Riley v The State of Western Australia
[2007] WASCA 22
•31 JANUARY 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RILEY -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 22
CORAM: WHEELER JA
McLURE JA
BUSS JA
HEARD: 24 OCTOBER 2006
DELIVERED : 31 JANUARY 2007
FILE NO/S: CACR 64 of 2006
BETWEEN: PERCY JAMES RILEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SLEIGHT DCJ
File No :IND BUN 36 of 2003
Catchwords:
Criminal law - Appeal against convictions - Inconsistent verdicts - Whether verdicts were unsafe and unsatisfactory - Criminal Appeals Act 2004 (WA), s 30(3)
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D S Hunter
Respondent: Mr A L Troy
Solicitors:
Appellant: Legal Aid WA
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Mackenzie v The Queen (1996) 190 CLR 348
MFA v The Queen (2002) 213 CLR 606
Phillips v The Queen (2006) 80 ALJR 537
R v Whitehead [2000] NSWCCA 400
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Buss JA. I agree with those reasons and have nothing to add.
McLURE JA: I agree with Buss JA.
BUSS JA: The appellant was charged with five offences committed on 13 February 2002:
(1)Count 1: aggravated burglary in a place ordinarily used for human habitation, contrary to s 401(2) of the Criminal Code (WA) (the circumstances of aggravation were that the appellant was armed with an offensive weapon, was in company, and immediately before the commission of the offence, knew or ought to have known that there was another person in the place: s 400 of the Code);
(2)Count 2: indecently dealing with the complainant, a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his finger, contrary to s 326 of the Code (the circumstance of aggravation was that the complainant was over the age of 13 years and under the age of 16 years: s 319 of the Code);
(3)Count 3: indecently dealing with the complainant, a child of or over the age of 13 years and under the age of 16 years, by kissing her breasts, contrary to s 321(4) of the Code;
(4)Count 4: indecently dealing with the complainant, a child of or over the age of 13 years and under the age of 16 years, by touching her vagina, contrary to s 321(4) of the Code; and
(5)Count 5: indecently dealing with the complainant, a child of or over the age of 13 years and under the age of 16 years, by placing her hand on his penis, contrary to s 321(4) of the Code.
The appellant pleaded not guilty to each charge. After a trial before Sleight DCJ and a jury in the District Court at Bunbury on 24 and 26 ‑ 28 April 2006, the appellant was convicted on counts 1 and 3, but acquitted of counts 2, 4 and 5. He was sentenced, on 9 May 2006, to 20 months' imprisonment on count 1 and 12 months' imprisonment on
count 3, to be served concurrently from 1 September 2005, with eligibility for parole.
The appellant appeals against the convictions. On 23 June 2006, Roberts‑Smith JA granted leave to appeal on the single ground advanced.
Retrial
The appellant had been tried previously on the same counts by a Judge alone, in the District Court at Bunbury, on 13 ‑ 15 December 2004. He was convicted on all counts and sentenced, on 14 April 2005, to a total sentence of 4 years' imprisonment, backdated to 1 February 2005, with eligibility for parole. The appellant appealed, and on 5 October 2005, this Court granted leave to appeal, allowed the appeal and ordered a retrial. It is the convictions entered in the retrial against which the appellant now appeals.
The prosecution case
The prosecution case was that at around 3 am on 13 February 2002, the appellant, in company with another man (who was not charged) entered the house where the complainant and her mother lived (with the mother's male partner, who was not at home that night), with the intention of stealing. While the other man scrutinised the house for items to steal, the appellant kept watch over the complainant in her bedroom, and sexually assaulted her. The complainant was born on 26 June 1987, and was therefore 14 years old at the material time.
A statement of the complainant was read into evidence (TS 366 ‑ 372). It provides, relevantly:
" …
When I looked into the dining room I saw two people standing there. They were standing between the dining table and the window. They were both together. I saw that the man that was holding the torch was wearing a black‑hooded jumper with a black cap underneath. He had the torchlight shining in my eyes, so all I could see was a shadow. The man with the hooded jumper said, 'Go back to bed'. The other one said, 'You're just dreaming'.
