Williams v Director of Public Prosecutions

[2024] ACTCA 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Williams v DPP

Citation: 

[2024] ACTCA 24

Hearing Date: 

21 August 2024

Decision Date: 

21 August 2024

Before:

Mossop ACJ, Loukas-Karlsson J and Ainslie-Wallace AJ

Decision: 

The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – Appeal against jury verdict – appeal brought on ground that inconsistent verdicts were unreasonable or unsupported having regard to the evidence – appellant submitted factual inconsistency between finding of not guilty on one count and not the other – obvious explanation for inconsistency due to evidence for one count being clearer and more prominent than the other – jury conscientiously performed their duty

Legislation Cited: 

Supreme Court Act 1933 (ACT), s 37O(2)(a)(i)

Cases Cited: 

MacKenzie v The Queen (1996) 190 CLR 348

MFA v The Queen [2002] HCA 53; 213 CLR 606

Parties: 

Derek Joseph Williams ( Appellant)

Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

F J Purnell SC ( Appellant)

K McCann ( Respondent)

Solicitors

Bevan & Co Lawyers & Conveyancers ( Appellant)

Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 44 of 2023

Decision Under Appeal:

Court/Tribunal:              ACT Supreme Court

Before:  Taylor J

Date of Decision:          4 December 2023

Case Title:  DPP v “Phillip John Davidson” (a pseudonym)

Court File Numbers:     SCC 220 of 2022

  SCC 221 of 2022

THE COURT:

Introduction

1․The appellant, Derek Joseph Williams, was charged with eight offences relating to the physical and sexual abuse of his ex-partner. He was tried before a jury between 20 November and 4 December 2023. On 4 December 2023, the jury returned a verdict of guilty on count 1 (a charge of assault occasioning actual bodily harm) and a verdict of not guilty on count 2 (another charge of assault occasioning actual bodily harm). The jury was unable to reach a unanimous verdict on the remaining counts which involved allegations of sexual offences.

2․The appellant has appealed against his conviction on count 1. The grounds of appeal are:

(a)The jury verdict was unsafe and unsatisfactory.

(b)Inconsistent verdicts as the verdict of guilty for count 1 on the indictment was unreasonable as it was inconsistent with the acquittal for Count 2.

3․Ground (a) must be understood as alleging that the verdict was “unreasonable, or cannot be supported, having regard to the evidence”: Supreme Court Act 1933 (ACT), s 37O(2)(a)(i); MFA v The Queen [2002] HCA 53; 213 CLR 606 at [44]-[46]. Further, ground (b) must be understood as a species of the genus of unreasonable verdict.

4․While the general allegation that the jury verdict was unsafe and unsatisfactory was not abandoned, senior counsel for the appellant said that the “real” ground of appeal was ground (b), the unreasonable verdict ground. Put in a form that matches the statutorily available ground of appeal, the appeal raises whether or not the verdict on count 1 was unreasonable because of inconsistency with the acquittal on count 2, but does not allege that the verdict was unreasonable in any other way.

5․The court has concluded that the verdicts were not inconsistent in the relevant sense and hence not unreasonable in the manner alleged. Therefore, the appeal must be dismissed.

The prosecution case

6․The prosecution case involved the allegation of eight offences. The appellant and the complainant were in a domestic relationship from 2006 to 2013. They had three children. The children would often be left with the accused’s then-previous partner, MT. The complainant alleged that the accused was regularly physically and sexually violent throughout their relationship. The complainant would leave the home to escape the accused but often return for the sake of the children. She was then subject to further violence. The prosecution case related to a specific series of incidents which were alleged to have occurred over a period of about three days when the complainant’s youngest son was only a few months old. The relevant dates were between 4 September 2010 and 5 September 2011.

7․Count 1 involved an incident when the complainant was at home asleep on a mattress near her baby, D. She said that she was woken by the appellant who was “stomping” on her head. The “stomping” occurred three or four times. The appellant was wearing shoes. Two men, CD and KO, were at the house and witnessed the offence. The appellant was accusing her of sleeping with another man. The appellant was then alleged to have continued to be physically violent and demanded that the complainant, D, CD, and KO all get in the car and go to MT’s house.

8․At MT’s house, there was a struggle between the complainant and MT, and ultimately MT physically grabbed D and took him inside. The complainant then tried to escape from the appellant and attempted to run away, but was struck with a metal bar (sometimes described as a tyre iron) causing her to become unconscious. The next memory she had was waking up in the back of the car.

