R v B T [2004] VSCA 44

R v B T [2004] VSCA 44 - VSCA 2004 case summary — Zoe

[10]

"... 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 [the applicant] 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 ...

...

... 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'" (Citations omitted.)

[12]

"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. ... 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."

[85]

"Now in this case, as I have said, you determine the question of the guilt or otherwise of the accused on the evidence before you. As has been pointed out, largely, this case is one in which the complainant has given sworn evidence before you as to certain things that she said the accused effected upon her. These matters, the accused man says, simply did not occur. Save for the episode which [the complainant] described in the swimming pool when she said that she was under the water and she bit the accused's penis, and you will remember the evidence - that [K] was in close proximity, under the water or whatever - there was no other witness who saw or heard any of these matters which [the complainant] alleges, so that you have [the complainant's] account and you have the accused's account. What I am about to tell you is very important. It is not a question of choice between two different accounts. Do not fall into that trap, tempting as it may appear, because it is not the law. The critical question in this case for your answer is this: are you satisfied of the guilt of the accused beyond reasonable doubt? Has the prosecution satisfied you beyond reasonable doubt of the guilt of the accused? That onus is not satisfied by your selection or preference for one version over another. In this case, the Crown proffer [the complainant] to you as a witness upon whose evidence they rely to establish the guilt of the accused. Obviously, an acceptance of her evidence is not dependent upon a rejection of the accused's evidence, because it is her evidence that the Crown relies upon. I repeat, the law places no obligation upon the accused to satisfy you that his evidence is truthful. It is for the Crown to prove the guilt of the accused. There may be elements in the accused's evidence which support the Crown case, but it is not his obligation to disprove the Crown case. You must be satisfied on all of the evidence, beyond reasonable doubt, of each of the elements of these offences."[7]

At a glance

Court

Decision date

Before

Source

Judgment (94 paragraphs)

Parties