They were walking towards me when they said that. They were whispering, but spoke firmly. I went back into my room and they told me to lie down. I'm not sure which one said that. I lay on my bed and the one that didn't have the torch said, 'Move over'. I moved over and he sat on my bed next to me. He was sitting so that if he were to lie down he would be lying next to me, facing the same way. I looked at him. He was trying to shield his eyes from me, but when I moved over I saw everything above his eyes. He was not wearing anything on his head.
There was no lighting in my room at all except for the street lighting on the corner outside our house. There was a bit of light coming from outside. The blind was up about 15 centimetres from the bottom of the window.
He had an oval‑shaped head and black hair with grey through it. It wasn't that noticeable, but because he had short hair I saw it at the front. It was silvery‑grey. I saw what looked like the top of a beard at the top of his cheeks, but I couldn't tell if he actually had a beard or not. I didn't see the bottom half of his face.
He had bushy dark eyebrows and dark brown eyes. His eyes were smallish and oval‑shaped, but not Oriental. I don't know if he was Aboriginal or not because he was neither dark nor white‑skinned as far as I could tell. He sounded similar to the other person, but I would not say he was Aboriginal. I would describe the way he sounded as feral.
The other one, the one with the hooded jumper, was standing near my door, I think. The torch was not on at this stage. The one with the hooded jumper said, 'Where's the safe? Where's the money?' His voice was kind of husky and he had a kind of Aboriginal accent. He sounded really uncultured.
I have Aboriginal friends at school and they speak differently to my white friends. The man with the torch spoke like them. I said, 'We don't have a safe. I don't know where the money is'. Then the man with the hooded jumper left my room. I could hear him going through stuff, and ruffling sounds of paper and plastic bags.
I was lying on my back as I would normally do to sleep. My head was on my pillow against the bedhead. The man on my bed grabbed something off the floor and put it over my eyes. The man on my bed held the piece of clothing there. I noticed that his right hand smelt like tobacco.
I tried to keep it there, but it kept falling off. I don't know what it was he put on my eyes, but it was a piece of clothing. It was slipping off my eyes. I don't know why it was slipping, but I guess he had put it on my face too much on one side. He said, 'How old are you?' I said, '14'. He said, 'I don't believe you'. I said, 'Look in my bag. There's year 10 school books'. He said, 'I don't want to'.
He asked me, 'Are you a virgin?' I said, 'Yes'. He said, 'Do you still want to be a virgin?' I said, 'Yes'. I then started to think that he was going to force me to have sex with him. I became more frightened. He then put his hands down my pants and groped me, and placed his fingers inside my vagina. He used both hands and was using a few fingers at a time. I was wearing blue silky pyjamas with stars on them, without any underwear on underneath. They have an elastic waist, and he has just reached underneath the covers and slipped his hands into my pyjama pants.
When he put his fingers inside me he hurt me and I said, 'It's falling off', meaning the clothing that he had put over my eyes. I thought that he might stop what he was doing to hold it, but he said, 'Hold it there'. He then pulled both his hands out.
The other guy came in and said, 'Where's your laptop? Where's the other man?' I said, 'My stepdad's gone to Hamelin Bay and the laptop's probably with him'. He said, 'Don't lie. Where have you put it? I've seen it before'. I said, 'I don't know. I don't know'. He went out again and was looking through stuff.
When he was out of the room the one on my bed stayed where he was. I said, 'Am I dreaming this?' He then bent down and attempted to kiss me and said, 'Are you dreaming this?' When he tried to kiss me it was on the mouth, but he couldn't, as I sucked my lips in, kept my mouth closed and wouldn't kiss back.
I have a button missing on my pyjama top, which is about the middle, and he has then put his right hand, which was closest to me, in through the gap on my pyjama top and started to feel my breasts. He has opened my top upper [sic] bit and then leant over and kissed my breasts and sucked it and said, 'Get your boyfriend to do that next time'. He also gave me a hickey on my left breast, which has left a mark.
