Pillay & Ors v The Queen [2014] VSCA 249

1 On 18 July 2014, after the conclusion of oral argument, the Court granted each applicant leave to appeal against conviction. We ordered that each appeal be treated as instituted and heard instanter, and be allowed. We quashed the convictions sustained below, set aside the sentences passed thereon, and directed that a judgment and verdict of acquittal be entered in each case. We indicated that we would publish our reasons at a later date. The following are the reasons for our decision.

2 In February 2014, the applicants stood trial in the County Court at Melbourne. Each applicant faced two charges of rape, and one charge of indecent assault. On 27 February 2014, they were each convicted of indecent assault. However, the jury were unable to agree upon a verdict in relation to the two counts of rape.

3 In late April and early May 2014, the applicants again stood trial in relation to the two rape charges. However, on that occasion they were acquitted of those charges.

4 The applicants subsequently sought leave to appeal against both conviction and sentence. Having regard to the decision reached in relation to each appeal against conviction, it is unnecessary to say anything more about the sentence.[1]

5 Broadly speaking, each applicant submitted that the verdict of guilty rendered against him on the charge of indecent assault was unsafe and unsatisfactory. It was said that these verdicts were inconsistent with the inability of the jury to arrive at a unanimous verdict in respect of either of the two rape charges.

6 It was said, by way of alternative, that the complainant's evidence was unreliable, inconsistent and so lacking in credibility that the jury should not have been satisfied beyond reasonable doubt of the applicants' guilt.

7 At the time of the relevant events, the applicants all resided in Sydney. In August 2010, they came to Melbourne for the weekend in order to celebrate the impending wedding of the applicant, Pillay. They booked two rooms at a hotel in St Kilda Road.

8 On 21 August 2010, the applicants attended the Decca Nightclub in Queen Street, Melbourne. Their friend, Edwin Hae, was also present. He met the complainant, DM, at the nightclub. She happened to be celebrating her birthday that evening, having turned 18 just days before.

9 Mr Hae and the complainant went back to the St Kilda Road hotel between 4:30am and 5:00am. They had sexual intercourse, which DM accepted was consensual. Mr Hae then left the room. Thereafter, all three applicants immediately entered.

10 It was common ground that Toganivalu had penile-vaginal intercourse with DM (charge 1 - rape). On one view of the evidence, Pillay at the same time had oral sex with her, inserting his penis into her mouth (charge 2 - rape). However, it was also possible that it had been Dansey who performed this act upon her. There was also a question as to whether it had been Pillay or Dansey who had masturbated next to DM and who had ejaculated on her, with some of his ejaculate having entered her mouth (charge 3 - indecent assault).

11 It is important to appreciate that the Crown case was put solely on the basis of joint criminal enterprise. No other form of complicity was invoked. While there was some disagreement between counsel for Toganivalu and senior counsel for Pillay about whether the acts the subject of charges 2 and 3 were actually part of the one transaction, committed by the same person, on the Crown case it made no difference whatsoever. Because this sexual activity was said to be part of a joint plan, the Crown argued that they were all liable, under the ordinary principles of acting in concert. The Crown alleged that each of these sexual acts had been carried out against DM's will, and without her consent. It should be noted that her evidence, if accepted, did not allow for any possibility that the applicants may have believed, whether on reasonable grounds or otherwise, that what was taking place was consensual. She claimed to have been held down by the three applicants, and forcibly raped by two of them. Her evidence was that she had protested loudly throughout, and made it abundantly clear that she wanted no sexual activity of any kind with any of them.

12 The applicants' defence was that everything that took place was entirely consensual.

13 In these circumstances, so it was said, it was extraordinary that the jury in the first trial could have arrived at the verdicts that they did. It was difficult to understand how they could possibly have agreed, unanimously, that DM had not consented to the act of masturbation, as described earlier, but at the same time been unable to reach agreement as to whether, as DM claimed, she had not consented to having sexual intercourse with Toganivalu and whoever it was (whether Pillay or Dansey) that had inserted his penis into her mouth.

14 It was submitted on behalf of the applicants that as all three sexual acts took place at the same time, and in circumstances where the only issue for the jury to determine was whether the Crown had established that these acts were non-consensual, the verdict of guilty of indecent assault stood in stark, and inexplicable, contrast with the jury's inability to reach a verdict on either charge of rape.

15 It was further submitted that the outcome of the first trial strongly suggested that the jury may have compromised. That meant that the convictions on the charge of indecent assault were unsafe.

16 It needs to be emphasised that there was no issue in this trial as to the actus reus of any of the three charges brought. Toganivalu agreed that he had had penile intercourse with DM. As we have indicated, that was common ground, and never in dispute. Dansey agreed that he had put his penis into DM's mouth. It was said, on behalf of each applicant, that she was mistaken in attributing that particular act to Pillay. However, the act itself was not denied by any of the three men.

17 With regard to the indecent assault, it was unclear, on DM's evidence, as to whether it had been Dansey or Pillay who had engaged in the act of masturbation that formed the basis for that charge. However, again the act itself was never disputed. We reiterate that, given that the case was one of joint criminal enterprise, the actual identity of the person who performed that act was completely immaterial.

