R v HANSEN No. SCCRM-02-7 [2002] SASC 208

Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I would allow the appeal and set aside the verdicts on Counts 6, 7 and 8. I would order that a verdict of acquittal be entered in respect of those counts. I agree with the reasons given by Lander J for making those orders. There is nothing that I wish to add to those reasons.

I agree generally with the observations made by Perry J and by Lander J in relation to counsel for the defence being permitted to address the jury on the issues in the case, after the prosecution opening, as occurred in this case.

PERRY J. I have had the benefit of reading in draft the reasons for judgment of Lander J. I agree with all of the conclusions which he reaches and with the reasons which he gives for those conclusions, except on the issue of inconsistent verdicts.

Before dealing with that aspect of the matter, I add some further comments as to the question of an opening by defence counsel.

Having regard to the terms of s 288A(2) of the Criminal Law Consolidation Act 1935, it would only be proper for the defendant, or counsel for the defendant, to open if he or she proposes to call evidence at the trial. Furthermore, I agree that in such a case the opening should be confined to a summary or outline of the evidence which is to be called or to use the words of the section, to outline the case for the defence. It should not be used as an occasion upon which counsel may, in advance of final addresses, make general submissions or present argument.

Furthermore, s 288A(2) only permits an opening address by the defendant at the conclusion of the evidence for the prosecution. It does not confer a right on the part of the defendant to address the court at any earlier stage.

Apart from the right conferred by s 288A(2) to outline the case for the defence at the conclusion of the Crown case, counsel for a defendant may be permitted, by leave of the judge, to make a statement to the court at the conclusion of the opening by counsel for the Crown and before any evidence is called. The making of any such statement is not something which would come within the scope of the right conferred by the section. It would be a matter which would require the leave of the trial judge.

Furthermore, in permitting such a course to be taken, the trial judge should be astute to ensure that the situation is not abused by counsel for the defendant attempting to give an advance instalment of his or her final address.

To avoid confusion, I think it better not to describe such a statement as an "opening". An "opening" of the defence case could not be given before the Crown case has been closed. It may then be given pursuant to s 288A(2).

To prevent abuse, the trial judge should hear counsel on any application to make a statement at the close of the opening by the Crown, in the absence of the jury. Counsel would be expected to give details of the statement sought to be made. Leave to make such a statement should then only be given by the trial judge if he or she is satisfied that it will be limited to identifying matters which will be conceded, or which counsel believes it might assist the jury to identify in advance of evidence being called.

I mention one other aspect of the remarks attributed to counsel for Mr Roach.

In his preliminary comments, he invited the jury to treat the case as one deserving of the description of "oath against oath". In my view, despite the fact that that description is commonly applied to cases of this kind, it has a potential to be misleading. It is not an expression which should be used by the trial judge in directing the jury, and if it is used by counsel in addressing the jury, the judge should correct the impression which it might otherwise convey.

That impression, which in my view is objectionable, is that it is apt to suggest to the jury that the jury's function is to decide whether one or other of the defendant or the complainant is to be believed.

To put the matter in that way is misleading, in that it does not allow for the fact that an acquittal should follow if the jury is unable to determine who to believe.

I turn now to the question of inconsistent verdicts.

As for the principles to be applied by an appeal court when dealing with a submission that verdicts are inconsistent, Lander J has referred to the dictum of King CJ, with whom Olsson and O'Loughlin JJ concurred, in Kirkman.[1] That dictum confirms that this Court must be "very cautious" in yielding to the argument that a verdict should be set aside simply because of a perceived difficulty in reconciling verdicts which the jury has entered with respect to other charges. During the course of his judgment in that case King CJ said:

"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 the administration of justice by juries."[2]

The need for caution in such circumstances was affirmed in the judgment of Millhouse J in Hendy,[3] with whom Doyle CJ and Williams J agreed.

The passage in Kirkman to which I have referred received the express endorsement of the High Court in MacKenzie[4] in the joint judgment of Gaudron, Gummow and Kirby JJ, with whom, on this issue, Dawson and Toohey JJ agreed:[5]

"3. 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 [unreported, 13 December 1954, per Devlin J] 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.'

4. 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.[6] 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.[7] 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.[8] 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.[9] 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.[10] 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.[11] Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect."

Gaudron, Gummow and Kirby JJ then go on to cite the passage to which I have referred from the judgment of King CJ in Kirkman, which they described as embodying "... practical and sensible remarks".

More recently, the question was addressed by the Full Court in R v KWG.[12]

In the course of his judgment in that case, with which Lander and Wicks JJ agreed, Martin J considered a number of authorities on the question, including Kirkman and MacKenzie, and concluded that there is no rule in sexual assault trials, where the question not infrequently arises, to the effect that if the jury entertains a reasonable doubt about the truth of the complainant's evidence with respect to a particular count, it is not open to the jury to be convinced beyond reasonable doubt of his or her guilt with respect to other counts. With respect, I agree.

