R v JGVR [2001] VSCA 8

Court of Appeal (Vic)|2001-02-13|Before: CALLAWAY, BUCHANAN and CHERNOV, JJ.A.

The applicant took issue with certain of the circumstances described by the complainant as being the context in which the offences occurred. The applicant's counsel called evidence from members of his family to support those points and called witnesses as to the applicant's good character. No witnesses other than the complainant and the applicant could give any evidence of the assaults themselves.

The jury returned verdicts of acquittal in respect of all the charges save count 13, on which the jury found the applicant guilty.

The applicant seeks leave to appeal on two grounds, namely, that the verdict on count 13 was unsafe and unsatisfactory and that it was inconsistent with the verdicts on the other counts.

It is convenient to consider first the ground alleging inconsistency of verdicts.

The verdicts were not legally or technically inconsistent in the sense described by Gaudron, Gummow and Kirby, JJ. in MacKenzie v. The Queen[1]. Rather, in my opinion, this is a case of factual inconsistency where the verdicts cannot stand together in that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion that count 13 had been established beyond a reasonable doubt whereas at least a reasonable doubt existed in respect of all the other counts. Convictions on all the counts depended upon the evidence of the complainant being accepted as true beyond reasonable doubt. The jury's finding of not guilty on all but one count entailed a rejection of the complainant's account of the events said to have given rise to the counts. In my view it was not open to the jury to be convinced beyond a reasonable doubt of the guilt of the applicant with respect to count 13. There is nothing in the complainant's evidence or the surrounding circumstances or in the evidence of other witnesses which gave any ground for supposing that the complainant's evidence was more reliable in relation to that count than it was in relation to the other counts[2]. Counsel for the Crown concedes, in my view quite properly, that there were no circumstances which logically justified a finding of guilt with respect to count 13 in the light of the acquittals on all the remaining counts.

In his charge the trial judge told the jury 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. In my opinion the jury's verdict is not to be explained as the product of following the judge's instructions. I do not think it was open to the jury to accept the complainant as a truthful witness but admit the possibility of faulty recollection in respect of all but one count. Further, although there was conflicting evidence as to some of the circumstances surrounding some of the counts, no such conflict can explain the verdict. Nor in my view is it open to conclude that the jury took a "merciful" view of

the facts upon all but one count. See R. v. Kirkham[3]. In my opinion it is to be inferred that the jury compromised disputes among themselves or otherwise fell into error.

Accordingly, in my opinion the impugned verdict should be set aside. The conviction should be quashed and a verdict of acquittal directed to be entered.

The formal order of the Court will be as follows:

The application for leave to appeal against conviction is granted.

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

The conviction sustained by the appellant on count 13 is quashed.

The Court directs a judgment and verdict of acquittal to be entered on that count.

[2] See Jones v. The Queen (1997) 191 C.L.R.439.

[3] (1987) 44 S.A.S.R. 591 at 593 per King, C.J.

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