the conviction was unsafe and unsatisfactory. M was not the first case in which the ground was discussed (see, for example, Davies & Cody v The King [1937] HCA 27; 57 CLR 170; Chidiac v The Queen [1991] HCA 4; 171 CLR 432), but, since M has become definitional, it is a suitable starting point.

86 Like so many of the cases that produce argument that convictions are unreasonable, M involved allegations of sexual misconduct, by a father with his daughter. The evidence of the complainant was uncorroborated. M appealed on the sole ground that the convictions were unsafe and unsatisfactory.

87 In considering the test to be applied where an unsafe and unsatisfactory ground is taken, the majority (Mason CJ, Deane, Dawson and Toohey JJ) said:

upon the whole of the evidence

88 The Court was at pains to emphasise that, in the application of the test, an appellate court must pay due regard to the prime position of the jury, having observed the witnesses, and the “constitutional” role of the jury.

89 These passages, together with others that I have not extracted, (emphasising in the importance of the jury’s function and advantageous position), are so often quoted and are so well-known, that many judges, and no doubt legal practitioners, could recite them from memory. But they do not represent the whole of what was said by the majority in M. At 493 their Honours also said:

“But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.”

90 Their Honours went on to observe that the duty imposed on a court of appeal to quash a conviction where it thinks that on any ground there was a miscarriage of justice covers:

or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled

Davies and Cody

91 Having applied the principles stated to the facts of the case, the Court ordered that the convictions be set aside and verdicts of acquittal entered. M was not a case complicated by the existence of a diversity of verdicts. The result came about because, on analysis of the evidence, the Court concluded that the convictions were unsustainable – that is, that, “upon the whole of the evidence”, it was not open to the jury to convict.

Mackenzie v The Queen

92 Mackenzie is a case concerning what were said to be inconsistent verdicts. The asserted inconsistency arose because Mackenzie was convicted, on an indictment containing four counts, (of which two were primary counts, and two lesser alternatives to the primary counts) of each of the alternative (lesser) counts. The relevant ground of appeal was that the verdicts were inconsistent, in that the acquittals on the two primary charges were inconsistent with the convictions on the two lesser charges. (The asserted inconsistency is a little unusual. The two primary counts, brought under s 328 of the Crimes Act 1900, were of perjury with intent to secure the acquittal of a person charged with a serious offence. The two alternative charges, laid under s 327 of the Crimes Act, were of perjury simpliciter, without any allegation of specific intent. In the circumstances of the case it was, as the majority judgment noted, difficult to contemplate any motive for the alleged false evidence other than to secure an acquittal. The inconsistency argument was that rejection of the primary charges alleging a particular motive was irreconcilable with acceptance of the lesser charges, omitting reference to motive. The contention therefore was that the convictions were unsafe and unsatisfactory.) The ground failed. In rejecting the ground, the Court explained in detail the approach to be taken by appellate courts dealing with such a ground. In a joint judgment, Gaudron, Gummow and Kirby JJ began by affirming the primacy of the position of the jury in resolving disputed factual questions; but set against that the circumstance where external evidence discloses some flaw in the jury’s reasoning. Their Honours also noted the traditional confidentiality which is accorded to the processes by which juries arrive at their verdicts. Having said that, they went on to say:

“On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury’s thinking. This does not arise unlawfully or irregularly. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.”

93 Their Honours then extracted from the authorities a series of six general propositions. Of these four need here be mentioned. They are (I paraphrase):

(1) a distinction is drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency;
(2) the test to be applied (in determining whether there exists inconsistency such as to render convictions unsafe) is one of “logic and reasonableness”;
(3) where there is a proper way by which the verdicts may be reconciled, it will generally be concluded that the jury performed their functions appropriately;
(4) in “a residue of cases” different verdicts represent “an affront to logic and common-sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”; in such a case the court will intervene to prevent a possible injustice and set aside the convictions. In such a case the verdicts 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.

94 The Court in Mackenzie held that there was no affront to logic and common sense and that the verdicts were reconcilable.

Jones v The Queen

95 Jones is the first of the relevant cases involving, as in the present case, an argument that a mix of verdicts of guilty and not guilty on a single indictment disclosed inconsistency that rendered the convictions unsafe and unsatisfactory because the acquittals pointed to doubts in the jury’s mind concerning the credibility or veracity of the complainant. (The inconsistency alleged was not inconsistency of precisely the same kind as alleged in Mackenzie, and no mention was made of that case in any of the judgments.)

96 In Jones, the appellant was tried on an indictment that contained three counts of sexual intercourse with a female child. He was convicted on the first and third, and acquitted on the second. He appealed on the ground that the convictions were unsafe and unsatisfactory.

97 Central to the decision in Jones was the circumstance that the accused person, facing multiple charges, was convicted of only two of them, and acquitted of one; and that no rational explanation could be found, on examination of the evidence, for that diversity. Inherent in the judgments is the proposition that the jury must be found to have experienced a doubt about the credibility of the complainant in respect of that count on which they acquitted. It was not a case in which, with respect to any count, the evidence, standing alone, was insufficient to warrant satisfaction, beyond reasonable doubt, that the accused was guilty of the offence. What was important was the mere fact that, in respect of the first and third counts, the jury expressed themselves to be satisfied beyond reasonable doubt of the accused’s guilt; but, on the second, they expressed themselves to be not so satisfied. The High Court could find no rational explanation in the evidence for that diversity, and, accordingly, took the view that, since the jury must be taken to have experienced a doubt in respect of one count, that doubt must, rationally, also have attended the others. They applied that doubt to those counts on which the accused was convicted.

