R v D F A [2001] VSCA 197

Court of Appeal (Vic)|2001-11-02|Before: CHARLES, BUCHANAN and CHERNOV, JJ.A.

Criminal Law - Sexual offences - Incest and indecent assault - Insufficient evidence to support verdict of guilty - Whether "would have" is sufficient to describe alleged act - Inconsistent verdicts - Whether "all or nothing" case - Whether incest and indecent assault constitute one brief event, episode or transaction so that acquittal on one must lead to acquittal on the other - Unsafe and unsatisfactory verdict.

I agree with Chernov, J.A. that the application for leave to appeal against the convictions on counts 1 and 5 should succeed, and as to the convictions on counts 3 and 4 should fail.

I also agree that the Crown did not lead evidence to support its case on counts 1 and 5, for the reasons given by Chernov, J.A. I would accept the submission that, as to each of these counts, the complainant only described in evidence the act of sexual intercourse and gave no evidence that the applicant had touched the complainant's vagina preceding the act of intercourse. In R. v. Whelan[1] Winneke, C.J., Barber and McInerney, JJ. said -

"In our view, the acts alleged to constitute the indecent assault were so close in point of time and so related to and bound up with the acts of penetration as to make it quite unreal and artificial to regard them as comprising a separate event, transaction or episode, and we think that no jury acting reasonably could regard them as such. As the evidence, in our opinion, disclosed only one event, transaction or episode, and as the jury by their verdict of not guilty of rape negated the absence of consent by the prosecutrix in that event, transaction or episode, or the absence of belief by the appellant of non-consent on her part, it follows, in our view, that its verdict of indecent assault, an offence which, as we have said, also involved absence of consent or belief thereof on the part of the appellant as an essential ingredient, was inconsistent with its verdict of not guilty of rape."

For like reasons I would also have held that a conviction on counts 1 and 5 was inconsistent with the acquittals on counts 2 and 6.

The position is different with respect to counts 3 and 4. Mr Holdenson argued that the prosecution evidence on these counts was inadequate and lacked probative force, but I would reject this submission for the reasons given by Chernov, J.A. These events were quite distinct from the incidents giving rise to the other counts, and the jury had on several occasions been directed that they should give separate consideration to each individual count.

The other principal arguments mounted against the convictions on counts 3 and 4 were that this was an "all or nothing" case, that the convictions are inconsistent with the acquittals on the four major counts, and that the verdicts are unsafe and unsatisfactory.

I, too, attach great weight to the judge's observation that, in his view, this was an "all or nothing" trial. In a very helpful report to the Court, his Honour said -

"I can only say that I was surprised at the guilty verdicts once the jury had reached verdicts of not guilty on the more serious matters. The conduct and atmosphere of the trial appeared to be such that if the Crown failed to establish the guilt of the accused of more serious matters, it was not immediately apparent as to why the jury would accept the complainant's evidence with regard to the other counts."

Notwithstanding the force of these observations, it seems to me that the question whether or not to accept the evidence of the complainant as establishing beyond reasonable doubt the guilt of the applicant on counts 3 and 4 was very much a matter for the jury. The jury must, I think, be treated as having followed the directions given by the judge (and incidentally stressed by counsel) to give separate consideration to the individual counts. I have considered also the possibility that the jury's verdict should be regarded as questionable having regard both to the acquittals on counts 2, 6, 7 and 8 and also to what must now be accepted as erroneous verdicts on counts 1 and 5, on the basis that the verdict may have been a compromise or otherwise unsatisfactory. But I have already said that there was in my view sufficient evidence to support the verdict. The passage from the judgment of Gaudron, Gummow and Kirby, JJ. in Mackenzie v. R.[2] quoted by Chernov, J.A. at [45] demonstrates the reluctance of the courts to accept a submission that verdicts are relevantly inconsistent. A jury's verdict should, rather, be accepted if there is a proper way in which the verdict may be reconciled.

I also therefore would reject the application for leave to appeal in respect of the convictions on counts 3 and 4.

I agree that, for the reasons given by Chernov, J.A., the application for leave to appeal should be disposed of as proposed by his Honour.

