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[2017] VSCA 49
Court of Appeal (Vic)
2017-03-16
Mr P, Redlich JA, Weinberg JA, McLeish JA
Original judgment source is linked above.
DPP v Inia (Unreported, County Court of Victoria, Judge Maidment, 15 March 2016)
CRIMINAL LAW - Conviction - Applicant convicted of two of four charges of rape - Two complainants - Verdict on one charge said to be unreasonable and/or not supported by the evidence - Verdict of guilty on same charge of rape said to be inconsistent with verdicts of not guilty on other rape charges involving same complainant - Open to jury to accept complainant's evidence as credible - Reasonable explanation for acquittal on two rape charges and conviction on one - Leave to appeal refused.
1 The applicant stood trial, early last year, in the County Court at Melbourne on four charges of rape. Charges 1, 2 and 3 involved offences committed against a complainant, 'SK' and charge 4 involved an offence against her cousin, 'SF'.
2 On 9 March 2016, the applicant was convicted on charges 3 and 4, and acquitted on charges 1 and 2.
3 He was subsequently sentenced to a total effective sentence of five years and six months' imprisonment, with a non-parole period of three years and six months. He has not sought to challenge that sentence.
4 The applicant seeks leave to appeal against conviction (on charge 3 only) upon two grounds:
5 On the night of Saturday 9 August 2014, SK and SF went to a nightclub in Sunshine called 'West End'. They had been there on a number of occasions previously.
6 SK said that, while at the nightclub, she was approached by the applicant, who introduced himself as 'Shaun'. She said that she was attracted to him from the outset. He said that he would buy her a drink later that evening, and later the two of them danced together. At one point, they were kissing on the dance floor.
7 Once the club closed, at about 3:00 am, the applicant, SK and SF, as well as the applicant's friend, 'SP', all drove to SF's home. On the way, they stopped at a service station (which, the evidence made clear, was equipped with a CCTV camera).
8 SK acknowledged that, virtually from the time she met the applicant, she intended to have sex with him. She said that, once they arrived at SF's home, she placed a mattress on the floor of the lounge room for her and the applicant to use.
9 SK said that initially, at least, SP was in the kitchen. She heard her cousin ask him if he wanted her to call him a taxi, but he declined. Later, when SK went into the kitchen she also asked SP if he needed a cab. However, he again declined.
10 SK said that she then returned to the lounge room. By that stage, the applicant had covered himself with a doona. They then proceeded to have sexual intercourse. After a short while, SK found the sex to be painful, and told the applicant that he was going to have to 'slow down'. He said to her several times that she should 'relax'. They then changed positions, with SK sitting on top of the applicant. However, the sex was still painful, and she then said 'No, it's not working, no good.' She asked him to stop. He then began to bite her nipples, and her mouth. She again asked him to stop because the sex was still hurting. She attempted unsuccessfully to push him off, but he was pressing down upon her.
11 SK said that she was frightened, and did not really understand what was happening. She wondered why the applicant was continuing to have sex with her even though she had told him to stop. She was eventually able to free herself.
12 According to SK, the applicant then grabbed the back of her hair, and pushed her head towards his groin. She said that she was 'frozen' and 'really scared'.
13 SK said that she tried to get away by pushing against the applicant's legs. While still holding her hair in one hand, the applicant used his other in an attempt to insert his penis into her mouth. She said that she initially kept her mouth closed, but felt his penis touch her lips. The applicant then began thrusting his pelvis, and ultimately succeeded in putting his penis into her mouth.
14 SK said that she was 'gagging' at the time, and felt as though she was going to be sick. She said that the applicant kept telling her to 'relax'. At one point he began laughing. He continued to thrust his pelvis backwards and forwards, making various noises (charge 1 - oral rape).
15 SK said that she was finally able to remove the applicant's penis from her mouth when he momentarily loosened his grip on her hair. He then pushed her head down onto the mattress and tried to insert his penis into her anus. SK was not able to say much at that time as her face was pressed against the bed. However, she was able to turn her head slightly. She claimed that she told the applicant to 'fuck off' and to 'get off'. She said that she felt the tip of his penis enter her anus about three times. She said that she felt a burning or stinging sensation when this happened. She was able to reach behind her and 'flick' his penis away (charge 2 - anal rape).
16 According to SK, she then 'pushed up'. However, the applicant grabbed her hair again and this time inserted his penis into her vagina. He was behind her initially, but then pulled her hair to flip her over, so that he was on top of her. He then continued having sexual intercourse, which she claimed was non-consensual.
