Yingqi Zhao v The Queen
[2018] VSCA 89
•12 April 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0172
| YINGQI ZHAO | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | BEACH, HARGRAVE and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 April 2018 |
| DATE OF JUDGMENT: | 12 April 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 89 |
| JUDGMENT APPEALED FROM: | DPP v Zhao (Unreported, County Court of Victoria, Judge Gucciardo, 20 July 2017) |
---
CRIMINAL LAW – Appeal – Leave to appeal – Verdicts of guilty on charges of rape and attempted rape – Acquittals on other charges alleging sexual offences – Whether verdicts inconsistent – Leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D D Gurvich QC with Ms D Price | Accuro Legal |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
BEACH JA
HARGRAVE JA
ASHLEY JA:
Yingqi Zhao (‘Zhao’ or ‘the applicant’) was convicted after trial in the County Court on a charge of rape constituted by penile/vaginal penetration and a charge of attempted rape by penile/vaginal penetration. These were charges 3 and 6 on a six charge indictment. On charges 1, 2, 4 and 5, which respectively alleged digital rape, oral rape, digital rape and indecent act, Zhao was found not guilty. He seeks leave to appeal against conviction on the ground that the guilty verdicts were inconsistent with his acquittal on the other charges. This raises a contention that each of the guilty verdicts was unreasonable and could not be supported having regard to the evidence.
In our opinion, for the reasons which follow, leave to appeal should be refused.
Circumstances
The incident giving rise to the charges occurred on 15 May 2015 at an apartment in Collins Street, Melbourne. It is uncontroversial that, at the time of the incident, two persons were present in the apartment, the applicant and M (‘the complainant’ or ‘Ms M’). They were two of four persons who were then residing there, the others being a man identified simply as ‘Malcolm’, and a woman named H who went by the nickname ‘Mishan’.
Each of the complainant, the applicant and Mishan are Chinese. The complainant and the applicant were then aged 24. Each of them was either a student or recent student. The applicant had been resident in the apartment, as at 15 May 2015, for about four weeks. The complainant had moved into the apartment at the beginning of May 2015, in place of another Chinese woman, T, who went by the nickname ‘Echo’. T was the lessee of the apartment.
At the time of the incident, the applicant and Ms M had been acquainted for some weeks. They and other students had socialised both at the apartment and at other venues. It is crystal clear that the applicant, although engaged to a woman in China, was much attracted to the complainant. Despite attempts made at trial to suggest that Ms M reciprocated the applicant’s feelings for her, the burden of the evidence was clearly that she was not so attracted.
A few days before the incident the subject of the charges, the applicant and the complainant engaged in conversation on the ‘WeChat’ app. There was an issue at trial whether the applicant had said, in Chinese, that his friends had advised him to rape the complainant, or rather, whether they had advised him to ‘fuck her forcefully’, or perhaps ‘force her’. That was not the only sexualised part of what the applicant said in the course of the conversation. It included the assertion that he was strong and the complainant was weak. The complainant’s response to all this was to reject the applicant’s advances.
As we have said, the applicant and complainant were alone in the apartment on the morning of 15 May 2015. On the complainant’s account, she was awakened by the applicant some time after 10.00am. But she did not have to get up that early, and so she hid under the doona. In the event, when she did want to get out of bed, the applicant initially prevented her doing so. But she did succeed in getting up, and went to the bathroom. Not wanting to dress in front of the applicant, she went back to her bedroom to fetch her clothes. The applicant asked why she needed to go to the toilet to get dressed, and said that if he really wanted to do something, did she think that the toilet door would stop him. Then he grabbed her and threw her onto her bed.
He tried to kiss her, then he ‘approached [her] private parts’. He took off her pyjama bottoms and underwear, and used his hand to ‘rub [her] private part’. She said that he put his finger into her vagina (charge 1).
But, she said, ‘he found out he didn’t get hard on and then … he was trying to put his penis into my mouth’. The complainant said that she resisted him, but that he eventually succeeded in doing so (charge 2).
By this stage, his penis was erect. Then he took it out of her mouth and put it into her vagina (charge 3). The complainant described this as ‘extremely unwanted’. She said that she was ‘struggling the whole process’.
When the applicant penetrated her vagina with his penis, the complainant said, it was painful, but the applicant ‘said in a very disgusting way “Ah, look, you’re wet, you’re wet”’. The complainant said that she struggled, and hit the applicant’s nose. His penis softened, and he took it out.
Then he put a finger into her vagina again (charge 4). This was ‘extremely, extremely unwanted’.
After this, the applicant took his finger out of her vagina and he attempted to put his penis into it, but because it was not erect, he did not succeed (charge 6).
