Supreme Court of SA|1994-06-22|Before: Mr P, Duggan J

M v R No. SCCRM 94/158 Judgment No. 4618 Number of pages - 11 Criminal law and procedure (1994) 72 A Crim R 269 (1994) 62 SASR 364 [1994] SASC 4618 (22 June 1994)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MOHR(2), BOLLEN(3) AND DUGGAN(1) JJ

CWDS Criminal law and procedure - appeal and new trial, pardon and enquiry subsequent to conviction - Appeal against conviction on one count of unlawful sexual intercourse - acquittal on other counts alleging unlawful sexual intercourse against same victim - course of conduct alleged - offences allegedly arose out of different transactions - held no inconsistency in verdicts. The Queen v Kelly ; The Queen v Stone (Unreported. Court of Criminal Appeal (UK) 13th December, 1954); R v Hunt at 438; R v Kirkman at 593; The Queen v Keeley and Andrews Weatherfoil Ltd and Others v R at 40 referred to.

Criminal law and procedure - evidence - confessions and admissions - Prosecution tendered lengthy record of interview between police and appellant

direction by trial judge that exculpatory statements by the appellant in the interview had to be disregarded by the jury - held that this was a misdirection. Spence v Demasi (1988) 48 SASR 538 followed. R v Sharp (1988) 1 All ER 65 referred to.

Criminal law and procedure - evidentiary matters relating to witnesses and accused persons, their character and credibility

Inadequate and misleading direction on the relevance of the appellant's good character. R v Trimboli (1979) 21 SASR 577 at 578 and R v Mandica and Others (1980) 24 SASR 394 at 406 referred to.

Solicitors for appellant: Dixon Gallasch Pty Ltd

JUDGE1 DUGGAN J The appellant was presented for trial in the District Court on an information containing one count of unlawful sexual intercourse with a person under the age of 12 years, four counts of unlawful sexual intercourse and one count of indecent assault. In each case the complainant was the appellant's step daughter. At the conclusion of the prosecution case the learned trial judge directed the jury to enter a verdict of not guilty on the indecent assault charge.

The jury convicted the appellant on one count of unlawful sexual intercourse and acquitted him on the remaining charges. In his notice of appeal the appellant alleges that the verdict of guilty is unsafe and unsatisfactory because of claimed inconsistency with the verdicts on the other counts. He also complains of certain directions which were given to the jury by the trial judge.

The complainant was 22 years of age at the time of trial. The appellant was married to the complainant's mother and the complainant was living with her mother and the appellant at the time of the alleged offending. The prosecution alleged that the counts charged were representative of a course of conduct which began when the complainant was approximately seven years of age. It was alleged that the first offence charged took place on 3rd March 1983, the complainant's 11th birthday, and that the offences alleged in the other counts took place between then and some time in 1985.

The complainant stated that the offence alleged in the first count took place in the appellant's vehicle at Craigmore Heights after he had driven onto a dirt road off Main North Road. She said that although the appellant had committed indecencies on her on many occasions before this, it was the first time that intercourse took place.

The appellant was convicted on the second count which alleged that he had intercourse with the complainant on a weekend between 30th November, 1984 and 1st January, 1985 at Munno Para. The complainant said that on this occasion her mother left home to visit a friend. The complainant screamed at her mother to take her but the mother refused. The complainant said that the appellant had intercourse with her in her bedroom after the mother left.

The third count alleged that between 1st November, 1984 and 1st March, 1985 the appellant had intercourse with the complainant in a swimming pool at their home. The complainant said that this was one of a number of occasions on which sexual intercourse took place in the swimming pool.

The appellant was acquitted by direction of the learned trial judge on the fourth count which alleged that he had indecently assaulted the complainant at Munno Para between 30th April, 1985 and 1st June,
The direction to acquit resulted from evidence that the appellant was overseas throughout the period alleged in the particulars of the charge.

