R v W

[1997] QCA 255

[1997] QCA 255

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane  C.A. No. 205 of 1997

[R v W]

THE QUEEN

v.

W

Appellant

McPherson JA
Shepherdson J
White J

Judgment delivered 21August 1997

Separate concurring reasons for judgment by each member of the Court.

APPEAL ALLOWED, THE CONVICTION AND VERDICT SET ASIDE, AND A VERDICT OF ACQUITTAL ENTERED UPON COUNT 1.

CATCHWORDS:     CRIMINAL LAW - CONVICTION - unsafe and unsatisfactory because of demonstrated unreliability of the complainant’s evidence which was uncorroborated - inconsistent with the acquittal of the appellant on the other counts.

Counsel:Mr S. Hamlyn-Harris for the appellant.

Mr D. Meredith for the respondent.

Solicitors:Legal Aid Queensland for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing date:             12 August 1997

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 21 August 1997

I agree that this appeal should be allowed, the conviction and verdict set aside, and a verdict of acquittal entered upon count 1.  I agree with the reasons prepared by Shepherdson J.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 21 August 1997

The appellant was charged with the following offences each alleged to have been committed on a date unknown between 1 August 1993 and 1 January 1994 at Redland Bay, in the State of Queensland and each involving the same male complainant:-

Count 1 -Indecent dealing with a child under 12 years being a touching followed by;

Count 2 -Indecent dealing with a child under the age of 12 years constituted by an act of forced oral sex;

Count 3 -Indecent dealing with a child under the age of 12 years being a touching followed by;

Count 4 -Attempted carnal knowledge by anal intercourse of a child under 12 years;

Count 5 -(alternative to Count 4) Indecent dealing with a child under 12 years constituted by placing his penis between the cheeks of the complainant’s buttock.

In accordance with particulars given during the opening of the Crown case, the offences in Counts 1 and 2 were alleged to have occurred on the same night and the offences in Counts 3, 4 and 5 were alleged to have occurred on the following night.

On 2 May 1997, a District Court jury convicted the appellant of Count 1, and acquitted him of each of the other accounts.  The appellant has appealed against the conviction on Count 1, the essence of his grounds of appeal being that the conviction:-

(a)is unsafe and unsatisfactory because of demonstrated unreliability of the complainant’s evidence which was uncorroborated; and

(b)is inconsistent with the acquittal of the appellant on the other counts.

The prosecution case in each count depended entirely on the evidence of the complainant.  His evidence was not corroborated.  The complainant was 15 years old at the time he gave evidence, and was 11 years old at the time of the offences alleged.  He and his mother resided at the home of the appellant and his common law wife during the time period within which each offence was alleged to have occurred.

According to the complainant, the offences occurred when on two successive nights - a Friday and a Saturday - the appellant came to where the complainant was in bed on the front verandah of the house.  In his cross-examination of the complainant, counsel for the appellant brought out a number of inconsistencies between the complainant’s evidence given at the trial and his accounts of the alleged offences given at other times.  These inconsistencies were:-

(a)in his evidence at trial the complainant was definite that there were only two occasions when anything of a sexual nature occurred, but he had at the committal given a different account of events in which he claimed that there were three occasions;

(b)at trial the complainant gave evidence that the attempted sodomy incident occurred on the first night; he was adamant about this but admitted that he had stated at committal that it occurred on a third night.  In the Crown Prosecutor’s opening at the trial he had said that the attempted sodomy happened on the second night.

(c)in evidence at the trial the complainant said that the appellant made him suck his penis on the second night but it was clear from the Crown opening that he had made a statement to the police alleging that that occurred on the first night.  Both accounts were in turn inconsistent with the complainant’s evidence at committal where he had said that the only thing that happened on the first night was that the appellant had touched his private parts.

(d)at the committal hearing the complainant had made no mention of the appellant putting his penis in the complainant’s mouth at any time, although, as appears from the transcript of the complainant’s cross-examination at the trial the prosecutor at the committal had given the complainant a very clear invitation to give evidence of that matter.

(e)At trial the complainant had alleged that at the time of the alleged attempted sodomy he was in a “doggy style position” whereas previously he had said he was lying flat on his stomach and when cross-examined about this at trial he said:-

“Yeah, because if I was lying flat down on my stomach he couldn’t have done it.”

(f)in evidence at trial the complainant said that during the penis sucking incident which he said occurred on the second night, the appellant’s de facto wife, Wendy, had come out but “didn’t see nothing at the time”.  Previously the complainant had said that the incident was on the third night and that Wendy saw the appellant and asked him what he was doing.

(g)at the trial the complainant gave evidence that the appellant had not tried to kiss him at the times of the alleged sexual incidents but admitted (at trial) that at the committal proceedings he had said “he tried to kiss me and he was breathing all over me”.

(h)at the trial the complainant alleged that while the appellant was on his bed, Wendy had gone out the front door of the house and urinated on the front steps; the complainant admitted that before the trial he had never mentioned that.

Apart from these matters there was evidence of a substantial delay in the complainant making any complaint against the appellant - that delay was about 2 years.

In his summing-up the learned trial judge had said to the jury:-

“As you have no doubt appreciated the central issue for you here is your assessment of the evidence of the complainant boy [naming him] and I am going to come to that in some detail in a few moments.  His account has been very much put in issue by the defence.”