In many cases there may be factual differences which might fairly have an impact on the cogency of the evidence as between different counts.

Here, although it is difficult to identify factual differences which go to the weight of the evidence as to the counts upon which the appellant was convicted as opposed to those upon which he was acquitted, the fact remains that the complainant described quite different incidents in which the nature and surrounding circumstances of the sexual encounters and the participants differed markedly.

Jurors are constantly reminded by judges that in such cases as this it is open to them to convict on one count and acquit on another. It would be a strange consequence if an appeal court was then of the view that, despite such a direction, it should necessarily regard the application of such a direction with the consequence which it suggests is open to the jury, as pointing to logically inconsistent verdicts.

Commonly, juries are also directed that they may accept part of a witness's evidence, but not all of it.

In this case, the learned trial judge directed the jury in the course of his summing up:

"They are all separate charges and you have to consider each one separately and, indeed, you have to consider, when you've got joint charges, each charge separately as against each accused, so it is rather a lengthy process that you have to undertake, but rules have been laid down that people can be charged in this manner and it is for you to consider quite separately each of those charges separately as against each accused and then come to your decision in regard to each accused on each charge. Sometimes it is easy to let - ie if you reach a particular verdict on one charge - that to float through to the others. That's not the reasoning you should follow. You have to make sure that you separately consider each charge as against each accused, and through that indictment."

As was made clear in Kirkman and in the authorities in which the principles which find expression in Kirkman have been endorsed, a verdict of a jury is not necessarily open to question simply because it does not appear to be logically supportable. There may be a variety of reasons why a jury may, apparently illogically, come to a different conclusion as to particular counts, notwithstanding that the credibility of the complainant is central to a consideration of each of them.

In the second place, this Court does not have the benefit of seeing and hearing the witnesses give evidence, in this case the critical evidence being that of the complainant.

It could well be the case that the jury might be persuaded beyond reasonable doubt of the truth of the evidence of the complainant as to one count because of its confidence in the complainant's evidence of circumstantial detail relating to the count and the manner in which he gave the relevant evidence, whereas the jury may have found the evidence of the complainant unconvincing as to another count for reasons, such as the witness's demeanour, which may not appear from the written transcript.

In my opinion, there is no valid reason in this case to reach the conclusion that the verdicts of guilty entered by the jury should be set aside on this ground.

LANDER J. The appellant was charged with eight counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act (1935) (SA) (the Act). In each count it was alleged that the victim was MWJR who was a male person of the age of fourteen years.

The appellant was jointly charged with Malcolm Roach in respect of the first three counts and jointly charged with Angela Joy Traeger in respect of the sixth, seventh and eighth counts. In respect of the fourth and fifth counts he was charged alone.

The appellant's trial before a jury, was conducted jointly with the trial of the first three counts against Mr Roach. His trial took place separately from the trial of Ms Traeger in respect of the sixth, seventh and eighth counts.

Ms Traeger had applied for separate trials. There was real doubt about her mental competence and the trial judge ordered that she be tried separately.

Both the appellant and Mr Roach were acquitted of the first three counts. The appellant was acquitted of the fourth and fifth counts.

The appellant was convicted of the sixth, seventh and eighth counts.

The appellant appeals against those three convictions.

The complainant was born on 16 January 1985 turning fourteen in January of 1999. He was just under 17 years of age at trial.

In the second half of 1999 the complainant met the appellant through a mutual acquaintance. The appellant was then working as a taxi truck or delivery driver. The appellant offered the complainant some work assisting him in his delivery business. The complainant's parents approved of the arrangement.

Sometime in the second half of 1999 the complainant travelled by train to the City of Adelaide to meet with the appellant and work with him. The appellant picked the complainant up from the railway station and the complainant accompanied the appellant during that morning on his delivery round.

It was the complainant's evidence that during that morning the appellant had talked to him about sexuality and the complainant's homosexuality. It was the prosecution case that the appellant deliberately encouraged the complainant to talk about his sexuality, and specifically homosexuality, because the appellant had a sexual interest in the complainant.

Later that day the complainant was introduced to Mr Roach. The complainant's evidence was that the appellant told Mr Roach that the complainant was 18 years of age although the appellant well knew that the complainant was only 14 years of age. The appellant told the complainant that he should not tell Mr Roach his real age.

It was the prosecution case that the appellant encouraged the complainant to remove his clothing and to have a bath. Further it was the prosecution case that the complainant was encouraged to walk around only in his under shorts.

The appellant, on the prosecution case, told the complainant that he was returning to work and that Mr Roach would care for him.

