Ground 1: The verdict was unreasonable
43 Section 6(1) of the Criminal Appeal Act 1912, so far as presently relevant, provides:
"The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal ..."
44 The test to be applied was stated by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 as follows: (at 493)
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
45 That test has been recently reaffirmed by the High Court in MFA v R (2002) 193 ALR 184, per Gleeson CJ, Hayne and Callinan JJ (at 190), and McHugh, Gummow and Kirby JJ (at 198). This Court, examining the evidence at the trial, must reach a view as to whether it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant in respect of counts 2 and 3 (cf MFA v R (supra) at 198 para 60-61).
46 At the end of the Crown case, an application was made for a directed verdict. His Honour declined that application. However, he gave what is generally referred to as a Prasad direction. That is, he gave the jury the opportunity of immediately acquitting Mr Lebler or, alternatively, indicating that it wished the trial to continue. The jury responded by saying that it wished the trial to continue. The appellant then gave sworn evidence. He denied wrongdoing. The complainant had consented to each act of intercourse. He reaffirmed the truth of what he had said to the police when interviewed, with one qualification. The qualification was that he had been driving, not the complainant. He had originally asserted that the complainant had been driving because he, at the time, was a disqualified driver. He was frightened that he may be charged with that offence.
47 Following the verdict, his Honour, as mentioned, issued a certificate under the Criminal Appeal Act 1912, certifying that the case was "a fit case for appeal" upon the following grounds:
"1. The abovenamed was acquitted on the first count in the indictment presented against him but found guilty on the second and third counts therein, in a case in which all three offences were allegedly committed by the same offender on the same occasion and where in each instance the evidence of the same complainant had to be accepted beyond reasonable doubt before a verdict of guilty could properly be returned.
2. The evidence as to the absence of consent relied upon by the prosecution was dependent upon the jury finding that, notwithstanding the complainant having told the accused that she loved him and having herself initiated the sexual intercourse, her freewill had been overborne by the behaviour of the accused.
3. The jury's finding negativing any belief by the accused that the complainant was consenting could only have been based upon the accused having known and appreciated that his own bizarre behaviour had caused the complainant to become so fearful of violence by him towards her that she was not freely consenting to sexual intercourse with him or that he had not even considered whether or not she was consenting."
48 What, then, is the significance of the verdict of not guilty on count 1? The appellant acknowledged that count 1 could be distinguished from counts 2 and 3, such that the verdicts were not technically or factually inconsistent (cf MFA v R (supra), Gleeson CJ, Hayne and Callinan JJ at 192/193 para 34-36; McHugh, Gummow and Kirby JJ at 203/204 para 85). Nonetheless, it was said that there was no rational or reasonable explanation for the differing verdicts. That they were different suggested compromise, according to the appellant. As such they were an affront to logic and common sense (MacKenzie v The Queen (1996) 190 CLR 348 at 368; MFA v R (supra) at 204 para 86). Indeed, it was argued that that impression was reinforced by two matters. The first was the following direction by the trial Judge during the summing up (which, itself, is the subject of a separate ground of appeal, ground 2):
"There are three separate charges and you must consider each charge on its merits. However, the reality of the situation is that the prosecution depends upon your accepting the complainant Miss Hill, as a credible witness who when her evidence is compared and contrasted with the evidence of other witnesses in the case, you are in the final analysis prepared to accept beyond reasonable doubt, as an accurate and honest account, so far as the vital matters with which this trial is concerned. You might find it hard to find any logical basis as to why the same verdict, that is either guilty or not guilty, should (not) be returned in respect of each of the three charges. They all arose on the one occasion, within a very short time of each other. They all involved the same witnesses and they all depend in the final analysis, upon the credibility of the complainant."
49 The second reason was the unseemly pressure by his Honour upon the jury to conclude their deliberations rapidly, which they duly did. After a six day trial the jury retired at 3.35 pm on a Friday. They were brought back for certain redirections at 3.49 pm. They returned to their deliberations at 3.51 pm. The verdicts were ultimately delivered after approximately two hours at 5.55 pm. This aspect is also the subject of a separate ground of appeal (ground 4). However, on the appellant's argument, that sequence, and his Honour's comments, provide further support for the suggestion of compromise (cf R v Crisologo (1997) 99 A Crim R 178, per Simpson J at 183).