Then the other guy came back in again and the man on my bed quickly sat up and tried to be all mean again and repeated the other questions, 'Where's your safe? Where's your money?' Then they were both in my room asking, 'Where's your drugs? Where's your tablets?' I said, 'We don't keep any drugs in the house'.
Whilst they were asking questions the man on the bed pulled up the covers again and then put his right hand into my pyjama pants and groped my vagina. He didn't put his fingers inside me this time. He kept talking and asking questions like nothing was going on, and I don't think the other man knew what was happening. He leant over and whispered to me, 'I bet you're a real slut'.
They continued with, 'Where's your tablets?' again. I said, 'What tablets?' They said, 'Your mum's sleeping tablets'. I said, 'She doesn't take sleeping tablets'. One of them said, 'Yes, she does. If she didn't, she would have been awake by now'. I don't know which one was asking me the questions. They were both asking me questions.
The guy with the torch went out again and was gone for a while. The man on the bed asked me, 'What's your name?' I was scared, so I lied and said that my name was Sarah. Whilst he was sitting there, he pulled down his pants and his boxers. I think his boxers were red and black in colour, and silky. He said, 'Sarah, touch this'. He grabbed my left wrist with his right hand and forced it onto his penis. His penis was soft and he told me to squeeze it. I felt it become more erect and I pulled my hand away. I also noticed that it wasn't very hairy.
He pulled up his pants and just sat still. I could hear him breathing heavily, but wasn't doing anything. When the other man came back, I couldn't see what he had. I still had the cloth over my eyes. He was repeatedly asking me, 'What's your mum's PIN number for her credit cards?' I said, 'I don't know. I don't know. She didn't tell me'.
The guy I thought was the Aboriginal came closer to me and said, 'Tell us and don't lie'. He was angry when he said that because he said it loudly. I could feel a screwdriver up against my neck when he said that. Then they both left the room for a little while, maybe a few minutes. They kept checking up on me, turning the torch on and off, shining it on me.
Then the man that was sitting on my bed came back in and asked me where the rope was. I said it would probably be in the shed. He said, 'Get up'. I got up. He said, 'Go get the rope'. He stood behind me and was holding my arm back behind me. He walked me out of my bedroom, and the Aboriginal guy said, 'Get back in your bed'. I said, 'No'. I had my eyes covered then also. They were shut as well. I shut them because I was scared.
The Aboriginal guy held the screwdriver at my neck again and said, 'Get back in your bed now. We'll bash your mum and rape you if you don't'. I went back and got in my bed, and he has dropped the screwdriver and I have sat on it, and felt it against my leg. I picked it up and noticed that it had a yellow handle. It was heavy, and about 20 centimetres long. It had a special end on it, with about four grooves that meet in a point. I then told them that they had dropped it and one of them grabbed it off me.
When I was in bed the one who was sitting with me before came inside also. He sat down next to me, where he had been. He said, 'Where's the man?' I said, 'He's in Hamelin Bay'. He said, 'Where's the mobile phone?' I said it was with him.
Then the other man, the Aboriginal one, came back in my room and they were talking to each other. I couldn't hear what they were saying. I heard them laughing, so I presumed they were on drugs. It was like chuckling, and pretty childish, and it reminded me of a movie I had seen when someone had been sniffing something and they were laughing the same way.
I'm not sure which one, but one of them put a shirt on me from my shoulders up and told me to face the wall. I was lying on my bed then, so I rolled to face the wall. I asked if I could go back to sleep and they said, 'Yes, go back to sleep'. The one that was sitting on the bed got up. I could feel the weight lift.
I heard them talking outside my room and they said, 'Don't move until we tell you to', and they left the room and shut the door. I could hear in the background mum's drawers opening and shutting in her bedroom and I suppose they were looking around because I could hear them walking.