In an interval between taking his finger out of her vagina and attempting to re-insert his penis, the applicant had put that finger into her mouth (charge 5). She said that ‘while he was doing that, you can taste it’.
After this series of events, according to the complainant, the applicant left her room, but remained in the apartment.
Just how long the events recounted by the complainant took is not clear. What is certain is that at 1.16pm, the applicant texted Echo, saying that she had been raped by the applicant and asking what she should do. What is also clear is that, a few minutes thereafter, she spoke by telephone with Echo, and again said that she had been raped by the applicant. Echo gave evidence that the complainant’s voice was shaky and that the complainant was crying. Further, the complainant said that she was in pain.
Echo went to the apartment, arriving, it seems, at about 2.00pm. She gave evidence that the complainant was sitting on her bed, holding a soft toy. The complainant said that the applicant had raped her, and she felt pain, and that she had bit the applicant’s penis. The applicant told her, she said, that as the applicant was raping her, he said that she could resist, but that he was a strong man and she could not do much against him.
The conversation between the complainant and Echo took place in the absence of the applicant. After it was concluded, Echo told the applicant to leave the apartment, and he did so.
Mishan gave evidence that she returned to the apartment at about 4.00pm on 15 May. The complainant and Echo were there. At first, Echo told her that the complainant had been raped, and then both of them ‘explained the whole story’. The complainant, Mishan said, told her that the applicant put his penis in her mouth and she bit it. He kissed her breast and then put his penis into her vagina. But she resisted, and ‘then he didn’t come in the end’.
Mishan said that when the complainant was telling her what had happened, she was crying.
The complainant gave evidence, and she told Echo, that when the applicant put his penis into her vagina, she cried and screamed.
We have mentioned that the complainant told each of Echo and Mishan that the applicant put his penis into her mouth and that she bit it. In cross-examination, the complainant said that she could not recall whether she did that. Maybe she ‘didn’t have the guts to do that’. She said that she was too scared to do that. As we understand her evidence, she denied telling Echo or Mishan that she had bitten the applicant’s penis, saying, at one point, ‘It should be the case that I wanted to or I bit lightly and then he was scared so then he took it out’.
The applicant was interviewed in the early morning of 16 May 2015. He stated that he had had consensual penile/vaginal intercourse with the complainant on the morning of 15 May. He said that, other than that, he had kissed the complainant on the mouth, on her nipples, and on her vagina. He stated that the complainant had been ‘very wet’. He said also that the complainant had said that penetration was painful.
The complainant’s account given in evidence that there had been a number of instances of sexual misconduct was not put to the applicant in the course of the interview.
The complainant was medically examined on 15 May. There was nothing indicative of forced vaginal penetration, but that was said to be a neutral circumstance.
The applicant was medically examined on the morning of 16 May. There was no evidence of injury to his penis.
Submissions for the applicant
It was submitted for the applicant that:
(1)the prosecution case in relation to all charges depended upon the evidence of the complainant;
(2)implicit in the acquittals on charges 1, 2, 4 and 5 was the rejection of the complainant’s account of the events said to give rise to those charges. The only explanation was that the jury had not been satisfied that the events had taken place. It was inherently unlikely that the jury had acquitted on the basis of consent. But whatever be the explanation, the complainant’s overall credibility was diminished;
(3)there was no logical basis for the jury to have concluded that the complainant’s evidence was credible in relation to charges 3 and 6 if they had concluded that her evidence was not credible in relation to charges 1, 2, 4 and 5. The quality of her evidence on charges 3 and 6 was no higher than that upon charges 1, 2, 4 and 5;
(4)this was not a case where the different verdicts might be attributed to the absence of supporting evidence, detail in the complainant’s account, some level of uncertainty, a faulty recollection or greater reliability in some parts of the account;
(5)none of the medical evidence, the record of interview or the complaint evidence provided a basis upon which the verdicts could be reconciled.
Submissions for the Crown
It was submitted for the Crown that:
(1)any case where inconsistency of verdict is alleged depends on consideration of the facts of that case;
(2)there was a significant advantage experienced by the jury in seeing and hearing the evidence. This was important to understanding the conviction on charges 3 and 6 as opposed to the acquittals on the other charges;
(3)the jury was correctly told that they were hearing six separate trials and that each charge had to be considered separately. The jury were able to convict the applicant on charges 3 and 6, being satisfied to the criminal standard, yet acquit on the remaining charges because they were not so satisfied. This did not mean that the verdicts were inconsistent;
(4)the acquittals on charges 1, 4 and 5 were explicable because there was no complaint evidence concerning those charges, in contrast to the allegation of penile/vaginal penetration and the allegation of oral rape;
(5)the acquittal on charge 2 was explicable because there was an issue as to whether or not the complainant had bitten the applicant on the penis, because the complainant’s evidence differed from accounts which she had given her friends on the day of the incident, and because there was no medical evidence that the applicant had been bitten on the penis. Whilst there was timely complaint evidence, it was inconsistent with the account given by the complainant. The jury might then have had a reasonable doubt concerning this charge;
(6)the conviction on charges 3 and 6 was explicable because there was a common thread in the two charges. One was an allegation of penile/vaginal penetration, and the other an attempt at such penetration. They were the only charges relating to actual or attempted penile/vaginal penetration. There had been a clear and timely complaint about penile/vaginal penetration; and whilst the complainant did not make a specific complaint to her friends about the attempt to rape her by the same means, the attempt charge was consistent with the conduct underpinning charge 3. Further, the evidence of the complainant concerning charge 3 was supported by, and consistent with, the evidence of complaint. In that connection, the judge had given the jury an appropriate direction.