17 SK said that, at this stage, the applicant had his hands on her throat, with his elbows pressing down. She said that she could not breathe, and claimed that she told him a number of times to stop. He smirked, and merely said 'shh, relax'. She then lost consciousness (charge 3 - rape).
18 SK said that her next memory was of SF screaming at the applicant, demanding that he leave the house. SK knew something had happened because SF was no longer wearing pyjama bottoms and there was blood on her leg, but she did not know what had occurred. The two complainants then, together, forced him out. After he left, SF told SK that she had woken to find the applicant having sexual intercourse with her.
19 SK acknowledged that she had not told her cousin, at that stage, that the applicant had raped her, just as he had raped SF. She said that this was because she was concerned about SF, who was extremely distraught. She thought that SF would not be able to cope with any further trauma.
20 SK dialled '000'. During the call, she told the operator that her cousin had been raped. She did not say anything, however, about having herself been sexually assaulted.
21 Later that morning, two police officers attended the house. The cousins were separated. SK spoke to one of the officers, Constable Tracey O'Brien, who made notes of their conversation. She then asked SK to sign those notes. In the notes, SK said that she had had consensual sexual intercourse with the applicant, but mentioned nothing at all about anything non-consensual having taken place. In her evidence at trial, SK explained that she did not tell Constable O'Brien about what the applicant had done to her because she was concerned about SF. Her evidence was:
Everything was so crazy and hysterical ... and I couldn't work out what had happened, whether - did I say 'no' enough? Was I loud enough? Did he hear me enough? ... I wasn't thinking straight.
22 SK approached Constable O'Brien again soon after that. She told her that she too had been raped by the applicant, not just SF. She said that she had told the applicant to stop, but he had ignored her.
23 SK's evidence did not make clear whether she was referring, at that stage, to the first act of intercourse, which had been consensual, or the act of intercourse that resulted in one the later charges of rape. Another possibility is that she was referring generically to all of the various sexual acts that took place. In any event, Constable O'Brien, who was not a trained specialist in the field of sexual offending, declined to discuss the matter further. She told SK to speak to a detective about her allegations.
24 SK then sat in a police car for a time with SF's sister, 'MT'. She asked SK whether the applicant had hurt her too. SK responded, 'yes'.
25 SK said that she and SF were then driven to Sunshine Hospital. There, she spoke to Detective Senior Constable Peta Carbonneau, who was attached to a sexual offences investigation team, and later became the informant in these proceedings. SK told her that she 'had asked [the applicant] to stop and he didn't.' However, as was the case previously, no further details were provided at that stage.
26 SK then gave evidence about the injuries that she had sustained. She said that they were caused by the applicant biting her neck, and having his hands around her throat. She said that she had not had any injuries to her neck prior to that evening. She described her throat as 'very sore'.
27 Under cross-examination, SK agreed that she had made three separate statements to police regarding this matter. These were made on 10 August, 13 August and 2 September 2014. She said that she had left some things out of her second statement because she had not felt comfortable with the police officer who had taken it.
28 SK agreed that her memory was patchy as to the sequence of events that led up to the group returning to her cousin's house. She said that that was because, until she actually had sex with the applicant, it had been a 'normal' night. However, her memory of events thereafter was clear because 'that wasn't normal and that wasn't usual.'
29 In cross-examination it was put to SK that while the applicant accepted that there had been oral sex, it had been consensual. She denied that suggestion. She agreed, however, that she had not mentioned anything about any oral sex until she made her third statement to police.
30 It was suggested to SK that CCTV footage of the group at the service station depicted the applicant sucking her neck. It was further suggested that this explained the marks on her throat. She again rejected that suggestion.
31 SK also denied that she had behaved in a manner which would have suggested to the applicant that she was perfectly happy to engage in all of the sexual activity that took place. She said, specifically in relation to charge 3, that she had told the applicant several times during that act of intercourse to 'stop', and to 'fuck off'.
32 In re-examination, SK explained that she had felt uncomfortable, and somewhat rushed, when she made her second statement. She said that the reason why she made a third statement was because, by that stage she had begun seeing a counsellor, and was starting to 'piece everything together'.
33 SF said that she had been woken up on the morning in question by a 'shaking' feeling. The applicant was laying on top of her, and having sexual intercourse with her. She began screaming. Eventually, she and SK were able, together, to eject him from the house.
