R v R T M [2006] VSCA 170

Background

2 The applicant seeks leave to appeal against his conviction on five counts of committing an indecent act with a child under 16. The complainant was the applicant's step-daughter, who was aged between eight and 15 during the time when the offences were said to have occurred. The central issue to be considered by this Court is whether the jury verdicts convicting him on counts 6, 10 and 11 are inconsistent with the jury verdicts acquitting him of two counts of incest and one count of attempted incest. These inconsistencies are said to make the guilty verdicts unsafe and unsatisfactory.

3 This is not a case of legal inconsistency, such as occurs when a person is convicted both of an offence and of an attempt to commit the same offence. The grounds of appeal require the applicant to show that the verdicts are factually inconsistent, in the sense that the guilty verdicts on some counts cannot logically stand together with the acquittals on the other counts.[1]

What is the test for factual inconsistency?

4 In R v Ware this Court held that a factual inconsistency between verdicts arises only when "no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the two different conclusions which it did.[2]"Because

the jury has responsibility for making findings of fact, appellate courts are generally reluctant to uphold an appeal against conviction on the basis of factual inconsistency. If there is some evidence supporting the verdict which is challenged, the court will not normally substitute its view of the facts for the view taken by the jury.[3] In MacKenzie v R[4] the High Court said:

"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. 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.[5]"

5 In R v Kirkman[6] King, C.J. referred to the jury's ability to reach a merciful verdict of acquittal:

"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".[7]

6 Despite the jury's capacity to show mercy, it was recognised in both R v Kirkman and in MacKenzie v R that in some cases the factual inconsistency between verdicts of conviction and acquittal may be such "an affront to logic and common sense" that they cannot stand together. The weight of logic may suggest that the jury has not conscientiously discharged its duty or has misunderstood the task it must perform. [8]

Were the jury verdicts factually inconsistent?

7 Are the verdicts in this case so factually inconsistent that no reasonable jury could have reached these different verdicts? As the High Court commented in MacKenzie, this "all depends upon the facts of the case."[9]

8 Counsel for the applicant, Mr Croucher, submitted that the case against the applicant was run on an "all or nothing basis." Either the complainant was credible or she was not. This meant that the jury should either have accepted the whole of the complainant's evidence and convicted the applicant on all counts, or rejected the whole of the complainant's evidence and acquitted him on all counts.

9 He referred to discussion between counsel and the trial judge before the trial judge charged the jury. In that discussion her Honour said she did not intend to provide a detailed summary of evidence, but would direct the jury on the elements of the various counts and refer to the evidence in that context. In relation to the incest she said that "what is in issue is really whether the offence or the penetration took place. There is no issue, obviously, that what the girl has alleged isn't penetration."

10 Mr Croucher said that trial counsel had not asked her Honour to give a detailed summary of the evidence relevant to each count because of the all or nothing basis on which the case was conducted. This provided the basis for his submissions as to why verdicts on particular counts could not logically stand together, which I discuss below. It was not conceded by counsel for the Crown, Mr McArdle, Q.C., that the case was conducted on an "all or nothing" basis.

11 In rare situations, the way that a case is conducted by the prosecution and defence could make it an "affront to logic" for a reasonable jury to acquit the defendant on some counts and convict him or her on others. In my view this was not such a case.

12 The defence may well have made a strategic choice to defend the case by attacking the credibility of the complainant, but this cannot bind a properly-instructed jury in its decision-making. In discussions with counsel before she charged the jury about the "credibility" issue, her Honour said that she would remind the jury of reasons raised by the defendant about why the complainant had made false allegations. She said that it was also incumbent on her to remind the jury that there was no onus on the defendant to establish why the complainant might have made inaccurate allegations. This was reflected in her jury charge.

13 The learned trial judge referred to issues affecting the complainant's credibility throughout her charge, and discussed evidence relevant to the particular counts. For example, the trial Judge noted that the jury should have regard to

"The age of the complainant... at the relevant time, taken together with the delay... in the prosecution, [which] make it essential that you consider the effect of the combination of those circumstances upon the memory of those involved."

14 Her Honour adequately discharged her responsibility to assist the jury to "apply that law to the facts of the case before them.[10]" It was clearly open to the jury to accept all of the complainant's evidence or, alternatively, to accept some aspects of her evidence and reject other aspects[11] depending on their independent evaluation of the complainant's evidence.

15 I now turn to a consideration of the verdicts on the particular counts.

Ground 1 - Counts 6 (indecent assault) and 8 (incest)

16 The applicant was convicted on count 6 (indecent act with a child) but acquitted on count 8 (incest). These counts arose out of a single incident (the mattress incident) which occurred on an unspecified date between 27 February 1998 and 27 February 2000, when the complainant was somewhere between 11 and 13 years old.