Principles
The ground of appeal asserts that ‘the verdicts of the jury on charges 3 and 6 are inconsistent with the verdicts of not guilty on charges 1, 2, 4 and 5.’ It directs attention, in Victoria, to s 276(1)(a) of the Criminal Procedure Act 2009, which requires that an appeal against conviction must be allowed if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. Often enough, the statutory provision is paraphrased as a contention that an impugned verdict was unsafe or unsatisfactory.
Whether a verdict can be successfully impugned as being unreasonable or unable to be supported having regard to the evidence invites consideration by this Court whether, on the whole of the evidence, it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt;[1] or, to the same effect, whether the jury must, as distinct from might, have entertained a doubt about the guilt of the accused.[2]
[1]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); approved in MFA v The Queen (2002) 213 CLR 606, 614-15 [25] (Gleeson CJ, Hayne and Callinan JJ); 624 [59], 634 [57] (McHugh, Gummow and Kirby JJ).
[2]Libke v The Queen (2007) 230 CLR 559, 596-7 [113] (Hayne J, with whom Gleeson CJ and Heydon J agreed).
A contention that differential verdicts demonstrate that a guilty verdict was unreasonable or could not be supported by the evidence requires consideration of the approach described by the High Court in MacKenzie v The Queen.[3]
[3](1996) 190 CLR 348 (‘MacKenzie’).
In the present case, this Court is concerned with alleged factual inconsistency between the verdicts of guilty and not guilty. The relevant principles were set out in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie this way:
2.Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events…
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. 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 …
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 common-sense 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. [4]
[4]Ibid 366-8 (citations omitted).
In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ made these practical observations:
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, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed. [5]
[5](2002) 213 CLR 606, 617 [34] (citations omitted).
Analysis
In our opinion, the differential verdicts in the present matter are readily reconcilable. They do not represent an affront to logic and common-sense. They cannot be regarded as unreasonable or such as cannot be supported having regard to the evidence. We consider that the contrary is the case.
The jury found the applicant guilty of penile/vaginal rape (charge 3). Both the complainant and the applicant stated that there had been such penetration. The only live issue was whether the act was or was not consensual.
The differing assertions of the complainant and the applicant in that connection did not stand in an evidentiary vacuum.
First, there was clear evidence that the applicant was much physically attracted to the complainant, but that she was not attracted to him. The applicant acknowledged so much in his record of interview. The jury was well entitled to reject such evidence as there was which suggested that the complainant was attracted to the applicant to an extent.
Second, a few days before the day of the incident, the applicant had made remarks, in the WeChat conversation to which we have earlier referred, the gist of which was that he had been advised by his student friends to ‘rape her’ or ‘fuck her forcefully’, or ‘force her’. Just which of these translations from Chinese was correct was a matter much agitated at trial, but the conception, clearly enough, was of the applicant forcing himself upon her. The complainant had not responded favourably to the applicant’s remarks. In his record of interview, the applicant professed that this and related remarks were a joke. The jury was well entitled not to view them in that light.
Third, shortly after the incident, the complainant texted Echo, saying that the applicant had raped her. When Echo came to the apartment somewhat later, the complainant repeated that allegation; and she repeated it to Mishan when the latter returned home that afternoon. To a layperson, we do not doubt that ‘rape’ carries the meaning of penile/vaginal penetration, as distinct from the extended meaning given the word under the Crimes Act. The complaint both bolstered the complainant’s credibility and was some evidence of the fact that she had been raped.[6]
[6]See Evidence Act 2008 s 66(2)(b).
Fourth, the complainant exhibited considerable distress when first speaking with Echo; and later when speaking face to face with Echo and Mishan. The judge commented that little weight could be attached to evidence of the complainant’s distress; but he rightly told the jury that it might reach a different conclusion. We see no reason to think why the jury ought not to have concluded, in all the circumstances, that the distress which the complainant exhibited was a consequence of her having been raped by the applicant.