On 29 March 2000 the applicant, who is now aged 63, pleaded not guilty in the County Court at Melbourne to a presentment alleging three counts of indecent assault, two counts of incest, one count of an act of gross indecency and two counts of procuring an act of gross indecency between early 1968 and late 1969 in relation to one of his daughters who was born on 18 July 1956. He pleaded not guilty to the charges and after a trial lasting some eleven days, he was convicted of three counts of indecent assault (counts 1, 3 and 5) and one count of committing an act of gross indecency (count 4). The jury returned a verdict of not guilty on the other counts. On 18 April 2000, after hearing a plea for leniency made on his behalf, the learned sentencing judge sentenced the applicant as follows:

* On counts 1 and 3 - 3 months' imprisonment on each count to be served concurrently.

* On count 4 - 3 months' imprisonment to be served cumulatively upon the sentences imposed on counts 1 and 3.

* On count 5 - 3 months' imprisonment. His Honour directed pursuant to s.6E of the Sentencing Act 1991 that this sentence be served concurrently with the sentence imposed on count 4.

Thus, a total effective sentence of 6 months' imprisonment was imposed on the applicant. His Honour ordered pursuant to s.27 of the Sentencing Act that all the sentences be suspended for a period of 9 months. His Honour also directed pursuant to s.6F of the Sentencing Act that the records of the court show that the applicant was sentenced on counts 4 and 5 as a serious sexual offender.

10 By notice dated 1 May 2000, the applicant seeks leave to appeal against conviction on grounds to which I will refer shortly. Before doing so, I shall set out briefly the circumstances of the offending by the applicant as alleged by the Crown. The key witness for the prosecution was the applicant's complainant daughter. It was common ground that, in 1964 when she was aged eight, she, her parents and her elder brother emigrated from England to Australia. After living in a number of places in Sydney, the family moved to apartments named Kilbourne Towers in Manly in late 1965. The apartment had two bedrooms. The complainant and her brother shared one of the bedrooms. She said in her evidence that, because she was the younger of the two children, she usually went to bed before her brother.

The evidence given by the complainant of the applicant's alleged sexual behaviour towards her related to the counts in question as well as to uncharged acts. The latter evidence was led, as his Honour told the jury in his charge, for the purpose of establishing a sexual relationship between the applicant and the complainant. His Honour also told the jury the limited extent to which they could use that evidence in their consideration. The complainant gave evidence that, when they were living in Kilbourne Towers and when she was aged approximately nine years, the applicant came into her bedroom and squatted down beside her, telling her erotic stories and playing with her vagina until she had an orgasm. The applicant then exposed his penis and masturbated himself until he ejaculated into a white handkerchief. This activity, said the complainant, occurred on a very regular basis. During this period, the applicant also showed the complainant pornographic slides in his bedroom. Later in 1966, he taught the complainant how to kiss. He instructed her how to put her arms around him, put her lips on his and put her tongue in his mouth. She said that happened on a few occasions. According to the complainant, the applicant also told her that in some cultures it was the father's right to break the daughter's virginity. According to the complainant, one night in January 1967, while her mother was in hospital giving birth to her sister, the applicant took her into his bedroom. They were both naked. He caressed her all over her body including in between her legs and thighs. He then penetrated her vagina with his penis until he ejaculated. The complainant said that she enjoyed the experience. None of the alleged conduct of the applicant at Kilbourne Towers is the subject of the counts in question and, as I have said, his Honour gave the jury a direction in respect of these and other uncharged acts, including a propensity warning, and no criticism of this warning has been (or could properly have been) made by counsel for the applicant at trial or before us.

Towards the end of 1967 the family moved to Melbourne. They initially rented premises in Wells Road Beaumaris. The complainant and her brother had their own bedrooms in that house. She gave evidence that in early 1968, when her mother was away on a holiday, she asked her father to come to the bathroom with her because she was nervous about brushing her teeth by herself in the downstairs bathroom. The applicant went with her and then took her to his bedroom. The complainant recalled that they both went to bed naked and the applicant then got "on top" of her and penetrated her vagina with his penis. In giving her evidence-in-chief, the complainant was asked by the prosecutor whereabouts on the body did the applicant touch her, to which the complainant said: "mostly around my thighs, legs, inner legs, vagina". This alleged conduct constituted the basis of count 1 (indecent assault) and the alleged sexual intercourse was the basis of count 2 (incest).