98 The majority judgment, allowing the appeal, was delivered by Gaudron, McHugh and Gummow JJ. Brennan CJ, in a separate judgment, agreed. Kirby J dissented.

99 The majority quoted extracts from M, and noted differences in approach taken to the question of deciding whether a conviction is unsafe or unsatisfactory. They accepted that the test formulated by the majority in M is the appropriate test for determining whether a conviction is unsafe or unsatisfactory. That test, I repeat, is:

the whole of the evidence

100 At p 455 their Honours said:

M

As we have already said, nothing in the complainant’s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.”

101 While it is sometimes perceived that scepticism about the complainant’s credibility stood alone as a single and independent basis for the result, both in the joint judgment and in the judgment of Brennan CJ, other factors either contributed to or strengthened the conclusion – for those who participated in the joint judgment, these additional factors were delay on the part of the complainant in making the complaint, and the absence of any corroborative evidence, particularly medical evidence; for Brennan CJ the additional factors were delay, evidence of an apparent continuing cordial relationship between the complainant and the appellant, and doubts about whether the jury was adequately instructed with respect to the delay, in accordance with the decision in Longman v The Queen [1989] HCA 60; 168 CLR 79: see the analysis of Jones in the judgment of Spigelman CJ in Markuleski at [12] - [21], endorsed by the High Court in MFA.

102 Jones, it seems, was given too liberal, or perhaps too literal, an interpretation by intermediate appellate courts, both in this state and in others: see R v Markuleski; MFA.

103 Accordingly, in Markuleski, Spigelman CJ undertook a thorough review of the decisions that had applied Jones, and analysed what had been decided in Jones.

Markuleski v R

104 Markuleski faced an indictment containing six counts of sexual offences. He was convicted of five and acquitted of one. He appealed, relying on the reasoning in Jones.

105 Spigelman CJ began by extracting the passages from M to which I have already referred – including that paragraph in which the majority said:

“ … 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.”

106 His Honour then referred to and quoted from Mackenzie, citing the test as:

“ … one of logic and reasonableness.”

Jones

“ … represents a particular application of this test of ‘reasonableness’.”

107 He then said:

must be applied to the whole of the facts and circumstances of a particular case

108 Spigelman CJ (with whom Wood CJ at CL, Grove J and Carruthers AJ agreed) concluded, on the whole of the facts and circumstances of that case, (I paraphrase) that the acquittal could be reconciled with the conviction and that it was open to the jury to convict.

MFA v The Queen

109 A similar set of circumstances arose in MFA. An accused person, charged with nine sexual offences against a single complainant, said to have been committed on four separate occasions, was convicted of two counts and acquitted of seven. The only ground of appeal in the High Court was that:

“ … having regard to the evidence and to the verdicts of not guilty”

Jones

Markuleski

in the light of the facts and circumstances of the particular case

110 Their Honours then referred to directions, conventionally given to juries, to give separate consideration to each count; to the onus of proof which lies upon the prosecution; the need for unanimity (or, it may be added, where majority verdicts are permitted, compliance with the statutory requirements therefor); and particular considerations applying to prosecutions in sexual offences.

111 Their Honours then pointed out (with some emphasis) that, particularly in relation to prosecutions for sexual offences, a verdict of guilty does not necessarily imply disbelief in a complainant’s evidence, or lack of confidence in the complainant, but may simply reflect a cautious approach to the discharge of the jury function. They then said:

Jones

M

Norris v R

[2007] NSWCCA 235

112 Norris was another case involving four counts of sexual offences allegedly committed against a single complainant. Norris was convicted of two counts and acquitted of two.

113 By majority (Howie and Hall JJ, McClellan CJ at CL dissenting) this Court accepted a ground of appeal that the convictions were unreasonable. Principally, this was because of the differential verdicts, although, in the judgment of Howie J, as in Jones, there were supplementary features, including delay in complaint and:

“ … other matters touching upon the complainant’s credibility.”.

114 Howie J said:

M

MFA

issue is whether this Court finds that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty

115 It will be noted that, in stating the test from M, Howie J omitted the words:

“ … upon the whole of the evidence.”

116 His Honour stated that, in that case, the issue of the reasonableness of the guilty verdict was raised by the acquittals on the other counts. He noted that there was no obvious explanation for the different verdicts, but that it could not be said that they were illogical or irrational. Illogicality or irrationality would suggest that the verdicts were the result of a compromise. His Honour held that:

“ … the ground of appeal is to be determined, not by trying to explain the verdicts and how the jury must have approached their task, but by considering the evidence in support of counts 1 and 2 bearing in mind that the jury acquitted on counts 3 and 4 and the implications arising from the fact that the Crown failed to prove its case on those two allegations …”

117 Both Howie J and Hall J considered that the acquittals could only be interpreted as meaning that the jury had a doubt about the credibility of the complainant on those counts.