His Honour later told the jury:-

“You are entitled to have regard to any inconsistencies in the boy’s evidence.  Whether there are inconsistencies in his testimony are matters of fact, they are matters for you.  If you decide there are inconsistencies then the weight which you are to give those inconsistencies is entirely a matter for you.  Mr McGuire, [defence counsel] in his address has taken you through what he submits to you are a number of very significant inconsistencies and it is a matter for you but you may think there is some merit in the submissions that he has placed before you.”

The trial lasted 2 days.

Shortly after 5 pm on the second day the jury sent the judge a note and when returning to court told His Honour that they were dead-locked on Counts 1, 3 and 5 and had reached agreement on Counts 2 and 4.  The learned trial judge suitably addressed the jurors who retired to try to reach verdicts in relation to Counts 1, 3 and 5.  Some 3½ hours later the jury returned with their verdicts finding the appellant not guilty on Counts 2, 3, 4 and 5 and guilty on Count 1.

The learned trial judge then began the sentencing process and early in this procedure His Honour said:-

“... it really is hard to understand the verdict.  Perhaps, when one thinks so about it one  can understand it but the way it was litigated - but - have you got any thoughts this late at night Mr Boyle as to - I mean its relevance to the sentencing process of course.  I must say at first blush I can’t understand it.  I can see on the evidence that there may have been some basis for delineating say between Counts 1 and 3 and 2 and 4 because of the change of story so they’d believe him but have a doubt but I can’t see how Count 1 - but of course we’re bound by the verdict.”

In his report to this court pursuant to Rule 15 order 9 of the Criminal Practice Rules His Honour said:-

“At the time the jury delivered their verdicts I was concerned that they were a product of compromise.  The jury had deliberated for a very long time given the narrow issues for them to consider and I must say that I cannot see how a verdict of guilty in relation to Count 1 is consistent with the other verdicts e.g. Count 3.  The Crown case depended on the uncorroborated evidence of the complainant and it is difficult to see how the jury could have believed him to the requisite standard in relation to Count 1 and have a reasonable doubt about some of the other counts which were based on the same evidence ....”

In Mackenzie v. The Queen (1996) 71 ALJR 91 Gaudron, Gummow and Kirby JJ., in their joint judgment, when considering “inconsistent verdicts” stated a number of general propositions based on a review of the cases. Of those propositions the following (set out at pp.100 and 101) are relevant:-

“3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.  A judgment of Devlin J.  In R v Stone (unreported 30 December 1954) is often cited as expressing the test:-

“He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”

4.Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.  In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.  Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries.  The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation.  Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect.

5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.

More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  “It all depends upon the facts of the case.”

6.The obligation to establish inconsistency of verdicts rests upon the person making the submission.  But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders.  In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. ... the relief which is appropriate depends upon the facts of the particular case.”

[Footnotes omitted]

I leave to one side the verdict in regard to Count 4 (attempted sodomy).  It is possible the jury may not have inferred the specific intent which that particular count required, and for that reason it would not have been inconsistent for the jury to have acquitted on Count 4 but convicted on all other counts.

As to the remaining 4 Counts, the only issues at trial were whether, on the complainant’s uncorroborated evidence in respect of each count the jury were satisfied beyond reasonable doubt of the appellant’s guilt.   It is apparent that the acquittals on Counts 2, 3 and 5 clearly show the jury were not satisfied beyond reasonable doubt to accept the complainant’s evidence that the appellant had committed each of these offences.  Mr Meredith, counsel for the Crown on the hearing of this appeal has submitted that the jury may well have convicted on Count 1 being satisfied beyond doubt of that offence but acquitted on the Counts 2, 3 and 5 on the basis that the members of the jury were confused by the inconsistencies in the complainant’s evidence as to events after Count 1.

In my view the resolution of this appeal depends primarily on application of the test of logic and reasonableness.

1.I am satisfied that no reasonable jury who had applied their mind properly to the facts in the case before them could have arrived at the conclusion where they found the accused guilty of Count 1, but not guilty of Counts 2, 3 and 5.

2.In addition, the guilty verdict amounts in my view to “an affront to logic and commonsense” and “strongly suggests a compromise of the performance of the jurors’ duty”.

This court is required to intervene to prevent a possible injustice.  The verdict of guilty on Count 1 is in my view unsafe and unsatisfactory.  The inconsistencies in the complainant’s evidence concerning the events on the first night especially, offend logic and reasonableness - to find the accused not guilty of Count 2 and guilty of Count 1 on the uncorroborated evidence of the complainant highlights the need to set aside the verdict of guilty of Count 1.  Furthermore, if one takes into account the events of the second night as detailed in the complainant’s evidence the differences in the quality of the indecent dealing alleged in Counts 1 and 3 are not discernible.  Yet the jury found the appellant not guilty of Count 3 but guilty of Count 1.

I would set aside the conviction on Count 1 and the sentence imposed thereafter and I would direct a verdict of acquittal on Count 1 because “this merely carries forward the logic of the other acquittal verdicts” (see Mackenzie p.  102).

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 21 August 1997

I agree with the reasons of Shepherdson J and the orders he proposes.  The appeal should be allowed, the conviction and verdict set aside, and a verdict of acquittal entered upon count 1.