PA v R

Judgment

1. HOEBEN CJ at CL: Charges and outcome of trial The applicant was indicted before Armitage DCJ and a jury at Parramatta on 18 March 2014 in respect of five counts alleging sexual assault upon his daughter, LA (the complainant).
2. The five counts were as follows: Count 1 - Between 16 January 2007 and 19 January 2007 at Eaglevale did assault and commit an act of indecency on the complainant who was then aged 8 years contrary to s61M(2) of the Crimes Act 1900. Count 2 - Between 1 January 2011 and 31 December 2011 at Kings Park did assault and commit an act of indecency against the complainant who was then aged 12 years contrary to s61M(2) of the Crimes Act 1900. Count 3 - Between 1 January 2011 and 31 December 2011 at Kings Park did have sexual intercourse with the complainant who was then aged 12 years knowing that she was not consenting contrary to s61J(1) of the Crimes Act 1900. Count 4 - On 4 April 2012 did assault and commit an act of indecency against the complainant who was then aged 13 years at Ingleburn. Count 5 - On 4 April 2012 did have sexual intercourse with the complainant who was then aged 13 years at Ingleburn knowing that she was not consenting.
3. In relation to count 1, a not guilty verdict was returned by direction of the trial judge. Verdicts of not guilty were entered in respect of counts 2 and 3. A verdict of guilty was entered in respect of count 4. In relation to count 5 the jury were unable to agree upon a verdict.
4. The applicant seeks leave to appeal against his conviction in respect of count 4.
5. The applicant was originally charged and indicted in respect of counts 4 and 5. His trial commenced in May 2013 but was adjourned following legal argument. During the trial the complainant was further interviewed on 21 May 2013. Her disclosures caused the trial to be adjourned because the Crown wished to add further counts (now counts 1, 2 and 3) to the indictment. The applicant was not offered the opportunity to respond and be interviewed regarding these later allegations. Factual background
6. The complainant was the natural daughter of the applicant. Her mother was separated from him. While the mother was alive, the complainant and her brother lived with her full-time at a house in Kings Park and visited their father, the applicant, regularly. The mother passed away from cancer in March 2012. The complainant and her brother continued to live at Kings Park for a few weeks and in early April 2012, they went to live with the applicant and his partner, KR, at Ingleburn on a full-time basis.
7. The complainant, who was born in January 1999, made three recorded interviews which were played at the trial. 1. 19 April 2012 2. 27 April 2012 3. 21 May 2013 At trial the complainant was aged 15.
8. In her first interview on 19 April 2012 the complainant said that the applicant touched her private areas, namely her breast and vagina, the last occasion being "Thursday, 5 April 2012" at the applicant's house at Ingleburn. Her brother was upstairs in his room and the applicant's partner, KR, was downstairs watching television. The complainant said that when she went to the applicant's bedroom to ask for a pen, he pulled her onto the bed and started kissing her cheek, wrestling and putting his hands down her pants and on her breasts. She said he sneaked his hand under her shirt and was stroking and squeezing her breasts (count 4).
9. The complainant said that the applicant put his hand down her shorts under her underwear and slid his fingers into her vagina, left them there and started moving them around. She felt pressure inside her vagina, mostly at the top. She screamed, kicked him, hit him, told him to stop and wriggled her way out and ran into her room and stayed there until dinner time when she went downstairs, had dinner, sat on the lounge with her stepmother and watched television and then went to bed (count 5).
10. The complainant stated that: 1. These events occurred on the Thursday before Good Friday between 6 - 7.30pm 2. She lost the letter she was writing to her friend. 3. She complained to her dance teacher, Alyce, on "Saturday night". She said - "Can you take me home, I really can't go back … because my dad does stuff to me that I don't like". Alyce was the first person she told. 4. She spoke with her Aunty J on Sunday "I don't want to stay with dad … dad touches me and I don't like it". 5. She told her mother's best friend, Claire, on the Monday - "He touches me and makes me uncomfortable."
11. In her second interview on 27April 2012 the complainant said that she had made two mistakes with the dates. Her complaint to Alyce the dance teacher was not on the Saturday but Sunday because she went to the Easter Show on the Saturday. Secondly, the incident described as occurring in the applicant's bedroom was not on the Thursday, but Wednesday.
12. The complainant further said: 1. (i) She went to the Easter Show on Saturday, 14 April 2012. 2. (ii) She was sick and vomiting on the Thursday (i.e., previously nominated as the date of the offences). 3. (iii) Her stepmother was not downstairs when the incident happened on the Wednesday. 4. (iv) The incident happened on Wednesday, 4 April 2012. 5. (v) On Wednesday her stepmother drove her to school and she was picked up by Aunt B. They drove to Aunt B's place, arriving at about 3.30pm. The applicant collected the complainant about 4pm. They drove home arriving at about 4.30pm. She changed out of her school uniform, went downstairs, played with the dog and returned to her room. 6. (vi) The complainant did not know where her stepmother KR was although she was in the house having arrived home at about 6.30pm.