…
The man that sat on my bed was about early to mid twenties, fairly skinny build, and about the same height as Cameron Anderson [an interviewing police officer]. He had short black hair with grey through it, and dark bushy eyebrows with dark brown oval‑shaped eyes. He had facial hair and it was fairly prickly. He also smelt of tobacco and had rough-feeling hands. He talked feral and had an olive or tanned complexion.
He was wearing black pants. I'm not sure what they were made of. He didn't have any zips so I'm pretty sure they were not jeans. Underneath he was wearing black and red silky boxers and he also had a black weatherproof-type jacket that kept swishing as he walked.
The other man was Aboriginal. I could hear him speaking with an Aboriginal accent. He was about the same age and of the same height as the other man, and of an average build. I didn't see what he looked like, but I saw that he was wearing a black cap underneath a black polar fleece hooded jumper and black pants. I didn't see what shoes he had on, but they were pretty quiet, so they would have been joggers or something similar as you can normally hear the footsteps on the floor easily. He had a husky voice.
… "
The complainant's statement was not disputed by the appellant.
Issue at trial
The critical issue at trial was whether the appellant was the offender.
During their investigation, the police seized the complainant's pyjama top from her bedroom and sent it for forensic examination. The appellant's DNA profile was found on the inside of the complainant's pyjama top, in an area consistent with its having been deposited by the appellant's saliva in the commission of count 3.
The appellant's evidence at trial was that he was not in Binningup on 13 February 2002, he did not commit the offences, and although he knew where Binningup was, he had not been there since he was about 10 years old (TS 477 ‑ 486).
As I have mentioned, the appellant was convicted on counts 1 and 3. Conviction on count 3 logically led to conviction on count 1. Count 3 concerned the appellant kissing the complainant's breasts. Count 1 concerned aggravated burglary of the complainant's home. As I have mentioned, the jury acquitted the appellant of counts 2, 4 and 5.
Ground of appeal
The amended ground of appeal is that:
"1.The verdicts of guilty on Counts 1 and 3 of the indictment are factually inconsistent and incompatible with the not guilty verdicts on Counts 2, 4 and 5 of the indictment and are therefore unsafe and unsatisfactory.
Particulars
(a)The critical issue in this trial was whether the offender was the Appellant.
(b)The State relied on DNA evidence to prove the identity of the offender.
(c)The State's case relied upon a mixture of DNA found on the inside left of the complainant's pyjama top being the DNA of the Appellant.
(d)There were no eye witnesses in regard to the Counts contained on the indictment save and except for the complainant, the Appellant and an unknown co‑accused.
(e)All the Counts contained in the indictment occurred within a short period of time and in close proximity to each other.
(f)Counts 2, 4 and 5 on which the Appellant was found not guilty concerned digital penetration of the complainant's vagina (Count 2), touching of the complainant's vagina (Count 4), and the complainant's hand being placed on a penis (Count 5).
(g)The statement of the complainant dated 13 February 2002 which detailed what had happened was read to the jury as the evidence of the complainant. The complainant's evidence was not disputed by the Appellant.
(h)The statement of the complainant dated 13 February 2002 detailed it was the same male who committed Counts 2 through to 5 on the indictment. The statement of the complainant detailed the male committed the offences in Counts 2 through to 5 on the indictment when the male was on the Complainant's bed next to her. The complainant's statement detailed her vagina was digitally penetrated (Count 2) shortly before her breasts were kissed (Count 3). The complainant's statement detailed her vagina was touched and her hand placed on the male's penis shortly after her breasts were kissed (Counts 4 and 5). The Appellant was found not guilty of Counts 2, 4 and 5. The Appellant was found guilty of Count 3.
(i)The jury was directed by the Trial Judge that the only issue in the trial was whether the offender was the Appellant. The jury was directed that on the evidence presented in the trial, the jury would either be satisfied beyond reasonable doubt that the Appellant was the offender and if so, to find the Appellant guilty of all charges, or if it was the case that the jury could not be satisfied beyond reasonable doubt that the Appellant was the offender to enter verdicts of not guilty on all charges.