The complainant said that a few months later she and her family moved into their own house in Cromer Road Beaumaris. Not long thereafter, she said, the applicant again started to come into her bedroom. He squatted or knelt down beside her touching and stroking her thighs and vagina while telling her erotic stories. He then exposed his penis and masturbated himself until he ejaculated into a white handkerchief. (It was said by the complainant that this type of activity occurred once or twice a week). The alleged act of touching the complainant on her vagina formed the basis of count 3 (indecent assault) and the alleged masturbation was the basis of count 4 (gross indecency).

According to the complainant, on an evening in or about July or August 1969, when her mother was at night school, the applicant came into her bedroom and showed her some pornographic slides in a slide viewer. As the complainant was viewing them, the applicant manoeuvred her on to the bed and removed her underpants. He then penetrated the complainant's vagina with his penis and ejaculated. This constituted the basis of count 6 (incest). At this point in giving her evidence, the complainant was asked by the prosecutor whereabouts on the body did the applicant touch her to which she said: "Yes, again on my lower thighs, legs, vagina. That is what I recall." This alleged conduct was the basis of count 5.

The complainant said that, in or about October to November 1969, the applicant told her a story about a woman who encouraged her poodle to lick her vagina by placing vegemite on it and he then asked her if she would like to try it. She agreed to this because the applicant was "not a man you would say no to". The applicant then closed the blinds in the loungeroom and put vegemite on top of her vagina. She said that he then held a terrier dog in front of her and encouraged it to lick her vagina. This occurred during daytime and the alleged act formed the basis of count 7 (procuring an act of gross indecency).

The complainant also said in her evidence that, during daytime on one day in late 1969, when she was still living at the Cromer Road house, the applicant took her to the laundry and instructed her to lay down on the floor with her legs up and put a cushion under her head. The complainant said she could not remember where her underwear was. The applicant then put the dog in front of the complainant and encouraged it to lick her vagina. He stimulated the dog's penis and then put its paws on the complainant's lower stomach and assisted it to insert its penis into the complainant. Shortly after that, the dog leapt off the complainant. This alleged conduct by the applicant formed the basis of count 8 (procuring an act of gross indecency).

The complainant further said that the applicant had conversations with her of a sexual nature while they lived in Cromer Road. At one time he told her that he wished that once she got married and had left home he would be able to continue this type of sexual relationship with her. On another occasion, he told her how to use a shower attachment to stimulate herself sexually.

In 1970 the complainant and her family moved to Tasmania. The complainant said in her evidence that one day in the kitchen of their house, the applicant showed her a magazine which contained advertisements for vibrators. He asked the complainant if she would like any one in particular and after she told him that she would, he ordered one for her. In re-examination, the complainant said that she had sexual intercourse with the applicant when they were living in Tasmania but could not recall details such as dates and times or specifically what had occurred during such acts.

The complainant said that in late 1970, her parents separated and she, along with her brother, thereafter lived with the applicant and his new girlfriend and her children. Her mother, with her younger sister, lived elsewhere in Hobart. When she was approximately 15½ years of age the complainant and the rest of the household moved to Adelaide where she continued to reside with the applicant until she left home at the age of 16 years.

The complainant said that when she went to the applicant's home at Christmas when she was 18 years of age she had a conversation with him during which he told her that the reason he had a sexual relationship with her was that he had not been getting on very well with her mother at the time and that he had not been having a sexual relationship with the mother.

In 1981 the complainant married C.H. but they separated in 1987. The complainant said that at Christmas 1986 she and her husband visited the applicant shortly prior to their permanent departure for Queensland. The Crown also adduced evidence from H. who said that he had a conversation with the applicant in 1987 just prior to the complainant's and his departure for Queensland. He claimed that during the conversation the applicant, in the presence of a woman called Gayle (who is now deceased) told him that he had a sexual relationship with the complainant and wanted to know how she felt about it. According to H., the applicant said that his reason for making this enquiry was that he wanted to be open and honest with Gayle whom he proposed to marry. During cross-examination, however, H. admitted that the applicant asked only about how the complainant felt about his relationship with her and that he did not use the word "sex" or any variation of it to refer to that relationship. Moreover, H. accepted that the applicant had married Gayle long before the alleged conversation in 1987.