13. In her third interview, on 21 May 2013, the complainant recalled other incidents relevant to counts 1, 2 and 3.
14. Count 1 was charged as having occurred between 16 January and 19 January 2007, within a couple of days of the complainant's eighth birthday. The complainant said that she was lying on the couch when the applicant walked in, lay down next to her and started touching her "in my vagina and my breasts" with his hands. This went on for a couple of minutes. She thought it was a week day because it was in the school holidays and her birthday is in the middle of the school holidays. She could not remember whether she was in year 4 or 5 at the time. She could not remember what teacher she had. She thought the touching was inside her clothes, but she was not sure. This allegation was made 13 months after the first interview on 19 April 2012. Count 1 was the subject of a verdict by direction because the complainant was unclear when the alleged assault occurred.
15. The applicant said that count 2 occurred at Kings Park when her mother was not there. She said that she was 12 years old in year 7 and that she thought she was wearing her high school uniform. She said that when she was sitting on the couch in the lounge-room, the applicant touched her on her breasts and her vagina. He touched her breasts on the inside of her clothes. She said that her school finished earlier than her brother's school so she got home before him.
16. The complainant said that count 3 occurred on the same occasion as count 2. She said that the applicant touched her on the inside of her vagina using his hand. She felt a sharp pain. She did not know if he moved his hand or kept it still because she was trying to fight him off, she was moving around a bit. She said that the applicant slid his hand under her underwear. She was not sure how long this lasted, or what made him stop. Her brother came home at about 4pm-4.35pm but she did not say anything to him or to her mother.
17. During the course of the trial, the trial judge gave a Markuleski direction (R v Markuleski (2001) 125 A Crim R 186); Murray direction (R v Murray (1987) 11 NSWLR 12); a Longman warning (Longman v R [1989] HCA 60; 168 CLR 79); a Gipp warning (R v Gipp (1998) 194 CLR 106); a Liberato direction (Liberato v R (1985) 159 CLR 507); a character direction, an alibi direction and a "not giving evidence" direction (Azzopardi v R [2001] HCA 25; 205 CLR 50) and OGD v R (1997) 45 NSWLR 744).
18. The course of the trial was as follows. The jury retired to consider its verdict at 9.35am on 2 April 2014. At 12.20pm on 4 April 2014 the jury returned with verdicts of not guilty in respect of counts 2 and 3 but advised that they could not agree on counts 4 and 5. His Honour gave the jury a Black direction Black v R [1993] HCA 71; 179 CLR 44 at [15]. On the afternoon of 4 April 2014 the jury advised that they were unable to reach a unanimous verdict in relation to counts 4 and 5. His Honour then gave the jury a majority verdict direction. Late on the afternoon of 4 April 2014 the jury by majority verdict found the applicant guilty of the offence in count 4 but advised that they could not reach a verdict in relation to count 5. Ground of Appeal 1 - The verdict of the jury in respect of count 4 should be set aside and quashed on the ground that it was irreconcilable with the failure of the jury to agree on count 5.
19. The applicant submitted that counts 4 and 5 were based on the same incident. He submitted that an analysis of the complainant's evidence did not reveal any fact or facts sufficient to distinguish counts 4 and 5 other than those facts which differentiated the charges in law. He submitted that if the jury could not agree on count 5, based on the complainant's evidence, then there was no additional evidence that could give rise to a finding against him on count 4.
20. The applicant submitted that the summing up did not draw a distinction between counts 4 and 5, other than the elements of the offences. The applicant submitted that on this issue the evidence of his partner KR was important. Her evidence did not put him in his bedroom at the time alleged by the complainant. He submitted that the jury could not be satisfied as to the elements of the offence in count 4, without also being satisfied as to the elements of the offence in count 5. The fact that the jury could not agree on whether he had committed the offence in count 5, meant that there was an inconsistency between their failure to agree on count 5 and the verdict of guilty which they arrived at in respect of count 4.
21. The applicant submitted that the case was conducted on the basis of the reliability of the complainant. He submitted that a verdict of guilty in relation to count 4 and the inability of the jury to agree on a verdict in relation to ground 5 meant that the principles relating to inconsistent verdicts applied. He submitted that the determination by the jury in respect of counts 4 and 5 were indicative of the jury having reached a compromise in relation to count 4, because they determined that the complainant was unreliable in relation to the other counts with which he had been charged. The applicant submitted that the evidence of complaint from Alyce, Aunt J and Claire did not provide a basis for distinguishing count 4 from count 5.
