Court of Appeal (Qld)|2009-05-22|Before: Chesterman JA, Wilson and Applegarth JJ, Separate, reasons for judgment of each member of the Court, concurring as to the order, made
Chesterman JA, Wilson and Applegarth JJ, Separate, reasons for judgment of each member of the Court, concurring as to the order
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS
– UNREASONABLE OR UNSUPPORTABLE VERDICT – where appellant
was
charged with five counts of sexual offences against the same complainant –
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS– UNREASONABLE OR UNSUPPORTABLE VERDICT – where appellantwascharged with five counts of sexual offences against the same complainant –where the first two counts related to allegedevents on one night and the third,fourth and fifth counts related to alleged events on the following night –where the appellantwas convicted on the first two counts and acquitted of theother counts – whether the jury’s verdicts on the first twocountswere unreasonable due to inconsistency with the verdicts of acquittal on theother countsCRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS– MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS– wherecredibility and reliability of complainant in issue – where the trialjudge did not give a Markuleski direction – where the trial judgegave other directions to the jury to the effect that it was critical for thejury to be satisfied
beyond a reasonable doubt that the complainant was truthful
and reliable in her evidence about the sexual activities that she alleged
took
place between her and the appellant – where Markuleski direction
was not sought at trial – whether the failure to give a Markuleski
direction resulted in a miscarriage of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS
– MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS
– whether
the trial judge’s directions were likely to have confused the jury into
thinking that a verdict of not guilty
could not be delivered in respect of
alternative offences open on the first two counts
Criminal Code 1899 (Qld), s 668E
Jones v The Queen (1997) 191 CLR 439
[1997] HCA 12,
cited
MacKenzie v The Queen (1996) 190 CLR 348
[1996] HCA 35,
applied
MFA v The Queen (2001) 213 CLR 606
[2002] HCA 53,
applied
R v CX [2006] QCA
409, considered
R v Conway (2005) 157 A Crim R 474
[2005] QCA
194, cited
R v Ford [2006] QCA
142, applied
R v Girgines, unreported, Victorian Court of
Appeal, No 233 of 1995, 26 March 1996, cited
R v KET [1998]
VSCA 73, cited
R v LR [2006] 1 Qd R 435
[2005] QCA
368, cited
R v Markuleski (2001) 52 NSWLR 82
[2001] NSWCCA
290, considered
R v Smillie (2002) 134 A Crim R 100
[2002] QCA
341, cited
R v Sparks [2005] QCA
435, cited
R v WAC [2008] QCA
151, cited
Judgment (145 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR UNSUPPORTABLE VERDICT - where appellant was charged with five counts of sexual offences against the same complainant - where the first two counts related to alleged events on one night and the third, fourth and fifth counts related to alleged events on the following night - where the appellant was convicted on the first two counts and acquitted of the other counts - whether the jury's verdicts on the first two counts were unreasonable due to inconsistency with the verdicts of acquittal on the other counts
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - where credibility and reliability of complainant in issue - where the trial judge did not give a Markuleski direction - where the trial judge gave other directions to the jury to the effect that it was critical for the jury to be satisfied beyond a reasonable doubt that the complainant was truthful and reliable in her evidence about the sexual activities that she alleged took place between her and the appellant - where Markuleski direction was not sought at trial - whether the failure to give a Markuleski direction resulted in a miscarriage of justice
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - whether the trial judge's directions were likely to have confused the jury into thinking that a verdict of not guilty could not be delivered in respect of alternative offences open on the first two counts
[4]
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, cited
[5]
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
Director of Public Prosecutions (Queensland) for the respondent
[18]
[1] CHESTERMAN JA: I have had the advantage of reading the reasons for judgment prepared by Applegarth J. His Honour's careful analysis of the appeal demonstrates why it should be dismissed.
[19]
[2] WILSON J: The appeal should be dismissed for the reasons given by Applegarth J.
[20]
[3] APPLEGARTH J: The appellant was tried on five counts of sexual offences. The first two counts related to events that were alleged to have occurred on 11 April 2006. The complainant was a 14 year old girl at the time. The appellant was alleged to have raped the complainant at her father's home, while her father and his wife attended a Rural Fire Brigade meeting. The third, fourth and fifth counts related to events that were alleged to have occurred the following night. These allegations led to the appellant being charged with two counts of rape and a count that he unlawfully and indecently dealt with a child under 16 years.
[21]
[4] The appellant was convicted of one count of indecent dealing and one count of unlawful carnal knowledge as alternative verdicts left open on the first two counts. Not guilty verdicts were returned on the third, fourth and fifth counts.
[22]
[5] This appeal against conviction is on the ground that the verdicts are "unsafe and unsatisfactory" in the sense of being unreasonable within the meaning of s 668E(1) of the Criminal Code due to inconsistency, suggestive of injustice. The appellant's submissions principally related to three issues:
(c) that the learned trial judge gave the jury misleading instructions about alternative verdicts.
[25]
In essence, the appellant submits that his acquittal on the third, fourth and fifth counts involved a rejection by the jury of the complainant's credibility generally, rather than a conclusion of unreliability or mistake on some aspect, such as the date that certain events occurred. He submits that the unsatisfactory aspects of the complainant's evidence that led to his acquittal on the third, fourth and fifth counts meant that the jury's verdicts on the first two counts was unreasonable.
[26]
[6] The complainant's parents had three children, and the complainant was the eldest. In 2006 she was in year nine at school and resided most of the time with her mother and her two younger siblings, G aged 12 and H aged 9. Her parents had separated in 1999. Her father, M, remarried in June 2005.