118 Applying Jones, their Honours found no rational basis for the difference in outcomes. It is of some interest that, while Howie J appears principally to have based his decision on the conclusion that, the jury having acquitted on two counts (which were not able to be clearly differentiated from the two on which the appellant was convicted), they must be taken to have doubted the complainant’s credibility, he added (in an echo of Jones) that delay on the part of the complainant in making complaint, “and other matters relating to the complainant’s credibility”, were relevant circumstances.

* * *

Reconciliation of the authorities

119 I find it difficult to reconcile the majority reasoning in Jones with the majority reasoning in M notwithstanding that their Honours expressly adopted the test stated in M. Although M and Jones and Mackenzie deal with the same issue in a general sense (the reasonableness or otherwise of a verdict(s) of guilty), each deals with a different particular instance of asserted unreasonableness or unsustainability, and each calls for examination of circumstances of a different kind. The fundamental issue in M was whether, upon the whole of the evidence, it was open to the jury to convict. On the basis of “shortcomings” in the evidence identified by Sully J in this Court, the High Court allowed the appeal and ordered that the convictions be quashed and verdicts of acquittal be entered.

120 In Jones, no issue arose concerning the adequacy or otherwise of the evidence, particularly that of the complainant, in relation to the counts on which Jones was convicted. The court appears to have proceeded on the basis that no “shortcomings” or inadequacies of the kind identified in M were revealed. The majority concluded that it was not open to the jury to convict for reasons other than, and quite distinct from, the evidence.

121 It seems to me that, on close analysis of these authorities, two separate scenarios emerge. Cases of the M variety deal with the general proposition that a verdict or verdicts of guilty is or are unreasonable because of shortcomings, inadequacies, deficiencies, contradictions or discrepancies in the evidence. It is for that reason that the test propounded is whether it was open to the jury “ … on the whole of the evidence” to be satisfied to the requisite standard of the accused person’s guilt.

122 But M recognises also other bases for a conclusion that a conviction is unreasonable. The passage at p 493, which I again reproduce:

“ … But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.”

Davies and Cody

or in the manner in which it has been reached

123 The notion that a verdict may be unsafe or unsatisfactory for reasons other than sufficiency of the evidence was picked up in Mackenzie, with specific application to cases of asserted inconsistency.

124 It is also of significance that, in Markuleski, while quoting from M, the Chief Justice drew upon the reasoning, and the test propounded (specifically with application to cases of asserted inconsistency) in Mackenzie. And, at [10], the foundation for the test his Honour applied was not “upon the whole of the evidence”, but “the whole of the facts and circumstances of a particular case”.

125 And, in MFA where again the issue concerned a diversity of verdicts, in [34] the reference point was widened from “the whole of the evidence” to “the facts and circumstances of the particular case”.

126 The distinction is not mere pedantry. To succeed in an M ground, an appellant must identify shortcomings and inadequacies in the evidence. A Jones ground may succeed, notwithstanding that no such shortcomings or inadequacies can be demonstrated.

127 What is implicit in that paragraph of MFA is that, where unreasonableness of a verdict of guilty is asserted by reason of a mix of verdicts, the inquiry is wider than that stated in M. In M no question of inconsistency arose, and, in cases of that sort, the inquiry is as to the adequacy of “the whole of the evidence” to support the verdict. In cases of the Jones variety, a further dimension is added – the “circumstances” of the particular case. That goes beyond “the whole of the evidence” and includes an examination of the significance of the acquittals, and what can be read into those verdicts.

128 That is not, on my reading, an adoption (for inconsistent verdict cases) of the most commonly quoted M test. The foundation for the test stated in MFA is not confined to “the whole of the evidence” but incorporates “all of the facts and circumstances of the particular case”. That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. The inquiry may also permit examination of circumstances that give “insight” (Mackenzie), to the extent that is permissible, into the jury’s thinking. Having regard to the willingness of the jury, in this case, to disclose its reasoning (through its regular communications) and, more particularly, to the unusual circumstances showing a degree of dissension during the process of deliberation, that is here of some considerable relevance.

129 In cases where the asserted unreasonableness is founded upon inconsistency, it is not unusual to find that little, if any, attention is paid to the quality of the evidence. That was the case in Mackenzie, it was the case in Jones, and it was the case in Norris (although in each of the last two cases, supplementary matters augmenting the doubts occasioned by the acquittals were added) in the reasoning to the conclusions.

130 Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant’s credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.

131 I say that the task of determining whether the acquittal is due to doubts about the complainant’s credibility is more difficult for this reason. It is not uncommon to find that the explanation for conviction on the one hand, and acquittal on the other, is to be found in some corroborative (often even usually, circumstantial) evidence of another witness. But, logically, how can this be seen as other than casting doubt upon the credibility of the complainant? It suggests that the complainant is accepted only where externally corroborated in some detail. In other words, his/her credibility is in question unless supported by some external factor.

132 It is of some significance that these issues arise commonly in cases of allegations of sexual impropriety, where, typically, the principal, and often the only, evidence of the central event is that of the complainant. Corroborative evidence may be, and often is, sought elsewhere but this is usually of a circumstantial kind.

133 Doubt about credibility of a witness is not the only available explanation for acquittal on one or more counts on an indictment, even in circumstances where the prosecution depends entirely or very substantially upon the evidence of that witness - invariably, in a trial involving sexual offences, the complainant. One alternative explanation is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged. That this possibility may appropriately be taken into account was reaffirmed as recently as 2002, in MFA. Another possible explanation is compromise amongst a divided jury: see R v Crisologo (1997) 99 A Crim R 178. An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts.