(j)The verdicts of guilty on Counts 1 and 3 meant the jury was satisfied beyond reasonable doubt that the Appellant was in the house with the complainant and had kissed the complainant's breasts.
(k)The verdicts of not guilty on Counts 2, 4 and 5 meant the jury was not satisfied beyond reasonable doubt that the Appellant had digitally penetrated the complainant's vagina, touched her vagina, and placed the complainant's hand on his penis."
Statements and instructions to the jury
The prosecutor, in opening, told the jury that although all five charges were being heard together:
" … it doesn't relieve you of the obligation of giving five separate verdicts, and because you have got to give five separate verdicts, you have to turn your minds to the evidence on each particular charge, so that you can be satisfied that the state has proved each particular charge beyond a reasonable doubt." (TS 354 ‑ 355)
The prosecutor also told the jury in opening that:
"[i]t doesn't necessarily follow if you find [the appellant] guilty of one particular charge that he must therefore be guilty of the others, or not guilty of one particular charge that he be not guilty of the others, although in this particular case, and the way the case is going to be argued, it may well be that the most significant finding that you will make in the trial process, in your deliberations in the trial process, will flow through to all those other charges, and answer the question for you, and that really will relate to whether or not you're satisfied beyond reasonable doubt that [the appellant] was indeed at this house on this particular night." (TS 355)
The learned Judge instructed the jury, in his summing up, that:
" … it is important that you remember that there are five separate charges. Look at each charge separately and make a decision on them separately. When you're looking at one count, consider only the evidence relevant to that count.
Your verdicts do not have to be the same on each count. If you find the accused guilty of one, it does not follow that he is guilty of another charge. You cannot find the accused guilty of an offence for which he has been charged unless direct evidence that he has committed that offence satisfies you beyond reasonable doubt in relation to that charge. Having considered all the evidence, you could find the accused guilty of all charges or you could find him not guilty of all charges or you may find him guilty of some and not of others.
However, in this case the way the issues have been presented to you it does seem that the issue really revolves around whether the offender is the accused and there is no dispute that the offences were committed. So although you are required to consider each charge separately, this is the sort of case where you will be led to a conclusion. Either you are satisfied beyond reasonable doubt that the accused was the offender or he wasn't and therefore, if he was the offender, it would seem inevitable you would find him guilty of all charges. If you conclude that you are not satisfied beyond reasonable doubt that he was the offender, then you would find him not guilty of all the charges." (TS 588)
Inconsistent verdicts – Parties' submissions
As to inconsistency of verdicts, the appellant's submissions were, relevantly, that:
(a)"All the Counts contained in the Indictment occurred at the same location within a short proximity of each other."
(b)"The jury's verdicts of not guilty on Counts 2, 4 and 5 of the Indictment diminished the reliability of the jury's verdicts on Counts 1 and 3 of the Indictment. On the evidence presented to the jury, the Appellant was either guilty of all of the offences contained in the indictment or guilty of none of the offences contained in the indictment. If the jury was unable to be satisfied beyond reasonable doubt of the identity of the offender, the only reasonable verdicts were verdicts of not guilty on all of the Counts contained in the Indictment."
(c)"The convictions on Counts 1 and 3 of the Indictment are unsafe. In view of the verdicts of not guilty on Counts 2, 4 and 5 contained in the Indictment it was not open to the jury on the evidence presented to be satisfied beyond reasonable doubt of the guilt of the Appellant on Counts 1 and 3 of the Indictment."
The respondent argued, relevantly, that:
(a)"[The jury] plainly took their responsibility to independently evaluate the evidence seriously. The questions they asked [TS 581 ‑ 583] suggest that they were concerned to eliminate any doubt that the appellant was responsible for all the acts committed on the complainant."
After the jury retired, but before giving their verdict, they requested copies of the complainant's statement. The learned Judge declined this request, but asked if the jury would like him to read aloud any particular portions of the statement. The jury asked to hear the complainant's evidence in relation to the identification of the other offender, and the part of her evidence in relation to the alleged penetration.