The fifth count alleged that the appellant had intercourse with the complainant in a car at Craigmore in 1985. She said that this offence occurred when the appellant returned from a three month exercise with the Royal Australian Air Force. She said the vehicle was moving at the time of the alleged offence and she was sitting on the appellant's lap steering the vehicle. She also said that her younger sister was sitting in the rear seat of the vehicle at the time.

The sixth and final count alleged that the appellant had intercourse with the complainant at their home at Munno Para in 1985. The complainant said the offence took place on the lounge room floor.

Mr Rice for the appellant argued that there was inconsistency between the verdict of guilty on the second count and the verdicts of not guilty on the other counts. He said the evidence on count two was no stronger than the evidence on the other counts. Indeed he pointed to certain discrepancies which he said might suggest that the evidence on this count was weaker than the evidence on the other counts. Mr Rice went further and submitted that, inconsistency apart, the evidence on count two was of a generally unsatisfactory nature and that the verdict on that count was unsafe for this reason alone.

In my view the evidence of the complainant would not, of itself, justify the setting aside of the verdict of guilty on the ground that it was unsafe or unsatisfactory. Her evidence was uncontested in that the appellant did not give evidence. There were undoubtedly some discrepancies in what she said, but in my view they were not of such a nature as to necessarily give rise to grave doubts about the accuracy of what she said.

I have evaluated the evidence independently in accordance with the duty of an appellate court when considering a ground of appeal such as this (Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 at 463 and 474) and I am satisfied that there was sufficient evidence upon which a reasonable jury might convict if properly directed.

However the main argument advanced under this heading was that the verdict of guilty was inconsistent with the other verdicts. Most of the authorities dealing with inconsistent verdicts involve verdicts in relation to the same transaction. In The Queen v Kelly (1985) 38 SASR 561 this court, when dealing with such a case, applied the test suggested by Devlin J in The Queen v Stone (Unreported. Court of Criminal Appeal (UK) 13th December, 1954) which is set out in R v Hunt (1968) 2 QB 433 at 438: "When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant

or inconsistent verdict, the burden is plainly upon him. 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. But the burden is upon the defence to establish that."

When applying this test it is often important to bear in mind the practical advice given by King CJ in R v Kirkman (1987) 44 SASR 591 at 593: "... juries 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. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They

may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information."

A similar view was expressed by the New Zealand Court of Appeal in The Queen v Keeley (1962) NZLR 565, a case dealing with several counts of counselling and procuring the passing of valueless cheques which arose, not out of the one transaction, but from a number of separate incidents alleged to have taken place over three consecutive days. Cleary J, delivering the judgment of the court, said (p.567): "The point which Mr Dingwall presses in this case is that it cannot be discerned from the evidence, or from anything in the verdicts, upon what grounds the jury may have discriminated between the Monday and Tuesday offences on the one hand, and the Wednesday offences on the other hand. Be it so; it does not mean that there is a necessary inconsistency. Juries do not act with complete harmony, or complete logic, in arriving at their verdicts, and in this case there was, to go back to the point that we started from, ample evidence on which the jury could have convicted on all the counts. They have chosen to convict on some only. That does not allow of the argument that their acquittal on some counts is inconsistent, within the meaning of the authorities in which that term is employed in the criminal law, with a conviction on other counts."

In many cases "an apparent inconsistency reflects no more than the jury's strict adherence to the judge's direction that they must consider each case separately". (Andrews Weatherfoil Ltd and Others v R (1971) 56 Cr App R 31 at
See also R v Jenyns (1981) 3 A Crim R 243 at 245.)

Although it is unnecessary for this court to rationalise the verdicts, I think there are possible explanations for the jury's approach. The prosecution could point to identifiable occasions on which it alleged that the offences charged in counts four and five took place, but it was not able to provide any date in the particulars of each of those counts which was any more specific than "in 1985".