17 The complainant's evidence was that one night when her mother was away from home the applicant came into her bedroom, picked her up and carried her into the lounge room where he laid her on a mattress. He began kissing her neck and chest "like a boyfriend".

18 She gave evidence that he then kissed her on her vagina and inserted his tongue. She was cross-examined about how she knew that he had put his tongue inside her vagina and she said "because I could feel it". The complainant testified that she asked the applicant to stop because he was hurting her. Mr Croucher submitted that because all of these events occurred as part of a single incident, rejection of the complainant's evidence on penetration must necessarily involve a rejection of her evidence that she had been indecently assaulted.

19 Counsel for the Crown, Mr McArdle, referred to Kirkman[12] as an example of a case where the separate sexual acts occurred as part of a single incident which occurred in the appellant's car. In Kirkman both the complainant and the defendant agreed that sexual activity had occurred between them but the defendant's version of events was that the complainant had been a willing participant in "rough" sexual behaviour. The appellant was convicted on one count of attempted rape based on an alleged attempt at vaginal penetration, and a second count of indecent assault, but was acquitted on a third count of attempted rape, based on an allegation of attempted fellatio.

20 On appeal in Kirkman it was argued that the verdicts were inconsistent because the case turned on the issue of consent. It was argued that because the complainant said that she had not consented to any of the sexual acts, it was not open to the jury to reach a conclusion that there was consent to one of the sexual acts, but no consent to the other two sexual acts. The South Australian Court of Criminal Appeal held that the verdicts were not inconsistent, and that it was possible that the jury had acquitted the appellant on the third count because it was not satisfied beyond reasonable doubt that the appellant intended to insert his penis into the mouth of the alleged victim.

21 Mr Croucher said that the "single incident" underpinning counts 6 and 8 in this case was different from the single incident in Kirkman, because in Kirkman both the defendant and the complainant agreed that sexual activity had occurred between them, whereas in this case the issue was whether any sexual activity had taken place. I do not think the difference between the matters in issue in Kirkman and in this case requires a finding that there was a factual inconsistency between the jury verdicts under consideration. It should be noted that, because each case turns on its particular facts,[13] a finding of factual inconsistency between verdicts in one case provides limited assistance on whether there is a factual inconsistency between verdicts in a different case.

22 The jury was carefully directed by the trial judge on the elements of the different offences and that the incest count relied on proof of sexual penetration. Although the complainant gave evidence that the accused had put his tongue inside her vagina, the jury may not have regarded the complainant's evidence as sufficient to satisfy them beyond reasonable doubt that penetration actually occurred. A reasonable jury could find that the applicant indecently assaulted the complainant but did not sexually penetrate her. Such a finding was entirely consistent with the trial judge's direction to them to consider each charge separately and on its merits.

Ground 2 - Counts 10 and 11 (indecent assault) and count 13 (attempted incest)

23 It was also submitted that the verdicts on counts 10 and 11 were inconsistent with the acquittal on count 13. All of these counts related to incidents occurring after a barbecue (the barbecue incident) held at the house of a woman who was a friend of the family, between 29 October 2001 and 27 February 2002. When the barbecue ended the complainant's mother, who was drunk, vomited and went to bed in the room of her woman friend. The applicant, who had also drunk a great deal of alcohol, went to bed in a separate room. The complainant noticed him tossing and turning when she was walking past the bedroom. She went into the room to wake him up and then got into bed with him. She was cross-examined as to why she had done so, if he had previously assaulted her. It was put squarely to her that this conduct "made no sense", and that her allegations were the "product of a vicious, morbid imagination". The complainant conceded that her own conduct "made no sense" but maintained that the sexual assaults had occurred.

24 The first count of indecent act with a child was based on an allegation that the applicant rubbed the complainant's leg, while she was in bed with him. The second count of indecent act related to allegations that he had kissed the complainant's chest. In cross-examination, the complainant gave evidence that he had then attempted to force his penis into her vagina, but that she had kicked him away. Her evidence was he had then apologised and left. In his police interview the applicant said that he had got out of the bed and walked home shortly after the complainant got into bed with him, because "something like this could be construed from that". Count 13 was based on the alleged act of attempted penetration. Counsel for the applicant cross-examined the complainant about what she was wearing at the time, and she said that she was wearing a sleeveless top and her underwear.

25 Mr Croucher submitted that a reasonable jury, properly instructed, could not have acquitted the applicant on the count of attempted incest and convicted him of the indecent acts. He contended that consideration of count 10 (indecent assault) required the jury to take account of their finding on attempted incest. If the jury convicted the applicant of attempted incest, the leg rubbing could be seen as an indecent act because it was a preliminary to attempted sexual penetration. The acquittal on the attempted incest count, should have raised a reasonable doubt in the minds of jurors about whether the leg rubbing was an act done with any sexual motive, for example an accidental touching of the complainant by the applicant while he was waking up from a drunken sleep.