18 What was striking about this case was that the evidence against each applicant, as regards the only matter in dispute in this trial, namely consent, was identical. Yet the jury were unable to agree on charges 1 and 2, even after having been given a majority verdict direction. At the same time, they were able to reach a unanimous decision on charge 3.

19 The fact that the jury were given the option of a majority verdict after they had indicated that they could not unanimously agree in relation to two of the three charges meant that at least two (and possibly more) jurors entertained a reasonable doubt as to lack of consent when it came to charges 1 and 2, but no such doubt when it came to charge 3.

20 There is a considerable body of authority[2] 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'.

20 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[3] 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.[4]

23 The approach taken in Formhals[5] seemed to us to be correct, and one that we should also adopt.

24 We considered that there was something deeply troubling, in the present case, about the outcome of the jury's deliberations in relation to the first trial. In theory, they might have viewed as reliable so much of DM's evidence as indicated that she had not consented to having anyone masturbate in close proximity to her, or ejaculate upon her, while they might not, at the same time, have been prepared to accept her evidence that she had not consented to sexual intercourse, as alleged in charges 1 and 2.

25 We appreciated that this theoretical scenario might provide a possible explanation for what would otherwise seem to have been an extraordinary outcome. However, the scenario thus propounded struck us as highly improbable. The idea that DM would agree to participate in what was, in effect, a full-fledged orgy with three total strangers, including having oral sex with one of them, but draw the line at having one of those men with whom she was then having consensual sexual intercourse ejaculate upon her seemed to us to border upon the fanciful.

26 The authorities make it clear that appellate courts should approach a claim of inconsistent verdicts with caution.[6] If there is an apparently rational explanation for a jury's having differentiated between various charges, that explanation should be preferred to one which suggests that the jury may have foresworn their oaths, and impermissibly compromised.[7]

27 The principles that govern factual inconsistency as a ground of appeal are well settled. In MacKenzie v The Queen,[8] Gaudron, Gummow and Kirby JJ said, in a joint judgment:

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. he impugned verdict or verdicts must be set aside and appropriate consequential orders made.

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. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of 'differences in the evidence presented at the two trials' or 'the different views which the juries separately take of the witnesses'.

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.'

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. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. 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.'

We agree with these practical and sensible remarks.

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.'

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.[9]

28 In MFA v The Queen[10] the High Court affirmed its earlier reasoning in MacKenzie.[11] Both MacKenzie[12] and MFA[13] were recently applied by this Court in Avery v The Queen,[14] where the relevant principles were identified and explained.

29 As indicated, this was not, in the literal sense, a case of inconsistent verdicts. However, that is not the end of the matter. In R, GJ[15] Kourakis J (as his Honour then was, and with whom Duggan and Bleby JJ agreed) observed:

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 commonsense'. 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. I am, however, prepared to deal with the appellant's appeal as if the jury had returned a verdict of not guilty on the second count.[16]

30 On the same basis, we too were prepared to deal with each application before this Court as if the jury had returned verdicts of not guilty on charges 1 and 2. It seemed to us that at least some of the reasoning that lay behind the notion that inconsistent verdicts rendered a conviction unsafe and unsatisfactory had application to this particular case, as well. The real question, in our view, was whether there could be any explanation for the outcome of the jury's deliberations in the first trial, apart from some form of irrational and improper compromise. In our opinion, no such explanation was apparent. Accordingly, we concluded that it would be unsafe to allow the convictions on charge 3 to stand.

31 In the circumstances, it was unnecessary to consider, in any detail, the alternative basis upon which the applicants put their case. However, we should indicate that, as at present advised, we would not have upheld that particular limb of their argument, had it stood alone.

32 For the reasons set out above, we made the orders that we did.

[1] For the sake of completeness, it may be noted that on the charge of indecent assault each applicant was sentenced to 15 months' imprisonment with 10 months of that sentence suspended for a period of two years.

[2] See, eg, Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 406 [232] (Callinan J); Millar v The Queen [2003] WASCA 211, [45] (McKechnie J); R v Kahu [2006] QCA 33, [27] (Keane JA); R v DAL [2005] QCA 281, [21] (Keane JA). Cf R v R, GJ [2009] SASC 371; (2009) 105 SASR 506, 517 [32] (Kourakis J) ('R, GJ').

[3] [2014] 1 WLR 2219 ('Formhals').

[6] R v JA [2008] VSCA 169, [48] (Vincent, Dodds-Streeton and Weinberg JJA); Goldsmith v The Queen [2010] VSCA 99, [51] (Weinberg, Mandie and Bongiorno JJA) ('Goldsmith'); Director of Public Prosecutions v Fattal [2013] VSCA 276, [36] (Buchanan AP, Nettle and Tate JJA); R v Motlop [2013] QCA 301, [47] (Boddice J); Andrew v The Queen [2013] VSCA 333, [40] (Weinberg JA); Amato v The Queen [2013] VSCA 346, [5] (Maxwell P).

[7] Goldsmith [2010] VSCA 99.

[9] Ibid 366-8 (citations omitted) (emphasis added).

[10] [2002] HCA 53; (2002) 213 CLR 606 ('MFA').

[13] [2002] HCA 53; (2002) 213 CLR 606.

[14] [2014] VSCA 86.

[15] [2009] SASC 371; (2009) 105 SASR 506.