R v J A [2008] VSCA 169

2 The Crown alleged that the conduct constituting counts 1 and 2 occurred on the same occasion, which was the first instance of the applicant's offending. Count 1 was an allegation that the applicant made the complainant lick his penis. Count 2 was an allegation that the applicant licked the complainant's vagina.

3 Counts 3 and 4 also related to a single occasion, said to be the last instance of the applicant's offending. Count 3 was an allegation that the applicant made the complainant lick his penis. Count 4 was an allegation that the applicant licked the complainant's vagina.

4 By a presentment filed on 4 June 2007, the applicant was charged with four counts of indecent acts with a child under 16 to whom he was not married in the following identical terms::

[A]t Morwell in the [State of Victoria] between the 1st day of May 1999 and the 30th day of November 1999 [he] wilfully committed an indecent act with or in the presence of [R] a child under the age of 16 to whom he was not married.

5 On 11 December 2007, at the conclusion of an eight day trial in the County Court, the applicant was acquitted on counts 2, 3 and 4, but was found guilty on count 1. On 26 February 2008, he was sentenced to 24 months' imprisonment with a minimum non-parole period of 12 months.

6 The applicant appeals against conviction on the sole ground 'that the guilty verdict on count 1 is unsafe and unsatisfactory having regard to the not guilty verdicts on counts 2, 3 and 4'. He contends that the guilty verdict on count 1 is inconsistent and logically irreconcilable with the acquittals on the remaining counts.

7 The applicant was born on 9 January 1975. He was aged 25 at the date of the offending, which occurred between 1 May 1999 and September 1999. During that time, the applicant resided in a house in Morwell with KS, the complainant's mother (with whom he had formed a relationship in late 1998) and her two daughters. The elder daughter, the complainant, who was born in October 1993, was aged 5 during the relevant period. The younger daughter, T, was about 18 months' younger than the complainant.

8 From May to September 1999, KS worked full time five days a week as a bar tender in a hotel in Traralgon. Her shift commenced at 4 pm and ended at about midnight. She typically returned home at about 2 am. The applicant looked after the children while their mother was at work. The relationship between the applicant and KS ended soon after September 1999 and the applicant left the residence. KS shortly thereafter met a new partner who has, from that time, been her children's stepfather. The complainant did not see the applicant again after his relationship with her mother terminated.

9 On 31 January 2005, the complainant, who was then aged 11, gave evidence of the alleged acts by VATE tape at the Morwell Sexual Offences and Child Abuse Unit. She was interviewed by Senior Constable Bennett.[1]

10 The complainant stated at the outset that she was being interviewed because 'somebody [subsequently identified as the applicant] did the wrong thing'.

11 The 'wrong thing' was, the complainant said, that the applicant 'showed me disgusting videos of naked people' who were 'like naked and....people having like sex'. When asked to describe the sexual activity, the complainant replied 'I can't just remember... they were like just naked'. She stated that the applicant told her that the people were having sex.

12 When asked what the applicant had done to her, the complainant stated 'He like licked my fanny ... and I don't know how ... he made me lick his doodle [penis]. I don't know how, but I remember I was licking his doodle.'

13 The offences took place, she said, in the lounge room of the Morwell residence at night, while the complainant's mother was at work and her younger sister was asleep in her bedroom.

14 The complainant recalled that the offending happened 'more than once'.

15 She recalled that at the conclusion of each incident of offending, the applicant told her to run back to bed and to keep the incident secret, 'because he knew it was wrong'. She had not told anyone about it until recently.

16 The complainant was able to remember how she got from her bedroom to the lounge room, where the offending took place, only in relation to the first instance of offending. She could not recall how she came to arrive in the lounge room on the subsequent occasions.

17 The complainant recalled that the first incident occurred in the lounge room at night, while her mother was at work, her sister was asleep in her bedroom and she was unable to get to sleep. She came to inform the applicant, who was in the lounge room. He initially sent her back to her bedroom, where she tried to tire herself by playing cards, but re-emerged when she failed to get to sleep. She recalled that the applicant invited her to watch a video with him on the couch. She thought that he was wearing a baggy tracksuit and that she was probably wearing pyjamas.