34 SF said that she had seen bruising on SK's neck before SK called the police.
35 At about noon on 10 August 2014, Dr Jo Ann Parkin of the Victorian Institute of Forensic Medicine examined SK. She took a history from SK, who told her that the applicant had used his hands to 'strangle' her. SK also told Dr Parkin that the applicant had bitten her breasts and lips, and that he had sucked and pulled at her neck. SK had added that the applicant had 'tried' anal sex, succeeding in introducing his penis slightly into her anus.
36 Dr Parkin was shown photographs of SK's injuries. She described one as depicting the right side of SK's neck. It showed a two centimetre by one centimetre central scratch abrasion, with surrounding red bruising below her right ear, and a smaller area of bruising further down her neck.
37 On the left side of SK's neck there was an oval shaped bruise, just to the left of the windpipe.
38 Dr Parkin's opinion was that the bruising and scratch marks had probably been caused by the same event. She noted that SK had described having been 'strangled'. She said that the injuries depicted in the photographs could have been brought about by the gripping of hands around SK's neck, with the fingernails of the assailant having caused the scratch abrasions. Alternatively, SK could have inflicted the scratch marks with her own hands when attempting to remove the assailant's hands from her neck.
39 According to Dr Parkin, the injuries to SK's neck were suggestive of 'blunt force trauma'. That was supported by SK's account of having passed out, given that 'neck compression impairing oxygen delivery' could have precisely that effect.
40 An injury that could be seen to SK's ear was consistent with frictional force having been applied to the skin by way of blunt force trauma. Although it was difficult to date bruises and abrasions, the injuries depicted in the photographs were consistent with having been inflicted in precisely the manner that SK had described.
41 In cross-examination, it was suggested to Dr Parkin that the marks on SK's neck could have been caused by the sucking and pulling by the mouth that SK had previously described. Dr Parkin rejected that suggestion. She responded 'the ones that have the central scratch abrasion ... immediately come to mind as some sort of hand grabbing due to the scratch abrasion itself.' She explained (with our emphasis):
Normally if there's been teeth or sucking we tend to have more of a raking, or a general, what we call 'graze abrasion' for the teeth raking over it. This was a fine scratch abrasion so that those two areas at the uppermost bruises on either side seem to have either hands pulling, or someone placed hands or hands pulling aside. Not to exclude that there's not a combination.
42 In relation to both bruises on SK's neck, Dr Parkin said (again, with our emphasis added):
So the top injuries because of the fine scratch abrasion are more suggestive of a finger nail or another sharp object that's been in that region rather than teeth because it's just too fine to be causing that - that abrupt - if you think about um that sort of movement, if - if - if the mouth is moving and the individual underneath is moving you have more erratic um teeth movement across that skin.
43 When pressed further in cross-examination, Dr Parkin again acknowledged that it was possible that the injuries to SK's neck had been caused by a 'combination' of sucking and biting, and what SK had described as 'strangling'. However, the gist of her evidence was clear. Although there may have been a 'combination' of the kind described above, and while abrasions could be brought about by biting, it was unlikely that these particular injuries had been brought about by anything other than hand compression to the neck.
44 The applicant did not give evidence. He relied instead upon his record of interview. In the course of that interview, he freely acknowledged having had sex with SK on the night in question, but claimed that it had been entirely consensual. He did, however, deny having had anal sex with her.
45 With regard to SF, the applicant essentially denied having had sexual intercourse with her at all. Self-evidently, by convicting him of that charge, the jury rejected at least part of what he told the police.