26 Mr Croucher submitted that the trial judge should have directed the jury that they should take account of their findings on count 13 in deciding whether there was a reasonable doubt about whether the applicant had rubbed the complainant's leg, and whether that act was indecent. The failure to do so was said to have led the jury astray.

27 I have carefully considered Mr Croucher's submission about the connection between the alleged indecency of the acts covered by count 10 and the acts covered by count 13. In my view there was sufficient evidence to provide a basis for the different verdicts on these counts. In her jury directions the trial judge summarised the evidence about the applicant's alleged acts following the barbecue. Her Honour drew the jury's attention to the fact that the complainant had woken the applicant up and got into bed with him. She reminded the jury of the complainant's answers to cross-examination on this issue. In relation to the attempted incest count her Honour reminded them that they must be satisfied beyond reasonable doubt that the applicant had attempted to penetrate the complainant's vagina with his penis.

28 It was not "an affront to logic and common sense"[14] for the jury to find that the applicant indecently assaulted the complainant but that there was a reasonable doubt about whether he attempted to sexually penetrate her. As Mr McArdle submitted, the jury might have entertained a reasonable doubt about whether the applicant intended to penetrate the complainant or was instead masturbating. Nor is it logically impossible for a jury to determine that rubbing the leg of a step-daughter in bed at night could, of itself, be considered to be indecent. As the trial judge specifically told the jury, it was for them to decide whether the conduct occurred and, if so, whether it occurred in circumstances of indecency. Her Honour noted that the only contest was whether it had occurred at all. The defence had not suggested that the acts in question were not indecent.

29 I should make it clear that my reasoning is not based on Mr McArdle's proposition that the jury may have been confused as to whether the vagina includes the external genitalia. Nor is it based on a view that the jury may have reached a "merciful" verdict which could not be reconciled as a matter of strict logic with the acquittals on counts 8 and 13.

Ground 3 - Counts 2 and 14

30 The third ground of appeal was that the inconsistencies discussed above were sufficient to demonstrate that the jury had engaged in an impermissible reasoning process in the course of deliberating on counts 6, 10 and 11, and this in turn rendered the findings of guilt on counts 2 and 14 unsafe and unsatisfactory. My rejection of the first two grounds of appeal requires rejection of the third ground as well. Even if this were not the case, counts 2 and 14 related to indecent acts which were said to have occurred on different occasions from count 6 (the mattress incident) and counts 10 and 11 (the barbecue incident).

31 The implicit basis for this ground (and probably for grounds 1 and 2) was that if the jury regarded the complainant's evidence as mistaken or inaccurate on some counts they should also have rejected it on all the other counts. In R v Ware[15] this Court rejected the argument that the credibility of the witness "is an homogenous and indivisible whole[16]" so that if the applicant's guilt on one count is not established beyond reasonable doubt, the complainant's evidence on other counts is also to be regarded as insufficient for a conviction.[17] The notion that credibility is "indivisible" is particularly difficult to sustain where convictions on some counts relate to offences with different elements from the elements of the offences on which a defendant has been acquitted. There is no lack of logic in a jury deciding that the elements of one set of offences have been satisfied beyond reasonable doubt, but that they have a reasonable doubt about the defendant's guilt of another offence with different elements.

32 In charging the jury, the learned trial judge made it clear that:

"...you must not allow convenience to usurp justice. The accused is entitled, as is the Crown, to a separate consideration by you of each crime charged. It may be that the same logic applies to two or more of them and as a matter of reason that logic will dictate the verdict in each count, but it would be quite wrong to say that simply because you find the accused guilty or not guilty of one count that he must be guilty or not guilty, as the case may be, of another. Each count must be considered separately in light of the evidence which applies to it and you must ask yourselves as to each count under determination separately; am I satisfied beyond reasonable doubt by the evidence that he is guilty of this crime?"

33 There is a perversity in directing a jury that each count should be considered individually, and then overturning the jury verdict for engaging in precisely that process.

Other matters mentioned during the hearing

34 In the course of his submission, Mr Croucher also referred to other factors which he said cast doubt on the complainant's credibility. These included:

•

In the case of the "mattress incident" the improbability of the complainant's evidence that the applicant had assaulted her on a mattress in the lounge room, when he could have gone to her bedroom;

•

The fact that the complainant did not tell anyone about the offences for a considerable period and in particular, did not complain during the 18 months that the applicant was in Queensland; and

•

The fact that in her first statement to the police, which related to count 14, she said that this was the only time she had been assaulted by her step-father.