18 The complainant was asked to describe the order of events on the first occasion of offending. She stated 'I think that he - he told me to do that [lick his penis] first'.[2]

19 According to the complainant, the applicant requested that she lick his penis half way through watching the video.

20 The following exchange occurred in relation to count 1:

A Like, saw the video first. And in the middle, I cant really remember, but, yep, I saw the video first, and in the middle, I think - I know that I seen - seen the video first, but I cant really remember what happened, like, after I seen the video.

A I knew that I - I think that he - he told me to do that first.

Q 117 Okay. So, he's asked you to lick his doodle first. And then you've seen the video or...?

A It was, like, halfway through the mi -, through the video.

Q 120 Right. And - and, okay. Halfway through the video, he's asked you to lick his doodle.

Q 122 Well, he's asked you to do it. What did he do?

Q 123 Like, he - was he wearing clothes and he took 'em off, or he - he asked you to...?

A I think he, like, hanged them on the die of the couch, like, (INDICATES TO BACK OF COUCH AREA) across here.

A I think he said, "I'll - I'll do it to you now.".

Q 129 He's taken his pants off, put 'em over the back of the...?

A He's had his, like, (MOVES HANDS DOWN EACH THIGH AREA, INDICATES TO KNEE AREA) jocks on and he just like, slipped them to his knees.

Q 131 Okay. Alright. Do you remember the colour of his jocks or anything?

A When - I don - I don't remember, but he pull - pulled them up and then he told me to, like, slip my pants down.

Q 133 Okay. Let's go back one more step, and he's pulled his jocks down to...?

A (MOVES HANDS UP SIDES OF THIGHS FROM KNEE AREA). He pulled 'em back up, and then he told me to slip my pyjama pants down.

Q 150 Okay. Was there anything else that happened when you were licking his doodle? Do you remember anything else?

21 The following exchange occurred in relation to count 2:

Q 141 Okay. So, he's - you pulled your pyjama pants down?

Q 143 What position were you on the couch when you did that?

A He was, like, (WAVES TO LEFT SIDE OF COUCH AREA, POINTS TO EDGE OF MIDDLE OF COUCH) there and I was, like, there.

A Well, I was watching the video and he, like, (INDICATES TO LEFT SIDE OF COUCH AREA) laid down halfway, and he told me to lick his doodle.

Q 149 Okay. Alright. Okay. Okay. And then - then what happened?

A He pulled his pants back up, and he told me to - I don't - I - I think he told me to pull mine down, and he - he licked my - my fanny.

Q 153 Remember it all, yeah. Okay. So - so, then you've licked his doodle, and then he has - then - then what did he do from that point to lick your fanny?

A He told me to pull my pants down as (INDICATES TO TOP OF EACH THIGH AREA) he pulled his up.

Q 155 And where - where was he positioned when he did that?

A (INDICATES TO LEFT SIDE OF COUCH AREA) He was still laying down. He pulled his pants up and then he, like - he told me to slip mine down, so I - he told me to, like, sit there or something...

Q 157 Yeah. And where did you - where were your legs when he did that?

Q 158 You don't know. That's okay. And then can you remember what happened after that?

A Oh, no, Mum didn't pull up. Then I pulled my pants back and I just, like, sat on the couch and he's told - I think he said, "Just watch the end of the video.". And then, well, Mum pulled up.

A And then he turned off the video, and told me to keep it a secret, and hop into my bed.

22 On 18 May 2005, the applicant was interviewed by police in relation to the alleged offending. He vehemently denied that he had licked the complainant's vagina or that she had licked his penis.

23 The applicant did not dispute that he cared for the complainant and her sister while their mother worked at night, although he asserted that on Thursday nights, when the applicant played darts, another couple cared for the children.