The Crown also called evidence from K.P., the applicant's de facto wife. She said in her evidence-in-chief that in 1985, when their relationship was ending, the applicant said to her in response to her query why he had such a strange and strained relationship with the complainant, that whilst they were living in Tasmania he was under stress and sexual frustration and that one night the complainant seduced him and they had sexual intercourse. The applicant denied that he said any such thing to her and during cross-examination P. admitted that the alleged conversation took place during the time when they were breaking up and were in a serious dispute over property settlement. She also admitted that she did not believe what she claimed the applicant told her.

The grounds on which the applicant seeks leave to appeal are the following:

1. The evidence in relation to counts 1 and 5 is incapable of supporting a conviction.

2. The verdicts on counts 3 and 4 are unsafe and unsatisfactory (for the reasons set out in the notice).

3. In the alternative to ground 1, the verdict in relation to counts 1 and 5 was unsafe and unsatisfactory for all but one of the reasons set out in relation to ground 2.

No or no sufficient evidence on counts 1 and 5

Mr. Holdenson, who appeared before us for the applicant, argued the three grounds together. He first submitted that the conviction on counts 1 and 5 could not be supported having regard to the lack of evidence in respect of those counts. More particularly, he argued that, contrary to the case which it sought to make before the jury in relation to those counts, the Crown led no evidence of any relevant sexual act by the applicant that preceded the alleged act of sexual intercourse. To the extent that such evidence was led, said Mr. Holdenson, it was inadequate and was lacking in probative force.

Mr. Holdenson first dealt with count 1. He submitted that it was evident from the Crown's opening, its explanation of its case to his Honour shortly prior to final addresses and its final address to the jury, that its case in relation to counts 1 and 2 was that the acts that constituted those offences were the applicant's rubbing or sexually touching the complainant's vagina (count 1) and then having sexual intercourse with her (count 2). Thus, counts 1 and 2 related to separate alleged acts which were said to have occurred in the sequence just described. Mr. Holdenson then submitted that the Crown evidence, in the form of the complainant's evidence, did not establish that case.

In light of this submission and notwithstanding that I have paraphrased some of the complainant's evidence relating to these counts when I dealt with the circumstances of the alleged offending earlier in my reasons, it is appropriate to set out here her evidence-in-chief on this issue. In response to being asked to say what occurred between herself and the applicant on the occasion in question, the complainant said that after the applicant had supervised, at her request, her cleaning of her teeth in the downstairs bathroom, he led her by her hand to his bedroom. She then said this:

"The memories I have of this of us [sic] being naked and being naked in bed together and I can remember him speaking again very gently and softly to me. My next memory is he being on top of me, I cannot recall if he gave me any instructions this time, and of him pushing against me and I can't recall if he had an orgasm and - I can't recall if I did. That's about it. The memory. Then afterwards ... [the applicant] took me back to my bedroom. Just in terms of the actual physical things that happened, whereabouts on your body did he touch you? --- Mostly around my thighs, legs, inner legs, vagina. What did he actually do with his penis? --- Put it inside me. He was on top of me. When you say inside you ---? --- Inside my vagina."

Mr. Holdenson submitted that it was plain that in this part of her evidence the complainant only describes the act of sexual intercourse which was the subject of count 2; the complainant did not say that the applicant improperly touched her on the vagina prior to his "being on top of [her]". The "touching" about which the complainant spoke in her evidence, said Mr. Holdenson, was not a touching that preceded sexual intercourse but was the touching that occurred during intercourse when the applicant's body was on top of hers. There is no suggestion in that evidence, said counsel, that there was a touching by the applicant of the complainant's vagina prior to intercourse which was the Crown's case to the jury. Mr. Holdenson claimed that the remaining evidence of the complainant also did not advance the Crown's case in this regard. Moreover, it was said, even if one were to accept the evidence of the complainant, H. and P. as to what the applicant said to them about his relationship with the complainant, that also did not take the matter any further. None of those discussions was concerned with the applicant's alleged act with the complainant at Wells Road prior to their sexual intercourse.

Mr. Holdenson further argued that, for like reasons, it was apparent that the Crown failed to lead evidence that the applicant unlawfully touched the complainant's vagina prior to the act of sexual intercourse (or at all) in the context of counts 5 and 6. In his full, yet succinct, submission, Mr. Holdenson referred us to the relevant evidence pertaining to counts 5 and 6. His argument relating to the basis on which he claimed that count 5 could not stand was the same as that which he put forward in relation to count 1. There is no need to repeat any of the evidence or the submissions here. It is sufficient to say that my examination of the transcript shows that there was no direct evidence from the complainant that the applicant committed a relevant act referable to count 1 or count 5 prior to the alleged act of intercourse and Mr. Elston for the Crown was not able to point to any such evidence.