46 Ground one alleges, as provided by s 276(1)(a) of the Criminal Procedure Act 2009, that the verdict of the jury on charge 3 was unreasonable or cannot be supported having regard to the evidence. The principles that govern a ground of this kind are by now well established. As has been said many times, the starting point must be the decision of the High Court in M v The Queen.[1]
47 In their joint judgment Mason CJ, Deane, Dawson and Toohey JJ observed:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[2]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[3]
49 In Libke v The Queen,[4] Hayne J (with whom Gleeson CJ and Heydon J agreed) explained more fully the test to be applied when dealing with this particular ground. Hayne J said that the question for an appellate court when considering whether a conviction should be set aside as unsafe or unsatisfactory was:
... whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.[5]
50 More recently in R v Baden-Clay,[6] the High Court addressed this question in the context of s 668E of the Criminal Code (Qld) in the following terms:
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'[7]
51 In Klamo v The Queen,[8] Maxwell P summarised the principles governing appellate review of convictions that were said to be unsafe or unsatisfactory. His Honour said:
The approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground involves the following steps:
A guilty verdict can only be said to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion.[9]
52 This Court has, on a number of occasions, considered whether a particular verdict should be set aside as unsafe or unsatisfactory. Within the past few weeks, it has undertaken the process of considering for itself the evidence led at trial three times, in cases of sexual offending, in order to resolve the question whether a jury 'must', as distinct from 'might', have entertained a reasonable doubt. On each occasion, the Court held that, despite criticisms that could be levelled at the evidence given by the complainants, it had been reasonably open to the jury to convict.[10]
53 The unsafe or unsatisfactory ground requires this Court to give detailed consideration to the evidence led at trial, and to form its own view as to whether it was properly open to the jury to convict. In effect, this Court must ask itself whether, on the basis of that evidence, it entertains a doubt as to the applicant's guilt. If it does, in most cases, it will quash the conviction. If not, this ground will fail.
54 The applicant submitted that the verdict of the jury on charge 3, the charge of penile rape, was unreasonable or could not be supported having regard to the evidence. He based that submission upon the following factors:
55 In essence, trial counsel submitted that SK's allegations had been eked out over time and that she must have been 'making it up as she went along'.
56 The applicant submitted that Dr Parkin's evidence established that the bruises and abrasions on SK's neck were by no means inconsistent with the applicant having, as he acknowledged, previously kissed her, and sucked her neck. It was submitted that the CCTV footage taken at the service station showed the applicant kissing SK's neck. Although she had complained of having subsequently been bitten on the lips, and having suffered bruising to her breasts, Dr Parkin's examination did not note any injuries of that kind.
57 In addition, none of the abrasions or bruises on SK's neck had any particular features that allowed Dr Parkin to be precise about their cause. All that she could say was that they had been brought about by blunt force trauma. She had conceded that sucking could cause such trauma. Accordingly, it was submitted that the injuries to SK's neck could have been brought about by kissing, sucking and pulling (with teeth), without any hand-neck compression. It was submitted that Dr Parkin's opinion that this would be unlikely was in no sense determinative, and should not have formed the basis of a finding of guilt.
SK's level of intoxication and 'blanks' in her memory
'I was asleep and then I heard heaps of screaming and my cousin screaming and so I went to check and he was on top of her.'
She told the operator that the applicant had been very violent towards her cousin.
58 In addition, it was submitted that it was important to note that the applicant had no prior convictions of any relevance. Finally, it was submitted in oral argument that it was of some significance that the verdict on charge 3 had been a majority verdict only. Nothing turns on the fact that the verdict on charge 3 was a majority verdict only.
59 As regards the delay in SK's complaint, the Crown submitted that her explanation as to why she had not told Constable O'Brien at the very outset about having been raped was 'reasonably explicable'. She did not want to exacerbate SF's hysteria, and distress. She felt guilty because she had been responsible for bringing the applicant back to SF's house. She was also confused, and unsure of herself. She wondered whether she had said 'no' loudly enough, so that the applicant would have been under no misapprehension that she was not consenting.
60 In any event, SK had complained, albeit in broad terms, about having been raped soon after the police arrived. She again complained of having been raped when she spoke to the informant later that morning.
61 It was implicit in the Crown's submissions that the fact that SK did not initially say anything about the act of oral sex was of no particular significance.
62 As regards Dr Parkin's evidence in relation to the injuries on SK's neck, the Crown submitted that this was consistent with SK's account of having been strangled, or choked, during the final act of sexual intercourse. Her evidence was that the marks on her neck had fine scratching on them. She said these marks were consistent with neck compression by hand, and a finger nail scratch.
63 The Crown further submitted that when Dr Parkin accepted under cross-examined that it was possible that the marks on SK's neck were caused by the applicant sucking and dragging his teeth on her neck, she went on to say that it was more likely that the scratches found in proximity to the bruises were caused by the raking of hands or fingers.
64 The Crown next submitted that any suggestion that SK had concocted a false claim of rape merely because she felt guilty about what had happened to SF needed to be considered in light of how the trial had been conducted. In particular, trial counsel had been asked whether that suggestion was in fact being relied upon, as it had not been put to SK in cross-examination. In response, trial counsel had expressly eschewed any reliance upon it.
