R v Waghorn

[2012] SASCFC 8

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WAGHORN

[2012] SASCFC 8

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)

17 February 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - VERDICT AGAINST EVIDENCE OR WEIGHT OF EVIDENCE - VERDICT AGAINST WEIGHT OF EVIDENCE - WHEN NEW TRIAL REFUSED - VERDICT NOT UNREASONABLE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE

The appellant was convicted by jury of one count of indecent assault and acquitted on two counts of unlawful sexual intercourse – whether guilty verdict is unreasonable because it is inconsistent with acquittals – whether guilty verdict cannot be supported having regard to the evidence as a whole – whether the complainant’s evidence was so unreliable it was not open to the jury to rely upon it.

Held: Appeal dismissed. The allegation of indecent assault is distinguishable from the allegations of unlawful sexual intercourse – the conviction can stand with the acquittals as a matter of logic and commonsense – open to the jury to accept the complainant’s evidence – verdict not unreasonable or unsupported by evidence – verdict was neither unsafe nor unsatisfactory.

Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56, s 353(1); Criminal Appeals Act 1912 (NSW) s 6(1), referred to.
Mackenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; M v R (1994) 181 CLR 487, discussed.
R v Kirkman (1987) 44 SASR 591; R v Stone Unreported, 13 December 1954, considered.

R v WAGHORN
[2012] SASCFC 8

Court of Criminal Appeal:  Vanstone, Anderson and Stanley JJ

1. VANSTONE J:     I would dismiss this appeal.  I agree with the reasons of Stanley J.

2. ANDERSON J:     I would also dismiss this appeal for the reasons given by Stanley J.

   STANLEY J:

   Introduction

3. This is an appeal against conviction.

4. The appellant was tried by a jury on two counts of unlawful sexual intercourse with a person under 12[1] and one count of indecent assault.[2]  The appellant was convicted of the offence of indecent assault and acquitted of the two counts of unlawful sexual intercourse.

   [1]    Criminal Law Consolidation Act 1935 (SA) s 49(1).

   [2]    Criminal Law Consolidation Act 1935 (SA) s 56.

5. At the time of the indecent assault the complainant was 10 or 11 years of age.  At the time of the alleged unlawful sexual intercourse offences, in respect of which the appellant was acquitted, the complainant was 10 years of age.  The incidents resulting in these charges were alleged to have occurred in 2001 and 2002.

6. The appellant appeals against his conviction on the charge of indecent assault, with permission, on the ground that the conviction is unsafe and unsatisfactory and against the weight of the evidence.  This involves two discrete submissions.  The appellant’s first argument is that the verdict of guilty is unreasonable because it is inconsistent with the verdicts of not guilty on the other two counts.  I understand his second argument, in effect, to be that the Court set aside the conviction on the ground that the verdict was unreasonable and could not be supported having regard to the evidence as a whole.

   Background to the appeal

7. The charges arose in the context of a close relationship between the mother of the complainant, the appellant, and his wife.  The complainant’s mother is an immigrant and a single mother.  The complainant is her only child.  The mother was dependent upon the appellant and his wife for much of her social interaction, circle of friendship, childminding and support.  In fact, at a time prior to the events that resulted in the appellant’s conviction, the complainant’s mother and the appellant had a sexual relationship which occurred during the course of his marriage.

8. At the relevant time, the appellant and his wife had two children of their own who were in the vicinity of two and five years younger than the complainant.[3] 

   [3]    They subsequently had a third child.

9. The two counts of unlawful sexual intercourse were alleged to have occurred on the same day in the appellant’s back yard in the presence of the appellant’s two children.  Both counts involved allegations of digital penetration of the complainant’s vagina, first, in the course of water play in a make-shift swimming pool, and, second, in the course of the appellant assisting the complainant to perform a handstand. 