134 Where the correct explanation is compromise, the accused person has received the benefit of an acquittal or acquittals to which he or she is not entitled. That is because a jury acting in accordance with its duty ought, if it be the case, to declare its inability to reach a unanimous (or, since May 2006, an appropriate majority) verdict. It is then a question for the Director of Public Prosecutions whether the accused person is to be tried again.

135 Mackenzie, Jones and Norris all appear to have proceeded upon the basis that, absent the acquittals, the evidence adduced was sufficient, and was not relevantly tainted, to support the convictions. I do not mean to suggest that Jones creates a separate entity of unreasonable verdict: that is expressly contradicted by MFA. It is also clearly contradicted by the last paragraph in the joint judgment in Jones itself. But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open “upon the whole of the evidence”. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).

136 In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: see, for example, Mackenzie (at 367); R v Landsell (NSWCCA, unreported, 22 May 1995 per Gleeson CJ). It is only in circumstances where the evidence points, and points clearly, even unequivocally, to departure from those obligations that an appellate court will come to such a view.

137 As I have already mentioned, the Jones approach comes into play only if there is no rational explanation for the diverse verdicts. It is in that circumstance that the court must determine whether the only reason for the acquittals is doubt about the complainant’s credibility; (if so, then that doubt must be applied to the remaining counts); or whether the jury has exercised its inherent right to correct what it sees as unfairness in the criminal process; or, finally, whether a divided jury has compromised. If compromise is the favoured explanation, then, as I have indicated above, the accused person has received an unwarranted bonus in the acquittals and the correct order is an order for a new trial on those counts on which the jury convicted.

138 This requires the appellate court to examine the evidence for an explanation or explanations, other than scepticism about the complainant’s credibility, for the acquittals. I propose to do that shortly, following the approach taken by counsel for the appellant.

Application of the principles

139 Here, it was not suggested that the evidence of the complainant was of such a quality as, of itself, to render the verdicts of guilty unreasonable. Counsel, it seems to me, disavowed that. They accepted that, had the appellant been convicted on all counts, their prospects of succeeding on an unreasonableness ground would have been very limited indeed. It was not the quality of the complainant’s evidence that was said to give rise to unreasonableness; it was the circumstance of a mixture of verdicts. But it is necessary to analyse what ought, or can, be read into that circumstance.

140 With genuine respect to counsel, in my opinion their submissions failed adequately to differentiate between the possible conclusions to be drawn from an examination of “the whole of the facts and circumstances” of the case. Among the possibilities are (i) that the jury, divided as it had declared itself to be, compromised in an impermissible way; and (ii) that, in relation to those counts on which they acquitted, the jury “were not satisfied beyond reasonable doubt of the truth of her evidence” (Jones, p 453), with the consequence that they ought not to have been satisfied beyond reasonable doubt of the truth of her evidence with respect to the counts on which they convicted.

141 Counsel, in fact, put both of these propositions at times, but in an undifferentiated way. They must, however, be examined separately. I will take the latter first. Following counsel’s lead, I will start with the sexual intercourse without consent charges.

142 In order to make their point, counsel chose to focus upon two of the sexual intercourse without consent charges. These were counts eight and nine. The appellant was acquitted on count eight and convicted on count nine. Counsel took this course in an attempt to demonstrate that no distinction could be drawn between the evidence given by the complainant in respect of the two incidents. If this were correct, then it ought to be inferred that the acquittal on count eight stemmed from doubt about her credibility. Consequent upon that are the alternative propositions: either the doubt the jury must be taken to have experienced in relation to count eight must also attend count nine, or the verdicts ought to be seen as compromise. It was in this context that the history of apparent dissent within the jury attained a degree of prominence. Assessment of the argument requires more detailed examination of the evidence given by the complainant in relation to these counts. It will also be useful to look at the evidence she gave in relation to the other two sexual intercourse charges, counts one and seven.

143 It is necessary to bear in mind the observations of the High Court in MFA. Acquittals do not necessarily signify doubt about a complainant’s veracity. They may be attributable to a variety of other reasons – compliance with the direction to give separate consideration to each count, application of the standard of proof, a desire for corroborative evidence. In his final address, counsel for the appellant expressly appealed to the jury to consider each count separately, and:

“ … not bundle them together.”

Doubt about the complainant’s credibility?

The complainant’s evidence

144 This was the count in respect of which the complainant asserted that, following an unpleasant exchange about the tapestry her mother had brought, the appellant forced her to fellate him, by pushing her head onto his erect penis. She said that initially she resisted, but that, after the appellant had pushed her head, and on realising what he wanted:

“ … so I just succumbed to that.”

“ … for a short period of time and then I just gave up.”

“Just a brief effort to push my head back, just a matter of seconds.”

“I was sad within myself, I didn’t show him anything.”

Count seven:

145 This count concerned the occasion when the complainant alleged that the appellant told her to sit on him. She claimed that the appellant told her to take her clothes off, that she protested, and that he became angry and insisted. She said:

“ … I realised what he wanted me to do, so I took off my night-shirt and tried to sit down on his penis and then have intercourse … but it wasn’t comfortable …”

“ … I willingly took my clothes off and sat on him because I realised he wasn’t going to take no for an answer so I just did what he asked me to do …”

She agreed again that oral sex had previously been included in their consensual sexual activity.