65 In relation to the various other submissions raised in the applicant's written case, the Crown submitted that none of these were such as might have required the jury to have a reasonable doubt about charge 3. In particular, while the complainant admitted to having blanks in her memory regarding some non-eventful particulars of the night, it was the fact of the rape itself that allowed her to remember the details of the applicant's offending with reasonable clarity.
66 With regard to the suggestion that, had the applicant had non-consensual sex with SK, SP, who was in the kitchen close-by, would have heard something other than moaning and giggling, the Crown noted that the evidence as to precisely when SP left the house was unclear. He might well have gone by the time the non-consensual sex began. The evidence was that he only spent about ten minutes in the kitchen.
67 Finally, the Crown submitted that the jury had been reasonably entitled to find the applicant guilty of the rape that was the subject of charge 3. SK gave sworn evidence of sexual intercourse having occurred without her consent. She said that she had manifested that lack of consent by indicating clearly that she did not want to have sex with the applicant, and after he commenced doing so, by telling him that she wanted him to desist. In these circumstances it was well open to the jury to infer that the applicant knew that SK was not consenting. Alternatively, it was open to the jury to find that the applicant had given no thought at the time as to whether she was not, or might not, have been consenting.
68 The principles that govern inconsistency of verdicts as a ground of appeal are clear and generally well understood.
69 In MacKenzie v The Queen,[13] Gaudron, Gummow and Kirby JJ said in a joint judgment:
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...
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 ... 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.'
...
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. [14]
70 In MFA v The Queen,[15] the principles laid down in MacKenzie were affirmed. The appellant had been found guilty of two counts of sexual abuse against a youth, but was acquitted of a further seven counts. The sexual acts to which the nine counts related were alleged to have occurred on four separate occasions. The counts upon which the appellant was convicted related to one particular occasion. The appellant argued that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence, and could not be reconciled with the verdicts of not guilty on the other counts. It was submitted that the acquittals must have involved the non-acceptance by the jury of the complainant's evidence. That in turn must have impacted upon the complainant's evidence with respect to the guilty counts.
71 In dismissing the appeal, Gleeson CJ, Hayne and Callinan JJ rejected a submission to the effect that Jones v The Queen,[16] an earlier decision of the High Court, had endorsed the proposition that non-acceptance by the jury of the complainant's evidence as regards one charge must have meant non-acceptance of her evidence as a whole. Their Honours said that Jones had not stood 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.[17]
72 Their Honours went on to characterise that view of Jones as 'erroneous', adding that it:
overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned ... [earlier in MFA]. 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.[18]
73 McHugh, Gummow and Kirby JJ (in their joint judgment) also rejected that view of Jones. Their Honours added that '[i]t always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified'.
74 In Avery v The Queen,[19] Weinberg JA referred to both MacKenzie and MFA and noted that the principles laid down by the High Court in those cases have been applied by this Court on many occasions. The authorities make it plain that an applicant who relies upon factual inconsistency as a ground of appeal carries a heavy onus. What must be shown is no less than 'an affront to logic and common sense' which is unacceptable, and strongly suggests an improper and impermissible compromise on the part of the jury. If there is a reasonably plausible explanation for the different verdicts arrived at, that will generally provide a complete answer to this ground of appeal.
75 The applicant submitted that, notwithstanding the substantial hurdle that had to be overcome to succeed upon this ground, the conviction on charge 3 could not be reconciled with the acquittals on charges 1 and 2. That was because:
• The prosecution's case in relation to each of charges 1, 2 and 3 depended almost entirely upon SK being accepted as a credible and reliable witness.
• There was no logical basis for the jury to have concluded that SK's evidence was credible in relation to charge 3 if they also concluded that her evidence was not credible in relation to charges 1 and 2.
• The verdict on charge 3 could not logically stand together with the verdicts on charges 1 and 2. Dr Parkin's evidence, such as it was, did not provide a sufficient basis upon which the verdicts could be reconciled.
• The verdict on charge 3 was therefore an affront to logic, and to common sense.
76 The Crown submitted that there was a logical, and entirely reasonable basis upon which the different verdicts could be explained.
77 Dealing first with the acquittal on charge 1, SK, at no stage, either prior to or during the act of oral penetration, said anything to the applicant that suggested that she was not consenting to that particular act. Indeed, she acknowledged that by opening her mouth she had enabled the applicant to engage in oral sex. This entire incident followed almost immediately after SK had been engaged in consensual intercourse with the applicant, and had only put a stop to that because that particular form of sex was painful. It would be natural, in these circumstances, for the applicant to think that an alternative form of sex might be acceptable.