Now, it is true that the complainant gave evidence that she screamed when the applicant was attacking her; and that it was an attempt to attract attention from the occupiers of adjoining apartments. There was some evidence that noise could be heard from one apartment to the next. So, it was submitted for the applicant, the complainant could not have screamed as she said she had done because no adjoining resident had responded. But that does not follow. It assumes that adjoining residents were present in their apartments in mid to late morning on 15 May 2015; and it assumes that a person then present would have responded to hearing the complainant’s cries.
Again, it is the fact that the complainant denied that she had gone to Mishan’s room to apply make-up on the morning of 15 May; whilst the applicant had taken a photograph of her doing so, then wearing her pyjamas. No doubt, this revealed that the complainant’s recollection was less than perfect. But we do not accept that, as a consequence, the substance of what the complainant said about her non-consent to penile/vaginal penetration should not have been accepted by the jury to the criminal standard. Quite apart from the complainant’s evidence as to what had occurred, and the complaints which she made, the idea that the complainant would consent to intercourse with the applicant, in view of the previous history of their dealings, was highly improbable.
The jury also found the applicant guilty of the attempted rape of the complainant (charge 6). The attempt, as described by the complainant, was a failed attempt at penile/vaginal penetration, the failure occurring because the applicant’s penis was not then erect.
It will be remembered that the complainant gave evidence that the initial penetration ended when the applicant lost his erection. The complainant gave evidence of an interval during which other sexual acts occurred, and then of the attempt the subject of charge 6. The jury was not satisfied to the criminal standard that what may be called the intervening acts (the subject of charges 4 and 5) had occurred. In the event, it appears to us that the jury was well entitled to reason that the described attempt followed very shortly after the applicant first withdrawing his penis; and that both the withdrawal and the failed attempt were related to his penis being flaccid in a short timeframe. In those circumstances, the jury might not have made much of there being no separate complaint by the complainant at the outset of the failed penetration, treating it as part of a more or less continuous episode.
In the event, in our opinion, it is not at all difficult to see why the jury found the applicant guilty on charges 3 and 6. But what, then, is to be made of the acquittals on the other charges, remembering that each was to be the subject of separate consideration?
The complainant gave evidence of two instances of digital penetration, one preceding and one following the penile/vaginal rape (charges 1 and 4). The applicant, in substance, stated in his record of interview that there had been no such activity — because he stated what had occurred, and it did not include such acts.
The complainant made no complaint of digital penetration to Echo or to Mishan on the afternoon of 15 May 2015. Unlike the situation in the case of the penile/vaginal penetration, there was no consensus between the complainant and the applicant that the act itself had taken place. Taking a cautious approach, though not positively disbelieving the complainant, the jury was entitled not to be persuaded of the applicant’s guilt on charges 1 and 4 to the criminal standard. But so to conclude did not give rise to any irreconcilable inconsistency between the verdicts of guilt on charges 3 and 6 and not guilty on charges 1 and 4.
The complainant gave evidence that, after the second instance of digital penetration, the applicant pushed the finger which had been in her vagina into her mouth (charge 5). In his record of interview, the applicant stated, in substance, that there had been no such event.
Not only did the complainant not complain of digital penetration on the afternoon of 15 May, she did not mention the event the subject of charge 5. Once the jury was not satisfied to the criminal standard that the second alleged incident of digital penetration had occurred, it followed that it could not be satisfied to the required standard that the applicant had committed the indecent act. But again, the differing verdicts did not represent an affront to logic or common-sense. Unlike the situation respecting charge 3 in particular, there was a dispute whether the act had occurred, and there was absence of timely complaint.
The complainant gave evidence of oral penetration (charge 2). It was the subject of complaint to Echo and Mishan on the afternoon of the incident. The complainant told each of them that she had bitten the applicant’s penis. The applicant, in substance, denied that there had been any such penetration.
In addition to the occurrence of the act being, in substance, disputed, there was variance between what the complainant told Echo and Mishan on the afternoon of the incident and her oral evidence.[7] Again, it is the fact that the applicant was medically examined and that there was no apparent injury to his penis. The latter circumstance was by no means conclusive, but the jury was entitled to take it into account for what it was worth. The jury may well have considered that it was probable that there had been oral penetration, particularly since the complainant gave quite a detailed account of the applicant’s attempts to force his penis into her mouth. But a cautious jury, considering this charge discretely, was entitled not to be satisfied of the applicant’s guilt to the criminal standard; and so it was not an affront to logic and common-sense for the jury to acquit on charge 2, yet to convict on charges 3 and 6.
[7]See [22] above.
Order
Leave to appeal should be refused.
0
4
0