[27]
[7] The appellant is M's stepfather. He married M's mother, J, about 20 years ago, and the complainant treated him as a grandfather. In late 2005 M, his wife (C) and their child (R), then aged two, moved to a farm property southwest of Maryborough. Access arrangements were that the complainant and her siblings usually would spend every second weekend, and half of the school holidays, at their father's home.
[28]
[8] The farm property on which M and his family lived was purchased by the appellant and his wife. The appellant planned to assist with the farm and to undertake carpentry and other work in the area. In late 2005 and the first half of 2006 the appellant usually resided at the property, but on occasions travelled to Brisbane to do jobs. He undertook carpentry work on the farmhouse, which originally had two bedrooms. A front verandah was closed to create a bedroom and ensuite in which the appellant and J would stay. J, who worked in Brisbane during the week, would stay at the farm every weekend. The newly created third bedroom was a fairly large room with a TV and video.
[29]
[9] The appellant gave evidence that he had a good, loving relationship with the complainant and that it was a grandfather/granddaughter relationship. He described the complainant as not confident and as lacking initiative. When she visited the farm she would help C with various household chores and care for the other children when the adults were dealing with farm produce. Otherwise, she would watch TV. The appellant had a utility truck with a canopy, which seated two persons in the cab. If he had occasion to go on an errand, for instance to collect building materials or to drop produce at a cold room situated on the Bruce Highway, it provided an outing for the complainant or her brother, H, and they took turns to go with him. M and his wife did not leave the farm that often and so trips as a passenger in the appellant's utility provided an opportunity to get away from the farm and, on occasions, the complainant and H would argue about whose turn it was to go.
[30]
[10] The farm grew small crops. Once the produce was washed, sorted, packed and weighed it was transported to market, usually by one of two means. The first was to deliver it to Turner's Shed on the Bruce Highway from where it would be transported by Turner's Transport to the Rocklea Markets in Brisbane. The trip to Turner's Shed from the farm involved driving about 18 kilometres towards Maryborough, at which point a right turn was taken onto the highway to reach the shed and cold room facility which were located about six kilometres south of Maryborough. The second means of transport was for J to take some produce with her directly to the Rocklea Markets on a Sunday night on her return trip to Brisbane.
[31]
[11] During the Easter school holidays in 2006 the complainant and H stayed at the farm for several days. Their sister, G, stayed at home with their mother. The access visit started on Friday, 7 April and lasted until Easter Sunday, 16 April. On Tuesday, 11 April, M and C attended the monthly meeting of their local Rural Fire Brigade. They left their home at around 7.20 pm, leaving the children in the care of the appellant. The meeting started at 7.30 pm and M estimates that it lasted between an hour and a half and an hour and 45 minutes. C thought that they may have arrived home at around 8.45 pm. Their two year old child was asleep by the time they left. He slept in a bunk in one of the bedrooms. H had been watching television in the lounge room when M and C left, and by the time that they returned home he was asleep in the top bunk in the same bedroom.
[32]
[12] When M and C went to the meeting the appellant was watching television on a lounge in his room. The complainant joined him there because she did not like what was on the television in the lounge room. The complainant said that the movie they were watching got boring, at which point the appellant took her over to his bed and laid her down. Her evidence was that he asked her if she would tell anyone to which she responded "No". She told the police on 4 September 2006 that the appellant removed her boxer shorts and underpants and digitally penetrated her vagina with two fingers which "really hurt". She described in the same interview an episode of penile penetration. Her estimate of the time that she was on the bed with the appellant was "probably nearly half and hour". She described how she left the room because she was scared. She went to sleep on a mattress in the lounge room where she normally slept. When M and C returned home the appellant was watching TV in his room and came out and asked how the meeting went.
[33]
[13] The appellant's evidence was that he watched television in his room with the complainant because she did not like what was on the television in the lounge room. He said that they did not watch television for long and then they all went to bed at about the same time between 8 and 8.15 pm, with H going to the top bunk in the room that he shared with R and the complainant sleeping on a mattress on the floor of the lounge room which adjoined his room.
[34]
[14] In April 2006 the appellant was building a pergola in the front of the house and also fixing steps at a neighbour's house. He sourced building supplies from Bunnings Warehouse at Hervey Bay. The trip from the farmhouse to Bunnings involved driving 18 kilometres towards Maryborough, turning left and through the town and then driving in a north-easterly direction to Hervey Bay. He went to Bunnings to obtain timber on the evening of 12 April 2006, and the complainant accompanied him. The trades section of the warehouse from which the timber was to be obtained shut at 7.30 pm. The trip from the farmhouse to Bunnings probably took at least 45 minutes and so the family had an early dinner. The appellant and the complainant left after dinner. C's evidence was that they left between 6 pm and 6.30 pm. The complainant thought it was earlier than this, and her father thought that the appellant and the complainant left at around 6.30 pm. The appellant said they left at 6.30 pm. After the appellant arrived at the trades section of Bunnings, he undertook the paperwork for the goods that he wished to purchase. A tax invoice was processed at 7.20 pm. He then selected the items and loaded them onto the roof racks of his truck, after which he arranged for a Bunnings' employee to check the items that he had loaded.
[35]
[15] The complainant's evidence was that earlier that day the appellant had loaded some squash into his utility. She said that on the return journey from Bunnings the appellant drove to Turner's Shed on the Bruce Highway so that he could drop off the squash, and that when they arrived there the appellant took the produce out of his utility and into the cold room. The complainant's evidence was that after the appellant returned to the vehicle he took off her underpants, digitally penetrated her, had sexual intercourse with her and then licked her vagina. She estimated that this episode took about five or ten minutes.