Mr. Elston submitted, however, that the case proceeded on the basis that the trial judge and counsel assumed that there was evidence before the jury that left it open for them to convict on counts 1 and 5. Moreover, he argued, the "background" evidence showed that the applicant had a modus operandi which involved his sexually touching the complainant's vagina before having intercourse with her. Mr. Elston also pointed to the fact that the applicant's counsel at trial did not submit that there was no evidence led by the Crown in respect of counts 1 and 5 and thus, that the applicant had no case to answer in relation to those charges.

As to the last point, I agree with Mr. Holdenson that failure by the applicant's counsel to have made such a submission at trial is no bar to his raising the matter on appeal. The question for the appellate court must surely remain whether there was adequate evidence to support a conviction, no matter what forensic reasons may have caused counsel not to take the point at the trial. A failure to make such a submission at a trial cannot on any basis be regarded as providing support for a conviction that is otherwise inadequately established.

The claim made on behalf of the Crown that the "background" evidence that establishes the applicant's modus operandi can be properly taken into account in determining if there was evidence of relevant conduct on the part of the applicant for the purposes of counts 1 and 5, cannot be accepted. It seems plain enough that such evidence cannot be relied upon in substitution for evidence which relates to the offence charged. As Callaway, J.A. said in R. v. Grech[3], the commission of the offence charged can be proved only by evidence relating to it and not by evidence relating to extraneous conduct.

In my view, Mr. Holdenson's primary submission that the Crown failed to lead evidence to support its case on counts 1 and 5 should be accepted. It is therefore not necessary to deal with counsel's alternative argument that such evidence as the Crown did lead in relation to those counts was inadequate and lacked probative force. It follows that, in my opinion, the convictions on those counts cannot stand and must be quashed.

Inadequacy of evidence relating to counts 3 and 4

Mr. Holdenson next argued that the evidence led by the Crown in support of counts 3 and 4 was both inadequate and lacked probative force and, therefore, the convictions on those counts should be quashed.

Having regard to S v. R.[4] and Director of Public Prosecutions v. His Honour Judge G.D. Lewis[5], the Crown particularised the conduct alleged in counts 3 and 4 as being that which first occurred after the complainant and her family had moved into the house at Cromer Road. The Crown's case was that the offences occurred during the first two months of that period. Mr. Holdenson submitted that the complainant failed to give evidence that the applicant committed the allegedly offending acts during this period, or alternatively, her description of the applicant's alleged conduct was not sufficiently specific to amount to such evidence. More particularly, Mr. Holdenson claimed that the complainant only said what the applicant would have done to her during this period. She did not, counsel said, state in terms what he actually did to her.

In view of this submission, it is necessary to refer to the evidence that the complainant gave in relation to counts 3 and 4. In answer to the prosecutor's request that she describe the first time in Cromer Road that the applicant committed a sexual act in relation to her, the complainant relevantly said:

"He didn't vary much in any of the things he did to me. It would have been the same as he had done before. He would come into the room, he would have knelt or squatted down beside me. He would have started touching me between my legs and thighs and coming up to my vagina and stroking that. I would be very aroused very quickly. He would tell me erotic stories and I would have an orgasm. Again he would stand up, take his penis out and masturbate into this white handkerchief. How long had you been living in Cromer Road before that started happening? --- I wouldn't be able to tell you exactly, but I would say it was in the first two months of being there. How often would this happen in Cromer Road? --- This didn't seem to happen as much as it did in Sydney. I would say once, twice a week." [Emphasis added.]

The applicant's counsel argued that, because the complainant used the word "would" in purporting to describe the applicant's first sexual acts with her at Cromer Road, her evidence on this issue was vague, ambiguous and imprecise and thus, it was said, did not amount to evidence of the first occasion at Cromer Road when the applicant committed the alleged offending acts. In support of this contention, Mr. Holdenson relied on Pitkin v. R.[6] in which the High Court said[7] that for an identification witness to say of a photograph of the accused that "this looks like the person" did not, as a matter of literal meaning, amount to a positive identification. Their Honours said that whatever may have been the intention of the witness, the words used by her were consistent with an absence of positive identification. The court said that a person is not to be convicted of a serious crime on the sole basis of verbal ambiguity. Mr. Holdenson argued that, as a matter of literal meaning, the description by the complainant of the alleged acts of the applicant was not sufficient to amount to positive evidence of such acts.