10. Some months later the incident in respect of which the appellant was convicted occurred.  The complainant had been left in the care of the appellant.  The prosecution case was that the appellant had directed the complainant to take a bath with his two children and himself.  At the time, he was wearing a pair of shorts or bathers.  After his two children had exited the bath, he rubbed the complainant’s chest in the area of her breasts with both hands.  This was the basis of the charge of indecent assault. 

11. The complainant reported the incident to her mother that evening.  Thereafter a meeting occurred between the appellant, his wife, the complainant’s mother and the complainant.  The complainant only attended the meeting at its end.  There was a dispute on the evidence as to what was said in the course of this meeting.  The appellant, his wife, and the complainant, agreed that at the conclusion of the meeting the appellant apologised to the complainant.  The complainant’s mother denied there was an apology proffered.  The basis of what was said by way of an apology and the reason for it, were matters of dispute.

12. There was a further dispute as to the extent of the subsequent contact between the complainant and the appellant. 

13. In Year 12 at high school the complainant reported these incidents to her school counsellor.  The requirement for mandatory reporting eventually led to the charges upon which the appellant was tried. 

14. At trial, the complainant’s credit was the subject of extensive challenge under cross-examination.  So too the evidence of her mother.  Counsel for the DPP also called evidence from the complainant’s former boyfriend and from her school counsellor. 

15. The appellant gave evidence on oath, and called his wife, together with two other witnesses, one of whom was a work colleague, Ms Wilkinson, and the other a character witness.

    Inconsistent verdicts

16. Counsel for the appellant submits that the guilty verdict on the charge of indecent assault is inconsistent and irreconcilable with the acquittals in relation to the two counts of unlawful sexual intercourse.  The submission is that the jury must have acquitted the appellant on the two counts of unlawful sexual intercourse because the members of the jury found the complainant had fabricated the allegations of digital penetration.  Accordingly, the appellant submitted that, as a matter of logic and reasonableness, the jury could not have been satisfied beyond reasonable doubt that the appellant had committed the indecent assault as alleged, as that conclusion also must have depended upon them accepting the evidence of the complainant as truthful. 

17. I do not accept that submission.

18. In R v Kirkman[4] King CJ observed[5] that appeal courts must be cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile the verdicts which had been reached by the jury with respect to other charges.

    [4] (1987) 44 SASR 591.

    [5] (1987) 44 SASR 591 at 593.

19. The principles applicable to the issue of inconsistent verdicts were considered by the High Court in MacKenzie v The Queen.[6]  The High Court observed that courts have repeatedly expressed a reluctance to accept a submission that verdicts are inconsistent in the relevant sense.  A jury’s conclusion will generally be accepted if there is evidence to support that conclusion and there is a proper way to reconcile the verdicts.  The High Court observed that it is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury.  The appellate court will interfere only where different verdicts are so illogical as to suggest a failure on the part of the jury to perform its function.  The test is one of logic and reasonableness.  Each case will depend on its facts.  The High Court adopted the test in R v Stone[7] as enunciated by Devlin J, as follows:[8]

    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. 

    [6] (1996) 190 CLR 348.

    [7]    Unreported, 13 December 1954, per Devlin J.

    [8] (1996) 190 CLR 348 at 366.

20. In MFA v The Queen, the High Court elaborated upon its observations in MacKenzie.  Gleeson CJ, Hayne and Callinan said:[9]

    Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case.  Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system.  A number of features of that context were emphasised in MacKenzie.  They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.  This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.  In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant’s evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.  Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases:  it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only.  And there may be an interaction between this consideration and the two matters earlier discussed.  (Citations omitted).

    [9] (2002) 213 CLR 606 at 617 [34].

21. In my view, in this case the jury was entitled, on the evidence, to convict the appellant in relation to the charge of indecent assault, while acquitting him of the two counts of unlawful sexual intercourse. 