[36]
[16] The evidence of witnesses varied as to the time that the appellant and the complainant returned home. M thought it was some time after 9.00 pm. C thought it was around 9.00 pm, or just after 9.00 pm. The complainant thought it was around 9.30 pm. M estimated that it would take probably two hours, or a little more, to travel to Bunnings, collect timber and return via Turner's Shed. The appellant's evidence was that on the evening of 12 April he took the shortest route from the farm property to Bunnings and returned by the same route. His evidence was that he had no reason to deviate from that route by travelling the additional six kilometres south down the highway to the Turner's Shed. He denied the complainant's evidence that they went to Turner's Shed on the way home and her allegations that sexual activity took place in its vicinity.
[37]
[17] The complainant made a disclosure to a close school friend on her first day back at school after the Easter holidays. Her initial disclosure to her friend, KH, was that her grandfather had "been touching her and stuff". She told her friend that the appellant had taken her into his room and started "feeling her and licking her and all kinds of disgusting things". KH urged the complainant to tell her mother. The complainant discussed the matter with KH on five or six occasions. In one of these later conversations the complainant told KH that she was "no longer a virgin" and said that she was lucky that she did not "have a baby in her tummy". KH gave evidence that on this occasion the complainant was on the borderline of crying, was very scared and did not know what to do. KH said that she convinced her that it was the right thing to tell her mother.
[38]
[18] The complainant's mother gave evidence that the complainant did not stay with her father on the next holiday in June/July 2006. The evidence at trial suggested that the complainant visited her father on at least one weekend after Easter 2006. She remembered going to a birthday party in July 2006 for her stepbrother R at which the appellant and his wife attended. The party was held in a park. The complainant had some recollection of visiting her father on other weekends after April 2006, but could not recall the appellant or his wife being there. Her mother could not recollect the complainant staying at her father's home on any weekends after Easter. The appellant's recollection was that she continued her fortnightly visits. However, the complainant's father's evidence was that she stayed at his home only one more time after the Easter holidays.
[39]
[19] On 27 August 2006 the complainant's mother picked up her children H and G from their father with whom they had been staying that weekend. The complainant's mother spoke to M and C, who wanted to see if the children could stay with them the following weekend since it was Father's Day and M's birthday. When the matter was raised with the complainant by her mother she was adamant that she did not want to go. Later that evening she explained to her mother that she did not want to go "if Poppy was there". When asked why she said "He's done stuff to me". When asked to explain she said that the appellant had licked her "down there". The complainant's mother did not want to inquire further because the complainant was upset and she tried to comfort her. Instead, she contacted the police and made arrangements for an appointment the following Monday, 4 September 2006. On 31 August or 1 September the complainant's mother asked her if anything else had happened. On this occasion the complainant stated that the appellant had sexual intercourse with her the night that M and C were at the fire brigade meeting and also on the night that they stopped at the cold room on the way home from Bunnings.
[40]
[20] By the time of the Easter holiday period in 2006 the farm was harvesting quantities of button squash and zucchini. M's evidence was that they grew fast and had to be harvested every day. On the night of Sunday, 9 April 2006 or early on Monday, 10 April 2006 J delivered quantities of squash to the Brisbane markets.
[41]
[21] M gave evidence that the appellant delivered produce on one occasion during Easter 2006. He recalled that occasion because the complainant and her brother H argued about who was going to go. However, he could not be specific about when in the Easter break this occurred.
[42]
[22] If Turner's Transport was to be used to transport the produce to market then a transport docket would be left on the boxes that were delivered to the cold room at Turner's Shed so that the transport company would know how many boxes were being sent and to which wholesale business at Rocklea they were to be transported. The farm kept docket books containing copies of the transport slips. The docket books were supplied by Turner's Transport, and had numbered dockets in triplicate. After the original and duplicate were removed and used then triplicate of the completed docket would remain in the docket book, which was kept at the farm.
[43]
[23] One such docket book became Exhibit 6. It consists of docket numbers 95751 to 95800 and records goods that were dropped at the cold room. For the relevant period these are dockets for 2 April 2006 (95761 and 95762) and 1 May (95763). The docket 95761 was replaced by docket 95801, but the docket book that includes docket 95801 was not produced at the trial. This left open the possibility that two docket books were in use in April 2006. However, that possibility was not explored by the prosecution at the trial, and C's recollection was that Exhibit 6 was the only book that was used at the time. Exhibit 6 did not have a triplicate slip for the Easter holiday period. However, M remained "pretty sure" that produce was dropped to the cold room during the Easter holidays. Another document, described as a "running sheet", was kept by J. Its purpose was to keep track of what produce was delivered to Turner's Shed and what produce was taken to Rocklea directly. It records that produce was delivered on 2 April 2006 (with a notation for docket number 95801), and that J delivered produce on 10 April and 17 April.
[44]
[24] In summary, neither the docket book (Exhibit 6) nor the "running sheet" kept by J (Exhibit 7) recorded a delivery to Turner's Shed on 12 April 2006, the date upon which the complainant said she and the appellant travelled there.
[45]
[25] The complainant was examined by a government medical officer on 5 September 2006. As a result he expressed the opinion that there had been penetration of the complainant's vagina on more than one occasion. The complainant's evidence was that she had not experienced penile or digital penetration other than with the appellant on the occasions she described and used sanitary pads rather than tampons.