22. The applicant submitted that the jury's verdict and non verdict on counts 4 and 5 respectively bear no other analysis than that the decision making process miscarried. He submitted that logic and reasonableness supported that submission (TK v R [2009] NSWCCA 151; 74 NSWLR 299 at [8]). The applicant submitted that the verdict in relation to count 4, when taken with the failure to agree in relation to count 5, suggested a compromise of the performance of the jury's duty and suggested confusion in their minds, or a misunderstanding of the function or uncertainty about the differentiation between the offences. Consideration
23. The extent to which, if at all, the applicant can rely upon this ground of appeal, based as it is upon apparently inconsistent verdicts between count 4 and count 5, is problematic. Until the Court brought this issue to the attention of the parties, no submissions had been addressed to it, except by the Crown. In that regard, the Crown submitted (without reference to authority) that the applicant's argument could not be maintained because in reality there was no verdict actually entered in respect of count 5.
24. Having drawn the parties' attention to the authorities on this issue, the Court gave them a further 48 hours within which to provide written submissions. These have now been received and have been taken into account in these reasons. The matter is of importance because until now, there has been no New South Wales authority on the issue.
25. The issue first appears to have been considered in Osland v The Queen [1998] HCA 75; 197 CLR 316. The only justice to expressly deal with the point was Callinan J at [232] where his Honour said: "232 … There is an important distinction between an acquittal and a disagreement by a jury. As was pointed out during argument in this Court the jury may have simply been immovably divided on a question whether Mr Albion should be convicted of manslaughter or murder having regard to his lesser involvement in conceiving, planning and executing the death of Mr Osland. I do not accept that the jury's failure to agree upon a verdict in relation to Mr Albion at the joint trial can be regarded as repugnant to the verdict of guilt in respect of the appellant. I cannot accept therefore the appellant's submission that such a disagreement may, for the purposes of determining an issue of inconsistency, be equated with a verdict of acquittal."
26. The issue arose expressly in R v DAL [2005] QCA 281. There, McPherson JA said: "2 The appeal against conviction in this case is said to raise a question of "inconsistency" between verdicts of guilty returned by the jury to one or more counts in the indictment and their failure to reach verdicts on one or more of the other counts in the indictment. I have been unable to persuade myself that any such inconsistency exists or is capable of arising. …"
27. Having referred to some early English decisions, McPherson JA went on to say: "5 Those decisions show that being discharged from rendering a verdict cannot be equated with a verdict of acquittal. … 6 What then is the basis for the appeal in the present case? We know it is neither autrefois acquit or autrefois convict. It is said, however, to consist of a form of inconsistency in verdicts. The word verdict is derived from the Latin veredictum meaning a true declaration: Black's Law Dictionary, title "Verdict". But in the case of those counts in the indictment here as to which no verdict was given, the jury made no such declaration or decision. There cannot be a state of inconsistency between something and nothing. Of course, it is said that if you look at the evidence, it is not easy to see why the jury convicted on one count and did not on the same evidence do so on another. That may be a matter of regret for the Crown, but it cannot be a source of legitimate complaint by the appellant. It is not a reason for setting aside the verdict or verdicts in those instances in which they did find him guilty."
28. In the same case, Keane JA (with whom McMurdo P agreed) said: "21 At the outset of a consideration of the appellant's argument it is necessary to emphasize that the only verdict of acquittal related to one count of procuring a sexual act by intimidation in relation to the complainant M. As the appellant accepted, there is an obvious explanation for this acquittal by reason of the divergence between what was opened by the Crown and the evidence which was given. Apart from this one instance, it is not correct to speak of inconsistent verdicts. In this case the jury only returned verdicts of guilty while failing to reach agreement on the other charges. The failure to reach a verdict is not to be equated with a verdict of acquittal. As Callinan J said in Osland v The Queen. …" (His Honour then set out the above quotation). "22 In this State "inconsistent verdicts" may afford one way of demonstrating that a jury has acted unreasonably; which does authorise appellate intervention under s 668E(1) of the Criminal Code. The distinction between a failure to agree and an acquittal may be important because of what each of those two different outcomes says about the jury's deliberations. 23 The failure by the jury to agree on verdicts on a number of charges in the present case, for example, may well be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all the elements of the offence in question. Such an explanation does not necessarily throw the integrity of the guilty verdicts into question because it does not imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the counts on which it convicted in the same way that a verdict of acquittal might have done. It is only if an appellate court is satisfied that a jury must have convicted in spite of such doubts that it must intervene. As McHugh J said in Osland v The Queen: "When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given." … 32 Finally, it is necessary to bear steadily in mind that in MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ said that: "... 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 appellate courts 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 ... " 33 As I have observed, the issue before this Court does not involve the question whether inconsistent verdicts "in the relevant sense" are reconcilable, but the guidance afforded by this passage as to the proper approach of an appellate court applies a fortiori to a case where the jury has not returned a verdict on some counts while convicting on others. The point at which a jury decided that "enough is enough" and declined to convict or acquit on some counts is something which the courts cannot seek to second guess on appeal unless the result were to "represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty." …"
29. The approach of Keane JA in DAL was followed by the Queensland Court of Appeal in R v CX [2006] QCA 409 where Jerrard JA (Atkinson and Douglas JJ agreeing) set out nine principles in relation to inconsistent verdicts. Relevant to this issue were the principles set out as points 6- 8. "33 … 6. Accordingly, as Callinan J wrote in Osland v The Queen, there is an important distinction between an acquittal and a disagreement by jury; a disagreement on one count is not necessarily inconsistent with a conviction on another, where an acquittal might be, for the reasons explained by McHugh J in Osland. As Keane JA wrote in R v DAL at [23], a failure to agree on a number of charges does not necessarily imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the count or counts on which it convicted a defendant, in the same way that verdicts of acquittal might, and which would therefore throw the integrity of the guilty verdicts into question. 7. It is therefore incorrect to describe as inconsistent with other verdicts the (non) result in counts on which a jury has failed to reach a verdict; that failure is indicative only of the inability of the jury unanimously to reach a verdict on those particular counts one way or another. 8. Further, the failure of a jury to agree on some verdicts on a number of charges may be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all of the elements of the offence in question. That explanation does not necessarily throw the integrity of guilty verdicts on other charges into question. 9. Likewise, where there are a large number of counts on an indictment, there is scope for merciful disagreement by way of a refusal by some jurors to convict on some of the plethora of charges brought against a particular defendant, even though the jury are not prepared unanimously to acquit."