Count eight:

146 The incident giving rise to count eight was alleged to have occurred between 20 January and 1 February 2005. The complainant said that the appellant had gone to bed, and that she also went to bed. She was lying in bed trying to fall asleep when the appellant made sexual approaches to her. She said to him:

“Not tonight, I’m really quite tired.”

“ … didn’t really have a lot of choice about it.”

“He started having intercourse. It felt uncomfortable in my vagina but I couldn’t do very much about it so he just proceeded to have intercourse. And while he was having intercourse he started doing this with his right hand, he started doing this strange thing where he puts his arm around my throat from the back and then he puts his hand on my mouth, like this.”

147 She was asked about the degree of force the appellant used and she replied:

“The force – there wasn’t a lot of force, it was more of an action he was doing. He wasn’t, like, pressing tightly against my mouth, he was just covering it and he wasn’t strangling me, he was just holding my neck. It was really strange. He was like – it was – he was doing it but there was no force involved in that part. He was just gripping me, having intercourse and just doing this motion.”

148 In cross-examination, the complainant said:

“I said something at some stage when he was trying to penetrate me. I don’t know if I said it immediately when he was gripping me. It was somewhere between him gripping me and penetrating, I said, ‘What are you doing?’, or something like that or tried to get his hand off my breast.”

149 When asked if she had told the appellant (explicitly) to stop what he was doing, she said that she had said something (she could not remember the precise terms) to the effect of “What are you doing?” She said that she tried to wriggle away from him a little bit. She was then asked if, after the event, she had told him that he had done something she did not want. In a passage upon which counsel for the appellant placed considerable reliance (given that this count resulted in acquittal), she replied:

he knew very well he did something I did not want

Count nine:

150 Count nine alleged an incident said to have taken place between 14 April 2005 and 30 April 2005. This incident, on the complainant’s evidence, began similarly to that just described. The complainant said that she and the appellant were in bed. He again made sexual overtures to her. She said that, with her hand, she moved his hand away from her body, hoping that he would leave her alone. He immediately resumed the activity, and the complainant said:

“I don’t want to, let’s just have a cuddle.”

“He doesn’t listen to what I say, he forces me.”

151 In respect of this incident she also said that she “wriggled a bit” to avoid the appellant’s advances. She said:

“So I realised he’s not really going to take any notice of me. So I just let him. I didn’t really have a lot of choice.”

She said that she was not consenting to sexual intercourse.

“ … there wasn’t a lot of force, it was gentle. It was just a motion where he just put his arms around but he wasn’t squeezing my neck and he wasn’t pressing on my face, he was just covering my mouth.”

In cross-examination she repeated that she had attempted to dissuade the appellant by removing his hand from her genital area, and had told him that she did not want sexual intercourse, but that he persisted.

The appellant’s evidence

152 The appellant gave evidence in accordance with what had earlier, in the defence opening, been outlined to the jury. With respect to count one he flatly denied having said that the complainant’s mother’s tapestry could be put in the toilet. When asked specifically about the sexual assault, he said:

“I never did that.”

“I never did, never did that.”

153 With respect to count seven he denied ever saying to the complainant “sit on me” and said he could not recall an incident as described by the complainant. Asked about her evidence that she had said:

“This doesn’t feel good, can we stop?”,

“That never happened.”

“No I never did that.”

154 With respect to count eight he gave a different account to the complainant of the family routine with regard to her putting the children to bed. As to the central allegation he said:

“Well I didn’t do that, I don’t recall doing anything like that, but certainly to get my left arm under her its really difficult, I’d say, for a start.”

155 He gave similar denials of the incident described by the complainant of the events the subject of count nine. He again denied ever having had intercourse with her without her consent.

156 In my opinion, the arguments put before this Court have failed to confront one very real issue. This was a case of alleged rape within a marriage. There was evidence of a history of consensual sexual relations (including oral sex). The jury was given appropriate and detailed directions of law (in writing) with respect to consent, including (in MFI 11) that consent might be obtained by persuasion and that consent may be given reluctantly (in which case it is, nevertheless, consent). They were also given appropriate and detailed written directions with respect to what the Crown had to prove, in the event that they accepted that the complainant did not, on the occasion in question (each to be considered separately), consent to the intercourse, to establish that the appellant knew that she was not consenting or was reckless as to whether or not she consented. Specifically, they were told, in writing, that it was necessary for the Crown to prove either that the appellant knew that the complainant was not consenting, or was reckless as to the lack of consent. No issue was taken in the appeal with respect to those directions.

157 In any case of alleged sexual intercourse without consent, it is, of course, necessary that the Crown proves that the complainant did not (as a matter of fact) consent to the intercourse. But it is also necessary that the Crown proves that the accused knew that the complainant was not consenting, or was reckless as to whether the complainant consented or not.

158 It would hardly be surprising in an allegation of sexual intercourse without consent in the context of a marriage, and particularly where there has been explicit evidence of a history of consensual sexual intercourse (and of the kind the subject of one of the charges), if the jury regarded the issue of the state of mind of the accused person as a primary one. That is more particularly so where, as is here the case, the evidence that the complainant did not consent is rather weak. Even weaker is the evidence that the complainant did anything to convey to the appellant that she was not consenting.

