R v Carter [2009] VSCA 272

Court of Appeal (Vic)|2009-11-24|Before: BUCHANAN and WEINBERG JJA and COGHLAN AJA

R v Carter (Unreported, County Court of Victoria, 17 November 2008, Judge Leckie)

CRIMINAL LAW - Applicant convicted of two counts of committing an indecent act with, or in the presence of, a child under the age of 16, and one count of attempting to take part in an act of sexual penetration with a child under the age of 16 - Direction as to standard of proof - Whether words 'highest standard known to the law' must be used - Whether criminal standard must be compared with civil standard - Inconsistency of verdicts - Whether counts 6 and 7 could produce different verdicts when based on testimony of same complainant and relevantly indistinguishable facts - Inconsistency irreconcilable - Conviction on count 6 quashed - Applicant re-sentenced to total effective sentence three years' imprisonment with non-parole of two years and two months.

1 I will ask Weinberg JA to deliver the first judgment.

2 On 22 August 2008, after a one week trial, the applicant was convicted in the County Court in the Latrobe Valley of two counts of committing an indecent act with, or in the presence of, a child under the age of 16 (counts 1 and 6), and one count of attempting to take part in an act of sexual penetration of a child under the age of 16 (count 3). Counts 1 and 3 concerned the same victim, C, and count 6 her step-sister, K. The applicant was acquitted on counts 2, 4, 5 and 7. Count 3 was an alternative to count 2.

3 After hearing a plea, the learned trial judge sentenced the applicant to 12 months' imprisonment on each of counts 1 and 6, and three years' imprisonment on count 3. His Honour directed that six months of the sentence imposed on count 1 and six months of the sentence imposed on count 6 be served concurrently with the sentence imposed on count 3. The total effective sentence was therefore four years' imprisonment. A non-parole period of two years and eight months was fixed.

4 The applicant now seeks leave to appeal against conviction. His Notice of Appeal originally contained four grounds. However, grounds 2 and 4 were abandoned. The remaining grounds in support of the application concern the direction given to the jury regarding the standard of proof, and an alleged inconsistency between the conviction on count 6, and the acquittal on count 7.

The trial miscarried as a consequence of the learned trial judge's having failed adequately to direct the jury on the criminal standard of proof.

PARTICULARS

(a) The learned trial judge failed to impress upon the jury that the standard represented by the words "beyond reasonable doubt" is a "very high one" or "the highest standard known to the law".

(b) The learned trial judge failed sufficiently to assist the jury in its understanding of the criminal standard of proof by comparing it to the civil standard of proof.

6 In his charge to the jury, the trial judge said as follows:

Moreover, the standard to which you must be satisfied is a high one. It is expressed in words which reflect our understanding of the serious nature of the work of the criminal court. Those words are 'beyond reasonable doubt'. They are words which have been applied by juries in criminal courts for many years. They mean what they say, and any further definition of them would be neither useful nor proper.

7 Put simply, the applicant contends that the failure of the trial judge to instruct the jury in accordance with the standard direction set out in the Charge Book gave rise to a miscarriage of justice. The submission comes down to this. The jury may have concluded from his Honour's use of the term 'high' that the standard of proof required in a criminal trial is something less than the highest standard of proof known to the law. In addition, the failure to contrast the 'high' standard required in a criminal matter with the lesser standard required in a civil case adds to the risk that they might have done so.

8 The argument faces several hurdles. In the first place, no authority was cited in support of the contention that, when speaking of the standard of proof, the term 'highest' had to be used, immediately followed after the words 'standard of proof', by the expression 'known to the law', failing which the trial will have miscarried. Next, no exception was taken to his Honour's charge. Finally, his Honour had, earlier in the proceeding, instructed the jury that there was a presumption of innocence, and that the applicant was entitled to the benefit of that presumption unless and until the prosecution satisfied them, beyond reasonable doubt, of the guilt of the accused.

9 That is not to say that it is good practice or desirable to depart from the time-honoured formula used repeatedly by judges in this State, and elsewhere, and recorded in the Charge Book. It is only to say that a departure from that practice does not of itself signify a miscarriage of justice.

10 The fact that the jury acquitted the applicant on four of the seven counts on which he was presented suggests that they understood that the prosecution bore a heavy onus of proof. Moreover, the judge's direction to the jury that the words 'beyond reasonable doubt' meant what they said, and required no further definition, left the elucidation of that expression to the jury, in accordance with orthodox principle.[1]

(a) inconsistent with the verdicts on the remaining counts; and

(b) unsafe and unsatisfactory, since a properly instructed and reasonable jury ought to have had a reasonable doubt about the guilt of the applicant.

13 It is necessary to say a little bit about the evidence in this case. The two victims of the alleged offending, C and K, are stepsisters. The applicant was a friend of the family. C was the victim named in counts 1 to 3, whereas K was the victim named in counts 4 to 7.

14 The circumstances surrounding the offending were somewhat bizarre. C and K gave evidence, but their parents, who were alleged to be present at the time the offences were committed, did not.

15 K's evidence regarding count 6 was as follows. The offending occurred at the applicant's home at around Christmas 2006. She was there with her stepsister, C, and her mother and stepfather. She said that, as they were leaving, the applicant pushed her on to a chair and said, 'you're not going anywhere unless you fuck me.' She told him to stop four or five times. It was only then that he released her.

16 As regards count 7, K's evidence was that this too occurred at the applicant's home, several weeks later. She alleged that she was sitting at the dining table with her stepfather and mother present. She said that the applicant pushed her sideways off the chair, then squeezed her breast, and lay on top of her on the floor. She said that her stepfather told the applicant to leave her alone, and he did.

17 As previously indicated, the applicant was convicted on count 6 and acquitted on count 7. That led to the submission, before this Court, that the verdict on count 6 is unsafe and unsatisfactory, it being inexplicably inconsistent with the verdict on count 7.

18 It is, of course, trite law that two verdicts are not inconsistent, in a relevant sense, if there is a reasonable and logical means by which the jury may have come to their conclusions. If, however, there is no rational explanation for the apparent inconsistency, the verdict of guilty will be set aside as unsafe or unsatisfactory.[2]

19 The events described in counts 6 and 7 were alleged to have occurred within weeks of each other. Both were counts of an indecent act with, or in the presence of, a child below the age of 16. The only source of evidence for both counts was the evidence of K. There was no supporting evidence. There was no recent complaint. And there were no admissions.

20 The allegations relating to both counts were remarkably similar. As counsel for the applicant submitted, what is noteworthy in this case is not only the similarity of the factual matrix in K's allegations in relation to counts 6 and 7, but the fact that she herself drew such a nexus in her evidence. She did so in her second VATE, at question and answer 29, when she said:

And he pushed me off the chair one day and he felt my boobs and pretty much did what he did to me on the lounge chair [the lounge chair being where the incident giving rise to count 6 was said to have taken place].

21 Later in the second VATE, at question and answer 135, she again drew the nexus between the two allegations. She said:

He virtually just pushed me off sideways and then - 'cos there was - there was more room between the table and the wall. And he pu-, then he pushed me down there and he did exactly what he did on the chair - lounge chair.

22 In such circumstances, the jury, having rejected K's account as to count 7, would normally be expected also to have rejected her account as to count 6. It is not as though a reading of the transcript reveals any conceivable explanation for K having been regarded as truthful and accurate in relation to count 6, but having been rejected in relation to count 7. The level of detail given by K as to each count was about the same, and the applicant's case was that nothing of the kind that she described had taken place at all. In that sense, the two verdicts, guilty on count 6 and not guilty on count 7, are simply inexplicable, save as to some form of compromise on the part of the jury.

23 In the circumstances, in my opinion, the first limb of ground 3 must succeed. The conviction on count 6 must be quashed, and in lieu thereof, there should be entered judgment and verdict of acquittal on that count.

24 Although ground 3 also alleges that the verdicts were unsafe and unsatisfactory, no separate argument was addressed in support of that contention. Instead, that second limb of ground 3 was treated as nothing more than an alternative formulation of the inconsistency point. Accordingly, nothing more need be said about it.

25 As to the appropriate orders, it was agreed by both sides that, in the event

that the Court quashed the conviction on count 6, the applicant should be re-sentenced by reducing the total effective sentence and the non-parole period by six months each. That accords with my view.

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

3. The conviction sustained by the applicant in the court below on count 6 is quashed, the sentence passed thereon set aside, and in lieu thereof judgment and verdict of acquittal are to be entered.

4. For the avoidance of doubt, the remaining convictions and individual sentences stand.

5. The applicant is sentenced to be imprisoned for a term of 12 months on count 1 and for a term of three years on count 3. Six months of the sentence on count 1 are to be cumulated upon the sentence on count 3. The total effective sentence is three years and six months' imprisonment. A non-parole period of two years and two months is fixed.

It is declared that a period of 818 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details are to be entered in the records of the Court.

[1] R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493; R v Cavkic and Ors [2005] VSCA 182; (2005) 12 VR 136; and R v Cavkic and Ors (No 2) [2009] VSCA 43.

[2] R v Mackenzie (1996) 190 CLR 348, 366; R v Jones (1997) 191 CLR 439 and R v MFA [2002] HCA 53; (2002) 213 CLR 606. See also R v JA [2008] VSCA 169.

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