R v RJB [1999] VSCA 188

41. There is, I think, nothing in the second ground of the application. It is, of course, well established that it is the duty of a trial judge to put the accused's defence fairly to the jury (R. v. Wilkes and Bryant [1965] VicRp 64; [1965] V.R. 475, at 479) and that it is advisable to relate the evidence to the law in respect of the issues to which the conduct of the case has given rise (R. v. Jellard [1970] V.R.802, at 804). But the particular circumstances of each case must be considered to determine whether a miscarriage of justice has occurred (R. v. Levidis [1991] 2 V.R.179, at 182) and the question should not be determined upon a consideration of the charge alone (R. v. Tikos (No.2) [1963] V.R.306, at 308-9).

44. In the present case the judge did not in his charge remind the jury of the addresses by counsel. But he had previously on at least two occasions made fairly brief reference to the facts in the context of the individual counts. His Honour's stated reason for not reminding the jury of counsel's arguments was that he would be wasting the jury's time, and he said that both of the addresses had been appropriately structured and set out and that the jury were quite capable of recalling all the arguments.

47. The judge took the view (as appears in his Honour's second report to this Court dated 27 October 1999) that the evidence had occupied less than two days, and both counsel had referred to the evidence in some detail in their addresses, which were made during the morning of 22 March; his Honour's charge immediately followed and was also completed during that day.

50. No exception was taken by either counsel at the end of the charge, which presents a serious obstacle to the applicant's arguments on this ground. In this case, the failure to take exception necessarily indicates that counsel present saw no injustice or error in what was done, and that in effect counsel accepted the judge's stated reasons for making no more substantial reference to the facts and to counsel's arguments (see R. v. Wright [1999] VSCA 145 at [2] and [16-18]). In these circumstances this ground should be rejected.

53. I turn then to the principal ground argued, that the convictions on counts 3 and 4 were unsafe and inconsistent. In the course of his charge, the judge told the jury that the respective cases were quite clear, that sworn evidence had been given by the complainant in relation to the several sexual assaults with which the applicant was charged, and that, equally clearly, the defence case was that these events did not happen. Reference was made to the evidence given by the applicant denying that any such sexual incident had occurred at all. The judge observed that there was a head-on clash between the complainant and the applicant and patently they were the two key witnesses. A little later in the charge, his Honour made reference to the head-on conflict between the applicant on the one hand and the complainant on the other. Somewhat later the judge told the jury that there would be seven questions asked of them in relation to whether the applicant was guilty or not guilty, and continued -

"You may return a verdict of not guilty in relation to each of them or a verdict of guilty in relation to each of them, or at least as a matter of theory, you may return a verdict of guilty of some and not guilty of the other. This is a comment which I make but it seems to me that as a matter of practical reality you will either find the accused guilty of all the charges or not guilty of any of them, depending upon the view that you take of the evidence, but nonetheless, as I say, each one does have to be separately considered and you may see some reason for taking a different view about some particular charge to the view that you take in relation to another charge or other charges."

57. At the conclusion of the charge, the judge adverted to the convenience of the jury and explained the procedures which would follow should their deliberations prove lengthy. His Honour continued -

"Now, should that eventuality arise, it is really largely a matter for you as to what time you might be permitted to separate, whether 4.30, 5.00, or 5.30. I think it should not be later than 5.30 at the very latest, but, again, that is a matter for you."

61. The jury retired to consider its verdict at 2.56 p.m. The judge took steps to assemble the court at 5.30 p.m. for the purpose of making arrangements for the jury to separate. However, shortly before 5.29 p.m. the jury foreman advised his Honour's tipstaff that the jury had agreed upon their verdicts and the verdicts were then taken. Immediately afterwards, the judge invited the prosecutor to make submissions the next day on the question what view should be taken of the factual matters in relation to counts 3 and 4 in the light of the convictions on those counts and the acquittals on the others, and his Honour said that he was concerned as to the issue whether it might be said that the convictions on some counts were inconsistent with the acquittals on the others. The prosecutor immediately responded that counts 3 and 4 concerned an allegation that the sexual penetrations had occurred in a car, whilst the others were concerned with the farm property where various persons might or might not have been present. The next day, the prosecutor said that he did not intend to enter into a discussion about the meaning of the jury's verdict save to say that the prosecution was content with the verdict and confident that there was no inconsistency in the verdicts. Defence counsel raised no question of inconsistency in relation to the jury's verdict.

64. At the outset of his reasons for sentence, the judge returned to these issues and after setting out the facts said that questions might arise as to whether there was any inconsistency between the verdicts of guilty on counts 3 and 4 and the acquittals on the others and as to whether there was some compromise on the part of the jury. His Honour said that this might be a matter which would need to be considered by a court of appeal.