22. It was neither illogical nor unreasonable for the jury to do so.  The different verdicts can be explained on the basis that the jury was prepared to accept the complainant’s evidence in relation to the events the subject of the charge of indecent assault for three reasons that did not apply to the two counts of unlawful sexual intercourse. 

23. First, because the appellant admitted the specific incident during which the complainant alleged that he had indecently touched her chest and the area of her breasts, namely, while the two of them were in the bath together.  Second, because there was evidence that the complainant had reported the incident to her mother shortly thereafter.  Third, because the appellant had apologised to the complainant in respect of the incident.

24. The position in relation to the allegation of indecent assault is distinguishable from the allegations of unlawful sexual intercourse. While the appellant agreed generally with the proposition that there had in the past been various occasions when he had been playing with the complainant and his children in the swimming pool, and performing handstands, there was no admission of the specific incidents described by the complainant.  By way of contrast, he acknowledged the occurrence of the specific event in the bath which was the subject of the complainant’s contemporaneous report to her mother. 

25. True it is that the appellant, while admitting that the incident in the bath took place, denied ever touching the complainant on her chest in the course of bathing her.  Further, in the course of giving evidence at the trial, he contradicted the complainant’s evidence that at the subsequent meeting he had said to her that he was sorry for what he did in the bath and that it was not right.[10]  His evidence was that he apologised to the complainant for making her feel uncomfortable, and told her he was sorry for doing so.  He said the result of the meeting was that there was a general agreement there would be no more children other than his own in the bath with him thereafter.  His evidence was that his apology did not relate to inappropriate behaviour on his part in rubbing the complainant’s chest because this had not occurred. 

    [10]   T384.

26. All of this evidence left the jury in the position that they had to assess the complainant’s evidence concerning what occurred in the bath, and at the subsequent meeting, in light of the appellant’s evidence.  This is a classic jury question.  The fact that the complainant’s evidence was contradicted by the appellant in certain respects cannot lead to the conclusion that, necessarily, the guilty verdict is unreasonable or illogical.

27. I do not accept that the jury could only have acquitted the appellant of the two counts of unlawful sexual intercourse on the basis that the complainant deliberately fabricated the allegations of sexual assault against the appellant.  It is possible that the jury entertained a doubt about some aspect of the complainant’s credibility or reliability in recounting those events, the subject of the unlawful sexual intercourse charges, in circumstances where there was no corroborating evidence of the kind that existed in respect of the charge of indecent assault.  That does not compel the conclusion that the jury was not prepared to act at all upon the complainant’s evidence or that the jury proceeded to acquit on the basis that the complainant had been lying. 

28. At the end of the day, the complainant provided a plausible, consistent and clear account of the incident in the bath which supported the guilty verdict on the charge of indecent assault.  It was open to the jury to find the appellant guilty of that charge while acquitting him of the two counts of unlawful sexual intercourse.  The guilty verdict was neither illogical nor unreasonable.  The jury was entitled to acquit on the basis that they were not satisfied to the requisite standard that the appellant had committed the two counts of unlawful sexual intercourse, but were so satisfied in relation to the charge of indecent assault.  The conviction can stand with the acquittals as a matter of logic and commonsense.

    The verdict is against the weight of the evidence

29. Counsel for the appellant submits that the guilty verdict on the charge of indecent assault is unreasonable as it was not supportable on the evidence.

30. The powers of this Court on appeal are:[11]

    353 –– Determination of appeals in ordinary cases

    (1)    The Full Court on any such appeal against conviction shall allow the appeal if it think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

    [11]   Criminal Law Consolidation Act 1935 (SA) s 353(1).

31. In M v R[12] the majority said[13] that although the phrase “unsafe or unsatisfactory” does not appear in the cognate provision of the Criminal Appeal Act 1912 (NSW),[14] it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence.  The majority said[15] that the test for an unsafe or unsatisfactory verdict was 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.  The majority emphasised, however, that it is not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits.  Their Honours said that:[16]

    ... in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

    [12] (1994) 181 CLR 487.