The complainant said that the offence alleged in count five took place when the appellant returned after three months away, but there was obvious doubt in her mind as to when the appellant did return. Then, as a result of the complainant's evidence, count six had to be amended to allege that the last offence charged took place "in 1985" instead of "in 1986". In the case of the third count which alleged intercourse in the swimming pool it is difficult to extract from the evidence one identifiable occasion. The evidence is concerned more with a course of such conduct over a period of time. Although the complainant was quite specific as to when the first count took place, it must be borne in mind that the witness was attempting to recall an incident which he said took place approximately 11 years before the trial.

However this may be, I am not persuaded that the verdict of guilty is necessarily inconsistent with the other verdicts. I have taken into account all Mr Rice's criticisms in this respect, including those which relate to the evidence of the complainant, in evaluating the evidence independently in accordance with the duty of an appellate court when considering a complaint that the verdict is unsafe and unsatisfactory. In the result I am satisfied that there was sufficient evidence upon which a reasonable jury might convict if properly directed.

I turn then to the criticisms made of the summing-up. The first concerns the directions given as to the use which might be made of the evidence of the appellant's interrogation by the police. After telling the jury that self-serving statements denying guilt could not be used as evidence, the learned trial judge continued: "It wouldn't mean anything, and in the same way, in this case, Mr Moody would not have been entitled as part of his case to put in his statement to the police to prove that he denied the various matters alleged against him. The way it got before you is that if a person makes an admission or a statement that is contrary to their interest, then the Crown can lead that evidence. Commonly a confession is the every day example that you see. Well, the Crown did lead this evidence to you, and the reason it led the evidence was, as Mr White explained to you, because there were a few selected parts of the statement which the Crown asks you to look at and suggest that it supports the Crown case rather

than supporting the defence. It would not have been fair for the Crown simply to give you two or three selected one liners from a lengthy interview like that. To put the bits that the Crown referred to into context you have heard the whole of the interview so you know that there isn't some fiddling with what was being said, putting things out of context. You can understand how the words were spoken and why, but the only person or the only party that can derive any help from that statement is the Crown. It's Mr Moody's decision and he's perfectly entitled to make it, and I repeat that you don't take any marks away from him because he chose not to give you any evidence, but by the same token, you don't give him any marks on giving the statement he gave to Mr Whitaker. It can't be used for that purpose. I'll come to the points that the Crown made on it a little bit later. Please just bear in mind you can only use his statement if you see in it things that assist you to a conclusion adverse to Mr Moody, not for things you see in it that help him along. It doesn't make a positive case; it can only be used negatively."

This was a clear misdirection and Mr Jennings QC for the Director of Public Prosecution quite properly conceded as much. There is ample authority for the proposition that if an accused person's record of interview with the police is tendered by the prosecution the court can act upon any exculpatory parts as well as any admissions and the exculpatory statements which may be relied upon are not restricted to those which qualify the admissions. The authorities were reviewed at some length by Cox J in Spence v Demasi (1988) 48 SASR 538 where his Honour said (p.540): "The rule against hearsay evidence usually operates to prevent a party from tendering his self-serving statements made out of court in proof of the truth of the matters so asserted. The problem comes with mixed statements, tendered by an opponent, containing admissions against the party making them and also exculpatory statements, whether relating to the admissions or on other relevant topics. The position in the criminal court, I think, is clear. It is common for the Crown to tender a record of the accused's interrogation by the police, and often this will contain

a mixture of admissions and self-serving statements. The Crown cannot pick and choose. It cannot put in only the damaging questions and answers, or have the admissions treated as evidence and the rest rejected or ignored as hearsay. The whole interrogation (or narrative statement, as the case may be) goes before the jury and it is for them to decide what parts, if any, they will act upon in reaching their verdict. They may give different weight to different parts: see R v Higgins (1829) 3 C and P 603; [1828] EngR 201; 172 ER 565. The failure of the accused to give evidence may well influence their attitude to the self-serving answers. A modern

statement of the practice is found in the judgment of the English Court of Appeal in R v Duncan (1981) 73 Cr App R 359 at 365: 'It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.'

