Y v Tasmania
[2009] TASSC 106
•8 December 2009
[2009] TASSC 106
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Y v Tasmania [2009] TASSC 106
PARTIES: Y
v
TASMANIA (STATE OF)
FILE NO/S: 266/2009
DELIVERED ON: 8 December 2009
DELIVERED AT: Hobart
HEARING DATE: 10 November 2009
JUDGMENT OF: Blow, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Sexual crimes – Conviction on first count, acquittal on all others – Stronger corroborative evidence on first count.
MacKenziev R (1996) 190 CLR 348; MFA v R (2002) 213 CLR 606, applied.
Aust Dig Criminal Law [3478]
REPRESENTATION:
Counsel:
Appellant: G A Richardson
Respondent: J N Perks
Solicitors:
Appellant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 106
Number of paragraphs: 29
Serial No 106/2009
File No 266/2009
Y v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
TENNENT J
PORTER J
8 December 2009
Order of the Court
Appeal dismissed.
Serial No 106/2009
File No 266/2009
Y v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
8 December 2009
The appellant was charged with seven sexual crimes and tried before a jury, which found him guilty of the first charge and not guilty of all the others. He is appealing against his conviction, contending that the verdicts were inconsistent, and that the guilty verdict on the first charge was unreasonable. All seven charges related to alleged sexual activity involving a 14 year old girl. There was evidence that she was living with her uncle, a man many years older than her, and that they were maintaining a sexual relationship with one another.
Count 1 on the indictment, on which the appellant was found guilty, alleged that he committed the crime of "Sexual intercourse with a young person under the age of 17 years" by instigating the uncle to have sexual intercourse with the girl "while laying [sic] beside them on his bed". The girl gave evidence to the effect that the appellant said he wanted her and her uncle to have sex next to him on his bed, and that they did.
Count 2 was a charge of indecent assault. The Crown alleged that, whilst the uncle was having intercourse as alleged in count 1, the appellant indecently assaulted the girl by fondling or rubbing her breasts. She gave evidence that the appellant was playing with her breasts while her uncle was having intercourse with her, but the jury found the appellant not guilty on that charge.
The remaining five charges related to a series of events that were alleged to have occurred on a subsequent night. The Crown case was that the appellant drove the girl around in his vehicle that night, making arrangements for her to have sexual intercourse with various males, and that she was naked at all material times. The girl gave evidence to the effect that the first man recruited by the appellant refused to have intercourse with her, saying she was too young. She gave evidence that a second man, whom she did not know, had vaginal sex with her at the appellant's instigation, and that the appellant was playing with her breasts during that act. Count 3 was a charge of sexual intercourse with a young person under the age of 17 years, brought on the basis that the appellant instigated and/or abetted the unknown adult male to have sexual intercourse with her on the front passenger seat of the vehicle while the appellant sat in the driver's seat. Count 4 was a charge of indecent assault, by which it was alleged that the appellant fondled or rubbed her breasts while the unknown male had intercourse with her.
The girl gave evidence that the appellant then drove her to visit a boy who was about the same age as her, and with whom she had previously had sex; that that boy proceeded to have sexual intercourse with her; and that the appellant played with her breasts during that act. If that evidence was true, it was not a crime for the boy to have intercourse with her because of their ages: Criminal Code, s124(3)(b). Count 5 was another charge of indecent assault, alleging that the appellant fondled or rubbed the girl's breasts while the boy was having intercourse with her.
The girl gave evidence that the appellant subsequently phoned a man named Jack, made an arrangement for him to have sexual intercourse with her, arranged to meet him outside a church, and drove to the church. She gave evidence that, on arrival, the appellant produced a vibrator, known to her as "Black Betty", from his glove box, and inserted it into her vagina. Count 6 was a charge of aggravated sexual assault, alleging that he indecently assaulted her by penetrating her vagina with a vibrator.
The girl went on to give evidence that Jack arrived at the church, handed the appellant $50, and had vaginal sexual intercourse with her. Count 7 was a charge of sexual intercourse with a young person under the age of 17 years, by which it was alleged that the appellant instigated Jack to have sexual intercourse with the girl, and procured the girl to have sexual intercourse with the man. As I have said, the jury found the appellant not guilty on counts 2 to 7 inclusive.
