Avery v The Queen [2014] VSCA 86

Avery v The Queen [2014] VSCA 86 - VSCA 2014 case summary — Zoe

[103]

I'll move to Counts 10, 11 and 12. You refer to being at [the applicant's] house at night-time. Is that right?---Yes.

You say, 'I don't have a strong memory attached to this certain occasion, but I know that the only reason I was ever at his house during that time would have been to babysit.' Is that right?---Yes.

So again, you have no memory of why you were at, you say, [the applicant's] house at night, but you believe it would have been in relation to babysitting. Is that correct?---Yes.

What I suggest ... is that you never babysat [the applicant's] child, [E], at all during 2004 or 2005. You disagree with that, do you?---Yes.

You disagree on the basis that you can recall specific occasions where you did that, can you?---I have memories of babysitting. I have memories of the events I've spoken about. I just couldn't be a hundred per cent sure that those memories are the same time as each other.

There's no possibility of finding out any date where you might have actually gone and babysat [E], I suppose, ..., is there?---Not that I know of.

No way that we could fix a time where you say you were at [the applicant's] and we could check it. No way we could do that, I take it?---Not that I can think of.

Well, I'll come back to that. I want to suggest to you that you never stayed overnight at [the applicant's] house, never stayed at his house until you house-sat his house in 2008. That's right, isn't it?---No, that's wrong.

Well, when did you stay at his house overnight, ...?

---During those years?

Yes?---I can't tell you exact dates. I can't tell you - you know, it's a very long time ago and there was no - I didn't keep a diary. There's no way for me to know.

You did babysit [E] when you were in year 11, didn't you?

---Yes.

Now, that was in 2006, wasn't it?---Yes.

I should put to you that that was about three or so occasions, wasn't it?---I can't remember. I couldn't tell you.

But on no occasion did you stay the night at his house, did you?---I couldn't tell you. I can't remember.

Isn't that something you're likely to remember, whether you stayed at his house or not?---Not when it's something that's been, you know, an ongoing event that had been going on for years. You know, I spent a lot of time since then not thinking about these things. I never knew I would have to remember every time I babysat, but I assure you I remember the important aspects.

You told the jury yesterday that when you stayed the night you remember it clearly because you freaked out a little bit that [E] was there. Is that right?---Yes.

MR HAMMILL: It needs to be put properly, Your Honour. That was in the context of [E] coming into the bed in the morning or coming in

MR O'CONNELL: That's what I'm putting.

HIS HONOUR: Yes, it wasn't precisely put that way but that's where you're leading to, yes.

MR O'CONNELL: That's what I meant. I'll rephrase it. (To witness) What you told the members of the jury is this: 'I remember' - this is p.101 line 19. 'I remember a specific time, that specific time, because I had stayed over. In the morning his son [E] came into the bed and got into bed with - and I was in the bed with [the applicant]. I remember that very clearly because I freaked out a little bit that [E] was there.' That's what you said, wasn't it?---Yes.

Now look, I suggest to you that's just fantasy. That just never happened, ...?---Well, if all of this never happened then why are we here? I have a clear memory of that because it was during those years. Your questions just previously were to do with the later years and I couldn't tell you exactly how many times I babysat in the later years but I do remember sleeping over during that time.

You, as a 15yearold girl, needed the permission of your parents to stay overnight anywhere, didn't you?---Yes.

Your parents needed to know where you were, didn't they?---Yes.

You say that you didn't lie to your parents as to where you were. Is that right?---I can't remember lying. Assuming I told the truth [sic].

You're assuming that you told the truth, are you?---There would be no reason to lie. I was just babysitting.

Weren't you conducting a sexual relationship with your music teacher?---Yes.

Wouldn't that be a reason to lie?---Yes.

Did you lie?---I don't remember lying. I am not a liar.

You asked your parents when you were contemplating reporting this matter to the police whether they could remember you staying over at [the applicant's] house, didn't you?---This was one of the points that I wanted to clarify.

I wonder if you might just answer the question for us, please?

---No, I didn't ask them.

You didn't ask them?---No. I know that at the committal hearing I said yes to that answer.

I'll just stop you there, if I may. You see, the members of the jury don't know that but we'll just go through it step by step, if we can?---Okay.

Page 18, line 1. Perhaps I'll start - put it in context, Your Honour, down the bottom of the page. Line 29, p.17. Question, 'No. So if it was the case that you were staying the night at [the applicant's] house they would want to know about it, wouldn't they?' Answer, 'Yes, they would.' Now, I pause there. The 'they' there is referring to your parents. Do you understand that, ...?---Yes.

Question, 'Yes, and you've discussed this with them, haven't you?' Answer, 'Yes.' Question, 'They can't remember a time between mid-2004 and mid-2005 that they've told you about where that happened, can they?' Answer, 'Not a specific time, no.' Now, those questions were asked of you and those answers were given, weren't they, ...?

---Yes.

They were truthful?---Yes, at the time to what I believed you were asking me and what - yes.

This is at p 20, line 9, Your Honour. Question, 'You say that that time was between mid-04 and mid-05. Is that correct?' Answer, 'Yes.' Question, 'You asked your parents whether you had stayed away at [the applicant's] house during that period, didn't you?' Answer, 'Yes.' Question, 'They told you that they couldn't remember such a time, didn't they?' Answer, 'They told me that they they couldn't really remember, no.' Were those questions asked of you and were those answers given, ...?---Yes.

Were they truthful?---Yes, at the time. I misunderstood what you were saying and I have since - reading my transcript I'd like to clarify.

[115]

1. 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. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

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. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of 'differences in the evidence presented at the two trials' or 'the different views which the juries separately take of the witnesses'.

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. 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, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin) 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.[12]

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Judgment (141 paragraphs)

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Cases Cited (10)