The Full Court of this State declared the law to substantially the same effect in R v Karpany [1937] SAStRp 53; (1937) SASR 377. It followed precedents extending back to R v Jones (1827) 2 C and P 629; [1825] EngR 204; 172 ER 285. Similar decisions in other States, with respect to the criminal jurisdiction, are Sharp v Hotel International Ltd [1969] VicRp 12; (1969) VR 103 at 109-110; R v Williamson (1972) 2 NSWLR 281, 295; and R v Cox (1986) 2 Qd R 55: see also Jack v Smail [1905] HCA 25; (1905) 2 CLR 684 at 695, 707-708. In England the rule, as enunciated in Duncan, wavered, perhaps, in R v Kurshid (1984) Crim L R 288 but was affirmed in R v Hamand (1985) 82 Cr App R 65. One thing should be made quite plain. The use that may be made in a criminal trial of a mixed statement by a defendant is not confined to passages that qualify or explain, more or less directly, the admissions upon which the Crown relies

for example, by a defendant's admitting that he struck the victim but going on to claim that he acted in self-defence. This narrow approach was taken in some of the English cases prior to Duncan and was preferred in principle, despite that decision, by J Huxley Buzzard, R May, M N Howard, Phipson on Evidence (13th ed, 1982). The jury (they considered) could take the exculpatory passages into account in determining whether or not the defendant's statement really was an admission, but they could not rely upon them for any wider purpose, such as providing independent evidence of the defendant's innocence: cf S Mitchell, P J Richardson, J Huxley Buzzard, Archbold Pleading, Evidence and Practice in Criminal Cases (42nd ed, 1985), par 15-57. This was not the view taken in Duncan or in the Australian cases to which I have referred. Despite the fact that the defendant could not himself ordinarily tender a self-serving statement in proof of the matters so stated, such a statement, when tendered by the Crown because of the admissions that accompany it, will be evidence for all purposes, whatever the weight of its individual parts might be. That, I believe, reflects the current practice in the courts of this State."

The principle stated in R v Duncan was approved by the House of Lords in R v Sharp (1988) 1 All ER 65.

The appellant underwent a lengthy interrogation by the investigating police officers which occupied approximately forty six pages of transcript. He consistently denied the allegations which were put to him. At various points in the interview he admitted certain facts which could be used as evidence of opportunity to commit some of the offences. His answers on some topics were relied upon in the prosecutor's final address. Although most of the interview consisted of simple denials, the appellant did give explanations for various matters including why he sent certain letters and a Valentine's Day card to the complainant. He also commented upon why he considered the allegations had been made against him. He gave versions of the circumstances in which he purchased presents for the complainant and why he took her on a holiday to New Zealand, a trip on which she alleged sexual intimacy took place between them. He gave his version as to why the complainant left home and he referred to a threat which she made to "get" him.

A jury might well consider that statements against interest carry more weight than self-serving statements, but without the accused's denials the jury were left with allegations by the complainant which were uncontested. Furthermore the appellant went beyond mere denials and gave his own explanation of some occurrences. I cannot agree with the Crown's submission on appeal that the denials and what the appellant said about various matters could not have made any difference to the jury's approach to the matter.

However before commenting further on the effect of this misdirection, it is appropriate to have regard to a further direction which is complained of by the appellant.

During the hearing the Crown made a formal concession in the presence of the jury that the appellant had no previous convictions. Although no positive evidence of good character was given, it is clear that this concession was relied upon as an indication of good character. The learned Crown prosecutor treated it as such when he said in his final address:

"You've heard that the accused is a man of good character, and I mean by that with no criminal record at all. My learned friend and his Honour will explain the significance of that to you, but I say to you on that topic that this cannot help you or cannot help the accused at all if you are satisfied beyond reasonable doubt of the Crown allegations being proved beyond reasonable doubt through Mandy."