It was the prosecution case that the appellant and Mr Roach had a common purpose which was for Mr Roach to have sexual relations with the complainant in the absence of the appellant.

The complainant's evidence was that after the appellant left he and Mr Roach went into one of the bedrooms. Mr Roach suggested that the complainant should masturbate which he did. Mr Roach undressed and first the complainant lay on top of Mr Roach and moved up and down. Then Mr Roach did the same to the complainant.

It was the prosecution case that thereafter the complainant and Mr Roach walked to Mr Roach's house. There were three acts of sexual intercourse. In the first the complainant penetrated Mr Roach's anus. Next Mr Roach penetrated the anus of the complainant. Finally the complainant again anally penetrated Mr Roach.

Those three acts were the subject matter of the first three counts.

It was the prosecution case that they returned to the appellant's home where the appellant provided some marijuana to the complainant. It was the complainant's evidence that whilst he was under the influence of marijuana there was sexual contact between the appellant and him.

The prosecution case was that the appellant and the complainant remained friends throughout the rest of 1999. On occasions the complainant visited the appellant and on other occasions he spoke with him over the telephone.

The fourth and fifth counts were alleged to have occurred on Christmas Eve in 1999 when the complainant went to the appellant's house. The complainant said that he was shown pornographic videos depicting boys engaged in sexual activity.

After viewing those videos the appellant then committed an act of fellatio on the complainant. That was count four. The fifth count was said to be the complainant penetrating the appellant's anus.

The complainant said that the appellant then took him from his home to his parents who were attending mass at St Francis Xavier's Cathedral in Wakefield Street.

Counts six, seven and eight were alleged to have occurred sometime between Christmas 1999 and New Year's Eve.

The complainant said that the appellant told him that his fiancé was coming to stay with him and suggested to the complainant that he might like to have sexual intercourse with her.

The prosecution case was that there were three acts of sexual intercourse at the appellant's home. The first (count six) was when the complainant had vaginal sexual intercourse with Ms Traeger in the presence of the appellant. The second (count seven) was when the complainant had anal intercourse with Ms Traeger again in the presence of the appellant.

The prosecution case was that the appellant and Ms Traeger were a party to a joint enterprise to bring about those two acts of unlawful sexual intercourse.

The third act of sexual intercourse (count eight) involved all three persons. It was the prosecution case that the appellant had sexual intercourse with Ms Traeger by penetrating her anus whilst at the same time the complainant had sexual intercourse with the appellant by penetrating his anus.

Again it was the prosecution case that count eight involved a joint enterprise between the appellant and Ms Traeger.

Both the appellant and Mr Roach were interviewed by the police. Neither made any admissions. Both denied the complainant's account. The video record of interviews of the appellant and Mr Roach were tendered.

Neither the appellant nor Mr Roach gave evidence. Both cross examined the complainant, through their respective counsel, to the effect that no sexual activity of any kind took place between them and the complainant or Ms Traeger and the complainant.

The complainant's father was called to give evidence. He told the Court of the occasions of which he was aware when his son had met the appellant. He gave evidence of a barbecue at which he, his son and his daughters were present with the appellant. Mr Roach was also present at that barbecue. He said at that barbecue the appellant told him to say that his son was over 18. The complainant's father also gave evidence of a conversation in which the appellant told other men that the complainant looked nice dressed up and that they wanted to shave his legs.

Both the appellant and Mr Roach asserted by way of defence that the complainant was a disturbed young man whose evidence was unreliable and denied in cross examination that there had been any sexual activity between the appellant, Mr Roach, Ms Traeger and the complainant.

It was put to the complainant in cross examination, and admitted by him, that he had been admitted to the Womens and Childrens Hospital in March 1997 and in particular to the Child Adolescent Mental Health Services Section of that hospital in relation to an incident involving his babysitter in 1996. At that time he had threatened to stab that babysitter.

He also admitted that he had been suspended from a holiday programme due to violence with other children and in particular an episode where he tried to stab another child.

The complainant admitted that in 1998 he had been accused of impregnating a young woman four years his senior. He admitted that after that time he consulted a psychiatrist and he was treated by way of medication for depression.

He admitted that he became violent towards his mother.

He agreed that at about this time he started to hear evil voices in his head telling him to harm himself and to harm others. He mutilated himself causing scarring.

He admitted that during this time he had difficulty keeping a grip on things and that he was out of control when he first met the appellant and was also at that time smoking a lot of marijuana.

He agreed that when he met the appellant he was very confused about his sexuality.

He agreed that in November 1999 during the time that he was associating with the appellant he was admitted to the Womens and Childrens Hospital because of violence to his mother and because he was uncontrollable.