159 Notwithstanding that, relatively little attention appears to have been paid, until a rather late stage in the trial, to the question of the appellant’s state of mind regarding the complainant’s consent, as distinct from the question of whether the Crown had proved, as a matter of fact, that the complainant did not consent.

160 But that issue was before the jury, however obliquely.

161 The written directions setting out the elements of the offences (MFI 11), with respect to the four offences of sexual intercourse without consent, included a direction that, before a verdict of guilty could be returned, the Crown had to prove four elements. The third of these was that sexual intercourse occurred without the complainant’s consent; the fourth element, as there set out, was:

“4. the accused knew the complainant was not consenting

or

the accused was reckless as to the lack of consent of the complainant to the sexual intercourse.”

162 With respect to the third element, the following explanation was given:

“ … consent … can be given verbally, or expressed by actions. … absence of consent does not have to be in words; it also may be communicated in other ways. Consent which is obtained after persuasion is still consent. Consent may be given reluctantly. … consent may be withdrawn during intercourse.”

163 The following was included in the explanation of the fourth element:

Knowledge

The Crown must prove to you, beyond reasonable doubt, that the accused knew that [the complainant] did not consent. This is a subjective, and not an objective test … the Crown asks you to infer from other facts which it has set out to prove, that [the appellant] must have known and he did indeed know that she was not consenting.

…

On the other hand, the accused’s state of mind might be that he honestly, though wrongly, believed [the complainant] was consenting to intercourse. That is not a guilty state of mind. It is for the Crown to prove that the accused had a guilty mind, and so if the Crown has failed to prove that, at the time of intercourse, the accused did not honestly believe that [the complainant] was consenting, then you would have to say that this third element of the offence is not made out and return a verdict of ‘not guilty’ of this charge.”

164 In the context of allegations of rape within a marriage, a jury may well search for subtle distinctions in the evidence relating to the issue of the appellant’s knowledge of, or recklessness as to, the lack of consent. Considerable focus was placed in the appeal on the question of the appellant’s knowledge. However, despite the detailed written directions given to the jury, that appears scarcely to have been taken up as an issue during the course of the trial.

165 It was in counsel’s final address that the issue of the appellant’s knowledge assumed some prominence. He put as “the three fundamental parts” of an offence of sexual intercourse without consent:

“1. did the accused have sexual intercourse with [the complainant] at the time alleged, and timing is a factor here;

2. was the intercourse with consent; and

3. did the accused know that she was not consenting or was he reckless to that lack of consent?”

“ … you are entitled to take into account that they have been living together for fifteen years and how married couples might relate to each other in a sexual environment and you have heard some evidence about that.”

166 In her final address, in relation to count one, the Crown prosecutor made a significant concession. She recognised that the complainant had said that she had given in to the appellant’s wishes, and that she had subsequently agreed to the intercourse. In the light of those answers, the Crown prosecutor accepted that the complainant’s evidence was “equivocal”, and told the jury that it was a matter for them whether they could be satisfied beyond reasonable doubt of the appellant’s guilt in relation to that charge. Defence counsel seized on this in his final address and reminded the jury of the concession.

167 In these circumstances, the jury’s acquittal on this count is readily understandable.

168 In relation to the remaining three counts of sexual intercourse without consent, the explanation for the jury’s verdicts is to be found in the evidence of the complainant herself. In relation to count seven, she agreed that she had “willingly” removed her nightshirt. In relation to count eight she gave no evidence of protesting. These verdicts, too, are understandable.

169 The complainant’s evidence in respect of count nine was stronger. She said that the appellant had forced her, that he “gripped” her around the neck, and put his hand over her mouth, and that she explicitly told him that she did not want to engage in sexual intercourse. That evidence significantly differentiates the evidence in respect of count nine from the evidence on the other three counts. It provides a rational basis – one based on “logic and reasonableness” – for the different verdicts.

170 And it is to be remembered that, in his final address, counsel urged, with some force, the jury to consider each count separately. That, it seems, is precisely what they did.

171 It is also to be remembered that, from very early in the trial, the jury had exhibited an interest in the question of consent, even before it was expressly raised before them by the judge or either counsel. As I have said, in the context of a trial involving allegations of rape within marriage, a marriage with a history of consensual sexual intercourse, the issues of consent, and, more particularly the appellant’s belief in consent (or knowledge of, or recklessness as to, the absence of consent) are likely to be of significant interest. In my view, it was well open to the jury to entertain doubt about the clarity with which the complainant conveyed her unwillingness to participate, except in relation to count nine, where her evidence was that she expressed that reluctance. Far from signifying a doubt about the complainant’s credibility, the verdicts, to my mind, demonstrate an acceptance of her as a truthful witness who made relevant concessions (as did the Crown prosecutor) concerning how she did (or did not) bring her unwillingness to the appellant’s attention.

172 It is then necessary to consider the verdicts in respect of the five counts of common assault, four of which resulted in conviction, and one in acquittal. On the count on which the appellant was acquitted, the complainant’s evidence was of a threat to inflict physical violence on her, which was not carried through. While this is, of course, an assault at law, and the jury was appropriately so directed, it is qualitatively different from the other four counts, each of which involve an allegation of actual physical violence. Further, there was an issue of timing. The indictment alleges that the incident occurred on 1 March 2003. The complainant gave evidence to that effect. She went on to say that, on the following day (2 March), she had a conversation with the appellant’s parents during which she recounted the events of the previous evening. She said that these conversations occurred during the day when the appellant was at work.