In my view, however, Pitkin is of no assistance in this case because what has to be determined here is whether what the complainant said above amounted to no more than a surmise on her part as to what the applicant did to her or whether, taken in context, the complainant was really giving her recollection of what the applicant in fact did to her on the occasion in question. In my view, it is clear enough that this evidence, taken in the context of her description of the applicant's modus operandi, was capable of being properly characterised as describing the applicant's relevant sexual acts towards her on this occasion during the first two months of her stay at Cromer Road. This is not a case were the ultimate fact in issue was sought to be established by circumstantial evidence. The complainant's evidence was direct evidence of the alleged acts. She was responding to the request of the prosecutor to describe the first time that the applicant performed the alleged offending acts on her at Cromer Road and although, on a strict view, it was inappropriate for her to use "would" to describe what had occurred, she used the word in the colloquial sense to say what the applicant did to her.

In the circumstances, therefore, it was open for the jury to treat that evidence as establishing what had relevantly occurred on the first occasion when the applicant engaged in sexual conduct towards the complainant at Cromer Road. It follows that the claim that counts 3 and 4 must fail on the count of insufficiency in the Crown evidence, cannot be accepted.

Mr. Holdenson next submitted that counts 1, 3, 4 and 5 cannot stand because the verdicts in relation to them were inconsistent with the verdicts on counts 2 and 6, 7 and 8 and thus, were inconsistent verdicts. The basis for this contention was that, the case was an "all or nothing" case, particularly in respect of counts 1 to 6. It was argued for the applicant that, given that it was essentially a case of oath against oath, the question was whether the complainant was telling the truth in respect of all counts or she was not. Thus, Mr. Holdenson said, the jury's verdicts of not guilty on counts 2 and 6 should be taken to mean that they rejected her evidence on those counts and, in the circumstances, they should have similarly rejected her evidence on counts 1, 3, 4 and 5. Moreover, said Mr. Holdenson, the most detailed and precise evidence given by the complainant at the trial was that which related to counts 7 and 8. In acquitting the applicant on those counts, the jury must have rejected her evidence in relation to them and this, claimed Mr. Holdenson, should have flowed through to the verdicts on counts 1, 3, 4 and 5. He said that, in the circumstances, the jury's verdicts of guilty were illogical and/or unreasonable and thus, were compromise or inconsistent verdicts. He relied in support of that contention on what was said in Mackenzie v. R.[8] and Jones v. R.[9] to which I will refer later.

It should be mentioned that this argument assumes that there was sufficient evidence for the jury to convict on counts 1 and 5. Given my conclusion that these counts cannot stand because of insufficiency of evidence in relation to them, the principal purpose of dealing with Mr. Holdenson's present argument is to determine if the verdicts on counts 3 and 4 are inconsistent or compromise verdicts and, therefore, cannot stand. Obviously, if the argument is successful, not only must counts 3 and 4 be quashed, but there would be an additional reason for setting aside counts 1 and 5.

That this was an "all or nothing" case, said Mr. Holdenson, was accepted by his Honour as can be seen from his charge and more specifically from his ruling of 18 April 2000 and his report to this Court. In the course of his ruling on the application that the applicant not be sentenced before the Court of Appeal determined his application for leave to appeal, his Honour expressed puzzlement at how the jury could have acquitted on counts 2 and 6 yet found the applicant guilty on counts 1 and 5. His Honour also noted that the trial was conducted in the atmosphere of, and upon the basis that, if the jury accepted the complainant's evidence, then it might be expected to do so at least in relation to the matters covered in the first six counts. Furthermore, in his report to this Court, his Honour essentially repeated what he had said on this issue in his ruling. In support of this aspect of his case, counsel also relied on the Crown's concession that it was an "all or nothing" case, made in the course of discussions between the prosecutor and his Honour shortly before the start of final addresses. Moreover, it was said, that this was such a case was also evident from the fact that, essentially, the case was one of oath against oath. It was common ground before us that the evidence of H. and P., which was led by the Crown for the purpose of corroborating that of the complainant, was unlikely to have influenced the jury as to whether to accept her evidence.