He admitted that at no time during his admission to the hospital did he blame any of his problems upon the appellant or Mr Roach.

Thus, it was claimed by both the appellant and Mr Roach that the complainant was an unreliable and unbelievable witness.

The appellant has raised a number of grounds of appeal. Three relate to the Judge's direction. Two relate to the verdict.

The appellant claims that the trial judge's directions were deficient or erroneous in three respects. First, the trial judge did not adequately direct the jury as to how they might use the evidence admissible on counts one, two and three in relation to the further counts.

Secondly, it was claimed that the trial judge had reversed the burden of proof.

Thirdly, the trial judge failed to give a Longman direction.

It was claimed that the verdicts on counts six, seven and eight were inconsistent with the verdicts of acquittal on counts one to five. Moreover, it was claimed that the verdicts on counts six, seven and eight were unsafe and unsatisfactory.

Before I deal with each of the grounds of appeal there is something that needs to be said about the course of the trial.

The prosecutor opened in the traditional way. He outlined the facts upon which the prosecution relied and had indicated that the prosecution relied upon a joint criminal enterprise in relation to counts one to three and counts six to eight.

He then addressed the jury on the elements of the offence and the matters which the prosecution needed to prove to establish the guilt of each of the two accused on trial.

"Ladies and gentlemen, as I suggested at the beginning of my opening address, the most important prosecution witness in this case will, of course, be MWJR, and, without further delay, I call MWJR."

84. After the prosecutor had opened, counsel for the appellant applied "to briefly open to the members of the jury".

"Yes, occasionally in cases like this, if the defence, if they want to, simply outline to you very simply the basis of the defence and then you are, of course, on notice of what's coming."

86. Counsel for the appellant then made the following statement:

"It goes without saying that we all try very hard to make sure that an innocent person isn't sent to prison and it is for that reason that we have a prosecutor, a defence counsel, we have His Honour as the judge, but most importantly we have you, members of the jury, because you're here to provide checks and balances to make sure that an individual hasn't been wrongly accused.

Unfortunately, and indeed sadly, experience has shown that people are wrongly accused, sometimes for reasons that are never disclosed, and it is for that reason that you must, and you should, keep an open mind when you come to listen to the evidence that is to be presented to you.

You should listen very carefully. You should scrutinise with great care the evidence of (MWJR) which you will hear in due course. You should compare the evidence that he gives, in answers to questions posed by the prosecution, but significantly, and perhaps most importantly, you should look at how that evidence ends up after it is tested in cross examination.

Because, as you heard, this case - that is, the case that the prosecution propose to place before you - will ultimately depend upon the credibility of young (MWJR). It goes without saying, also, and indeed, consistent with what his Honour told you right at the outset, that sometimes, because of the nature of these sorts of allegations - allegations which are to any fair minded person, extreme, perhaps disgusting, perhaps revolting, but nonetheless your task is to impartially, carefully and without any prejudice whatsoever, evaluate the credibility of the witnesses that are presented to you to determine the guilt or innocence of the accused.

It goes without saying also, that Mr Hansen - it applies equally to Mr Roach - is guilty (sic) of each of these charges. These men remain innocent of these charges unless and until, and only until the prosecution proved their case beyond any reasonable doubt. Until such time as that occurs they must remain innocent of the charge."

"I am obliged to Mr Edwardson, (counsel for Mr Hansen). I certainly adopt what he says. You may well find that this is one of those cases that comes down to what some may call oath against oath, and that's why what Mr Edwardson said to you that (MWJR's) evidence should be very carefully scrutinised in a case like this. I ask you to take all of that into account."

88. Shortly after the appellant's counsel indicated to the trial judge that he had made an error in his opening and wished to correct it His Honour allowed counsel to make a further statement which was in the following terms:

"Can I tell you - and I am somewhat embarrassed, it has never happened to me in 17 years, but I managed it today - lest there be no misunderstanding, my client is innocent. He remains innocent until such time as the prosecution are able to prove their case beyond reasonable doubt. I assume, and I sincerely hope, that there was no misunderstanding on your part when I happened to give you that brief opening a moment ago. It was a simple slip of the tongue, and simply didn't register until it was too late, so I do apologise for that, and I certainly apologise to my client, who was having kittens."

89. In my opinion the statements made by both accused's counsel to the jury were not an opening of their client's case.

90. The purpose of an opening is to bring to the attention of the trier of fact the matters which the party will seek to prove, the evidence which will be led to prove these matters, the witnesses to be called, the issues in the trial and perhaps some matters of law.

91. It is not appropriate for counsel to use the occasion to make what is in effect a closing address and an argument.

"If evidence is to be given for the defence, the defendant may, before giving or calling the evidence, address the Court outlining the case for the defence."