173 Subsequent evidence showed that 2 March was a Sunday, a day on which the appellant did not work. The complainant in cross-examination accepted that she may have:

“ … got the dates muddled up …”

“ … have got the sequence wrong, it may have been a different day.”

174 In his address to the jury counsel for the appellant said:

“ … if you think, for some reason, that the event did not take place on 1 March 2003 but on some other date, then you’d be required to find the accused not guilty in relation to this particular offence.”

175 The Crown prosecutor made no application for correction of the proposition, and, although the trial judge mentioned the issue in his summing up, he said nothing to suggest that what had been put to the jury by counsel was incorrect.

176 In these circumstances there exists a more than adequate explanation for the acquittal on count two. It does not imply any doubt about the complainant’s credibility; it might imply doubt about her accuracy in relation to that count and that count alone, but there is no call to translate that doubt to the other assault counts, or, indeed, any of the other counts on the indictment.

177 The remaining offences on which the appellant was acquitted were the two counts of intimidation. These, I confess, have given me the greatest cause for concern.

178 The evidence of the complainant was strong and definite, and each incident alleged was serious. I do not propose to restate the complainant’s evidence. It is set out in the opening paragraphs of this judgment.

179 In respect of these counts, the written directions were somewhat cursory. In MFI 11, “the elements” document, the terms of the indictment were set out, and the elements stated as:

“1. The accused ([TK]);

2. did intimidate the complainant ([CK]);

3. with the intention;

4. of causing the complainant to fear physical harm.”

180 In his evidence the appellant denied that the complainant had ever asked him to “let her go, nicely” and denied having told her that if she attempted to do so he would kill her and the children.

181 In relation to count twelve the appellant agreed that an argument had occurred, and that their son was in the bath. He said that the child was almost seven at the time, and was able to, and did, get himself out of the bath. He said that the complainant was very upset. He gave an account of what next happened which involved his parents arriving but did not involve a confrontation of the kind described by the complainant. When asked if he had raised his voice at the complainant he replied by saying that they were angry with each other and agreed that he had raised his voice. He denied, however, threatening her in any way at all. He agreed that there had been occasions when they had argued, and when each had raised his or her voice towards the other.

182 In submissions the Crown proposed that the acquittals on these counts could be explained on either of two bases: firstly, that the evidence of the complainant demonstrated that the appellant had been aggressively domineering throughout the marriage. The jury convicted in relation to those counts of assault that involved actual physical violence, and the count of using an offensive weapon but may well have drawn short of convicting in circumstances where no allegation of actual physical violence was made. The alternative proposed explanation was the “enough is enough” line of reasoning: that is, that the jury considered the appellant’s behaviour adequately met by convictions on those counts that did involve actual violence.

183 In my opinion there is a possible further, and more likely, explanation. As I have earlier said, the jury demonstrated, throughout the trial, an interest in issues concerning the appellant’s state of mind – his knowledge, or intention. In respect of these counts the jury was told, somewhat cryptically, that the Crown was obliged to prove that the appellant had the intention of causing the complainant to fear physical harm. The appellant denied having had any such intention and there was, of course, no other direct evidence of his intention. The jury was told little about the possibility of inferring intention from physical acts.

184 I do not think the acquittals on these counts can be taken as signifying a general doubt about the complainant’s credibility. Even if (which I do not accept) they took the view that she had exaggerated incidents that were relatively commonplace in the marriage, that does not necessarily damage her credibility in relation to the other counts.

185 I am satisfied that the acquittals are not indicative of a doubt on the jury’s part about the complainant’s credibility, and certainly not that any such doubt ought to be applied to the charges across the board.

186 Counsel for the appellant raised one significant issue concerning the complainant’s credibility. The complainant gave evidence that the appellant prevented her from telephoning her parents. In her evidence in chief she said that after her parents returned to England following the 2001 visit, she spoke to them only once and was unable to speak to them thereafter. This was because the appellant told her not to ring them. She said that she did not speak to her parents between January 2002 and October 2002 for this reason.

187 She maintained this in cross-examination. She was confronted with telephone records which showed that a number of calls had been made from their home phone to her parents’ London number. She was unable to explain the telephone records but, essentially, adhered to her evidence.

188 The jury were interested in this, also, and, in one of its notes, sought additional information about the possibility of an automatic dial facility which may have initiated a call without the complainant’s knowledge. This was effectively excluded.

189 I accept that this is an issue on which the jury may well have found the complainant’s evidence to be, at least, unreliable. But it was fully before the jury and it was not a matter which, even if they found the complainant not to have been telling the truth about that issue, compelled them to reject her evidence on the essentials of the charges.

190 The impact of this evidence was essentially a jury question and it does not persuade me that the jury ought to have had a reasonable doubt about the complainant’s credibility in general and it does not persuade me that it is the reason for the acquittals.