9․Count 2 occurred in the back of the car. It was alleged that the accused had the tyre iron and, whilst he was driving, he reached back and struck her with the bar. The knocks with the bar caused her to become unconscious again.

10․The appellant drove the group to Oaks Estate near Queanbeyan train station and dropped CD and KO off. He then drove to a house in Narrabundah, and it was there that the prosecution alleged that serious sexual assaults occurred. It is not necessary for present purposes to describe those aspects of the prosecution case.

Unreasonable verdicts based on inconsistency between verdicts

11․Six propositions in relation to inconsistency between verdicts of a jury were outlined in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368:

(a)First, there is a distinction between legal or technical inconsistency and suggested factual inconsistency, the former generally being easier to resolve.

(b)Second, factual inconsistency can arise as between different verdicts affecting the same accused and different verdicts affecting co-accused.

(c)Third, where the inconsistency arises in the jury verdicts upon different counts, the test is one of logic and reasonableness. The test is:

[The appellant] 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.

(d)Fourth, courts have been reluctant to accept a submission that verdicts are inconsistent in the relevant sense. Therefore, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed its functions as required, that conclusion will generally be accepted. It is not the role of the appellate court to substitute its opinion of the facts for one which was open to the jury. That principle accommodates the necessity for the jury to consider the counts separately and apply the standard of proof beyond reasonable doubt. It also extends to the possibility that the jury reached a merciful verdict as a result of applying “their innate sense of fairness and justice in place of the strict principles of law”.

(e)Fifth, there will remain some cases in which the different verdicts are “an affront to logic and commonsense” which suggest a compromise of the performance of the jury’s duty. This might involve confusion in the minds of the jury, a misunderstanding of their function, uncertainty about the difference between the offences, or a lack of clarity in judicial instruction as to the 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 conviction will be set aside.

(f)Sixth, the obligation to establish inconsistency of verdicts rests upon the person making the submission. The relief that will be appropriate if the relevant inconsistency is established depends upon the facts of the particular case.

12․Further explanation of inconsistency of verdicts is provided in the judgment of Gleeson CJ, Hayne and Callinan JJ in MFA at [34]:

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.

The course of the trial

13․What is alleged in this case is factual inconsistency rather than technical or legal inconsistency. However, to use the language of the High Court in MFA, “there is an obvious explanation of the differences between the verdicts on the various counts in the indictment”: MFA at [36]. That is because there was a particular difficulty for the prosecution in succeeding on count 2 because of the manner in which the charge was particularised and the scope of the evidence led.

The prosecution opening

14․Early in her opening address, the prosecutor provided to the jury a document which identified the particulars for each charge. Significantly, in relation to count 2, the particulars for that charge were headed “Inside the Car”. They provided:

Inside the Car

The accused struck the complainant’s body with a bar causing the complainant to become unconscious for a period.

15․The prosecutor told the jury that the document stated, “the exact conduct that the Crown points to when it has alleged that [the appellant] has committed the crimes against [the complainant]”.

16․In the prosecutor’s opening, she said in relation to count 2:

She [the complainant] says that the car pulled up at [MT’s] house, House 2, and [MT] came out to see what the noise was. The accused wanted to drop baby [D] at [MT’s] house, but the complainant didn’t want to let go of her son as she knew she was in for a hiding. She asked [MT] for help. She recalls that there was a struggle between herself and [MT] over baby [D], but [MT] eventually got hold of baby [D] and took him inside the house.

The complainant took this opportunity to run away from the accused, but she was knocked out. It’s not known what exactly caused this to occur, but she later woke up back inside the vehicle with [CD] and [KO] either side of her and the accused driving the car. The accused drove that group to or towards Queanbeyan train station and during that journey, the complainant says that she was held down by [CD] and [KO] and at various times, the accused was reaching back with an iron bar, striking her and she got knocked unconscious during that particular journey.

She recalls waking up before the two men, [CD] and [KO] were dropped off near the Queanbeyan train station. So in regards to count 2, ladies and gentlemen, if you go to your particulars document, the offence is assault occasioning actual bodily harm. The third column, titled inside the car. The accused struck the complainant’s body with a bar causing the complainant to become unconscious for a period.

17․The notable point for present purposes is that the opening unequivocally particularised the striking with the iron bar leading to unconsciousness as having occurred in the car.

The evidence

18․In her evidence in chief interview on 24 February 2022, the complainant at Q27 said that the appellant had an iron bar in his hand and he “knocked me out cold … and I woke up in the back seat of the car”. Shortly after that, she said “[b]ut they were holding me down in the back of the car for [the appellant] to hit me with the bar. I got knocked out a few times in the back of the car”. This is the only occasion in her evidence in which she says directly that she was rendered unconscious by being struck with an iron bar whilst in the car.