That section is consistent with my understanding of a party's right to open the party's case in a trial. A party can only open if the party is calling evidence in the trial. There is no point in opening a case if no case is to be presented.

In my opinion, it was inappropriate for counsel for the accused to address the jury at the stage that they did and in the terms that they did. Of course the Judge did not know that counsel would make their statements in the terms that they did. All the Judge knew was that counsel would 'briefly open'. The Judge should not have allowed counsel to make any statement at that time without first knowing what was to be said. Counsel for the Director Of Public Prosecutions had not been warned that such an application was to be made. He must have been taken by surprise.

In my opinion, the trial judge should not have allowed counsel to make the statements they did. Indeed one counsel suggested that his client would be called and that the matter was a matter of oath against oath. In due course his client did not give evidence.

That, in my opinion, tends to show that the timing of the statements was inappropriate. No doubt counsel for Mr Roach would say that at the time that he "opened" his instructions were that Mr Roach would give evidence. If he had been called upon to open at the appropriate time which was at the end of the prosecution case he would have known then whether Mr Roach was to give evidence or not. If his instructions were then that Mr Roach was to give evidence then a statement that the matter might be seen as oath against oath would be accurate. If, as his instructions turned out to be, Mr Roach was not to give evidence then he would not have opened and certainly would not have said what he did.

The purpose of statements made by counsel was to highlight in advance of the prosecution case the weaknesses in it. That was inappropriate. That amounted to argument.

Of course it is a matter for the trial judge how he or she shall conduct the trial. The overriding consideration of the conduct of the trial is to ensure fairness not only to the accused but also to the prosecution. The prosecution is entitled, in my opinion, to put its case fairly and objectively and without it being undermined prior to it having been presented.

There may be circumstances where it is in the accused's interests for counsel to indicate to the jury in advance of the prosecution case the issues which need to be decided by the jury. Counsel may indicate that some facts are not in dispute so that the jury can concentrate on the real matters in dispute by identifying those matters.

However such a statement can only be given with the leave of the trial judge. The only right to open is that given by s 288A(2) and that is only available if the accused is presenting a case and only after the prosecution has closed its case.

A trial judge would need to be aware of the contents of the statement to be made in advance of giving leave. Leave therefore should be sought in the absence of the jury. If leave is given it would be on the understanding that counsel would not depart from that statement.

Leave will be sought when the accused's counsel believes that it is in his or her client's best interests to indicate the issues in dispute at an early stage. I do not wish to be seen to be discouraging co-operation between the accused and the Crown which can ease the jury's deliberations. However, I do believe that the accused's counsel should not be permitted to make what in effect is a closing speech in circumstances where they have no right to open.

Ground 1: Use of Evidence Admissible on Counts One, Two and Three on the Other Counts

On the first three counts the accused was jointly charged with Mr Roach. It was the Prosecution case that the appellant and Mr Roach had a common purpose which was that Mr Roach would have sexual relations with MWJR including sexual intercourse.

The trial judge, in his summing up to the jury, referred to the prosecution case and that, insofar as the appellant was concerned, the prosecution was required to establish a common purpose of the kind alleged by the prosecution. He said that the prosecution needs to establish that the appellant was aware that some form of sexual misconduct would occur or that it was within his contemplation that there was a possibility of some form of sexual contact between MWJR and Mr Roach.

"It was briefly touched on the fact that when you're considering this evidence, and the evidence in its totality, if you accept what has been put to you that, in fact, Mr Hansen was not, and could not, be seen as a joint offender, then the evidence which you find proved beyond a reasonable doubt concerning conduct between MWJR and Mr Hansen on that day, at any time, can be used by you when considering the remainder of the charges."

The appellant has complained on this appeal as to the adequacy of that direction. The appellant has contended that the trial judge was under an obligation to direct the jury as to how they might use the evidence on counts one, two and three in a consideration of the further counts on which the appellant alone was charged.

It was put that the trial judge should have warned the jury that if they did not find a common purpose between the appellant and Mr Roach the evidence could not be used against the appellant in respect of the remaining counts at all. In the alternative the jury should have been directed that the evidence was only evidence from which it might be inferred that the appellant had a sexual interest in MWJR.

It was submitted that in particular the evidence that the appellant encouraged MWJR to have a bath and later provided him with marijuana was particularly damaging and needed to be subject matter of a direction.

It would have been better if the trial judge had identified the evidence led in respect of counts one to three which was admissible against the appellant in respect of the further counts. It would have been better if the trial judge had directed the jury about the use of that earlier evidence on those later counts. It would have also been preferable if the trial judge had indicated the manner in which the evidence could be used. In this case it could not have been used except for establishing that the appellant had a sexual interest in MWJR from the outset.

