CAVILL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 108 (8 May 2008)

CAVILL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 108 (8 May 2008) - WASCA 2008 case summary — Zoe

[83]

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 ((1987) 44 SASR 591 at 593), and referred to in later cases (eg, MacKenzie v The Queen (1996) 190 CLR 348 at 367 - 368): 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 [34].

[96]

62 First, there is the evidence as to the nature and extent of the digital penetration concerning count 2 compared with the other counts alleging digital penetration. The complainant said, in relation to count 2, in examination-in-chief, that after the appellant had returned to the guest room on the second occasion and got on the bed, he 'straight away put his hands under my tracksuit pants ... and my G-string and started feeling me around on my clitoris' (trial t/s 204). The complainant also said that she remembered feeling his hand and finger moving around, up and down, and that he touched inside her labia majora (trial t/s 204). The complainant's evidence in relation to counts 3, 4 and 6 described the appellant's digital penetration of her vagina as being deeper and more forceful in nature (trial t/s 207 - 209). During his video record of interview with police, the appellant admitted that, after 'kissing' and 'cuddling' the complainant, he possibly touched the outside of the complainant's vagina, he may have put his fingers in the complainant's vagina, it was possible he penetrated the complainant's vagina with his fingers, and he touched the complainant's vagina but did not really penetrate it (VROI t/s 74 - 75). The appellant consistently denied, however, that there had been any 'forceful penetration' (VROI t/s 77, 82). The prosecution's case and the complainant's evidence was, of course, to the effect that count 2 occurred after count 1 (which alleged unlawful and indecent assault by the appellant inserting his tongue into the complainant's mouth) and before counts 3 - 7. At trial, the appellant gave evidence and recanted the admissions he had made in the video record of interview. Plainly, however, those admissions were against his interest and if the jury accepted that the admissions were truthful, it was entitled to take them into account in considering whether the prosecution had proved the appellant's guilt beyond reasonable doubt in relation to any of the counts in the indictment.

[295]

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. (Footnotes omitted).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (418 paragraphs)

CAVILL -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 108 (8 May 2008)

Legislation Cited (4)

Cases Cited (30)