[46]
[26] The complainant was not directly asked during her interview with the police on 4 September 2006 or during the pre-recording of her sworn evidence on 6 May 2008 about the issue of consent. In the absence of the jury the learned trial judge remarked that it was "unbelievable" that the prosecutor did not even ask about the absence of consent. As a result, the prosecution case at trial on the issue of consent was that absence of consent was an inference to be drawn from evidence such as the complainant's evidence that the insertion of two fingers "really hurt", and that the nature of the relationship, including the appellant's authority over his granddaughter, meant that any consent was not freely and voluntarily given. When asked in the absence of the jury for clarification of the Crown's case about whether there was evidence of exercise of authority the prosecutor requested some time to reflect on it and stated that he had directed his mind "more at the direction of an alternative verdict". After argument at the start of the third day of the trial the learned trial judge ruled against a no case submission on the issue of consent with respect to counts one, two, three and four and decided that the issue of consent was a matter which would be left to the jury.
[47]
[27] The jury was directed on three occasions that there was no direct evidence that the complainant did not consent. It was directed that it was entitled to draw inferences and that it needed to be satisfied beyond reasonable doubt before drawing an inference of absence of consent based on matters such as the nature of the relationship, the age disparity between the complainant and the appellant and other factors. In short, the verdicts of not guilty on the counts of rape did not involve a rejection by the jury of the complainant's evidence that she did not consent because she did not give any such evidence.
[48]
[28] In MacKenzie v The Queen[2] Gaudron, Gummow and Kirby JJ stated that where alleged inconsistency arises in the case of jury verdicts upon different counts, the test is one of "logic and reasonableness". Their Honours stated:
[49]
"...if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their function as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."[3] (citations omitted)
[50]
[29] Various matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury. In R v CX[4] Jerrard JA stated:
[51]
"1. Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury's duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.
[52]
Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?
Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.
The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury 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, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.
Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant...". (citations omitted)
[53]
[30] In R v Smillie[5] Holmes J (as her Honour then was) summarised some of the factors that are relevant in considering how verdicts may rationally differ:
[54]
The jury may have found the quality of the crucial witness' evidence variable while accepting it as generally truthful. For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others. A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection. The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood to some aspect of the evidence, which casts doubt on its accuracy in those respects, but not of the witness' general honesty. Or the circumstances in which the offence is alleged to have occurred may raise the real possibility of mistake by the complainant as to the nature of what has occurred.
[55]
2. The existence of contradictory evidence on some matters
[56]
There may in respect of some counts be evidence contradicting the crucial witness' account such as to explain a variation in the jury's verdict. Whether the force of the contradictory evidence goes beyond demonstrating a discrepancy explicable as mistake and warranting a doubt on the part of the jury, so that it must be regarded as undermining the credibility of the witness (as was the case in Jones v The Queen (1997) 191 CLR 439) is a question of fact in each case.
[57]
3. The existence of corroboration on some counts
[58]
Different verdicts may be explicable on the basis that the witness' evidence was supported in respect of some counts but not others, by, for example, admissions by the accused.
[59]
As recognised in MacKenzie v The Queen (1996) 190 CLR 348 at 367 and R v P[2002] 2 Qd R 401 at 410, a jury may have decided that it would be oppressive to convict on all charges; that, for example, in a case where there are multiple counts, conviction on a number may sufficiently reflect the culpability of the accused."
[60]
[31] The appellant submits that the jury "clearly did not accept the complainant's version of events over the two days", and "could not have been reasonably satisfied of the truth of her evidence concerning either alleged incident". He submits that their "total rejection of counts 3, 4 and 5 means that it was not logically open" to them to convict on the offences that were alternatives on counts 1 and 2. These submissions interpret the not guilty verdicts on counts 3, 4 and 5 as reflecting a "fundamental lack of confidence in the complainant as a reliable historian". However, the circumstances of the case do not justify these submissions. The verdicts on counts 3, 4 and 5 do not demonstrate that the jury did not accept evidence which they had to accept before bringing in the verdicts of guilty on counts 1 and 2. It does not follow from their acquittal on counts 3, 4 and 5 that they must have accepted evidence that required them to acquit on counts 1 and 2. Their verdicts do not demonstrate that they did not find the complainant a credible and reliable witness. Their verdicts are reconcilable on the basis that they found the complainant to be an honest and reliable witness, followed the instruction that each count was required to be proved beyond reasonable doubt and concluded that counts 3, 4 and 5 were not proved to the required standard.
[61]
[32] A jury's verdicts of acquittal on some counts do not amount to a positive finding by the jury that the events as recounted by the complainant did not occur. They show no more than that the jury was not satisfied to the requisite standard that the acts alleged in those counts occurred or occurred at the times or in the circumstances particularised in them.[6]
[62]
[33] The appellant relies upon passages from the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v The Queen.[7] In that case their Honours observed that it was difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the first and third counts, when there was "nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count".[8] The decision in Jones' case was that in the circumstances of that case the acquittals reflected upon the credibility of the complainant's evidence on all counts. In R v KET[9] Winneke P observed:
[63]
"...it would be wrong to draw from the decision of Jones' case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury's acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted."
"There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness... In many cases, conversely, it will be possible to identify a possible basis for a differentiation between verdicts..."
[66]
[34] The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant's evidence on one count, ought to have such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case.[11] As Jones, Markuleski and later cases establish, whether or not a not guilty verdict involves a diminution in a complainant's credibility or reliability so that the jury ought to have had a reasonable doubt with respect to other counts depends on the complainant's evidence and the surrounding circumstances. The issue remains one of fact and degree in the circumstances of the particular case as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, the verdicts should be regarded as inconsistent. There may be an acceptable explanation for divergent verdicts[12] in a case in which there is not "an integral connection between the counts"[13] or where there are circumstances present which do not compel the conclusion that the complainant's overall credibility was so diminished that the jury should have acquitted on the other counts. The essential issue is whether the acquittal so affects the credibility or reliability of the complainant that, in combination with other factors, a conviction was not open to the jury on other counts.