    [13] (1994) 181 CLR 487 at 492.

    [14]   s 6(1).

    [15] (1994) 181 CLR 487 at 493.

    [16] (1994) 181 CLR 487 at 493.

32. The majority judges explained the application of the test as follows:[17]

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

    [17] (1994) 181 CLR 487 at 494.

1. On appeal, counsel for the appellant, made extensive criticisms of the evidence of the complainant, and to a lesser extent, her mother.

2. The appellant submitted that the jury could not have found the complainant to be a reliable witness sufficient to be satisfied beyond a reasonable doubt of the truth of her allegations in relation to the charge of indecent assault, in circumstances where:

   1.her mother had not supported her account of the subsequent meeting where the complainant alleged the appellant had said he was sorry for what he did in the bath and that it was not right.  The mother denied that there had been any apology at all;

   2.the contact and relationship between the appellant, the complainant, and her mother, continued as before, and would have been unlikely to have continued in that way if there had been an allegation of indecent conduct on the appellant’s part;

   3.the complainant’s evidence-in-chief that she had little if any contact alone with the appellant after the bath incident was shown to be incorrect;

   4.the evidence of the appellant’s wife and Ms Wilkinson of their observations of the complainant and the appellant subsequent to the bath incident established that the two of them appeared relaxed in each other’s company;

   5.the report to the school counsellor by the complainant of being angry with her mother was at odds with the complaint she was making;

   6.the complainant told her former boyfriend and the school counsellor that she had made allegations against the appellant to her mother previously and her mother had not believed her, or had taken about a year to believe her;

   7.the complainant had withdrawn an allegation of rape she had previously made to the police against someone she knew, and whom she continued to see subsequently, which was inconsistent with the allegation being true;

   8.in respect of the alleged rape, the complainant gave a different version of the events surrounding the withdrawal of the complaint than was disclosed by the police records;

   9.the complainant had reported to the school counsellor that there had been a family meeting where the appellant had apologised to her for a series of allegations, including the matters that were the subject of the charges of unlawful sexual intercourse, when, even on her own evidence, the apology had been confined to the incident in the bath; and

   10.the complainant pretended not to know about her mother and the appellant’s affair, yet her mother gave evidence that she had informed the complainant about this topic the day before the complainant gave evidence.

3. In addition, the appellant criticised the evidence of the complainant’s mother on the basis that it was evasive and inconsistent and was contradicted not only by the evidence of the appellant and his wife, but, importantly, at times, by the evidence of the complainant. 

4. The difficulty with these submissions, however, is that they were all put to the jury on behalf of the appellant at his trial.  The jury obviously had the opportunity to consider these criticisms of the evidence of the complainant and her mother, and to weigh them in arriving at its verdict.  Notwithstanding these criticisms, the jury, who had the advantage of seeing and hearing the complainant and her mother give evidence, as well as the appellant, his wife, and Ms Wilkinson, nonetheless were prepared to act upon the complainant’s evidence in reaching its verdict.

5. In any event, some of the appellant’s criticism of the evidence of the complainant lack cogency. 

6. The obvious difference in the evidence of the complainant and her mother about whether an apology was proffered by the appellant at the meeting subsequent to the bath incident is not consistent with the complainant fabricating her evidence.  On the evidence of the appellant and his wife, an apology was proffered.  It could hardly be suggested that the complainant made this up.  At issue was the terms of the apology.  The fact that the complainant’s mother could not recall an apology at all hardly detracts from the cogency of the complainant’s evidence about what was said.  It was open to the jury to accept the complainant’s evidence concerning what transpired in the course of the meeting.  It is to be remembered that the meeting had been initiated by the complainant’s mother as a direct result of the report the complainant had made to her mother on the night of the bath incident.