Inconsistent verdicts
The appellant contends that the jury were not satisfied beyond reasonable doubt of the truth of the girl's evidence relating to counts 2 to 7, and that the jury acted inconsistently in accepting the truth of her evidence in relation to count 1. On that basis he contends that the conviction on count 1 should be quashed.
In MacKenziev R (1996) 190 CLR 348 at 366 – 368, Gaudron, Gummow and Kirby JJ, having reviewed the cases relating to inconsistent jury verdicts, set out a number of general propositions, including the following (omitting footnote references):
"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 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. …
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'."
Since that case, there have been a number of reported cases involving allegations of multiple sexual offences against a single complainant, and verdicts of not guilty in respect of some charges but not others. One such case was Jones v R (1997) 191 CLR 439. The appellant in that case was charged on three counts of having sexual intercourse with a female child. He was acquitted on the second count, but convicted on the first and third. The High Court, by majority, quashed the convictions, on the basis that the quality of the complainant's evidence on the second count was no higher than that upon the first and third, and that, given the acquittal on the second count, it was not open to the jury to convict on the other counts.
However the High Court has subsequently made it clear that Jones must not be taken 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": MFA v R (2002) 213 CLR 606 per Gleeson CJ, Hayne and Callinan JJ at 618.
In MFA at 617, Gleeson CJ, Hayne and Callinan JJ explained the relevant principles as follows:
"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."
In single-complainant multiple-count sexual cases, juries sometimes quite properly convict on counts where there is corroboration of the complainant's evidence, and acquit on other counts where there is none. Williams v R [2000] TASSC 182 was such a case. In other cases, there is no reason in principle why juries should not arrive at different verdicts according to the strength or weakness of evidence corroborating the complainant's evidence.
Counsel for the respondent submitted that this was such a case. He argued to the effect that the guilty verdict on count 1 was by no means "an affront to logic and common sense", and that the jury, acting logically and reasonably, could quite properly have concluded that count 1 was proven beyond a reasonable doubt when the other counts were not. In order to determine whether the conviction on count 1 should be quashed on the basis of inconsistency, it is necessary to analyse the strengths and weaknesses of the Crown case, particularly in relation to the corroboration of the complainant's evidence, or lack of such corroboration, in respect of the individual counts.
The crimes charged were alleged to have been committed on unknown dates during the period from February 2004 to July 2004 inclusive. The trial was some five years later, in March 2009. There was evidence that the complainant first reported her uncle to the authorities in March 2006. The appellant was interviewed by police officers in relation to the complainant's allegations on 30 June 2006.
The complainant's evidence as to count 1 was corroborated by evidence from her uncle. He gave evidence that the appellant talked the complainant and himself into having sex in front of him, and that they had sex beside him on his bed. However his evidence did not corroborate the complainant's evidence as to count 2 — the charge of indecently assaulting the girl by fondling or rubbing her breasts. He gave evidence to the effect that the appellant had his arm around her, but that he could not say whether the appellant was doing anything with his hands or not. It seems likely that the jury were satisfied beyond reasonable doubt of the appellant's guilt as to count 1 because the uncle corroborated the girl's account, but they were not so satisfied as to count 2 because there was no such corroboration.
Of course the uncle was criminally concerned in the events giving rise to count 1. If the crime alleged in count 1 was committed, the uncle was the principal offender. The jury therefore needed to exercise caution in determining whether to accept the uncle's evidence as to count 1, and in determining what weight to give to that evidence. The learned trial judge gave them an appropriate warning in accordance with the Evidence Act 2001, s165(1)(d).
There were discrepancies in the evidence relating to counts 1 and 2:
· The complainant gave evidence that she and her uncle travelled to the appellant's house on one of the appellant's tractors, having been to a shop. The uncle's evidence was that they walked there from the shop.
· The complainant did not say that anyone accompanied them to the appellant's home. The uncle said that the complainant's boyfriend and her step-brother accompanied them, but that they did not enter the house.