67. In a most helpful report to the Court dated 13 August 1999, the judge set out part of the facts to which reference has already been made and, after referring to the verdicts returned by the jury, continued -

"Although I could not immediately see any basis upon which the jury might have so differentiated between the counts, I accepted the verdicts. I regret that it did not occur to me to raise with the jury my state of mind in that regard and to ask them to reconsider the matter. I am unable to perceive any basis upon which the jury might reasonably have reached the conclusion which was announced. In my view, there is a very real risk that the jury returned a compromise verdict. No doubt the Court will be aware that the trial over which I presided was a re-trial, a jury having been unable to agree upon a verdict on a trial conducted some few months earlier."

71. Mr Tehan, who appeared for the applicant in this Court, understandably placed great reliance upon the judge's views stated both at the conclusion of the trial and in his report to this Court. Relying on the recent decision of the High Court in MacKenzie v. The Queen (1996) 190 C.L.R. 348, Mr Tehan submitted that although the high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness, there are nevertheless cases where, although not technically inconsistent, the returned verdicts represent an affront to logic and commonsense and strongly suggest a compromise in the performance of the jury's duty. Mr Tehan submitted that in the present case the Court would be justified in coming to the view that the verdict was born of a compromise. He submitted that his Honour had been wrong in his charge to tell the jury they could return verdicts of guilty in relation to some of the counts "as a matter of theory", and this had incorrectly suggested to the jury a way out, as a matter of law, from a potential difficulty in their deliberations. Mr Tehan relied on the fact that the jury were aware that 5.30 p.m. was the time at which they would be required to separate and submitted that his Honour was in the best position of all to judge the atmosphere of the court and how the trial had been conducted. Mr Tehan submitted that there was no reason in commonsense or logic why the jury should have dissected the complainant's credibility in such a way as to arrive at the view shown by the verdicts. There was, he submitted, no particular feature of counts 3 and 4 that could be said to cause a jury to differentiate in regard to being satisfied of them alone beyond reasonable doubt.

74. The trial judge was long experienced in the conduct of criminal trials. I attach, with respect, great weight to his Honour's report and to his stated concern as to the very real risk of a miscarriage of justice. It goes without saying that a report in terms such as those made by his Honour in the present case is most unusual, and must inevitably cause this Court to scrutinise the evidence and the verdicts with particular care. Mr Tehan's submission that his Honour was in the best position of all to judge the atmosphere of the court and how the trial had been conducted must, however, be viewed in the light of what was said by this Court in R. v. Marziale (unreported, 18 April 1996). There, Winneke, P, Brooking, J.A. and Southwell, A.J.A. dealt with the weight to be accorded to a judge's report, saying at 34 -

"The weight to be given to a judge's report must necessarily vary according to the circumstances of each particular case. That weight will generally be the greater when the opinion expressed is based upon factors the assessment of which depends principally upon the atmosphere of the trial or the observations of a witness - for example, the general demeanour, the unduly delayed or the too hurriedly given answers. In such matters a court of appeal will recognise the advantage enjoyed by the trial judge. However, less weight will be given where, as in this case, the judge's opinion is based, so it appears, almost wholly upon the type of assessment of the evidence which a court of appeal is obliged to undertake where it is said that a conviction is unsafe and unsatisfactory."

78. In the present case the view that the jury returned a compromise verdict, and that the verdicts were inconsistent, could have been based either upon the state of the evidence, or the fact that steps had been taken to assemble the court at 5.30 for the purpose of making arrangements for the jury to separate. I do not think, with great respect, that significance should be attached to the time at which the jury foreman indicated that a decision had been reached, coming as it did immediately before the jurors would be required to separate for the night. The jury had been deliberating for more than two-and-a-half hours. The case was, as the judge had said, a clear one, and the addresses of both counsel and the judge's charge had been completed in some two-and-a-half hours. It can be no more than speculation, it seems to me, how it came about that the jury's verdict was arrived at at that time. Nor would I myself attach significance to the fact that this was a re-trial, a jury having been unable to agree upon a verdict in a trial conducted some few months earlier. In my view the crucial question is whether it is shown that the verdicts cannot stand together. On this issue, the applicant bore the onus of satisfying the Court that there was relevant inconsistency in the verdicts.

81. In MacKenzie, Gaudron, Gummow and Kirby, JJ. stated various propositions applicable to the question of inconsistent verdicts, including the following at 366 -

"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) 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. 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 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."

Their Honours continued at 367-8 by quoting with approval a passage (describing the remarks as practical and sensible) from the judgment of King, C.J. in R. v. Kirkman (1987) 44 S.A.S.R. 591 at 593 in which his Honour said -

"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 verdict 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."

87. Was there then any particular basis in the evidence before the jury upon which they might reasonably have differentiated between counts 3 and 4 and the other counts? The case was indeed oath against oath. There was, however, in my view, a significant distinction to be drawn between the prosecution case in relation to counts 3 and 4 and the remainder of the evidence. The evidence given by the complainant as to the two sexual assaults alleged to have occurred in the applicant's car was specific and detailed. It received some support (in relation to the presence or absence of other passengers in the car) from the complainant's mother. On the other hand it would have been open to the jury to conclude after the cross-examination of the applicant that he had been untruthful about the circumstances in which he had been alone with the complainant in the car. The applicant admitted under cross-examination that he had lied in one reason he had given as to why he never took the complainant by herself in the car. There was therefore a clear basis upon which the jury could have rejected the evidence of the applicant, and accepted the evidence of the complainant, in relation to the events which were said to support counts 3 and 4.

