Carroll v The State of Western Australia [2004] WASCA 254

Carroll v The State of Western Australia [2004] WASCA 254 - WASCA 2004 case summary — Zoe

[129]

"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 (R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983), 15,212, requiring that the verdicts be 'so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion': R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyster [1845] EngR 363; (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153). 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 (R v Zundel (1987) 35 DLR (4d) 338 at 401-402, applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313). 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 (R v Drury (1971) 56 Cr App R 104 at 105). 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 (See R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758). 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."

[131]

"In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated a number of general propositions concerning the significance that may properly be attached to what is sometimes referred to as factual inconsistency between verdicts. In that respect, it is to be noted that, where an accused is charged with multiple offences, differences between the verdicts may not, in truth, involve inconsistencies even of a factual kind. In the present case, if there had been a verdict of guilty on count 2 and not guilty on count 3, where the charges were supported by substantially the same evidence, then there would have been factual, even though not technical or legal, inconsistency. However the evidence in support of counts 7 and 8 was materially different from the evidence in relation to counts 1-6 and count 9. The complainant was, to a significant extent, supported by MA.

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.

It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones 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. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.

The test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency. In the present case, there is an obvious explanation of the differences between the verdicts on the various counts in the indictment.

(Footnotes omitted and emphasis added.)"

[312]

"He then discussed with you various exhibits and made certain points in relation to those. In summary, in relation to the events of 30 January, he said there was obviously a long time - her evidence, met 8.45; it's after 1 am when the security man arrives, so it's a very long time - could he have kept her that long doing things to which she wasn't consenting? On 3 February they met at Fleming Reserve. There is a long trip in which she is followed and you've got a video in relation to that. He made reference to Mr Wight's evidence, that is, that he didn't see anything out of the ordinary, that she used the words to him 'making out'. Constable Lawson's evidence that [the complainant] - she said in evidence she didn't know these areas but she was the one who was able to draw it all on the map.

Ms O'Rourke's - the medical evidence, which he says is basically consistent with consensual sexual intercourse on that night. He referred you to Mr Webb's evidence and asked you to look at the exhibits in relation to clothing and other matters. ...

... He made reference to Dr Phillips's (sic) evidence of what was said to her as part of the introduction by [the complainant] indicating the matters that she would be looking at. He pointed out various inconsistencies in that with the evidence that she gave. He suggested to you that the medical evidence is not consistent with her being rammed into the fence. He referred to other exhibits, 15 to 22, in relation to ongoing contact.

He refers to Mr Carroll's evidence and says that he is consistent and believable; his evidence is consistent with the emails. He related the events of 6 February when Mr Carroll said they had sex again, and 11 February when she threatened him, and he says that a motive for her acting in that way that she has, and you will need to consider that aspect of the matter. So in summary, Mr Carroll's case is that these matters that occurred on 30 January and 3 February were consensual, part of an ongoing sexual relationship between the parties.

So that's a summary of the evidence. ..."

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Judgment (332 paragraphs)

Carroll v The State of Western Australia [2004] WASCA 254 (10 November 2004)

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Cases Cited (27)