· The complainant's evidence was that, after she or her uncle knocked on the door, the appellant called out to them from his bed to come in, and that they did so. The uncle's evidence was that the appellant answered the door, but then went back to bed.
· There was evidence that the uncle stayed on the appellant's property on a number of occasions for weeks or months at a time. The uncle's evidence was that the incident to which count 1 relates occurred during his second stay, but the complainant said she did not go to the appellant's property during her uncle's second stay there.
When she was cross-examined in relation to count 1, the complainant agreed that, when she first told the police about her uncle's sexual activity with her, she had not mentioned that they had had sexual intercourse beside the appellant on his bed.
In her evidence-in-chief as to count 2, the complainant said that the appellant "was playing with my breasts skin to skin underneath my bra". Under cross-examination she conceded that, when she first described that incident to the authorities, she said that the appellant was playing with her breasts over the top of her clothes. She said that her memory had changed.
The following matters were relevant to the jury's evaluation of the evidence relating to counts 3 to 7:
· Defence counsel suggested that the complainant's evidence that she was travelling around naked, and of the appellant driving her around when she was naked, was unbelievable, especially since the evidence was that they drove to a party, and they could not have known who was likely to be at the party and see the complainant naked.
· Under cross-examination the complainant said she could not remember how long they had been driving around, nor where they drove to. She said, "I've tried to block most of this out."
· The uncle gave evidence that the complainant returned to him that night and gave him an account of what had happened. That was admissible evidence of the truth of what the complainant told him: Evidence Act, s66(2); Papakosmos v R (1999) 196 CLR 297. To some extent, that account corroborated the complainant's evidence of the events that night. The uncle's evidence was as follows:
"… she told me that [the appellant] had come and picked her up and they were driving around from different parties, and then they picked a bloke up from one of the parties and [the appellant] drove them up to the back of the [a specific building was mentioned], and they engaged in sex. And then after they dropped him back another bloke was going to go, but he didn't end up going, so [the appellant] went and picked up [the boy to whom count 5 relates]."
· The complainant mentioned only one party in her evidence, but the uncle said that she had referred to "different parties".
· According to the complainant's evidence, the encounter with the man who decided not to have sex was before anyone else had intercourse with her that night. According to the uncle, she said that occurred after another man had had intercourse with her.
· The complainant's evidence was that she was completely naked at all material times. The uncle gave evidence that she said she was travelling around with a top on, but that "no bottom parts of her clothes were on".
· The man to whom counts 3 and 4 relate did not give evidence. There was no evidence as to who he was.
· The uncle's evidence of the complainant's account of the evening was the only corroboration in relation to count 3.
· There was no corroboration in relation to count 4. That is to say, the uncle's evidence as to what the complainant said contained nothing about the appellant fondling or rubbing the complainant's breasts while the unidentified man was having intercourse with her.
· Under cross-examination, the complainant agreed that, when she first spoke to the police about her uncle's sexual activities, she did not mention the boy to whom count 5 relates.
· Under cross-examination, the complainant said that she had had intercourse with that boy twice. She later agreed that in April 2006 she had said that she had only had sex with him once. She said she had forgotten about the other act.
· The complainant said that she had seen that boy "around town" but had never spoken to him since. The boy gave evidence that he had talked to her, and that she had told him that her uncle had raped her.
· The boy corroborated the complainant's evidence to the extent of confirming that they had had sexual intercourse in the appellant's vehicle. However he did not corroborate her evidence that the appellant had fondled or rubbed her breasts, as alleged in count 5. Only the complainant said that the appellant had done that.
· A recording of the police interview with the appellant was tendered on the trial. During that interview, he admitted that he owned a vibrator, and that part of it was black. To that extent, he corroborated the complainant's evidence in relation to count 6.
· A police officer gave evidence of finding the vibrator in the appellant's glove box on 30 June 2006.
· There was no other corroboration of the complainant's evidence as to count 6.