24 The applicant stated that the complainant, when leaving her bedroom to go to the toilet, would sometimes observe him engaging in sexual activity with her mother. The applicant stated that the complainant, after her bedtime, also on occasion appeared unheralded in the room when the applicant and her mother were watching pornographic films together, and was possibly present on occasions when the applicant was having sex with her mother.

25 The applicant stated that the complainant had seen the pornographic videos stored under her mother's bed and had asked to watch them.

26 The applicant stated that the complainant on occasion had trouble getting to sleep and, when wakeful, would sit with him on the couch in the living room.

27 The applicant stated that the complainant, copying her mother, frequently tried to kiss him with her tongue. He further stated that the complainant, on one occasion when she was sick, had surprised him when he had his pants down.

28 The applicant stated that the complainant had seen him in the shower and walking around the house naked, took showers with him and, on a couple of occasions, had touched his penis.

29 The applicant stated that, during the relevant period, the complainant did not wear pyjamas, but nightdresses, which she wore without pants.

30 The trial took place over an eight day period, commencing on 28 November 2007.

31 The complainant, who was aged 14 at the time of trial, gave some brief evidence in chief in which she reaffirmed the truth of her evidence on the VATE tape. She stated that on approximately four or five occasions when watching a pornographic video, she would lick the applicant's penis and he licked her vagina. She denied that she saw the applicant and her mother having sex or watching pornographic films together. She denied that she had taken showers with the applicant or had kissed him with her tongue. The complainant was then cross-examined. In relation to the first occasion of offending, she was questioned about what the applicant did with his pants and reaffirmed that he pulled them down and hung them over the couch. On appeal, it was common ground, however, that nothing in the complainant's additional evidence in chief, cross-examination or re-examination varied or added to her description of the discrete physical acts said to comprise counts 1 and 2 respectively, or her narrative of their occurrence.

32 The applicant did not give or call any evidence at trial.

33 At 12.34 pm on Friday, 7 December 2007, the trial judge commenced the charge, which continued until 1.06 pm. She recommenced it at 12.17 pm on Monday, 10 December 2007. The charge was completed at 12.26 pm. The jury was then briefly recalled in order to correct some minor errors and retired at 12.31 pm.

34 The jury almost immediately asked to watch the VATE tape again, together with the tape of the additional evidence given by the complainant in court. The tapes were played. Some parts of the transcript of certain sections of the tape, which were not satisfactorily recorded, were read to the jury.

35 At about 5.03 pm, the jury retired and, at 5.59 pm, it sent the following question to the trial judge:

"We, the jury, are unable to come to a verdict on Counts 1 and 2, but have a unanimous verdict on Counts 3 and 4"..... "It is unlikely that we will be able to come to a verdict on Counts 1 and 2. Please advise."

36 In response, the trial judge sent the jury home at about 6 pm, asking them to return the next day to deliberate further.

37 On the next morning, 11 December 2007, the jury sent a question about what was meant by 'beyond reasonable doubt'. They were instructed on that issue at about 10.30 am.

38 At 3.15 pm, the jury returned a verdict of guilty on count 1 and verdicts of not guilty on counts 2, 3 and 4.

39 The applicant contended that the guilty verdict on count 1 could not be logically or reasonably reconciled with the not guilty verdicts on all the other counts in circumstances where:

• the Crown case, on all four counts, depended solely on the evidence of the complainant;

• a significant delay had occurred in making the complaint, which necessitated a Longman[3] warning.

40 The applicant acknowledged that a different outcome might logically be justified for, on the one hand, counts 1 and 2 and, on the other hand, counts 3 and 4, because, in contrast to the complainant's description of counts 1 and 2, she gave no real detail of the surrounding circumstances of counts 3 and 4.