The learned trial judge did not give a direction to the jury on this aspect in the course of his summing-up and after the jury retired the crown prosecutor requested that such a direction be given. The jury were recalled and directed as follows: "Counsel have raised several short matters that they would like me to mention to you and I am happy to do that. First, it has been conceded by the Crown that Mr Moody has no prior convictions, he comes to the court as a man of good character and you can make some use of that if you are teetering on the edge as to whether to convict or not convict. It is a factor to throw in the scales which may assist you to say 'Look, I just do not think that a person of good character would have done this'. It is not a critical point. It is not a point that you can place too much weight on. But in the end, if the situation is finely balanced, it may be enough to look at the situation and say 'Well, look I just cannot see that a person of good character would do this and so I'm going to lean that way'. It is about all you can do with it. It does not go very far but, it is a factor that you can have regard to. As I say, he comes to the court with the benefit of that good character."

In R v Trimboli (1979) 21 SASR 577 at 578 the learned Chief Justice enunciated the following propositions: "1. It is desirable in all cases in which there is

evidence as to the accused's good character that a direction be given as to the use to which that evidence should be put. 2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused's previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness. 3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be

convincing notwithstanding the accused's previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit."

Of course the appellant did not give evidence and so it was inappropriate to refer to the relevance which good character might have upon his credibility as a witness. Furthermore there was no evidence of positive good character. Whether or not it is appropriate to draw a distinction for any purpose between cases where positive evidence of good character is given and those in which it is established that the accused has no previous convictions (see R v Mandica and Others (1980) 24 SASR 394 at 406), it must be said that the present case proceeded on the basis that there was evidence of good character and an appropriate direction should have been given on this aspect.

There are some cases in which it can be said that, although appropriate direction should always be given on this issue, if no direction is given the jurors would be likely to exercise their own commonsense in using the evidence in the proper way. (Mandica supra at p.402). However it is claimed that in the present case there was a misdirection. The jurors were told that it was not an important factor and they were given the impression that the evidence could only be used if the prosecution evidence was strong enough to bring them close to the point of convicting the appellant.

If this had been the only matter of concern in the summing-up I doubt that it would have resulted in a miscarriage of justice. However the misdirection as to the use of the police interview is more serious and must lead, in my view, to the quashing of the conviction.

The question as to whether there should be a retrial is a matter which requires close attention. However in the light of all the circumstances of the case and, in particular, my view that the first ground of appeal should fail, I have reached the conclusion that this court should order a retrial.

I would allow the appeal, quash the conviction and direct a retrial on the offence alleged in count two of the information.

JUDGE2 MOHR J I have had the advantage of reading, in draft form, the judgment of Duggan J in this matter. I agree with his reasons and that the conviction should be quashed.

With all respect I cannot agree that there should be a retrial on that count which would stand alone, and not as in the original trial as one incident of an alleged course of conduct concerning which the appellant was acquitted on all but this one count.

JUDGE3 BOLLEN J I agree that the appeal should be allowed and the conviction on count 2 in the information quashed. I agree with the reasons of Duggan J.

But, with all respect, I cannot agree that there should be a retrial. As Duggan J says, this issue requires close attention. I have given it that attention. Suffice it to say that in the light of the acquittals on other counts I do not think that the appellant should be required to endure another trial.

I would enter a verdict of acquittal on count 2.

M v R No. SCCRM 94/158 Judgment No. 4618 Number of pages - 11 Criminal law and procedure

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Judgment (53 paragraphs)

M v R No. SCCRM 94/158 Judgment No. 4618 Number of pages - 11 Criminal law and procedure (1994) 72 A Crim R 269 (1994) 62 SASR 364 [1994] SASC 4618 (22 June 1994)

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Cases Cited (12)