· When cross-examined about count 7, the complainant was asked whether she told the police that she knew the name of the man in question was Jack, and that she knew where he lived. She replied, "Yes, because the house had been pointed out to me." However she said that she did not take the police there. It was doubtful that all of that was true, since one would ordinarily expect police officers to conduct an investigation after receiving such information in such circumstances, but the evidence suggested that there was no such investigation.
· In the police interview, the appellant denied all the allegations concerning his alleged crimes.
According to the uncle's evidence as to count 1, he was present when the alleged crime was committed, and had personal knowledge of the appellant committing it. Otherwise, no evidence was given as to any of the crimes charged by any person other than the complainant who claimed to have been present when the crime was committed, and to have personal knowledge of the appellant committing it. In my view the jury's seven verdicts are consistent with the jury considering the seven charges separately; not rejecting the complainant's evidence as untruthful, unbelievable or unreliable, but requiring supporting evidence before finding any charge proved beyond reasonable doubt; concluding that the uncle's corroborative evidence as to count 1 was strong enough corroboration for them to conclude that that charge was proved beyond reasonable doubt; and not finding strong enough corroborative evidence for them to be satisfied beyond reasonable doubt of guilt in relation to any other count. That hypothesis provides a proper way by which this Court may reconcile the seven verdicts. There is therefore no reason to conclude that the jury did not perform their functions as required.
Unreasonable verdict
The appellant contends that the conviction on count 1 was "unsafe and unsatisfactory" in the sense that the jury ought to have entertained a reasonable doubt as to the guilt of the appellant. The test to be applied when considering whether a conviction was unsafe or unsatisfactory was explained by Mason CJ in Chidiac v R (1991) 171 CLR 432 at 442 – 443 as follows:
"It is now well settled that a verdict may be set aside as unsafe or unsatisfactory notwithstanding that there was, as a matter of law, evidence upon which the accused could have been convicted … In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused …".
In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe or unsatisfactory:
"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 (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461-462)."
The evidence certainly contained discrepancies. I have catalogued quite a number of them above. It could be said that the evidence of the uncle was tainted, or lacked probative force, since he was criminally concerned in the events giving rise to count 1. People in his position tend to try to shift blame onto innocent people. To a degree, the evidence lacked probative force as a result of some two years elapsing between the period of the alleged crimes and their reporting, and some five years elapsing between the period of the alleged crimes and the trial. The learned trial judge gave the jury a warning in accordance with Longman v R (1989) 168 CLR 79. To a degree, the evidence as to count 1 lacked probative force because of all the matters that I have already referred to when reviewing the weaknesses in the Crown case. The critical question is whether, in the light of those factors, this Court should conclude that the jury, acting reasonably, should have entertained a reasonable doubt as to the guilt of the appellant on count 1.
The inconsistencies between the complainant's evidence and that of her uncle as to counts 1 and 2 were trivial and inconsequential. They were the sorts of minor differences that one might expect in relation to peripheral details of an event that occurred five years before the evidence was given. The absence of certain details from the complainant's first report to police officers is not surprising. Anyone asked to give an account of a series of past events might inadvertently omit some details, think of them later, and provide the missing information at a later date. The inconsistencies between the complainant's police statements and her evidence were not major ones, and were not surprising. Such inconsistencies are common, and are not necessarily indications of dishonesty. I think the same can be said as to the inconsistencies between the complainant's evidence and the evidence of the boy to whom count 5 related. It may well be that the complainant did not tell the police that she knew where Jack lived, and that her memory was inaccurate as to quite what she told the police about him. However her evidence as to that point was uncontradicted, and was relevant to count 1 only in the sense that it could affect the assessment of her credibility. In my view the various weaknesses of the Crown case as to count 1, considered as a whole, were not sufficient for this Court to conclude that the jury, which had the advantage of seeing and hearing the witnesses, ought to have entertained a reasonable doubt as to the guilt of appellant on that count.
For these reasons, I would dismiss the appeal.
File No 266/2009
Y v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
8 December 2009
I have read the draft reasons of Blow J. I agree with those reasons and would also dismiss the appeal.
File No 266/2009
Y v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
8 December 2009
I have had the benefit of reading the reasons for judgment of Blow J. I agree with those reasons and would also dismiss the appeal.
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