30. The same approach was followed by the Queensland Court of Appeal in R v Garrett [2009] QCA 300. There Fraser JA (with whom Muir JA and Jones J agreed) said: "35 Although the appellant did not base any argument upon the jury's failure to agree upon a verdict on the count of rape, I have considered whether it gives any cause for concern about the guilty verdicts on the two related counts of which the appellant was convicted. Had the jury acquitted the appellant of the rape charge there would have been cause for concern whether the inconsistent verdicts on the other counts were an affront to logic and common sense such as to throw doubt upon the reasonableness of the guilty verdicts: see MacKenzie v The Queen (1996) 190 CLR 348 at 368; R v CX [2006] QCA 409. However, the jury's inability to reach any verdict on the rape count does not constitute a verdict which is inconsistent with the guilty verdicts on the remaining two counts. The distinction between the absence of a verdict and a verdict of acquittal is in this respect significant: see Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 per Callinan J at 406; [1998] HCA 75 at [232]. As Keane JA pointed out in R v DAL [2005] QCA 281 at [23], a failure to agree about one count does not necessarily imply that the jury as a whole entertained a reasonable doubt about the reliability of the evidence which is relevant to the counts upon which it convicted a defendant in the same way that verdicts of acquittal might. 36 Furthermore, the jury's failure to convict on the rape count might have been referrable to the complainant's evidence which suggested that she must have been in a state of shock at the relevant time as a result of being confronted by an assailant with a knife, her evidence that the episodes of penile penetration were very brief, and the emphasis given in cross-examination of Mr Clausen to the absence of forensic evidence which corroborated the complaint of rape. Whilst that evidence does not entirely satisfactorily explain the contrast between the convictions upon the counts of burglary and detaining the complainant against her will on the one hand, and the jury's failure to agree upon a verdict on the rape count on the other hand, it does suggest that the jury's failure to agree on the rape count might be explicable by a view - perhaps an eccentric view - of one juror not being satisfied beyond reasonable doubt of all of the elements of that offence: cf R v DAL [2005] QCA 281 per Keane J at [23], referred to with approval by Jerrard JA (with whom Atkinson and Douglas JJ agreed) in R v CX [2006] QCA 409 at [33] (8); see also R v Kahu [2006] QCA 33 per Keane JA (with whom McPherson JA and Muir JA agreed) at [27]."
31. In R v CBF [2012] QCA 294 Applegarth J (with whom Muir JA and Atkinson J agreed) followed those decisions when he said: "16 A jury's failure to reach a verdict cannot be equated with a verdict of acquittal. The absence of a verdict indicates that the jury was not prepared to find unanimously (or by majority if the circumstances permitted a majority verdict) that the evidence did not establish that the defendant was guilty beyond a reasonable doubt. The absence of a verdict also indicates that the jury was not prepared to find unanimously (or by majority) that the evidence did establish that the defendant was guilty beyond a reasonable doubt."
32. There is authority to similar effect in Western Australian and South Australia. In Western Australia in Millar v The Queen [2003] WASCA 211 McKechnie J (with whom Steytler and Anderson JJ agreed) rejected the proposition that a count on which a verdict could not be reached could be regarded as inconsistent with two guilty verdicts. He said: "45 `The first thing to be noted is that there were not inconsistent verdicts. A majority of the jury were able to be satisfied as to counts 1 and 2 and there was no majority for any other verdict. It is wrong to equate this situation with an inconsistency."