41 The applicant submitted, however, that the different verdicts on counts 1 and 2 could not be rationally explained, because there was no logical basis for discriminating between the evidence relating to them. Despite the complainant's comparatively greater level of descriptive detail about both counts 1 and 2, there was no material ground of distinction between the quality of her description of the conduct constituting each count which could explain the different outcomes. There was no distinguishing feature, such as different elements arising in relation to one count, but not the other, different elements in the Crown case in relation to one, but not the other, or different features of the applicant's denial of one count, but not the other. Nor were the different results on counts 1 and 2 explicable as a 'merciful verdict'. Further, the jury's acknowledgement that it was unlikely to reach a verdict on count 1 and 2 (having viewed the VATE tape twice) followed by its question about reasonable doubt, was a powerful indication that the subsequent guilty verdict on count 1 was an impermissible compromise on the jury's part.

42 The applicant conceded that defence counsel, at trial, made no point about the imprecision of the complainant's accounts of either count 1 or count 2.

43 The respondent contended that the different verdicts on counts 1 and 2 could not be impugned on the basis of inconsistency, because they were readily and rationally explicable by the different quality of the complainant's description of what had occurred. First, the respondent contended that, in contrast to the complainant's very vague description of counts 3 and 4, she described the background to the first incident involving counts 1 and 2 with greater particularity .

44 Further, the respondent submitted that the logical explanation for the different outcome on counts 1 and 2 lay in the complainant's more powerful, vivid narrative of count 1, in which she demonstrated (at question 129), where she was seated and how the parties were positioned when she licked the applicant's penis. That, the respondent contended, demonstrated 'a powerful image which vividly retells the event which formed the first count'.

45 The respondent argued that, in contrast, the complainant's description of count 2 was essentially much thinner. It lacked narrative force and displayed a confusion which the complainant ultimately acknowledged expressly.

46 The established principles governing an appeal on the ground of inconsistent verdicts are set out in Mackenzie v The Queen,[4] in which the High Court reviewed the relevant authorities.

47 Where alleged factual inconsistency arises in relation to different jury verdicts on multiple counts, the test is one of logic and reasonableness.[5] Appellate intervention is justified only if the verdicts cannot stand together, in the sense that 'no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion.'[6]

48 Due to the respect accorded to the jury's traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, 'it is not the role of the appellate court...to substitute its opinion of the facts for one which was open to the jury.'[7] If the outcome is explicable as a merciful verdict, intervention will not be justified.

49 It is otherwise if the difference in the verdicts is 'an affront to logic and common sense which is unacceptable and strongly suggests a compromise' or confusion in the mind of the jury. In that context, '[i]t is impossible to state hard and fast rules. "It all depends upon the facts of the case".'[8] Nevertheless, a conviction should not be set aside unless the inconsistency is sufficiently great to necessitate intervention to prevent a possible injustice.

50 MFA v The Queen[9] ('MFA') represents an instructive illustration of the application of the relevant principles. The High Court there rejected the appellant's contention that the guilty verdicts on two out of a total of nine counts of alleged sexual offences against a juvenile complainant were inconsistent, given the not guilty verdicts on the remaining seven counts.

51 In MFA there was, however, another witness to the conduct represented by the two counts which produced guilty verdicts. The witness' evidence, despite some discrepancies, essentially supported that of the complainant. Further, in contrast to most of the other counts, the counts on which the appellant was found guilty were not subject to a Jones v Dunkel[10] direction. The fact that all the non-guilty counts were unsupported by any relevant confirmatory evidence was thus a logical basis for sustaining the differentiation made by the jury.

52 In MFA, the High Court rejected the proposition (said to be supported by Jones v R)[11] that where multiple offences involving the one complainant were alleged, a guilty verdict on some of them necessarily indicated that the complainant was untruthful and if the jury disbelieved the complainant in respect of some incidents, the reasonableness of the guilty verdicts should be assessed on the basis that the complainant was a person of damaged credibility.[12]

we would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.[13]

54 In the present case, it was common ground that the only real issue at trial in relation to both counts 1 and 2 was whether or not the alleged conduct occurred. It was also common ground that nothing in the complainant's additional evidence in chief or cross-examination (which the jury had the advantage of seeing and hearing) added to or varied her VATE tape evidence on counts 1 and 2 so as to serve as a basis for discrimination between them.