[67]
[35] In this case, it was open to the jury to find the evidence in relation to counts 1 and 2 more cogent than the evidence in relation to counts 3, 4 and 5 such as to be satisfied beyond reasonable doubt with respect to the former counts and not to be satisfied to that standard with respect to counts 3, 4 and 5. The evidence, including the appellant's admissions, created no doubt that he and the complainant were alone in his room of the night of 11 April 2006 at the time the complainant alleged digital and penile penetration. By contrast, the documents concerning produce deliveries to Turner's Shed created a doubt about whether the appellant delivered fruit there on the night of 12 April 2006.
[68]
[36] The evidence that the appellant and the complainant were absent from the farm that night for at least two and a half hours supported a conclusion that the appellant had sufficient time to divert to Turner's Shed on the return journey from Bunnings. The jury may have accepted the complainant's evidence that the appellant earlier that day put squash in the back of his truck and, on the return journey from Bunnings, took the opportunity to drive to Turner's Shed. A drive to that location to deliver produce was something that the appellant and the complainant had done before and there was no reason why the complainant would think that there was anything unusual about such a short diversion. If the jury accepted the complainant's evidence and did not accept the appellant's denial that such a trip took place, then it was open to them to conclude that the appellant either did not drop the squash off at the shed (as the complainant thought he did) or did so without leaving any delivery slip with the produce. On this view of the evidence, upon his return to the vehicle cabin, and in the absence of any source of likely disturbance, he had the opportunity to commit the sexual offences that the complainant alleged.
[69]
[37] On this basis, it was open to the jury to reason that it was more probable than not that the events occurred as the complainant said, but, in accordance with the learned trial judge's instruction, to not have been satisfied of this beyond reasonable doubt. In MFA v The Queen[14] Gleeson CJ, Hayne and Callinan JJ said:
[70]
"In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. 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. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others."
[71]
[38] The doubt cast on whether there was a produce delivery by the appellant to Turner's Shed on 12 April 2006 provides a reasonable explanation for different verdicts. The evidence which placed the appellant and the complainant at the scene of the alleged offences on 11 April 2006 was not in doubt, whereas the evidence concerning delivery of produce to Turner's Shed, whilst not necessarily undermining the complainant's credibility or reliability, warranted a doubt on the part of the jury about the events that were alleged to have occurred on the night of 12 April 2006. This evidence does not necessarily involve a rejection of the complainant's credibility, or a want of confidence in her evidence. It was consistent with a cautious approach, and a conscientious differentiation by the jury between the evidence with respect to various counts. In circumstances in which there was no doubt that the appellant and the complainant were together at the location of the alleged sexual assault on 11 April 2006, but some doubt about whether they went to Turner's Shed on the night of 12 April 2006, the verdicts of the jury might rationally differ.
[72]
[39] The circumstances of the case are different to one in which, on the evidence, the events alleged by the complainant are flatly contradicted by positive evidence in the defence case so as to contradict her evidence and undermine her credibility to such an extent that the jury was obliged to acquit on the counts on which they convicted. The circumstances of the case are different to one in which documentary or other evidence showed that the version of events given by the complainant was in error to such a degree as to undermine the credibility of the complainant (as was the case in Jones v The Queen). The circumstances of this case enabled the jury to be satisfied that the complainant's version of events was honest and reliable with respect to the events on both nights, but to entertain a reasonable doubt with respect to the sexual offences which are alleged to have occurred on 12 April 2006. Contrary to the appellant's submissions, the acquittals on counts 3, 4 and 5 did not involve a total rejection of the complainant's evidence, or establish that there was a fundamental lack of confidence in the complainant as a reliable historian. The verdicts of acquittal do not demonstrate the required inconsistency so that appellate intervention is necessary to prevent possible injustice. The verdicts of acquittal do not necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in verdicts of guilty on counts 1 and 2. In acquitting on counts 3, 4 and 5, the jury did not necessarily accept evidence which required them to acquit on counts 1 and 2.
[73]
[40] The different verdicts are not an affront to logic and commonsense, and do not suggest a compromise in the performance of the jury's duty. Instead, they suggest that the jury followed instructions concerning the standard of proof and, in the light of different evidence with respect to counts 3, 4 and 5 which cast doubt on whether a produce delivery occurred on the night of 12 April, gave the appellant the benefit of that doubt. The jury verdicts upon different counts satisfy the test of "logic and reasonableness".
[74]
Should the trial judge have given a Markuleski direction?