But whatever his Honour or the prosecutor may have considered to be the position on this issue, the jury were told by the judge in unequivocal terms that they were required to consider each count separately and there is no basis for supposing (and it has not been suggested) that the jury did not follow his Honour's directions. The applicant's counsel at the trial would have been the first to complain if the jury had not been given a separate consideration direction. In those circumstances, it must be assumed that the jury considered each count separately and thus, the evidence that related to it.

It should also be noted that it was common ground that his Honour's charge was legally impeccable and very fair to the applicant and, importantly for present purposes, it included a strong warning to the jury of the danger of acting on the complainant's uncorroborated evidence unless they had scrutinised it with great care and satisfied themselves of its truth and accuracy. As I have said, it was common ground between the parties that the evidence of H. and P. was unlikely to have been regarded by the jury as amounting to corroborating evidence and his Honour effectively said as much to the jury in his charge.

I am conscious that the trial judge in this case is long experienced in the conduct of criminal trials and I attach great weight to his Honour's observation that it was an "all or nothing" trial. Nevertheless, as Charles, J.A. said in R. v. RJB[10], a judge's report should be viewed in light of the observation of Winneke, P., Brooking, J.A. and Southwell, A.J.A. in R v. Marziale[11] as to the weight to be accorded to a judge's report. Their Honours' said[12]:

"The weight to be given to a judge's report must necessarily vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of a witness - for example, the general demeanour, the unduly delayed or the too hurriedly given answers. In such matters a court of appeal will recognise the advantage enjoyed by the trial judge. However, less weight will be given where, as in this case, the judge's opinion is based, so it appears, almost wholly upon the type of assessment of the evidence which a court of appeal is obliged to undertake where it is said that a conviction is unsafe and unsatisfactory."

His Honour was, of course, in the best position to judge the atmosphere of the trial and how the case was presented to the jury. Nevertheless, his observations in those matters must be viewed in the context of the separate consideration direction which he gave to the jury.

It is for the applicant to satisfy the Court that the verdicts are inconsistent and cannot stand. The test for determining if the verdicts are so flawed is one of logic and reasonableness. If no reasonable jury applying their mind properly to the facts of the case could have arrived at the conclusion, ordinarily the verdicts cannot stand. Such affront to logic and commonsense would strongly suggest inconsistent verdicts -Mackenzie[13]. But in considering whether the verdicts of the jury should be set aside on the basis now under consideration, it is important to keep in mind that courts have consistently said that, ordinarily, the resolution of factual issues was solely within the province of the jury and the courts should be slow to deny the efficacy of their decisions. Thus, for example, Gaudron, Gummow and Kirby, JJ. said[14] in Mackenzie:

"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 in which the appellate court may reconcile a verdict, 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 appellant court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."

Similarly, in this context, it is also necessary to have regard to the well known and often cited passage in the judgment of King, C.J. in R. v. Kirkman[15]:

"[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."

In considering whether, in this case, there is a rational and reasonable explanation for the jury's different verdicts, it should be borne in mind that, by themselves, verdicts of acquittal do not mean that the jury has rejected all of the complainant's evidence on the counts in question. In our system of jurisprudence, all that such verdicts can mean is that the jury were not satisfied to the requisite standard of proof that (in this case) counts 2 and 6 were made out. Moreover, each of counts 1 and 2 (and counts 5 and 6) was concerned with a discrete event, namely, touching the vagina (count 1) and sexual intercourse (count 2). So that logically, a verdict of not guilty on one does not mean that the jury was compelled to return the same verdict on the other count.