33. In South Australia in R v R, GJ [2009] SASC 371; 105 SASR 506 Kourakis J (with whom Duggan and Bleby JJ agreed) said: "31 It is not surprising, therefore, that the burden carried by a convicted person who appeals on the ground of inconsistency alone is a heavy one. A verdict of guilty will only be unreasonable if it is illogical having regard to a verdict of not guilty returned in the same trial. In MacKenzie v The Queen, the test was described in these terms by Gaudron, Gummow and Kirby JJ: "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 … 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 … 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 common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty … 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'. " … 32 In this case the jury did not return a verdict of not guilty on the second count; the jury was discharged without reaching a verdict. The passage cited immediately above from MacKenzie suggests that a mere failure to reach a verdict should not be treated in the same way as a verdict of not guilty. Where a jury has failed to reach a verdict there is not, "on the public record", an inconsistent verdict which is "an affront to logic and common sense". The very fact that the jury has been discharged before and without reaching a verdict means that all that can be said is that no verdict was reached. There is very little if any force in the proposition that a verdict of guilty is rendered illogical by the failure of a jury to reach a guilty verdict on another count within the same period of time. …"
34. A somewhat different approach has been taken in Victoria. In Pillay and Ors v The Queen [2014] VSCA 249 the Victorian Court of Appeal (Maxwell P Weinberg and Santamaria JJA) said: "20 There is a considerable body of authority in support of the proposition that the 'inconsistent verdicts' doctrine, as the basis for an unsafe and unsatisfactory submission, cannot be invoked, as such, when comparing a guilty verdict with an inability on the part of the jury to agree on another charge. That is because, strictly speaking, in the case of a disagreement on the part of the jury, there is no 'verdict'. Accordingly, so it is said, there is no room for any argument based on inconsistent verdicts. 21 There is, however, some authority to the contrary. For example, in R v Formhals the English Court of Appeal was faced with just this dilemma. The defendant, a dealer in antiques and memorabilia, sold via Ebay documents said to bear the genuine signature of Winston Churchill. In fact, he had forged them. He was charged on six counts with six separate offences, each involving the same buyer. The jury convicted on three of those counts, but failed to agree on the other three. The appeal was conducted on the basis that the convictions were unsafe as the facts being the same, the verdicts were inconsistent. 22 The Court ultimately dismissed the appeal, on the basis that the evidence in relation to the counts upon which there were convictions differed in certain key respects from that relating to counts upon which the jury could not agree. Nonetheless, it was accepted that a verdict could be set aside as unsafe or unsatisfactory if logically, and factually, that verdict could not be reconciled with the jury's inability to agree on other counts. The Court said this: "Overall in this context what the Court of Appeal ultimately has to consider is whether or not a conviction is safe. The failure of a jury to agree on a verdict is, as we have said, self-evidently not a verdict. But in our view, in a context such as the present, linguistics should not be allowed to triumph over justice. It thus may be that where a jury fails to reach a verdict that cannot be said to give rise, strictly, to an inconsistent verdict when set against another verdict. But that is labelling; and in our view, the principles applicable to inconsistent verdicts are capable of applying by analogy where it simply is logically inexplicable as to how a jury could not reach a verdict on one count when set against a verdict of guilt they had reached on another count. We thus think it would be going too far to preclude a defendant in such a situation from even being permitted to argue that the resulting situation gives rise to an unsafe conviction. Accordingly, it is open to the defendant to raise this point in this appeal." (R v Formhals [2014] 1 WLR 2219) 23 The approach taken in Formhals seemed to us to be correct, and one that we should also adopt."