19․At Q224, she refers to being at MT’s house where “he [the complainant] knocked me out with the iron bar”. At Q371, the complainant said that MT had told police, “I was knocked out in the back of the car”.

20․At Q377, she said she didn’t know how she got back into the car “because I was knocked out cold … [w]hen I let [D] go, I tried to run”. At Q391, she said “[b]ut then when I woke up, I’m in the back of the car here”.

21․She was asked what injuries she had at that stage and said, “I had a split head”. She was asked about him hitting her and she said she remembered him hitting her with a pole, a “tyre iron thing”.

22․At Q415, she said she noticed the pole “when he was standing next to [MT]”, that is, while outside the car at MT’s house.

23․At Q426-428, she was illustrating her attempts to get away from the appellant and says “Well, I took a couple of steps, and then that’s all I remember. And then I woke up in the back of the car”.

24․At Q436, she describes being struck in the car, “I just remember – and he was whacking me, like – like, from the driver into – like, he was in the driver’s, in the back, and he was still whack – whacking me with the pole, like, while I was sitting in the middle, because I was going off my head, trying to get the boys to let me out of the car”. She did not describe being rendered unconscious.

25․At Q441, she described being whacked “[a]ll over my body”. She described putting her legs up to stop getting struck.

26․At Q457-492, she describes the route taken to get to Oaks Estate without any reference to unconsciousness other than waking up in the car in the first instance.

27․The remaining evidence in chief interviews do not contain a description of that aspect of the allegations.

28․In cross-examination, she was asked about her split head:

So you claim that when you got to Sam’s place at Narrabundah [where counts 3-8 were alleged to have occurred], you had already been hit on the head with an iron bar?---Yes.

…

And that your head was bleeding a lot?---Yes.

You had blood all over you?---Yes.

Do you say that you were knocked out after you’d been hit on the head?---Yes.

As I further understand your claim, it’s that you were held down in the back seat by two people, [CD] and [KO]?---Yes.

…

Do you claim that you were hit on the head when [CD] and [KO] had held you down in the back seat?---Yes, I was hit. I was hit before I got into the car. I was hit before I got into the car and then I was unconscious and when I woke up in the back seat, I was hit again a couple of times---

All right?---By [the appellant] whilst he was driving, while the boys were holding me down in the back of the car.

When was it that your head was split open?---When I was first knocked-when I was first hit in the head with it, when I went to run, when we first got to [MT’s] house, and it was before I got put in the car, before I woke up from being unconscious.

…

And before you got to [MT’s] house, your head was split open?---No. When-when I got to [MT’s] house, I was hit out the front of [MT’s] house after I-my son got taken from me.

HER HONOUR: Was that before or after [MT] took the baby?---It was after [MT] took the baby.

COUNSEL: All right. So when [MT] took the baby, did you ask her to ring the police?--- No. I just went to run. I was going to run and take off up the alleyway.

29․It is notable that, although there was brief reference to being struck whilst in the car, there is no reference to being rendered unconscious by those blows. 

30․A person who will be referred to as BT gave tendency evidence not relevant to the present issue. A person who will be referred to as KX also gave tendency evidence not relevant to the present issue.

31․MT gave evidence about an incident in which the appellant, the complainant and CD attended her house in the early hours of the morning. She gave evidence that she had reached into the car and grabbed D from the complainant’s arms and then told them to “Fuck off off my property”. She took D, slammed the car door and went inside. She saw the car take off and heard the complainant and the appellant yelling and screaming. They drove off and she then called 000. In her evidence, she made no mention of the iron bar or tyre iron.

32․CD denied any knowledge of the incident at MT’s house. He said that the allegation that he had been holding the complainant down while the appellant struck her with an iron bar was “a fabricated story”.

33․Dr Amanda Barry, a forensic medicine doctor who had examined the complainant eleven years after the alleged events and also had access to her medical records, gave limited evidence relevant to the present issue. During cross-examination she was asked:

And did you find anything that would indicate being hit on the back of the head with a tyre iron?---Not during that examination, no.

…

You saw nothing, nothing to indicate that she had been hit on back of the head with a tyre iron, did you?---No, I did not, but it depends on the degree of force.