Compromise

191 On behalf of the appellant it was put that the verdicts themselves are indicative of compromise, and that this is even more powerful an argument when regard is had to the history of communications from the jury, and the evident dissension towards the end of deliberations. A communication by the jury that it was unable to agree (followed, after further directions, by a verdict of guilty) was a circumstance considered to be relevant in Gassy v The Queen [2008] HCA 18 at [35]. But that was in a very different context, where the issue concerned the fairness and balance of the directions given after the communication.

192 In my opinion, the opposite of the appellant’s contention is the case. The failure to agree in relation to count seven is a contra indication of compromise. So are the two acquittals on the intimidation counts; one would have expected, if compromise were the explanation, that one would have resulted in conviction and one in acquittal.

193 The jury were given the conventional directions drawn from Black, and then, at the appropriate time, a direction with respect to their entitlement to return a majority verdict.

194 As I have mentioned above, an appellate court should be cautious before concluding that a jury (as a whole) had acted contrary to its clearly explained duty. That is an accusation against all twelve members of a jury. With the exception of the juror who was alleged to have contravened instructions concerning conducting his own researches, anything that can be gleaned about the application by this jury to its task suggests diligence and conscientiousness. Plainly, some, at least, members of the jury were frustrated at the conduct of one of its members, but this cannot be taken to implicate all other members of the jury in acting in defiance of the instructions they were given.

195 I find no indicia of compromise in the verdicts.

196 Accordingly, I would reject ground 1 of the appeal.

Ground 2: Direction

197 Ground 2 is framed as follows:

“The trial judge erred in failing to direct the jury, at the request of counsel for the appellant, that it should not engage in conduct in the jury room which intimidated or was overbearing to the other members of the jury.”

198 On behalf of the Crown, in this appeal, it was submitted that rule 4 of the Criminal Appeal Rules applies, because counsel for the appellant made no further application for a direction. I reject this submission as unfair to counsel. He put his position on three separate occasions, with no result. Instead, the judge gave what might almost be perceived as a contrary direction: he told the foreman of the jury that it was not unknown for judges “to have full scale brawls among themselves” when they disagreed. There is no reason not to think that the foreman passed this on to, at least, some of his colleagues. He told the jury as a whole that judges frequently disagree and sometimes raise their voices.

199 In my opinion these remarks were both ill advised and to the extent that my 15 years’ experience of a collegiate court is indicative, factually incorrect. Certainly, they did not assist the jury to deal with each other on a calm and rational basis.

200 It would have been far better had the judge directed the jury in accordance with the request made to him on behalf of the appellant.

201 However, I am unable to see that the failure to direct the jury in that way contributed in any way to the convictions, deflected the jury from the task they had to perform, or rendered a trial which had otherwise been conducted fairly an unfair one.

202 I would reject this ground of appeal.

203 It follows that I would dismiss the appeal against conviction and that is the order that I propose.

204 LATHAM J: I agree with Simpson J.

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13/08/2009 - Removal of square brackets in first sentence - Paragraph(s) [130]

19/02/2010 - Re-format paragraph numbering - Paragraph(s) 74

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Citations

R v TK [2009] NSWCCA 151

Most Recent Citation

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Statutory Material Cited

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R v Markuleski [2001] NSWCCA 290

Cited Sections

Reported Decision:	74 NSWLR 299
Appeal Outcome:	Special leave refused by the High Court - 3 November 2009

CITATION:	TK v R [2009] NSWCCA 151 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15 December 2008
JUDGMENT DATE:	26 May 2009
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 10; Latham J at 204
DECISION:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW: - particular offences - offences against the person - common assault - using an offensive weapon with intent to commit an indictable offence - intimidation with intent to cause fear of physical or mental harm - sexual intercourse without consent - appeal against convictions - whether convictions unreasonable or unsafe and unsatisfactory - test to be applied - whether mixed verdicts consistent with compromise - whether error in failure of trial judge to direct jury as requested - appeals against conviction dismissed.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Criminal Appeal Rules 1968 Jury Act 1977
CATEGORY:	Principal judgment
CASES CITED:	Markuleski v R [2001] NSWCCA 290; (2001) 52 NSWLR 82 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Jones v The Queen [1997] HCA 12; 191 CLR 439 R v KT (Supreme Court of Victoria, Court of Appeal, 8 October 1998, unreported) R v Kaboni [2000] NSWCCA 387 HML v R [2008] HCA 16; (2008) 245 ALR 204 Gilbert v R (2000) 201 CLR 414 Black v The Queen [1993] HCA 71; 179 CLR 44 M v The Queen [1994] HCA 63; 181 CLR 487 Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 R v Crisologo (1997) 99 A Crim R 178 Davies & Cody v The King [1937] HCA 27; 57 CLR 170 Chidiac v The Queen [1991] HCA 4; 171 CLR 432 Longman v The Queen [1989] HCA 60; 168 CLR 79 Norris v R [2007] NSWCCA 235 R v Landsell (NSWCCA, unreported, 22 May 1995 ) Gassy v The Queen [2008] HCA 18
PARTIES:	TK (Appellant) REGINA (Respondent)
FILE NUMBER(S):	CCA 2007/14973
COUNSEL:	P Hamill SC (Appellant) D Arnott SC (Respondent)
SOLICITORS:	Kevin Dwyer (Appellant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/0184
LOWER COURT JUDICIAL OFFICER:	Knox DCJ
LOWER COURT DATE OF DECISION:	6 June 2008