78 Although SK said that, at the point at which the applicant was pushing her head towards his groin, she had pushed back against him, she acknowledged that she was 'frozen' at the time, and frightened because she did not know what he might do. Therefore, the jury, acting reasonably, may have doubted whether the applicant had sufficient awareness at that time of the complainant's lack of consent. Indeed, they may even have thought that it was reasonably possible, given the proximity between the acknowledged consensual intercourse, and the oral penetration, that the complainant had consented to that latter act, her evidence as to her state of mind at that stage being somewhat equivocal.
79 Dealing next with the acquittal on charge 2, the Crown submitted that the jury may have had a reasonable doubt, based upon SK's own evidence, as to whether any actual anal penetration had taken place. In particular, she had stated at the committal hearing that the applicant had not been able to insert his penis into her anus.
80 Of course, that would not explain the jury's acquittal on the alternative charge of attempted anal penetration. Nonetheless, the fact that whatever occurred at this time took place within seconds of the acknowledged oral sex, and was not accompanied by any loud protests or signs of distress[20] could easily explain why the jury gave the applicant the benefit of the doubt on the alternative charge.
81 As regards the conviction on charge 3, the Crown submitted that Dr Parkin's evidence provided strong support for SK's account of having been 'strangled' by the applicant during this act of sexual intercourse. In addition, the applicant had already been told by SK to desist from penile-vaginal penetration because it was too painful. That would have put him on notice that there was no consent to a resumption of this form of sexual intercourse. Finally, SK's evidence was that she said, on a number of occasions, that she wanted him to stop, and told him during this particular act to 'fuck off'.
82 All of these factors served readily to explain why the jury were prepared to give the applicant the benefit of the doubt on charges 1 and 2, and to convict him on charge 3.
83 In our view, the Crown's submissions should be accepted, both in relation to ground 1 and ground 2.
84 As regards ground 1, we have carefully considered the evidence as a whole. We have paid particular regard to the evidence given by both the complainant and Dr Parkin.
85 SK seemed to us to have been largely unshaken in cross-examination. Her explanation for the delay in having told the police, in all its detail, of what she later said the applicant had done to her strikes us as perfectly plausible. There were no significant inconsistencies in SK's account of a kind that would cast serious doubt about her truthfulness, or the reliability of her evidence.
86 In short, having considered the evidence for ourselves, we do not entertain a reasonable doubt as to the applicant's guilt on charge 3. It follows that we are not persuaded that the jury 'must' have entertained such a doubt.
87 As regards ground two, the different verdicts arrived at in relation to charges 1 and 2, and charge 3, are explicable when one has regard to the details surrounding each of these alleged offences and, in particular, the medical evidence which supports SK's account of having been raped, as alleged in charge 3. Moreover, the evidence that SK had made plain her refusal to engage in vaginal intercourse was markedly stronger than the evidence as to other forms of sexual activity.
88 Accordingly, we would refuse leave to appeal on both proposed grounds.
[5] Ibid 596-7 [113] (emphasis in original) (citations omitted).
[7] Ibid 246 [65]-[66] (citations omitted).
[9] Ibid 653-4 [38]-[39] (citations omitted).
[10] Warren (a Pseudonym) v The Queen [2017] VSCA 35; Ward (a Pseudonym) [2017] VSCA 37 and Furness v The Queen [2017] VSCA 40.
[11] It should be noted that his departure was at a time that could not be ascertained with any precision.
[12] As previously noted, that submission is obviously difficult to sustain in the light of the fact that the record of interview contains denials of any sexual offending against SF.
[13] (1996) 190 CLR 348 ('MacKenzie').
[17] MFA (2002) 213 CLR 606, 618 [35]. In Ware v The Queen [1997] 1 VR 647, the Court of Appeal anticipated the judgment ultimately delivered in this regard in MFA.
[18] MFA (2002) 213 CLR 606, 618 [35] (citation omitted).
[20] The complainant herself was uncertain as to whether she said anything at the time that would have conveyed to the applicant, clearly or at all, that she did not wish to participate in an act of anal intercourse.
Inia
The Queen [2017] VSCA 49
(1994) 181 CLR 487
(2007) 230 CLR 559
(2016) 334 ALR 234
(2008) 18 VR 644
(2002) 213 CLR 606
(1996) 190 CLR 348
(1997) 191 CLR 439