Be that as it may, there was evidence in this case on which the jury could have convicted the applicant on counts 1, 3, 4 and 5 and there is a rational and reasonable explanation for the jury's verdicts on counts 2 and 6. First, assuming, as I have said, that there was sufficient evidence on counts 1 and 5 for the jury to convict, it was clearly open for them to have been satisfied beyond reasonable doubt that the applicant intentionally and indecently touched the complainant's vagina on the relevant occasions. Similarly, for the reasons I have given, it was open for the jury to convict the applicant on counts 3 and 4. Likewise, it was open for the jury to conclude on a number of bases that they were not satisfied beyond reasonable doubt that the acts of sexual intercourse alleged in counts 2 and 6 took place. For instance, they may not have been satisfied that the first alleged uncharged act of sexual intercourse took place at Kilbourne Towers as claimed by the complainant. They may have disbelieved her claim that during that act of sexual intercourse, the applicant had kept his penis in her vagina for over 15 minutes**.** They may also have found it difficult to accept her claim that, notwithstanding that neither she nor the applicant had previously put a finger into her vagina she suffered no pain or bleeding as a result of her first intercourse. Moreover, there was no evidence that there was any cleaning up by her or the applicant of any of the semen which she claimed the applicant had ejaculated into her vagina. The jury may well have doubted this evidence and, although they were required to consider each count separately, their consideration of the complainant's evidence relating to counts 2 and 6 may well have been more guarded given their possible view on the earlier alleged act of sexual intercourse. Furthermore, there was a considerable amount of cross-examination of the complainant in relation to her evidence on counts 2 and 6 and a number of inconsistencies were put to her. In particular, as Mr. Elston pointed out, there was a basis for the jury concluding that what the complainant said on count 2 was not consistent with her evidence at the committal. In the circumstances, the jury may simply have concluded that they were not satisfied that the charges in question were made out to the requisite standard.

Consequently, the verdicts of acquittal on counts 2 and 6 were logically and reasonably explicable and it was open for the jury to convict the applicant on counts 1, 3, 4 and 5. Similarly, the verdicts of not guilty on counts 7 and 8 are explicable. They demonstrate no more than that the jury were not satisfied that the charges have been made out by the evidence to the requisite standard. There was substantial cross-examination concerning these alleged events and the jury were obviously not satisfied that they had been made out.

My conclusion that the jury's verdicts are not inconsistent is not altered by the fact that they must have erred in respect of their verdicts on counts 1 and 5 given my conclusion that there was not sufficient evidence to convict the applicant on those counts. It has not been suggested by Mr. Holdenson, that, by reason of this error, the verdicts on counts 1, 3, 4 and 5 were perverse or otherwise bad. In any event, such error in relation to counts 1 and 5 was of a different character to that alleged by Mr. Holdenson. For present purposes, his case was that the jury relevantly erred because they did not reject the complainant's evidence (and credit) in relation to counts 1, 3, 4 and 5 whereas they should have done so given that it was an "all or nothing" case and that they had rejected her evidence (and credit) on counts 2, 6, 7 and 8. Their possible error in respect of counts 1 and 5 to which I have referred, however, was unrelated to any finding based on credibility; there was simply no evidence on which they could have convicted the applicant in respect of those charges. It should be mentioned for completeness that the lack of such evidence was not drawn to their attention by the judge in his charge or by counsel in their final addresses.

Further, because the verdicts in question were challenged on the basis that they were unsafe and unsatisfactory, I have carefully considered the whole of the evidence and, in my view, subject to what I have said in relation to the verdicts on counts 1 and 5, the nature and the quality of that evidence is such that it was open to the jury to be satisfied beyond a reasonable doubt as to the guilt of the applicant on the remaining counts - see R. v. NRC[16].

Thus, the applicant's argument that counts 1, 3, 4 and 5 cannot stand because this was an "all or nothing" case, cannot be accepted.

Mr. Holdenson also argued further to his claim that there was no evidence to support the verdicts on counts 1 and 5, or alternatively, that the verdicts on those counts are inconsistent with the verdicts on counts 2 and 6 respectively. Given my conclusion that the verdicts on counts 1 and 5 cannot stand because of insufficiency of relevant evidence, it is not necessary to consider the further and alternative basis of the applicant's attack on these verdicts.

Consequently, for the reasons given, I would uphold the application for leave to appeal in relation to counts 1 and 5 but dismiss it in relation to counts 3 and 4.

[3] [1997] 2 V.R. 609 (with whom the Chief Justice and Smith, A.J.A. agreed.)

[6] [1995] HCA 30; (1995) 130 A.L.R. 35 (Deane, Toohey and McHugh, JJ.).

[15] (1987) 44 S.A.S.R. 591. - cited with approval by Gaudron, Gummow and Kirby, JJ. in Mackenzie at 367-368_._

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Parties