7. I reject the appellant’s submission that it was incredible that the relationship between the complainant’s mother and the appellant and his wife had continued as before if there had been any allegations made by the complainant of being indecently assaulted by the appellant.  It is important to note that the complainant’s mother gave evidence-in-chief that while there was a break in the two families socialising after the bath incident, the relationship eventually resumed and returned to the condition that had existed before the bath incident.[18]   This was not necessarily incredible in light of the complainant’s allegation of the indecent assault, given the dependant relationship which existed between the complainant’s mother and the appellant and his wife.

   [18]   T233.

8. Moreover, while the complainant, in her evidence, denied one-on-one contact occurred with the appellant following the bath incident, she accepted that there was contact between them.[19]  Under cross-examination, she accepted that there were events she had forgotten, for example, when she resided with the appellant’s family for a fortnight whilst her mother returned to the United States, but she maintained that she avoided being alone with the appellant.  She was not shaken on this point. 

   [19]   T64.

9. Furthermore, the complainant did not accept that the allegation of rape was false.  On the contrary, she insisted that it was true.[20]  There was no evidence that the allegation was false.  She provided an explanation as to why she withdrew the complaint.  I do not consider the explanation is implausible.  While she admitted she continued to have contact with the person against whom she had alleged rape, there was a limit to which this could be explored in the context of this trial.   It was a collateral issue, but, in the context of the jury’s verdict, it is significant that the complainant neither admitted to having made a false allegation to the police of rape, nor was it established that she had done so.

   [20]   T118.

10. In addition, the criticism of the complainant’s report to the school counsellor falls well short of demonstrating that her evidence was so unreliable that no jury, properly instructed and acting reasonably, could ever have relied upon it.  While the counsellor’s notes of her conversation with the complainant in relation to what was discussed at the meeting subsequent to the bath incident is inconsistent with the complainant’s evidence, the notes made by the counsellor, in fact, support the complainant’s evidence concerning the allegations of unlawful sexual intercourse.  The criticisms of the complainant’s report to the counsellor that she kept to herself the fact of these events for about a year until she spoke to her mother, who initially disbelieved her, but then confronted the appellant, could have been dealt with by the jury on the basis that the counsellor’s notes of the discussion broadly reflect the complainant’s account of the events resulting in the charges of unlawful sexual intercourse, which occurred some months before the bath incident.  The difference between months and a year after such a passage of time would not necessarily trouble a jury.  In any event, these matters were peripheral.

11. Against this is what I have referred to as the complainant’s plausible, consistent and clear account of the incident in the bath.  The complainant gave evidence of reporting the incident to her mother that same night as follows:[21]

    A.     I can't remember exactly word for word but I remember her reaction being really shocked,  I think I said 'Andrew touched me' and then my mum asked me where and I told her 'my chest', and then she didn't really say much more after that, she just - yeah, I just remember being in the lounge room and I just got ready for bed.

    Q.     Did you say where you were when Andrew touched you.

    A.     Yeah, in the bath.

    [21]   T61-62.

12. The complainant’s mother gave evidence of this same conversation as follows:[22]

    A.     She said that Andrew thought it would be fun to get into the new spa bath with their underwear on. [The complainant] said she had her underwear on and she said to me that Andrew had his underwear on, and that they had a bath together in the new spa.

    Q.     Did she say whether anything happened during the course of that bath.

    A.     Yes.

    Q.     What was that.

    A.     She said to me that he had her sit on his lap and she said that he had rubbed her chest.

    [22]   T231-232.

13. In my opinion it was open to the jury to accept this evidence and, when coupled with the evidence of the apology from the appellant,[23] to reach the verdict it did in reliance upon it. I do not consider the verdict unreasonable, neither do I consider that it was not supportable on the evidence. It was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of indecent assault as charged. The verdict was neither unsafe nor unsatisfactory.

    [23]   Which, for the reasons I have set out above, the jury was entitled to find was given in the terms described by the complainant in her evidence. 

    Conclusion

14. I would dismiss the appeal.