[75]
[41] The direction that is conveniently described as a Markuleski direction is to the effect that any doubt which the jury may form with respect to one aspect of the complainant's evidence, ought be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant's evidence with respect to other counts.[15] The desirability of a Markuleski direction has been considered in a number of cases in this Court. The direction requires "the jury to consider, in a global sense, whether or not they find a complainant to be a witness whose evidence is reliable".[16] In some cases, its absence, in conjunction with other aspects of a summing up, may result in a miscarriage of justice. However, in many cases, not giving a Markuleski direction in explicit terms will not result in a miscarriage of justice. In this sense, it is not a "mandatory direction"[17] and where the effect of the direction may otherwise be apparent to the jury a direction in the terms suggested in Markuleski may not be necessary.[18] Forms of a Markuleski direction appear in the Queensland Supreme and District Courts Benchbook and in judgments of this Court.[19]
[76]
[42] In R v Ford Keane JA, with whom Jerrard JA and Douglas J agreed, explained that the particular risk of unfairness which may be addressed by giving a Markuleski direction. This risk arises especially in sexual assault cases with multiple counts involving a single complainant and a single accused where a jury's finding of not guilty on one or more counts "is apt logically to damage the credibility of the complainant on other counts because there is 'implicit in the... acquittal... a rejection of the complainant's account of the events which were said to give rise to [the] count' on which the accused is convicted". That risk was said to be apt to arise because in such cases there is "nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that [the complainant's] evidence was more reliable in relation to [the counts on which the accused was convicted] than it was in relation to [the counts on which the accused was acquitted]".[20] Keane JA stated:
[77]
"In summary, the risk of unfairness which creates the occasion for the giving of the direction is the risk that the accused will be denied the chance of acquittal on all counts if, given the state of the evidence, such a result ought reasonably to follow if the jury were to reject as unreliable any part of the complainant's account of what occurred".[21]
[78]
[43] The focus of the trial in this case was the credibility and reliability of the complainant. At the start of his summing up, the learned trial judge, after directing the jury to consider each of the five charges on its own merits, stated:
[79]
"...the evidence clearly overlaps and it's probable that your verdict in relation to each count will ultimately depend on your assessment of the truthfulness or reliability of [the complainant's] evidence".[22]
[80]
[44] The trial judge gave further directions in relation to the complainant's credibility and reliability.[23] These directions made clear that unless the jury was satisfied beyond a reasonable doubt that the complainant was "truthful and reliable when she says these sexual things took place" the jury would have to acquit.
[81]
[45] This is not a case like R v LR in which the trial judge gave a specific direction to the jury that it could not allow its verdict on one count to affect its determination of another. That direction, and the absence of a Markuleski direction, may have given the jury the mistaken impression that "credibility was to be determined anew with respect to each count".[24] The Court concluded that it was necessary in that case for the trial judge to take steps to prevent any such misunderstanding arising, and that there was a real possibility that the jury did not understand that any doubts entertained by them in relation to the complainant's evidence on certain counts should be taken into account by them in their consideration of the evidence relating to two other counts.
[82]
[46] The trial judge's directions in this case did not encourage any similar misunderstanding. Nevertheless, it would have been appropriate for the learned trial judge to have given a Markuleski direction. No Markuleski direction was sought. It might be said that, had it been given, it would not have told the jury "any more than would have been obvious to them from their own experience".[25] As Keane JA stated in R v JL:
[83]
"One might well wonder why a direction to the jury to do that which common sense obviously requires them to do should be necessary. Consistently with the view that the institution of trial by jury requires that trial judges do not try to do a jury's thinking for it, this Court has resisted the suggestion that it is 'a binding rule of law or procedure' in this State that such a direction must be given in every case where multiple counts are charged on one indictment." [26] (citations omitted)
[84]
[47] The "particular risk of unfairness" discussed in R v Ford was not present in this case. The evidence against the appellant in relation to counts 1 and 2 was more cogent than the evidence in relation to counts 3, 4 and 5 and there was no real risk that the jury might fail to appreciate the difference between the cogency or quality of the evidence in respect of separate counts. Additionally, the directions given by the trial judge were apt to encourage the jury to "consider, in a global sense, whether or not they found the complainant to be a witness whose evidence was reliable."[27] The jury were directed in terms that it was probable that their verdict in relation to each count would ultimately depend upon its assessment of the truthfulness or reliability of the complainant, and were directed that the honesty and reliability of the complainant was critical to the prosecution case, such that unless it was satisfied beyond a reasonable doubt that she was truthful and reliable about the sexual activities that occurred between her and the appellant, the jury would have to acquit. Although there was no Markuleski direction, the directions given to the jury made clear the need to be satisfied about the credibility and reliability of the complainant in general. The absence of a Markuleski direction in the circumstances did not give rise to the risk of injustice that the appellant would be denied the chance of acquittal on all counts if, given the state of the evidence, such a result would reasonably follow if the jury were to reject as unreliable any part of the complainant's account of what occurred.
[85]
[48] The directions that were given, and the common sense of the jury, make it unlikely that they would not have taken into account any adverse view which they may have formed of the complainant's credibility or reliability arising out of their consideration of the evidence in relation to counts 3, 4 and 5 when they considered counts 1 and 2. The absence of a Markuleski direction in explicit terms did not result in a miscarriage of justice.
[86]
[49] The appellant submits that the learned trial judge misdirected the jury with respect to their options on the alternative verdicts which may have led to the verdicts of guilty on the alternatives to counts 1 and 2. The appellant relies upon the following passages:
[87]
"His Honour ... "So, just by way of example, in relation to count 1, when my associate says to your speaker, 'Do you find the accused guilty or not guilty of rape?',[28] you, the jury, will be entitled to deliver only one of these verdicts, not guilty or guilty of rape or guilty of indecent dealing.
[88]
And moving onto count 2, you'd be entitled to deliver one only of these verdicts, not guilty or guilty of rape or guilty of unlawful carnal knowledge."[29]
[89]
The appellant submits that the learned trial judge should have expressly given the jury the alternative of acquitting of indecent dealing on count 1, and unlawful carnal knowledge on count 2.
[90]
[50] The respondent submits that there was no error in the summing up, and that it was not confusing on this point. It submits that the passages complained of should be read in their context, which is as follows:
[91]
"Now, I just want to mention these alternative verdicts. Depending on your view about this issue of consent, if you, for example, if I can use count 2 as the example. If you find yourself in this position, that you're satisfied beyond a reasonable doubt that [the defendant] had sexual intercourse with [the complainant] in a way in which she described, in that room at the Grahams Creek farm on the evening of the 11th of April 2006, but you have a reasonable doubt about whether she consented, then you're entitled to find him - you'd be obliged if you found that, you'd find him guilty of unlawful carnal knowledge. Unlawful carnal knowledge is having sexual intercourse with a person who's under the age of 16 years and consent is irrelevant.
[92]
In relation to count 1, if for example, you were satisfied beyond a reasonable doubt that he inserted his fingers into her vagina, but you have a reasonable doubt about whether she consented, then you'd be entitled and obliged if you found that beyond reasonable doubt to find him guilty of indecent dealing. Indecent dealing doesn't have consent as an element.
[93]
So, the same applies in relation to counts 3 and 4. So, just by way of example, in relation to count 1, when my associate says to your speaker, "Do you find the accused guilty or not guilty of rape?", you, the jury, will be entitled to deliver one only of these verdicts, not guilty or guilty of rape or guilty of indecent dealing.
[94]
And moving onto count 2, you'd be entitled to deliver one only of these verdicts, not guilty or guilty of rape of guilty of unlawful carnal knowledge. And, as I say, I'll give you that so that you can follow it and don't hesitate to ask if you find that confusing. I hope it isn't. It all depends on your assessment of the evidence ..."[30]
[95]
[51] Earlier in his summing up the learned trial judge had said:
[96]
"I'm sure your focus will be on the reliability and honesty of [the complainant]. Her evidence is critical to the prosecution case. Indeed, it's so critical that unless you're satisfied beyond a reasonable doubt that she's truthful and reliable when she says that these sexual things occurred between herself and the defendant, you'd have to acquit him."[31]
[97]
[52] Towards the end of his summing up the learned trial judge reinforced the fact that the jury was required to acquit the appellant of each charge unless it was satisfied beyond reasonable doubt of the elements of the charge:
[98]
"I now want to finally refer to [the complainant's] evidence, because I'm sure you accept that that's the critical judgment that you have to make and as I said before, her evidence is critical to the prosecution case and unless you're satisfied beyond a reasonable doubt that she's truthful and reliable when she says these sexual things took place between herself and the accused, then you'd have to acquit him. The prosecution don't have to prove every aspect of her evidence. They don't have to prove every fact beyond a reasonable doubt. What they have to prove are the elements of the charge, which ultimately depends on your acceptance of her evidence beyond a reasonable doubt that he sexually abused her in the ways in which she's described."[32]
[99]
[53] The learned trial judge gave the jury a document which was intended to inform it of the verdicts that were available, depending on its assessment of the evidence.[33] The document was in the following terms:
[100]
You are entitled to deliver one only of the following verdicts:
[101]
[54] The appellant directed this court to the recommended direction for alternative charges contained in the Queensland Supreme Court and District Court Benchbook:
[102]
"...I suggest that you first consider (describe charge), which is the more serious. If you find the defendant guilty of that offence, you do not need to consider the other(s). But if you find the defendant not guilty of (here describe the more serious offence), then consider the alternative charge of (describe it). If your verdict is guilty of (here describe more serious charge), you will not be asked to return a verdict in respect to the other charge. If, however, your verdict in respect of (the more serious charge) is not guilty, then proceed to consider the other charge. Any verdict, whatever it is on any count, must be unanimous."[34]
[103]
[55] The present issue is not concerned so much with the obligation of the trial judge to direct on lesser offences open on the evidence. The trial judge did so. The issue is whether his specific directions about the manner in which the verdicts were to be delivered and taken by his associate was confusing, and was apt to confuse the jury into thinking that they could not return a verdict of not guilty to the alternative offences that were open in respects of counts 1 and 2.
[104]
[56] The specific passages relied upon must be viewed in the context of the overall summing up and the directions on alternative verdicts. The directions in relation to count 1 informed the jury that if it had a reasonable doubt about consent, then the alternative verdict of indecent dealing was open if it was satisfied beyond reasonable doubt that the appellant inserted his fingers into the complainant's vagina. The direction in relation to count 2 informed the jury that if it had a reasonable doubt about consent, but if it was satisfied beyond a reasonable doubt that sexual intercourse had occurred in the room as the complainant described on 11 April 2006, then the alternative offence of unlawful carnal knowledge was established.
[105]
[57] These directions and the summing up in general served to inform the jury that the appellant should be found not guilty of either the offence of rape or the alternative offence of indecent dealing on count 1 if they were not satisfied beyond reasonable doubt that the appellant inserted his fingers into the complainant's vagina. Likewise, they served to inform the jury that the appellant should be found not guilty of either the offence of rape or the alternative offence of unlawful carnal knowledge on count 2 if they were not satisfied beyond reasonable doubt that sexual intercourse occurred. Viewed in that context, the latter directions about the manner in which the verdicts were to be taken would have been understood as leaving open to the jury verdicts of not guilty in relation to the alternative offences on counts 1 and 2.
[106]
[58] Nothing said by the learned trial judge concerning the alternative verdicts in respect of counts 1, 2, 3 and 4 suggested that a more restricted range of verdicts was open in respect of counts 1 and 2 than in respect of counts 3 and 4. Neither did the document that was provided to the jury, which was in the same form for counts 1 and 3, and for counts 2 and 4. The directions, after outlining the matters about which the jury would be required to be satisfied to convict on the alternative offences for counts 1 and 2, stated "the same applies in relation to counts 3 and 4". The jury returned not guilty verdicts in respect of the offences left open as counts 3 and 4. This suggests that it understood that the verdicts of not guilty were available in respect of the alternative offences if the elements about which the trial judge directed them were not proven beyond reasonable doubt. Viewed in context, the specific passages relied upon by the appellant which are quoted above would have been understood as being given by way of example, and that not guilty verdicts might be returned on each of the alternative offences in counts 1, 2, 3 and 4. The directions left open to the jury the option of returning verdicts of not guilty in respect of the alternative offences on each of the first four counts. The summing up was not likely to cause confusion in the minds of the jury, or a misunderstanding that not guilty verdicts were not available in respect of the alternative offences of indecent dealing and unlawful carnal knowledge on counts 1 and 2 respectively.
[107]
[59] The instructions were to the effect that the first option on the document of "Not guilty" applied if the jury was not satisfied that the appellant was guilty of either offence that was left open on each count. However, the verdicts should have been taken in the conventional manner. This course would have required different instructions to those given in the passage upon which the appellant relies. For example, in respect of the first count the jury should have been instructed that after reaching its verdict it would first be asked if it found the accused guilty or not guilty of rape. The jury should also have been instructed in the form appearing in the Benchbook[35] or words to like effect:
[108]
"If the verdict on the offence of [rape] is guilty, no further verdict will be taken on count 1. However, if the verdict is not guilty, my associate will then ask, "How do you find the defendant, guilty or not guilty of [indecent dealing]?" Your speaker will answer. Then you will again collectively confirm that the verdict is unanimous in the manner just mentioned."
[109]
[60] An instruction in this or a similar form would have been appropriate, and the verdicts should have been taken in the manner previewed by these instructions. Instead, the verdicts were taken by asking the jury "Do you find the accused guilty or not guilty of count [one]?"[36] There is no contention that the form in which the verdicts were taken constituted a miscarriage of justice. That said, judges should not depart from the time-honoured practice of taking verdicts.[37]
[110]
[61] In summary, the directions to the jury informed them that verdicts of not guilty were open in respect of both the offence of rape and the alternative offence on counts 1 and 2. The appellant has not made out his submission that the summing up was likely to have confused the jury into thinking that a verdict of not guilty could not be delivered in respect of the alternative offences on counts 1 and 2.
[111]
Other matters raised about the reasonableness of the verdicts
[112]
[62] In the course of oral argument the appellant supplemented his submissions on inconsistency with other matters which were said to make the guilty verdicts unreasonable. The first was that the risk of the appellant being discovered by H, who was watching television in the next room on the night of 11 April 2006. Mr Carmody SC acknowledged that on the complainant's account she did not struggle or make noise because she was scared, but he submitted that the chance of discovery nevertheless was high. Apart from the evidence of the appellant, the evidence did not address when H stopped watching television in the lounge room and went to his bedroom, save that he was asleep in his bedroom when M and C returned home. It was open to the jury to reject the appellant's evidence that H, the complainant and he went to bed at the same time. It was open to them to conclude that H went to bed around 8.00 pm and before the offences occurred. In any case, the risk of detection was a matter for the jury's consideration and does not render the verdicts unreasonable.
[113]
[63] The appellant submitted that the medical evidence was not particularly clear, but acknowledged that the jury must have accepted it because they convicted the appellant of committing unlawful carnal knowledge on 11 April 2006. The medical evidence was not inconsistent with the complainant's evidence. It supported her evidence that penile and digital penetration occurred on more than one occasion.
[114]
[64] The appellant relied on evidence that the complainant did not appear distressed after she and the appellant returned home on the night of 12 April 2006. This was a matter for the jury to take into account, along with the complainant's evidence that on 11 April 2006 the complainant had promised the appellant not to tell anyone.
[115]
[65] Finally, the appellant pointed to what was said to be inconsistency between what the complainant told her school friend, KH, and what she told her mother. There is no real inconsistency between the versions given by the complainant. The complainant did not initially disclose the details of penile penetration to her school friend or to her mother. The fact that she did not describe matters in the full detail that she eventually told the police was a matter for the jury's consideration, and they might have considered that she was reluctant to disclose these details and, as a result, initially gave a more general description of the appellant having done "disgusting things". Mr Carmody SC accepted that the fact that she told her friend and her mother about matters with different degrees of detail, and did not descend to the detail which she eventually did in the police record of interview, did not, in itself, render the verdicts unreasonable, and that these issues were put to the jury. This concession was appropriately made. In R v Ashley[38] Williams JA made the following observations in the case of initial complaints by a 13 year old girl:
[116]
"As is frequently the case, the initial description of an offence by a very young complainant will not satisfy the demands and scrutiny of the lawyers involved in a subsequent prosecution. The young complainant in a case such as this will be called upon on numerous occasions to give a precise, detailed account of the alleged improper touching. Given the nature of the allegation being made it is not surprising that a somewhat different account of what was essentially involved in the incident will be given from time to time. There are many possible explanations for that. The shyness which may be associated with the first telling of the incident may possibly be overcome by repeatedly recounting the story and in consequence more precise detail may emerge. On the other hand recounting the story with lawyers present may result in some reticence to provide minute detail... The possible explanations for inconsistencies between accounts are endless. That is why it is essentially a jury question whether or not a complainant is truthful and reliable when it comes to establishing the essential fact which constitutes an offence."
[117]
[66] The matters raised by the appellant do not, separately, or collectively, render the verdicts unreasonable.[39]
[6]R v Girgines, unreported, Victorian Court of Appeal, No 233 of 1995, 26 March 1996 per Hayne JA and Southwell AJA; adopted in R v Markuleski (2001) (supra) at 108-109 [118] per Spigelman CJ and at 127 [221] per Wood CJ in CL; MFA v The Queen[2002] HCA 53; (2002) 213 CLR 606 at 617-618 [34]-[35].
[11]R v Markuleski (supra) at 100 [73] per Spigelman CJ.
[125]
[12] See the examples given by Wood CJ at CL in R v Markuleski (supra) at 131 [235] and the factors summarised by Holmes J in R v Smillie (supra) as to how verdicts might rationally differ.