90. Different considerations in my view apply to the remaining counts. Count 1 was said to have involved the applicant rubbing his erect penis against the complainant and otherwise touching her while both were fully clothed. The facts said to support count 2 might well have left the jury in some doubt that the applicant was able to perform simultaneously the various acts attributed to him. In these circumstances, his sworn evidence denying the occurrence of both events may have led the jury to retain a reasonable doubt about them. On the other hand, in relation to counts 5, 6 and 7, the prosecution was required to prove that the complainant at the relevant time was under the age of 16. These counts arose out of the last incident alleged against the applicant, the events making up counts 3 and 4 being said to have occurred when she was 14 years old. The complainant became 16 on 9 November 1995. The presentment alleged as to each of counts 5, 6 and 7 that the act was committed between 1 January 1994 and 31 December 1995. During the complainant's examination-in-chief, she was asked by the prosecutor in relation to the incident in the car -

"About how old were you, can you remember that?---About 15, I'm not sure. Would you have been 16?---I can't remember, no, I don't think I was."

94. During the charge, the judge told the jury that there was no issue in relation to these counts that the complainant was between 10 and 16. But, in the light of the evidence actually given, the jury may well have decided that the proper verdict was an acquittal, notwithstanding his Honour's comment.

97. Mr Tehan's argument began with the proposition that if the jury was not persuaded by the complainant's evidence upon some counts, there was no rational or logical basis upon which her evidence should have been accepted in relation to others. But, as Brooking, J. observed in R. v. J. (1994) 75 A.Crim.R.522 at 539-540 -

"Regard must always be had [i.e. in considering questions of consistency of verdicts] to the possibility that the jury, which has convicted on a number of counts and acquitted on others, has accepted the complainant as truthful, but has admitted the possibility of faulty recollection in some cases."

101. In dealing with the burden and standard of proof the judge told the jury, as counsel for the defence so often do in final addresses, that they should acquit the accused even if they were of the view that it was "very probable" that the offences had been committed, if they were not satisfied beyond reasonable doubt.

104. Notwithstanding the weight I attach to the judge's report, I would, with great respect, differ from his Honour on the question whether there was a basis upon which a jury might have differentiated between the counts. For the foregoing reasons it is my view that the jury were in all the circumstances described entitled to take a different view of the facts relating to counts 3 and 4 from the remainder of the evidence, to which I would add the considerations emphasised by King, C.J. in Kirkman and Brooking, J. in J.

107. I should add that I would reject Mr Tehan's argument based on the passage in the charge in which his Honour told the jury that at least as a matter of theory they might return a verdict of guilty on some and not guilty on the other counts. I think that this was, in context, merely the introduction to a longer passage, favourable to the applicant, in which his Honour commented on the practical reality that the jury was likely either to find the accused guilty on all charges or not guilty on any of them (although it remained a matter for them).

110. I have earlier mentioned the evidence given by the complainant about a large number of uncharged acts. The judge gave the jury full and clear directions as to the use that might properly be made of the evidence of these uncharged acts. These warnings may have made the jury cautious in their approach to the charges other than counts 3 and 4, having regard to the nature and number of these uncharged acts, and their similarity to the charged acts. The very proper directions given by the judge may have led the jury to question the ability of the complainant to isolate the charged acts from the host of uncharged acts. Because the uncharged acts were very different from the charged acts said to have occurred in the car, the jury would have felt no such uncertainty in relation to these two counts.

113. As part of this ground Mr Tehan argued that the verdict was also unsafe, relying on the test (stated in M. v. The Queen (1994) 181 C.L.R.487, at 493-494) whether, notwithstanding that as a matter of law there was evidence to sustain a verdict, it was open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt. He relied on the fact that there was no corroboration of the complainant's evidence, a delayed complaint and a young complainant, in circumstances where the applicant had given evidence on oath denying her account.

116. I would reject this argument also. There clearly was sufficient evidence to sustain the verdict. The judge's charge was, I should say, scrupulously fair and his Honour gave full and detailed warnings to the jury as to the absence of any corroboration for the complainant's evidence and as to the delay in making complaint. His Honour warned the jury in the clearest of terms that it would be dangerous for them to convict on the complainant's evidence alone and therefore that it was necessary for them to scrutinise her evidence with great care, before they could be satisfied beyond reasonable doubt as to its truth and accuracy. No exception was, as I have said, taken by either counsel to any part of the judge's charge.

119. In my view both grounds argued in this Court should be rejected and I would therefore dismiss the application.

131. The formal order of the Court will be that the application for leave to appeal against conviction is dismissed.