Amato v The Queen [2013] VSCA 346

Amato v The Queen [2013] VSCA 346 - VSCA 2013 case summary — Zoe

[48]

A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve ...
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 ...
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 ...
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 ...
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' ...
The obligation to establish inconsistency of verdicts rests upon the person making the submission ...

[52]

When you did go to bed or were taken into the bedroom, were you left in bed with the lights on?Yes.

You didn't change that?No.

So at the time that you were aware of someone being in the room, the lights were on?Yes.

...

In terms of your first statement to police which you have told us that you have read before giving your evidence here today, you say in that statement that you see someone walk in the room and even though all the lights were on you couldn't see who it was, it was just a figure?Yes.

Do you agree with that?Yes.

And that at one point you recall that Andrew was in the bed next to you?Yes.

Is that right?Yes.

That is prior to any kind of physical activity occurring between the two of you?Yes.

At the time that you realised Andrew was in the bed next to you, you were aware that you were naked?Yes.

The light was still on?Yes.

At that point in time you didn't say anything to him, did you?No.

Indeed Andrew told you that it was him when he got into the bed?No, I don't remember that.

Therein lies the difference. There are two different propositions in that answer so this is what I want you to think about. Is your answer either no, he didn't tell you it was him, or you don't remember whether that happened or not?I don't remember whether that happened or not.

Certainly you would say that at that point in time you didn't feel panic or anything?No.

Certainly at that point in time you don't do anything to communicate to Andrew for him to get out of the bed?No, I didn't know it was.

You just told us that you did and the light was on?(No audible response.)

[OBJECTION]

I will just get the answer to that question again. I have said to you that - I have suggested to you and you have agreed with me that Andrew has got into the bed and the lights are on, do you remember me asking you that question?Yes.

And you agree with me when I asked you that question?Yes.

I have asked you that you didn't say or do anything to Andrew at that point in time to communicate to him to get out of the bed, you agree with that, don't you?Yes.

It is subsequent to that that you felt Andrew touching the outside of your vagina with his fingers?Yes.

You were aware of that happening?Yes.

At that point in time you touched him back?No.

Touched his back and his chest?No.

Can I ask you about your answer, in relation to saying 'No' to that, is it something that you say didn't happen or are you saying, 'I have got gaps in my memory. It might have happened, I just don't recall it'?I don't remember that happening.

So gaps in your memory, you just can't recall whether it happened or not?Yes.

In terms of the evidence you have given about saying 'No', I just want to ask you some questions about that. Your version is that you did say 'No', isn't it?Yes.

Does that reflect you assessing that something is happening that you don't want to have happened and saying 'No' to it, is that what that is a reflection of?I didn't - I didn't fully understand what was going on and that was me saying 'No' because it didn't feel - it didn't feel right.

[55]

[H]ow did you get into the bed, do you remember?No, I don't recall.

Were you in the bed?Yes.

What was your state of clothing?I had - I was naked, I had no clothing on.

So you were in that bed naked. Did you have any thought processes at that stage that you can remember?Yes, I was thinking why do I have no clothes on, where am I.

Do you recall after that at some stage whether anybody came to that room?Yeah, someone entered the room. At the time I didn't know who it was.

What did they do?They came into the - into the bed with me and ---

...

So this person comes in and what was your thought process at that point?I thought that maybe it was just someone coming in to check on me.

What was your state like, that is your mental or bodily state at that stage?Just out of it, not really sure of what was going on.

So this person comes into the bed with you. Do you recall saying anything or the other person saying anything?No, I can't recall anything being said.

What is your next sensation or feeling that you recall?I felt fingers touching my vagina.

Did you know who the hand or fingers belonged to at that stage?No.

How were you laying, do you know?Just on my back.

...

What were you thinking at that stage?I wasn't really sure what was going on. I was just really confused and, yeah, I just - I didn't understand sort of what was happening to me. It didn't feel - it didn't feel like anything that - like, I didn't feel like - that it was a sexual thing at all, I just felt the sensation and ... It didn't - it didn't feel right so I remember saying, 'No', but not really sure why I was saying 'No', it just didn't feel quite right.

How did you say that, do you remember?Just drunkenly.

How would you describe your state of drunkenness at that point?I never felt like that before and I was just having massive lapses in between thinking and feeling things.

...

For how long do you think your vagina was being touched as you have described?It only felt like a short amount of time and then I passed out, so I don't know.

Do you know whether it continued or otherwise stopped?No.

At some stage did you identify who this person was?No, I remember hearing Andrew's voice at one point and thinking that is Andrew because he had an American accent and so I recognised it but I didn't - I didn't know that Andrew was touching me. I didn't think that - I didn't connect his voice with what was going on.

But at this stage, you don't know who it is, is that right?That's correct.

Were you aware of what the other person was wearing?No.

At a glance

Court

Decision date

Before

Source

Judgment (118 paragraphs)

Amato v The Queen [2013] VSCA 346 (3 December 2013)

Parties

Cases Cited (8)