34․Two police officers, Stephen Proud and the informant, Nicole Linden, also gave evidence. Officer Proud had attended MT’s house. MT had declined to speak to police. Officer Linden was asked some questions in cross-examination about particulars of the charges laid against CD relating to the attendance at MT’s house. Those charges were not ultimately pursued. She was also asked some questions about the content of statements of facts relevant to the incident at MT’s house. A 000 call relating to the incident at MT’s house, but made by somebody other than MT, was tendered in cross‑examination of the officer. It referred to “screaming and banging”.

35․The appellant gave evidence. In that evidence, he denied having committed counts 1 and 2. He denied having hit the complainant on the head with a tyre iron while at MT’s house. Later in his evidence in chief, he specifically denied having “stomped” on the complainant’s head. He denied ever having driven the complainant, CD, and KO to Oaks Estate. In cross-examination, he again denied having stomped on the complainant’s head.

36․In cross-examination, it was put to him that he had struck the complainant with an iron bar while driving away from the house. It was not put to him that when that occurred, he had rendered the complainant unconscious. Consistent with the prosecution case not involving any charge concerning the complainant being struck with the iron bar at MT’s house, he was not asked about that in cross-examination.

Prosecution address

37․In a closing address to the jury, counsel for the prosecution approached the matter in a manner consistent with her opening. She said:

[The complainant] said that [MT] came out of the house to see what was going on, there was a struggle between herself and [MT] over baby [D], [MT] ultimately obtained [D] and took him inside. [The complainant] recalls taking that moment at [MT’s] house to escape the accused, and she attempted to run away from him towards that side pathway, but it didn’t end that way for her, she wasn’t able to escape him at that point in time.

The next memory she has is waking up back in [MT]’s car, around the corner from [MT]’s house and she said that [KO] and [CD] were either side of her in the back of that vehicle being held down, whilst the accused was striking her from the driver’s seat with that tyre iron, and she recalls being knocked out, unconscious a couple of times on that part of the journey. That is in respect to count 2.

38․It is notable that the submissions did not address the complainant’s evidence that she had been struck with the iron bar outside the car and rendered unconscious.

Summing up

39․In her summing up to the jury, the primary judge described the complainant’s evidence that there was a bit of a struggle after their arrival at MT’s house during which she handed over her son, D. The primary judge said:

She said she eventually left [D] in [MT’s] care after there was a bit of a struggle after their arrival or what she described as a wrestle. She described asking [MT] for help. She said she knew that holding [D] would keep her safe.

After handing [D] over to [MT], she said she ran from the car and she was knocked unconscious. The complainant described coming to in the back of the vehicle with the accused telling [KO] and [CD] to hold her down. She said the accused was driving, keeping one hand on the steering wheel, and looking back and whacking her with an iron bar, a tyre iron that she said was silver.

She said that she was knocked unconscious by those blows.

Deliberation and verdicts

40․The jury retired to commence its deliberations at 12:59pm on 30 November 2023.

41․At 3:15pm on 1 December 2023, the primary judge addressed a note which had been sent by the jury. The note said:

Must the alleged offence in count two have occurred inside the car as per the heading in the DPP particulars document.

42․The primary judge answered that question “Yes”.

43․On 4 December 2023, the jury indicated that it had reached unanimity on two counts and was given a Black direction in relation to its inability to reach a verdict on the remaining six counts. Subsequently, the jury returned, and the primary judge took the jury’s verdicts on counts 1 and 2. After taking some evidence from the jury representative, which indicated an inability to reach a unanimous verdict on the remaining counts, she discharged the jury from further participation in the trial.

Verdicts not inconsistent

44․The allegations on count 2 were particularised, including both the complainant being rendered unconscious and that incident having occurred in the car. Very limited evidence was given by the complainant as to having been rendered unconscious in the car in comparison to the much clearer and more prominent evidence of having been rendered unconscious prior to getting in the car. Having regard to the manner in which count 2 was particularised consistently throughout the case, it is completely understandable that the jury would have had a reasonable doubt about whether the complainant had actually been rendered unconscious in the vehicle as distinct from earlier.

45․In the circumstances, the difference between the verdict of guilty on count 1 and not guilty on count 2 is entirely consistent with the jury conscientiously performing its duty, mindful of the direction to consider each charge separately. Because of the distinct circumstances relating to particularisation and evidence on count 2, there was an obvious basis upon which the jury might reach a not guilty verdict on that charge notwithstanding that they were satisfied of the honesty and accuracy of the complainant’s evidence in relation to count 1.

46․The contention that the verdict on count 1 was an unreasonable one has not been established. Having regard to the limited scope of the appeal, that means that the appeal must be dismissed.

Orders

47․The order of the Court is:

(1)The appeal is dismissed.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: