The established principles governing an appeal on the ground of inconsistent verdicts are set out in Mackenzie v The Queen,[2] in which the High Court reviewed the relevant authorities.
Where alleged factual inconsistency arises in relation to different jury verdicts on multiple counts, the test is one of logic and reasonableness.[3] Appellate intervention is justified only if the verdicts cannot stand together, in the sense that 'no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion.'[4]
Due to the respect accorded to the jury's traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, 'it is not the role of the appellate court ... to substitute its opinion of the facts for one which was open to the jury.'[5] If the outcome is explicable as a merciful verdict, intervention will not be justified.
It is otherwise if the difference in the verdicts is 'an affront to logic and common sense which is unacceptable and strongly suggests a compromise' or confusion in the mind of the jury. In that context, '[i]t is impossible to state hard and fast rules. "It all depends upon the facts of the case".'[6] Nevertheless, a conviction should not be set aside unless the inconsistency is sufficiently great to necessitate intervention to prevent a possible injustice.
MFA v The Queen[7] ('MFA') represents an instructive illustration of the application of the relevant principles. The High Court there rejected the appellant's contention that the guilty verdicts on two out of a total of nine counts of alleged sexual offences against a juvenile complainant were inconsistent, given the not guilty verdicts on the remaining seven counts.
In MFA there was, however, another witness to the conduct represented by the two counts which produced guilty verdicts. The witness' evidence, despite some discrepancies, essentially supported that of the complainant. Further, in contrast to most of the other counts, the counts on which the appellant was found guilty were not subject to a Jones v Dunkel[8] direction. The fact that all the non-guilty counts were unsupported by any relevant confirmatory evidence was thus a logical basis for sustaining the differentiation made by the jury.
In MFA, the High Court rejected the proposition (said to be supported by Jones v R)[9] that where multiple offences involving the one complainant were alleged, a guilty verdict on some of them necessarily indicated that the complainant was untruthful and if the jury disbelieved the complainant in respect of some incidents, the reasonableness of the guilty verdicts should be assessed on the basis that the complainant was a person of damaged credibility.[10]
McHugh, Gummow and Kirby JJ stated:
we would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.[11]
In the present case, it was common ground that the only real issue at trial in relation to both counts 1 and 2 was whether or not the alleged conduct occurred. It was also common ground that nothing in the complainant's additional evidence in chief or cross-examination (which the jury had the advantage of seeing and hearing) added to or varied her VATE tape evidence on counts 1 and 2 so as to serve as a basis for discrimination between them.
Similarly, the applicant's generalised evidence and absolute denial in his record of interview of the allegations in all counts provided no basis of distinction between any of the counts.
In contrast to a case such as MFA,[12] in which there was a witness to the conduct comprising some counts, but not others, and a Jones v Dunkel direction in relation to some counts, but not others, in the present case, there was no unique feature or concrete, distinctive characteristic of either counts 1 or 2 capable of constituting an objectively demonstrable ground of differentiation.[13]