55 Similarly, the applicant's generalised evidence and absolute denial in his record of interview of the allegations in all counts provided no basis of distinction between any of the counts.

56 In contrast to a case such as MFA,[14] in which there was a witness to the conduct comprising some counts, but not others, and a Jones v Dunkel direction in relation to some counts, but not others, in the present case, there was no unique feature or concrete, distinctive characteristic of either counts 1 or 2 capable of constituting an objectively demonstrable ground of differentiation.[15]

57 The respondent necessarily relied solely on the nature and quality of the complainant's VATE tape evidence on counts 1 and 2 respectively, as the rational explanation for the different verdicts. This Court, at the respondent's invitation, viewed the VATE tape.

58 Not surprisingly given the circumstances of the case, including the complainant's age at the dates of the alleged offences and the VATE tape interview, there was a generalised level of imprecision in the complainant's evidence, but the defence did not contend, either below or on appeal, that the imprecision was such as to render a conviction on counts 1 and 2 unsafe. The applicant's sole complaint on appeal was the absence of any logical basis for discrimination between counts 1 and 2.

59 The complainant's VATE tape evidence in relation to counts 1 and 2 was fuller and significantly more detailed than her evidence in relation to counts 3 and 4, which was extremely vague. Although the different outcomes on counts 3 and 4 were formally included as a ground of appeal, as the applicant essentially conceded, the extremely slight and undetailed nature of the complainant's evidence on those counts would sufficiently answer a complaint of inconsistency, provided that there had been a guilty verdict on both counts 1 and 2.

60 The complainant's coherent description of the lead up to and general background circumstances set the scene for counts 1 and 2, in a way which was entirely lacking for counts 3 and 4. The complainant clearly described her wakefulness, her visit to the applicant, her attempt to tire herself by playing with cards, and (when that proved unsuccessful) her second arrival in the lounge room where she occupied the couch with the applicant while watching a video. She also gave, at the outset, an explicit description of the central acts comprising counts 1 and 2.

61 While there was a detailed narration of the background common to both counts 1 and 2, in our opinion, no feature of the complainant's separate evidence in relation to counts 1 and 2 was capable of explaining rationally the different verdicts on each count.

62 The respondent's contention that the description of count 1 was more precise, presented a more powerful image and constituted a vivid retelling, depended in particular upon the complainant's physical demonstration of movements (at question 129) which were said to demonstrate where the parties were seated and how they were positioned when the complainant licked the applicant's penis. Observation of the VATE tape reveals, however, that the complainant's physical gesture at about that point of the interview was merely an imitation of the applicant slipping down his underpants, in response to the interviewer's previous question about whether the applicant was wearing clothes which he took off. The complainant subsequently (at question 135) reversed the gesture in order to indicate the applicant pulling his underpants up.

63 The complainant subsequently physically demonstrated or pointed out the parties' relative positions on the couch during the conduct comprising count 2, and also physically moved to indicate the part of the couch where the applicant was leaning.

64 Somewhat out of narrative sequence, the complainant, while describing the circumstances of count 2, reverted briefly to count 1 and physically indicated where the applicant lay on the couch when he told her to lick his penis.

65 We are unable, however, to conclude that any of the complainant's physical gestures or demonstrations associated with count 1 was of a different quality or brought the relevant conduct more vividly to life. Rather, all the complainant's physical gestures were of uniform character. There was no particularly graphic re-enactment or physical demonstration of either count 1 or count 2.

66 As the respondent submitted before us, the conduct comprising count 1 occupied a greater proportion of the VATE tape interview than the conduct comprising count 2. That was, however, merely a consequence of the considerably greater number of questions directed by the interviewer to that topic, rather than any independent emphasis placed on count 1 by the complainant. If anything, the fact that the interviewer's more pronounced stress on the conduct comprising count 1 ultimately failed to elicit any greater clarity, substance or precision fortifies the conclusion that there was no material difference between the evidence on either count.