(b)"The jury acquitted the appellant of counts (2), (4) and (5). Unlike count (3), they were not supported by DNA or other evidence independent of the complainant's testimony."
(c)"The verdicts of not guilty on counts (2), (4) and (5) are explicable if the jury followed the trial judge's direction to consider each charge separately and were prepared to give the appellant the benefit of the doubt in the absence of independent evidence corroborating the complainant's testimony."
(d)"The convictions are supported by evidence absent in the case of the counts of which the appellant was acquitted."
(e)"It is always open to the jury to take a merciful view of the facts."
(f)"It is possible that in this case the jury took a 'merciful' view of the facts, giving the appellant the benefit of the doubt where the complainant's account was not corroborated. That would not warrant setting aside convictions."
Inconsistent verdicts - Unsafe and unsatisfactory verdicts
By s 30(3) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if in its opinion:
"(a)the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice."
In M v The Queen (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, at 492, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Criminal Appeals Act 2004 (WA)), that although the phrase "unsafe and unsatisfactory" does not appear in the statutory provision, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. Also see Jones vThe Queen (1997) 191 CLR 439 at 450.
In M, McHugh J said, at 523, that a "miscarriage of justice" arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed, raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. The majority in Jones said, at 450, that having regard to the statements in M, there can be no doubt that a "miscarriage of justice" also occurs when the findings or verdicts of the jury raise a real doubt as to whether a conviction is safe or just.
In M, Mason CJ, Deane, Dawson and Toohey JJ said, at 493, 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."
In answering that question, their Honours said:
"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."
Their Honours explained, at 494, the application of the test:
"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."
Also see Jones at 450-451. The test formulated by the majority in M is the appropriate test for determining whether a verdict is unsafe or unsatisfactory: Jones at 452; MFA v The Queen (2002) 213 CLR 606 at 614 [25].
In Mackenzie v The Queen (1996) 190 CLR 348, Gaudron, Gummow and Kirby JJ enunciated, at 366 ‑ 368, a number of general propositions distilled from a review of the cases on inconsistent verdicts. After referring to the distinction between cases of legal or technical inconsistency and cases of suggested factual inconsistency, their Honours said, relevantly, that:
"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, 13 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. In R v Kirkman ((1987) 44 SASR 591 at 593), in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:
'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'
We agree with these practical and sensible remarks.
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. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case."
The principles in Mackenzie were applied in MFA, where Gleeson CJ, Hayne and Callinan JJ said, at [34] 617:
"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 ((1987) 44 SASR 591 at 593), and referred to in later cases (eg, Mackenzie v The Queen (1996) 190 CLR 348 at 367‑368): 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."
Recently, in Phillips v The Queen (2006) 80 ALJR 537, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said, at 551 [71], in relation to inconsistency of verdicts:
"Difficulties in understanding jury verdicts which are explicable on the basis that one of them is 'merciful', or that they accord with the jurors' innate sense of fairness and justice, do not lead to the conclusion that the jurors have acted unreasonably (Mackenzie v The Queen (1996) 190 CLR 348 at 367-368). The question in the present case is whether that is the explanation, or whether the jury, faced with a position in which some favoured conviction of rape on both counts and some did not, compromised by convicting only of one act of unlawful carnal knowledge and one rape. It is for the appellant to demonstrate that the latter is the case (Mackenzie v The Queen (1996) 190 CLR 348 at 368). This the appellant has not done. The verdicts do not in themselves represent, on the public record, an affront to logic and commonsense. The fact that, if the jury were minded to be merciful, it would have been more logical to convict on count 6 and acquit on count 7, is an insignificant detail: from the point of view of mercy, it did not matter which count was the subject of the conviction. '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 (Mackenzie v The Queen (1996) 190 CLR 348 at 368).'"