50 However, I am not persuaded that there was compromise. There are rational explanations for the different verdicts. First, the obvious difference between count 1 and counts 2 and 3 was that the appellant denied the act of intercourse in count 1, but not counts 2 and 3. It was his case, on counts 2 and 3, that, although intercourse had taken place, the complainant had consented, or at least he believed at the time that she had consented. However, paraphrasing the words of Gleeson CJ, Hayne and Callinan JJ in MFA v R (supra) at 192 para 34, some members of the jury may have required some supporting evidence before being satisfied beyond reasonable doubt, based upon the word of the complainant, as to the number of acts of penile intercourse. As Gleeson CJ, Hayne and Callinan JJ said: (at 192 para 34)
".... This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility."
51 Secondly, the complainant certainly insisted, when she gave evidence, that there were three acts of intercourse (each the subject of separate counts). She said this: (T162)
"A I told you just before, twice. Twice. He put his tongue in once; he put his penis in twice. If you think about it he put his penis in I don't know many how many times but he done it on two occasions."
52 However, on the morning of 15 December 1999, when first seen by Sgt Berryman, the complainant had spoken of three acts of intercourse (implying three acts of penile intercourse). Based upon that inconsistency, some members of the jury may not have been satisfied beyond reasonable doubt on count 1.
53 Thirdly, the verdict may reflect a merciful view of the evidence; King CJ (with whom Olsson and O'Loughlin JJ agreed) said this in R v Kirkman (1987) 44 SASR 591: (at 593)
"... 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 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." (emphasis added)
54 These remarks were endorsed as practical and sensible by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (supra) at 368. In MFA v R (supra) Gleeson CJ, Hayne and Callinan JJ said this, having referred to the same case: (at 192 para 34)
"... it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only."
55 Although the different verdicts can be rationally explained, the issue remains whether the guilty verdicts were unreasonable. The case was unusual. There was, moreover, a substantial attack upon the credit of the complainant. That attack, broadly, was directed at two matters. First, in the days following 15 December 1999, the complainant gave a number of accounts to friends and others which were inconsistent with the account that she gave to the police, and which she repeated when giving evidence. Mrs Lorna Williams, her boyfriend's mother, said that she was told by the complainant that the appellant had held her down, forcing himself upon her. She said that, when putting his penis inside her vagina, he was ripping her. Ms Maria Dawson said that the complainant told her the next day that the appellant had put his fist in her vagina, such that she required 14 stitches. She said, according to Ms Dawson, that she had been pregnant. She had lost the baby. The appellant had been raving on about God.
56 The Crown argued that such inconsistencies could be explained by the complainant's shame at having been forced into a situation where she felt obliged to initiate the intimacy and "give herself".
57 The second issue concerned the complainant's drug taking. The learned trial Judge described the complainant as living a chaotic life. With disarming frankness, she acknowledged excessive drinking and extensive drug taking. However, she insisted that much of her drug taking occurred after she had been raped. She had not, for instance, taken LSD or amphetamines before the incident. Hospital records, tendered on behalf of the appellant, suggested otherwise. More than that, there was evidence that, under the influence of drugs, she had hallucinated before this incident. Hence, there was an issue whether, by reason of drugs and alcohol consumed on this evening, she may have been hallucinating.
58 The Crown suggested a number of explanations for the differences between her account of her drug taking and the medical records. For some of the records, she was not necessarily the source of information. She had been taken to a hospital by her grandmother, who had plainly provided information. Even were the records accurate, it was possible that the complainant had simply forgotten details of her chaotic past or was confused, no doubt partly because of the drugs themselves.
59 Weighing these matters, I believe it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of the appellant on counts 2 and 3 (cf MFA v R (supra) p198, para 60). The incident took place in a remote location on a dead end road. The action of the complainant in escaping, taking with her the keys to the car, is consistent with her account that she was in fear. When seen by Mr Shipley, she was nervously looking up and down the road. Her appearance and the terms of her immediate complaint to Mr Shipley, to Sgt Berryman, and to Dr Smith (who examined her within a matter of hours), again were consistent with the account that she had given.
60 I would dismiss ground 1.