35. The approach in Pillay was followed by the Victorian Court of Appeal in Tukuafu v The Queen [2014] VSCA 345 where the Court (Maxwell P, Redlich and Whelan JJA) said: "24 The relevant principles for the assessment of a submission that verdicts are inconsistent were set out in R v MacKenzie. Gaudron, Gummow and Kirby JJ, in their joint reasons, said that 'the test is one of logic and reasonableness'. They said: [I]f 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. ... [A] residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense 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'. 25 A failure to reach a verdict should not be equated with an acquittal. All that can be said when a jury does not reach a verdict is that one or more of the jurors were unable to conclude that the accused was guilty. There is no 'verdict' as such. As Callinan J said in Osland v The Queen: "There is an important distinction between an acquittal and a disagreement by a jury. As was pointed out during argument in this Court the jury may have simply been immovably divided on a question whether Mr Albion should be convicted of manslaughter or murder having regard to his lesser involvement in conceiving, planning and executing the death of Mr Osland. I do not accept that the jury's failure to agree upon a verdict in relation to Mr Albion at the joint trial can be regarded as repugnant to the verdict of guilt in respect of the appellant. I cannot accept therefore the appellant's submission that such a disagreement may, for the purposes of determining an issue of inconsistency, be equated with a verdict of acquittal." 26 Recently, in Pillay v The Queen, this Court determined that a jury's failure to reach a verdict could give rise to an inconsistency with a verdict of guilty. The failure to reach a verdict gave rise to the question whether there could be any explanation for the outcome of the jury's deliberations 'apart from some form of irrational and improper compromise'. The Court in Pillay concluded that it was not rational for the jury to have found consent not to be present in relation to an indecent assault charge but to have failed to reach unanimity on the same issue with respect to rape charges. 27 The appropriate inference to be drawn from the jury's failure to reach a verdict with respect to a particular charge is to be determined according to the circumstances of the particular case. In R v DAL Keane JA (McMurdo P agreeing) made the following observations: "The failure by the jury to agree on verdicts on a number of charges in the present case, for example, may well be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all the elements of the offence in question. Such an explanation does not necessarily throw the integrity of the guilty verdicts into question because it does not imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the counts on which it convicted in the same way that a verdict of acquittal might have done. It is only if an appellate court is satisfied that a jury must have convicted in spite of such doubts that it must intervene." 28 In Avery v The Queen, Warren CJ and Redlich JA made observations to similar effect: "Contrary to the applicant's submission, verdicts of not guilty or disagreement on the balance of the charges on the indictment do not necessarily reflect a view by the jury that the complainant was untruthful or unreliable, such that this Court should assess the reasonableness of the three guilty verdicts on the basis that the complainant was a person of damaged credibility. Credit is not a homogeneous and indivisible whole. It simply does not follow that because the jury, or some of them, had a reasonable doubt as to the evidence the subject of the charges other than those upon which a guilty verdict was returned, that it should have had a doubt about the evidence of the complainant on Charges 10, 11 and 12. As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen, a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or demonstrate a want of confidence in the complainant. A verdict of not guilty or a disagreement by the jury may reflect no more than a cautious approach to the discharge of its heavy responsibility. That caution might be attributed to the absence of supporting evidence or detail in the complainant's account, some level of uncertainty, a faulty recollection, a contrast in different parts of the account that suggest that parts of it are more reliable than others, or to the jury thinking that although a number of offences had been alleged, justice was met by convicting the applicant on some only. [2014] VSCA 86)""
36. With great respect to the Victorian Court of Appeal, I am not persuaded that the approach in Formhals and Pillay is correct. To follow such an approach implicitly accepts that there is no difference between a verdict of acquittal or guilt and a failure to reach a verdict, a proposition which is contrary to law and common sense. The reasons why a verdict of acquittal or guilt and a failure to reach a verdict should be treated differently, are set out in DAL and the cases which followed it. That is sufficient to deal with this ground of appeal.
37. Contrary to the proposition in Formhals, the difference between a verdict of acquittal or guilt and a failure to reach a verdict by a jury is not simply a matter of "linguistics". In this case the conviction on count 4 of necessity involved 11 jurors being satisfied as to the elements of the offence. Their failure to arrive at a verdict in relation to count 5 potentially could involve a number of other permutations. The language of the High Court in Mackenzie v R [1996] HCA 35; 190 CLR 348 and that of Callinan J in Osland when dealing with the difference between a verdict on the public record, as opposed to a failure to reach a verdict, cannot be regarded simply as a "linguistic" analysis. Rather, they raise fundamental concepts reflecting important differences between the two factual circumstances.
38. Similarly, the concept of a compromise in circumstances where a jury has failed to arrive at a verdict is hard to conceptualise, i.e. what was the precise nature of the compromise?
39. It follows that this ground of appeal cannot succeed and ought be dismissed.
40. That does not end the matter. There is a possible way of reconciling the approach in Formhals and Pillay with the DAL line of decisions but not on the basis of inconsistent verdicts. In circumstances where an "unreasonable verdict" ground has been raised (such as in the second ground of appeal here), it may be possible to argue that a possible inconsistency between a verdict by the jury and a failure to arrive at a verdict constitutes another reason why a jury verdict was unreasonable. It is difficult to envisage circumstances where such a ground alone without other grounds could provide a basis for a finding that a verdict was unreasonable. This is because of the possible explanations for a failure to reach a verdict set out in DAL at [23].
41. In case I am wrong in the above analysis and an apparent inconsistency between a jury verdict and a failure to reach a verdict can provide the basis for a finding of inconsistent verdicts, this ground of appeal still fails. This is because there is a clear explanation for why the jury might have found the applicant guilty on count 4 but have been unable to agree in relation to count 5. An examination of the complaint evidence supports the touching which formed the basis of count 4, but does not necessarily support sexual intercourse as asserted in count 5.
42. Alyce was told that "my dad does stuff". Aunty J was told "dad touches me and I don't like it" and Claire was told "he touches me and makes me uncomfortable". This is a sufficient basis to explain how the jury could convict the applicant of count 4, but have failed to reach a verdict in relation to count 5.