It would have been preferable if the jury had been warned that they should not reason, because the appellant had provided marijuana to MWJR, that he was thereby guilty of any of the other offences or that he was thereby a person of bad character.

However, in the circumstances of this case, I do not believe that the failure of the trial judge to give more precise directions led to a miscarriage of justice.

I do not think that the jury could have reasoned other than that the appellant had a sexual interest in MWJR from the outset. Once the jury found that there was no common purpose, the evidence relating to the appellant's conduct with MWJR in relation to the first three counts could have established that fact but nothing else.

I do not think, in the circumstances of this case, that the jury would have reasoned impermissibly in relation to the marijuana which, in my opinion, was an insignificant allegation in the trial.

I agree with the criticisms of the summing up but I do not think in the end result that the failure to give the directions sought led to a miscarriage of justice.

Two passages were identified in this ground of appeal. It is recorded that the trial judge said:

"Factually, matters are solely for you to consider. Often jury trials are simply called factual trials, which they are, and you have heard here the Crown saying these are factual matters, allegations of (MWJR), which you should have no doubt in accepting, and on the other hand, you've heard some stringent criticism of counsel saying there is some uncertainty, and that may lead to doubt about these allegations and if a doubt exists, or if some uncertainty is apparent, then clearly the Crown have proved their case to your satisfaction beyond reasonable doubt."

On the face of that direction there is an error. The trial judge should have said:

"Then clearly the Crown have not proved their case to your satisfaction beyond reasonable doubt."

In my opinion, it is likely that that is what in fact His Honour said. Counsel, who appeared on appeal, also appeared at the trial. No suggestion was made to the trial judge that he had given a misdirection. I am confident that it is the transcript which is in error rather than the trial judge.

The second direction which is complained of under this ground was:

"As I say, you are the people, you are the sole arbiters of what factual matters have to be proved to your satisfaction beyond a reasonable doubt before you can find a person guilty."

It was argued that the jury are in fact not the arbiters of what has to be proved beyond reasonable doubt. Objection was taken to that direction at trial and His Honour attempted to correct the direction later in his summing up. He said:

"What I said to you very early - in fact, when I started my mistakes - what I think is material, I said:

'You are people, you are the sole arbiters of what factual matters have to be proved to your satisfaction beyond reasonable doubt before you can find a person guilty.'

I may have misled you there. It's the prosecution who have to establish the factual matters that they rely on in any case, and they have done this, and they have said 'These are the matters.' Its up for you to make your decision on those factual matters, bearing in mind what's been put to you and, no doubt, criticisms of those factual matters. But you are the people that have to concern yourself with factual matters and bearing in mind what has been put to you in those areas, and you alone. That is your concern in this case.

I think I went on to say that sometimes you may well think a judge has a view of factual matters. That really is immaterial. You are the persons that have to decide on what factual matters, in your opinion, have been proved, and proved to your satisfaction beyond a be (sic) reasonable doubt, before you can, in effect, find a person guilty of an offence."

Counsel again took objection to this aspect of the summing up. Counsel for the prosecution on this occasion said that His Honour's further direction did not correct the direction given on the previous occasion.

"The final brief matter is one of my obligations I mentioned to start with, to ensure evidence is presented correctly and accused people receive a fair trial and I told you what the law is. I endeavoured to tell you. You may well say 'at some length'. I apologise, but I've done that. You see, after I told you what the law is the factual matters are then for you to consider to satisfy yourself to that degree beyond a reasonable doubt whether, in view of those legal principles, the prosecution have made this case out to your satisfaction beyond a reasonable doubt."

The directions given by the trial judge are at times confusing and this is one example of confusion.

However, all three counsel addressed the jury upon the basis that the onus of proof was upon the prosecution and the standard of proof was beyond reasonable doubt.

I do not think at the end of the day the jury could have been in any doubt that they had to be satisfied that the elements of each of the counts had to be proved by the prosecution beyond reasonable doubt.

I agree with the appellant's counsel that the Judge's attempt to correct the undoubted error in his first direction was itself a little confusing. However, I think in the end result, the trial judge did leave the jury with a correct understanding as to the onus and standard of proof.

The appellant submitted that the circumstances of the case called for a Longman direction: Longman v R [1989] HCA 60; (1989) 168 CLR 79. In making that submission the appellant relied upon MWJR's failure to make any complaint during attendances for treatment at the Womens and Childrens Hospital.

MWJR was admitted to that Hospital in 1999 and after he had met the appellant and Mr Roach. He said that whilst in the Hospital he was visited by the appellant and another two men. During the visit the appellant told him not to tell anyone anything.

The appellant's case was that MWJR had then an opportunity to complain of these matters but did not. In those circumstances it was said the trial judge should have given a Longman direction.