67 Nor do we accept the respondent's submission that a meaningful distinction can be drawn between the particularity of the complainant's description of the physical mechanics of the conduct the subject of counts 1 and 2. The complainant's description of the direct physical contact involved in count 1 added nothing of substance to her initial assertion of the act. She was unable to estimate the duration of the act. The same lack of precision and sharp recall characterised her response to successive 'rolled up' questions about the recollection of associated feeling and locating the pointing of physical contact in relation to count 2. Similarly, we are not persuaded that the complainant either demonstrated or acknowledged any confusion in relation to the act comprising count 2 which did not apply equally to count 1. Her comment that she was 'confused like' and her concession that she 'didn't understand what was goin' on' was, on a fair construction, directed at the alleged conduct of the applicant generally, rather than any particular act.

68 Ultimately, the evaluation of the quality of the VATE tape evidence is a matter of subjective impression. Having viewed the VATE tape carefully, we are not persuaded that it contained a more detailed narration, more precise description, more powerful image, or a more vivid retelling of count 1, or otherwise provided any sound basis on which to discriminate between counts 1 and 2.

69 In all the circumstances, the different verdicts on counts 1 and 2, which allegedly occurred in close sequence on the same occasion, appear explicable only as a compromise. That view is fortified by, but does not depend upon, the jury's statement late in the afternoon of 7 December 2007, that it was unlikely to be able to reach a verdict on counts 1 and 2.

70 We would grant the application for leave and treat the appeal as having been heard and determined instanter. The conviction on count 1 should be quashed. In lieu thereof, there should be entered a judgment and verdict of acquittal.

[1] It would appear that of some sections of the VATE tape were deleted, as indicated on the copies of the transcript of the interview provided to the court. Nothing in the appeal turned on that.

[3] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.

[5] Mackenzie v The Queen (1996) 190 CLR 348, 366.

[6] Per Devlin J in R v Stone (Unreported, 13 December 1954) cited in Mackenzie v The Queen (1996) 190 CLR 348, 366.

[7] Mackenzie v The Queen (1996) 190 CLR 348, 367.

[9] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.

[10] [1959] HCA 8; (1959) 101 CLR 298.

[12] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 618.

[13] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 632 [89].

[14] See also R v Ware [1997] 1 VR 647, in which a separation of time and circumstances between the counts on which the applicant was found guilty and those on which he was acquitted explained the different verdicts; R v Upton (2000) 116 Crim 298 (NSW CCA) in which a guilty verdict on a charge of having intercourse with the complainant without consent was held not to be inconsistent with acquittal on a charge of, at the same time, administering a stupefying drug to her; R v RAT (2000) 111 Crim 360 (NSW CCA) in which not guilty verdicts on some counts of indecent assault or carnal knowledge of the complainant but guilty verdicts on the other counts were held to be inconsistent, as the different verdicts were explicable on the basis of different issues and different evidence referable to the different charges.

[15] See also R v Hansen [2002] SASC 208; (2002) 84 SASR 54 (CA), in which the appellant's conviction on certain counts of unlawful sexual intercourse was held to be inconsistent with the jury's rejection of the complainant's evidence in relation to other counts on which the appellant and another person were acquitted; R v RCC (2002) 133 Crim 352 (NSW CCA), in which a guilty verdict on one count of assault was held to be inconsistent with guilty verdicts on other counts of assault and unlawful sexual intercourse, in circumstances where the complainant gave uncorroborated evidence on all counts (which were clearly linked events) and there was nothing in the evidence to explain the differences in the verdicts; R v Smillie (2002) 134 Crim 100 (CA) in which it was held that guilty verdicts on some counts of arson and fraud were inconsistent with not guilty verdicts on other counts, given the lack of appreciable difference in the quality of the relevant witness' evidence on all counts; BG v State of Western Australia (2005) 152 Crim 207, in which it was held that there were inconsistent verdicts in relation to certain counts of unlawful detention and sexual offences, on the ground that no reasonable jury could have found that the complainant lacked credibility with respect to some counts, but not others.