The appellant relies on Jones, a case in which the accused was charged with three acts of sexual intercourse with a female child. The jury acquitted the accused of the second count, but convicted on the first and third counts. The accused appealed against conviction on the ground that there had been a miscarriage of justice under s 6(1) Criminal Appeal Act 1912 (NSW). The majority of the High Court, applying the test in M, held that the convictions should be set aside in that they were unsafe and unsatisfactory. Gaudron, McHugh and Gummow JJ said, at 455:
"Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
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."
In MFA, Gleeson CJ, Hayne and Callinan JJ made the following observations, at 617 ‑ 618 [35], about Jones:
" … some Judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph [see [34] extracted above] in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence."
Also see, in MFA, these comments of McHugh, Gummow and Kirby JJ, at 632 [89], in relation to Jones:
"We would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing. Jones was a very fact-specific case. Indeed, all such cases are highly fact‑specific."
The appellant also relies on R v Whitehead [2000] NSWCCA 400, a case in which a jury convicted the appellant on two counts of homosexual intercourse with a male person between ten and eighteen years of age, but acquitted him of a third charge of the same offence. The court said, at [19] ‑ [20]:
"In essence, the appellant's argument, based upon the Jones principle, was that implicit in the appellant's acquittal on the fifth count was a rejection of the complainant's account of events which were said to give rise to that count. The jury's rejection of the complainant's account on the fifth count, it was argued, necessarily diminished his overall credibility. Further, with regard to the first and fourth counts there was nothing in the complainant's evidence, or the surrounding circumstances, which provided any ground for supposing that his evidence was more reliable in relation to those counts than it was in relation to the fifth count.
Once the jury found that the evidence of the complainant lacked sufficient cogency to convict on the fifth count, the Crown case on the first and fourth counts wore a different complexion. For it meant that when the complainant's evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof. Such an analysis relies, of course, upon views expressed by the majority of the High Court (Gaudron, McHugh and Gummow JJ) in Jones at 453 ‑ 455."
In Whitehead, it was conceded by counsel for the Crown, at [22], that there was no evidence to which he could point which gave any ground for supposing that the complainant's evidence in relation to the two counts on which the appellant was convicted was more reliable than it was in relation to the count of which the appellant was acquitted. Indeed, counsel for the Crown suggested, at [22], that the evidence in relation to one of the counts on which the appellant was convicted was less credible than the evidence on the count of which the appellant was acquitted.
The merits of the appeal
Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others. Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted.
In the present case, the complainant's statement was, by consent, read into evidence. She was not required for cross‑examination, and her evidence was therefore uncontested. The critical issue at trial was the identity of the offender; in particular, whether the appellant committed the offences which the complainant described in her statement. She did not identify the appellant, but the DNA evidence, if accepted by the jury, directly linked the appellant to the commission of count 3 and, logically, count 1.
The jury's verdicts are explicable on the basis that, in accordance with the learned Judge's instructions, they gave separate consideration to each count, and were unable to exclude the possibility that the co‑offender may have committed the assaults the subject of counts 2, 4 and 5. By convicting on counts 1 and 3, the jury must have accepted that the DNA evidence established that the appellant was at the premises and had kissed the complainant's breasts. Although the DNA evidence, once accepted, directly linked the appellant to the commission of count 3 and, logically, count 1, it was not an affront to logic or commonsense to entertain a reasonable doubt as to whether the appellant was also responsible for the other counts of indecent dealing. The jury's decision to acquit on counts 2, 4 and 5 may, in the circumstances, be surprising, but their decision does not undermine the complainant's credibility, or indicate that the verdicts of conviction are inconsistent, in the relevant sense, with the verdicts of acquittal, or suggest that the convictions are unsafe or unsatisfactory. It merely reveals that the jury were cautious, and required some objective evidence which directly linked the appellant with the commission of each count of indecent dealing before they were willing to convict on that count.
It was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty on counts 1 and 3, but not to be satisfied to the requisite standard in relation to counts 2, 4 and 5.
The amended ground of appeal is without merit. The appeal should be dismissed.
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