Section 12A of the Evidence Act 1929 (SA) does not preclude a Longman type warning being given. Indeed such a warning should be given if the evidence of the victim is such that there is a perceptible risk of a miscarriage of justice. The warning should be formed to suit the circumstances.

In this case there was no need to bring to the jury's attention MWJR's failure to complain whilst at the Hospital. His failure to complain could not cast doubt upon his credibility.

In my opinion, the facts and circumstances of this case did not require a Longman warning. There were good reasons why MWJR might not have complained about the sexual contact between the appellant and him. The most obvious reason is that he was a willing participant in the sexual activity. The particular sexual activity became a crime because of MWJR's age and for no other reason. He was a willing participant in all respects in the sexual activity.

For that reason alone it is not surprising that he did not complain of the appellant's conduct. A Longman warning was not required because of any delay in any complaint which would otherwise have been expected to be made.

There was no suggestion that MWJR's delay in complaining caused any prejudice to the appellant in the preparation or conduct of his defence. Thus there was no reason to give a Longman direction on that account.

MWJR had visited the Child Adolescent Mental Health Service of the Womens and Childrens Hospital in March 1997 following an attempt to stab his babysitter. He was then 11. He had been suspended from a childrens' holiday program for violence, particularly for trying to stab another child. When these events are alleged to have occurred his relationship with his mother was unstable and there were episodes of violence by him towards her. There were allegations about sexual contact between MWJR and a friend's sister who was 4 years his senior. He had been prescribed medication for depression. He had engaged in self mutilation and showed an interest in neo-nazism.

When these events were alleged to have occurred he admitted he was out of control. He was undergoing psychiatric treatment in the mental health programme for young adolescents. He had run away from home. In November 1999, he had been admitted to the Women and Childrens Hospital because of the previous acts of violence towards his mother. He was then hearing voices and hallucinating.

The appellant contended that the trial judge should have directed the jury that they should scrutinise the appellant's evidence with great care and should have told the jury that it would be dangerous to convict on his evidence alone. Initially appellant's counsel relied upon R v Longman (supra).

As the argument developed I think appellant's counsel relied more upon the decision of the High Court in Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315. It was submitted that the trial judge should have directed the jury that MWJR's mental problems may have had an effect on his capacity to give reliable evidence and that it would dangerous to convict unless his evidence was otherwise confirmed.

During argument the appellant's counsel shifted the emphasis of the submissions suggesting that MJWR's potential unreliability as a witness constituted good reason to give a direction of the kind adverted to in Bromley v The Queen (supra). It was suggested that MWJR's mental unstability rendered such a warning necessary.

The respondent argued that there was no need for any direction of the kind in this case. It was not suggested in the trial that MWJR had difficulty with recollection. The appellant's case was simply that MWJR was lying. It was submitted by respondent's counsel that Bromley v The Queen (supra) is distinguishable because in that case the witness suffered from schizophrenia which may not have been understood by the average juror. It was submitted that, in the circumstances of this case, the directions were adequate.

MJWR was cross examined by both counsel at trial about his medical history, his personality, his relationship with his parents and his peers and, by leave of the Judge, his previous sexual experiences. He gave his evidence about these matters frankly and candidly. None of the matters upon which he was cross examined or indeed any of his evidence gave rise to the need for a warning or comment of the kind suggested in Bromley v The Queen (supra).

There was nothing, in my opinion, that required the trial judge to bring to the attention anything that any juror would not know of his or her own knowledge.

The potential unreliability would have been obvious to any juror. There was no special feature of MWJR's medical or mental condition that the trial judge was required to bring to the attention of the jury. The ways in which MWJR's background circumstances could affect his credibility were self evident to any juror.

That having been said it would have been preferable for the Judge to direct the jury that they needed to scrutinise the complainant's evidence with care. There was no reason to dwell upon the reasons for so doing. However, a general direction of that kind would have been likely to assist the jury.

Ground 4: Inconsistent Verdicts, Unsafe and Unsatisfactory Verdicts

The last ground concerned the verdicts. The appellant's counsel addressed this ground on the basis that either the verdicts were inconsistent or unsafe and unsatisfactory.

Of course these are quite separate grounds but appellant's counsel found it convenient to address them on that basis and it is convenient to deal with the submission in that way.

The appellant could not have been found guilty of any of the charges without MWJR's evidence being accepted as truthful and, of itself, constituting proof beyond reasonable doubt. Neither the appellant nor Mr Roach gave evidence. There was evidence from the appellant's father but it fell far short of being able to satisfy proof of any of the charges.

Counts one to three involved an allegation of common purpose between the appellant and Mr Roach and three acts of anal sexual intercourse between Mr Roach and MWJR. It was the Crown case and MWJR's evidence that those acts of sexual intercourse took place in the absence of the appellant.