43. This ground of appeal has not been made out. Ground 2 - The verdict of the jury in respect of count 4 should be set aside and quashed on the ground that it was unreasonable and cannot be supported having regard to the evidence, the acquittals on counts 1, 2 and 3 and the failure to agree on count 5.
44. The applicant submitted that the case was conducted on the basis of the reliability of the complainant. He submitted that the verdict by direction in relation to count 1 and the verdicts of acquittal in respect of counts 2 and 3 made it clear that the jury must have had real doubts as to her reliability. He submitted that when those matters are taken into account with the inconsistencies and contradictions in the complainant's evidence in relation to count 4, it is clear that the jury's verdict in relation to count 4 was unreasonable and it was simply not open to them to find him guilty beyond reasonable doubt.
45. In making that submission, the applicant conceded that it was natural that the complainant's recollection of events over time would contain inaccuracies, internal contradictions and other imperfections which would not necessarily justify rejection. He submitted that in this case the inaccuracies and contradictions were so great that the jury's verdict in relation to count 4 could only be regarded as unreasonable and that the only logical conclusion is that their decision making miscarried.
46. In support of that proposition, the applicant relied upon the following evidentiary material - the different dates in the first and second statements, the evidence of KR to the effect that the applicant had almost no opportunity to commit the offences on the Wednesday night, the failure to mention Mr and Mrs McHugh being in the house in either statement, and the differences in the evidence as to where KR was on the Wednesday.
47. The applicant stressed what he described as the contradictions in the evidence as to the timing of the offending. He submitted that the time suggested by the complainant was inconsistent with the evidence of KR and most particularly with the evidence of Ms McHugh as to when she and her husband were present and who they saw at the time.
48. The applicant submitted that these were significant contradictions which when taken with the not guilty verdicts in respect of counts 1 -3, rendered the jury's verdict unreasonable. Consideration
49. Before dealing in detail with the specific submissions of the applicant, it is useful to restate the importance which courts have given to jury verdicts and the difficult onus which the applicant has to discharge in seeking to have a jury verdict set aside. In MFA v R [2002] HCA 53; 213 CLR 606 the plurality (Gleeson CJ, Hayne and Callinan JJ) said: "25 Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen. In M, it was pointed out that it was once common for expressions such as "unsafe or unsatisfactory", or "unjust or unsafe", or "dangerous or unsafe" to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law. Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said: "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." 26 The test, as formulated in M, should not be confused with the question whether a trial judge ought to have directed a verdict of not guilty. This is made clear by the opening words of the above passage. The difference between the function of an appellate court in reviewing the totality of the evidence at a trial in order to determine whether a verdict of guilty was unreasonable, and the function of a trial judge in considering whether as a matter of law there is evidence on which an accused could be convicted, was explained in R v R, a decision which was approved by this Court in Doney v The Queen. … 34 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. 35 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."
50. These observations were refined in TK v R [2009] NSWCCA 151, 74 NSWLR 299 where Simpson J (with whom McClellan CJ at CL and Latham J agreed) said: "135 Mackenzie, Jones and Norris all appear to have proceeded upon the basis that, absent the acquittals, the evidence adduced was sufficient, and was not relevantly tainted, to support the convictions. I do not mean to suggest that Jones creates a separate entity of unreasonable verdict: that is expressly contradicted by MFA. It is also clearly contradicted by the last paragraph in the joint judgment in Jones itself. But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open "upon the whole of the evidence". It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury's thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant's veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris). 136 In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: see, for example, Mackenzie (at 367); R v Landsell (NSWCCA, unreported, 22 May 1995 per Gleeson CJ). It is only in circumstances where the evidence points, and points clearly, even unequivocally, to departure from those obligations that an appellate court will come to such a view. … 138 This requires the appellate court to examine the evidence for an explanation or explanations, other than scepticism about the complainant's credibility, for the acquittals. …"
51. When applying those principles to the acquittals in respect of counts 1, 2 and 3 and the conviction in count 4, an explanation for the verdicts, which does not involve the undermining of the credibility of the complainant, is readily available.
52. The jury in convicting the applicant on count 4, clearly accepted the evidence of the complainant beyond reasonable doubt given that she had made a recent complaint of that incident and made her statement to the police 15 days after it occurred. Accordingly, the jury had a sound basis for accepting the young complainant beyond reasonable doubt.
53. In contrast, the complainant did not make an early complaint about the offence in count 1, (it was pleaded as occurring between 16 and 19 January 2007). Not only did the complainant not make an early complaint, but she did not say anything about this incident in her first or second statements to the police, despite having the opportunity to do so. It was her difficulties in recalling the specificity of dates in relation to count 1 which led to the trial judge entering a verdict by direction. This was the consequence of the Crown pleading count 1 narrowly as occurring between 16 and 19 January 2007. The complainant under cross-examination indicated that she could not be sure that the offence occurred at that time as she was uncertain how old she was at the time. His Honour's direction to the jury to acquit the appellant on count 1 was based solely on the date of the count and not any determination by his Honour of the truthfulness or reliability of the complainant's version of the allegation.