35 It is not necessary for me to comment on these matters in detail, as they fall outside the applicant's grounds of appeal. The complainant was cross-examined on these issues and the jury had an opportunity to assess her credibility.[18] Moreover, research reveals that some of the matters described above are common aspects of sexual assaults against children. Victims of sexual assault often delay in reporting sexual offences[19] and may not disclose all the details of the offending initially. It is rare for child victims to report offences immediately, particularly where the perpetrator is a family member.[20] In Victoria this is reflected in the jury direction required under s.61(1)(b) of the Crimes Act 1958. The reasons why children often delay in reporting have been discussed by the High Court.[21] In recent years, significant inroads have been made into understanding the credibility of child witnesses[22].

36 Jury verdicts are necessarily based on the facts of the particular case. Research about the typical behaviour of complainants in sexual offence cases cannot resolve doubts about how a particular individual may behave. However, it is

equally important that myths about the "typical behaviour" of people who complain of sexual assault do not provide the basis for drawing unjustified factual inferences. To conclude, this is not a case where "the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice[23]".

37 Since the appeal is hopeless I would refuse the application for leave to appeal.

38 I have read the judgment of Neave, J.A. and agree with her Honour's conclusions and her reasons for dismissing this appeal.

39 Towards the end of those reasons her Honour commented upon some submissions made by counsel for the applicant concerning the credibility of the complainant. In doing so she referred to research concerning certain aspects of sexual assault against children. As her Honour pointed out, counsel's submissions on this matter were extremely peripheral to any issue properly raised on this appeal and they had no consequence with respect to the result. The research to which her Honour referred as being relevant to those submissions was not before the Court. As neither the applicant nor the Crown had any opportunity to comment or make submissions on it I say nothing about that research or the conclusions to which her Honour referred. Such research may be relevant to the Court's consideration of issues which may arise for decision in some other case. As those issues did not arise in this case I would defer consideration of that research until the need to do so arises.

[1] MacKenzie v R (1996) 190 C.L.R. 348 at 366 per Gaudron, Gummow and Kirby, JJ.

[2] [1997] 1 V.R. 647 at 649 per Hedigan, A.J.A. (with whom Winneke, P. and Hayne, J.A. agreed).

[3] (1996) 190 C.L.R. 348 at 368.

[4] (1996) 190 C.L.R. 348.

[5] Ibid at 367 (see also MFA v R [2002] HCA 53; (2002) 213 C.L.R. 606 at 617 [34].

[6] (1987) 44 S.A.S.R. 591.

[7] Ibid at 593. Olsson and O'Loughlin JJ concurred in the judgment.

[8] MacKenzie v R (1996) 190 C.L.R. 348 at 368.

[9] MacKenzie v R (1996) 190 C.L.R. 348 at 368.

[10] R v Anderson [1996] VICSC 17; [1996] 2 V.R. 663 at 666, see also R v Zilm [2006] V.S.C.A. 72 and R v AJS [2005] V.S.C.A. 288, applying the principles set out in Alford v Magee [1952] HCA 3; (1952) 85 C.L.R. 437.

[11] In Kamcev v Hamid (1993) 18 M.V.R. 201, which involved a civil action arising out of a motor vehicle collision, the Full Court of the Supreme Court held that it was a misdirection to tell the jury that they had to determine negligence by accepting either the plaintiff's version or the defendant's version of events. The jury was entitled to find facts which did not accord with the version of either party.

[12] (1987) 44 S.A.S.R. 591.

[13] MacKenzie v R (1996) 190 C.L.R. 348. Mr Croucher also referred to a perceived inconsistency between counts in MFA v R [2002] HCA 53; (2002) 213 C.L.R. 606 at 617. This also turned on the particular facts of the case.

[14] MacKenzie v R (1996) 190 C.L.R. 348 at 368.

[15] [1997] 1 V.R. 647.

[16] Ibid at 650.

[17] [1997] 1 V.R. 647 at 650 and see also R v Girgines (unreported Court of Appeal 26 March 1996).

[18] It has been noted in the past that "The standard for assessing credibility which would be applied to an adult's evidence is not always appropriate in assessing a young child's credibility"; R v F (CC) [1997] 3 S.C.R 1183, at 4. Similar considerations may have been considered by the jury in this case.

[19] Refer for example, to Spencer J.R and Flin, R, "The Evidence of Children, the Law and the Psychology" 2nd Ed., p 143, and generally, Sorensen, T & Snow, B (1991) "How Children Tell: The Process of Disclosure of Child Sexual Abuse" Child Welfare, 70(1), 3 - 15.

[20] Ibid.

[21] M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 515, per Gaudron, J.; and Jones v R (1997) 191 C.L.R. 439, per Kirby, J.

[22] See for example, Prof H Young, Child Sex Abuse and the Law of Evidence: Some Current Canadian Issues (1992) 11 Can. J. Fam. L 11.

[23] MacKenzie v R (1996) 190 C.L.R. 348 at 368.