It is possible that the jury was not satisfied that the alleged common purpose had been established and thereby acquitted the appellant. They could have arrived at that conclusion without doubting MWJR's evidence. However, the jury also acquitted Mr Roach. His acquittal could not be explained by the jury being unpersuaded of the common purpose. He must have been acquitted because the jury were not satisfied, on the complainant's evidence, beyond reasonable doubt that Mr Roach had committed the acts of sexual intercourse with MWJR.

Counts four and five involved two counts of sexual intercourse on Christmas Eve of 1999. One was an act of fellatio and the other an act of anal sexual intercourse. The only explanation for the jury failing to convict the appellant in relation to those counts is that the jury was not satisfied beyond reasonable doubt, on the complainant's evidence, that the acts of sexual intercourse took place.

The convictions on the sixth, seventh and eighth counts are impossible to rationally explain having regard to the jury's rejection of the complainant's evidence on the first to fifth counts. It may be that the jury speculated that Ms Traeger's absence was some sort of confirmation of the occurrence of the events comprising the charge although the trial judge directed them that they should not speculate along those lines. Clearly enough, if the jury arrived at the verdict on these counts because Ms Traeger was not present in the Court such reasoning would be impermissible.

On the evidence, I cannot see how the jury could be satisfied beyond reasonable doubt on counts six, seven and eight, if upon the complainant's evidence they were not satisfied beyond reasonable doubt in respect of the other counts. There was no further evidence which made MWJR's evidence more likely to be reliable in respect of those counts than the other counts. There was nothing about the circumstances of the alleged offences which made them more inherently likely to have occurred. If anything the circumstances underlying these charges were more bizarre and even more depraved than the others.

If the jury were right to conclude that MWJR's evidence could not support a finding beyond reasonable doubt that the appellant or Mr Roach had committed the offences in counts one, two and three or that the appellant had committed the offences in counts four and five then, in my opinion, the jury's verdict is inconsistent with a finding that the appellant had committed counts six, seven and eight.

The principles relating to inconsistent verdicts are reasonably settled: Mackenzie v The Queen (1996) 190 CLR 348 at 367. In this case I believe that the verdicts are inconsistent and illogical. I think this is one of the cases where it has to be said that the different verdicts would present an affront to logic and common sense which makes the verdicts unsafe or unsatisfactory. In those circumstances the verdicts are unreasonable.

I have not overlooked what this Court said in R v Kirkman (1987) 44 SASR 591:

"... juries 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 accused in what might be described as an 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 an 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 this case it does not seem that the jury's verdicts on the sixth, seventh and eighth counts can be rationalised for the reasons given by the former Chief Justice. There were three separate incidents. It is very difficult to see why the jury were not satisfied beyond reasonable doubt in respect of two of those incidents but satisfied in respect of the third. In each case the jury had to rely almost entirely on MWJR's evidence. There was nothing about the quality of his evidence which would explain the jury's satisfaction in regard to the third incident, having regard to their verdicts in respect to the first and second incidents. I do not think in convicting the appellant on those counts and acquitting him on the others that the jury's verdict can be explained by some innate sense of fairness and justice.

I think, in this case, unfortunately the verdicts are illogical and cannot be reconciled. The verdicts, in my opinion, must be set aside. That leads to the question as to whether or not it would be appropriate to order a new trial.

The appellant argued that there should be no order for a re-trial. If there were to be a new trial no evidence could be led of counts one to five or the circumstances surrounding those counts. In those circumstances the appellant would lose the benefit of the acquittals he has received in relation to those counts in the further trial. The appellant submitted that, in those circumstances, the trial would proceed on a fundamentally different basis from his first trial.

I agree. I think the appellant would lose the advantage of the acquittals on counts one to five on any retrial. I would not order a re-trial.

In my opinion, the appeal should be allowed and the verdicts on counts six, seven and eight should be set aside. An acquittal should be entered in respect of those three counts.

[1] (1987) 44 SASR 591.

[3] (Unreported) 1996 SASC S5639, 29 May 1996.

[4] MacKenzie v The Queen (1996) 190 CLR 348.

[6] See Mercer v Commissioner for Road Transport and Tramways (NSW) [1936] HCA 71; (1936) 56 CLR 580 at 595; Ward v Roy W. Sandford Ltd [1919] NSWStRp 36; (1919) 19 SR (NSW) 172.

[7] R v Wilkinson [1970] Crim LR 176.

[8] Hayes v The Queen (1973) 47 ALJR 603 at 604-605.

[9] R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40.

[10] R v Hunt [1968] 2 QB 433 at 436.

[11] Castles, An Australian Legal History (1982) p 56.

[12] (Unreported) [2000] SASC 398.