54. Similar considerations apply in relation to the acquittals of the applicant on counts 2 and 3. Counts 2 and 3 were alleged to have occurred within seconds of each other during 2011. Like count 1, the complainant did not make an early complaint about these 2011 incidents. Also like count 1, the complainant made no mention of the incidents that constituted counts 2 and 3 in her first and second statements to the police, despite having the opportunity to do so.
55. The lack of specificity in the complainant's description of the allegations that made up counts 2 and 3 could only lead to the indictment covering a 12 months period (in contrast to count 4 which due to the early complaint, could be pleaded on the specific date). This was significant because of the importance the trial judge gave to this in his summing up when he gave his "Longman" direction. Unlike count 1, however, the Crown had pleaded counts 2 and 3 widely enough so as to not give rise to the same problem which caused the verdict by direction.
56. In the circumstances, it is not surprising that senior counsel for the applicant strongly attacked the complainant's failure to mention counts 2 and 3 in her first two statements to the police. Such submissions on behalf of the applicant were inevitable and likely to be effective. It is also fair to say that the jury did not receive any real explanation directly from the complainant as to why she had not told the police at an earlier point in time about the events which gave rise to counts 2 and 3.
57. One of the problems for the applicant, however, was that when the delayed complaint in relation to counts 2 and 3 was highlighted to the jury so that this assisted in convincing them to have a reasonable doubt about counts 2 and 3, it also had the effect of highlighting the strength of counts 4 and 5 and why they fell into a different category. This is because in counts 4 and 5 the complaint was fresh and the statement to the police was made shortly after the event.
58. The acquittals in respect of counts 2 and 3 could also be explained by the strong "Longman" direction which his Honour gave (despite the provisions of s165B of the Evidence Act 1999). In giving that direction, his Honour stressed to the jury that they must consider the effects of the delay in complaint in relation to counts 2 and 3 and in particular, the disadvantage that the applicant suffered as a result of that delay.
59. The jury's acquittals on counts 2 and 3 did not necessarily indicate a rejection of the complainant's truthfulness or reliability. The jury may well have regarded the complainant as truthful and reliable about counts 2 and 3 but have been prepared to give the applicant the benefit of the doubt because of the delayed complaint, particularly in the light of his Honour's "Longman" direction. It should also be remembered that his Honour had given a "Markuleski" direction. In doing so, he stressed that the jury were not to compromise their verdict (and gave a relevant example). There was no reason to find that the jury did not follow this direction. This is so where there were obvious and proper reasons to explain the differing verdicts, rather than leaping to the conclusion that a compromise was involved.
60. A close examination of the evidentiary matters relating to count 4, to which the Court's attention was directed reveals that the asserted contradictions were more apparent than real. Insofar as the timing of the offending is concerned, the evidence of Ms McHugh was essentially that she could not remember any precise times, but was prepared to accept the approximations which were put to her in cross-examination. It is also clear from the complainant's first statement that her evidence as to when the offending occurred was not as precise as has been submitted and that, in effect, the interviewer incorrectly summarised what she had said when attempting to summarise the effect of her evidence. The applicant's submission on this issue seeks to give general evidence as to timings a precision which it lacks and which given the circumstances of the offending, has an air of unreality about it.
61. The other evidentiary matters to which the applicant referred are the sort of contradictions which frequently occur in matters of this kind, particularly when evidence is given by young persons. The jury had the benefit of seeing and assessing the complainant and KR. The issues raised are fundamentally questions for the jury. The jury were clearly in a better position than this Court to assess the credibility and reliability of the complainant and other witnesses.
62. It is not without significance that the complainant was extensively cross-examined. There were no important inconsistencies in that cross-examination and the complainant's evidence was credible and cogent. This is against the background that count 4 involved a recent complaint, a specific date and a consistent version of events from the complainant. The complainant's inability to remember some matters peripheral to the offending did not affect her overall credibility and provides no basis for this Court finding that the jury should have had a reasonable doubt as to the applicant's guilt. Memory problems for young complainants in child sexual assault matters are not unique.
63. There is also the difference in the evidence of complaint to which reference has already been made at [41] and [42] hereof.
64. I am not persuaded upon the whole of the evidence that it was not open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence in count 4. This ground of appeal has not been made out.
65. The orders which I propose are as follows: 1. Leave to appeal against conviction is granted. 2. The appeal is dismissed.
66. JOHNSON J: I agree with Hoeben CJ at CL.
67. HAMILL J: I agree with Hoeben CJ at CL that the appeal against conviction should be dismissed, but would prefer to state briefly my own reasons for that conclusion. In doing so, I gratefully adopt his Honour's analysis and summary of the evidence, jury directions and the course of the trial and deliberations.