Ground of Appeal 1 - The verdict of guilty in relation to Count 1 is unreasonable and cannot be supported in terms of s 6 of the Criminal Appeal Act 1912 in light of the not guilty verdicts in relation to Counts 2 and 3
30 The appellant submitted that it was clear that the jury rejected so much of the complainant's evidence as was relevant to Counts 2 and 3. In other words, they could not have accepted, at least completely, the account given by her as to what took place in the panel van when she was allegedly sexually assaulted and her money, lottery ticket and bumbag containing money was allegedly stolen. Accordingly, it was submitted that those findings were inherently inconsistent with the jury accepting beyond reasonable doubt the accuracy and reliability of the complainant's evidence that she was detained by the accused with intent to hold her for their advantage, to steal her money.
31 However, it needs to be remembered that the complainant's evidence was that she was driven against her will to the lane behind the Hyatt Kingsgate Hotel where she was physically assaulted by the appellant with a gun after which the appellant then drove off. It was not until the appellant eventually stopped the vehicle at Sutherland Crescent Darling Point that, according to the complainant, MacDonald put her hand down her bra, pulled out the $10 note and "Scratch It" ticket. Furthermore, it was only after this occurred that MacDonald told the appellant to "check her cunt and see if she's got any money down there" whereupon, according to the complainant, the appellant put his hand down her pants and put his finger in her vagina. She was then pushed out of the van and her bumbag remained in the vehicle and the accused refused to return it to her.
32 It may well be that the jury acquitted on Count 3 on the basis that although the complainant was physically assaulted with the gun in the laneway behind the Hyatt, the gun was not in evidence when she was robbed of her money at Darling Point. As a consequence of this the jury may not have been satisfied beyond reasonable doubt, as her Honour had instructed them, that the appellant was armed with an offensive weapon at the time of the robbery. In other words, there was no coincidence between the production of the gun and the robbery, each occurring at different times and in different locations. It is to be noted that for some inexplicable reason no charge was preferred against the appellant or MacDonald with respect to the assault in the laneway behind the Hyatt. Further, and equally inexplicably, Count 3 specifically alleged armed robbery and not robbery in company, which is also prohibited by s 97.
33 Accordingly, it may well be that the jury were not satisfied as the charge required that the appellant was armed with the handgun when the robbery took place at Darling Point in that, at that time, it played no part in the events which allegedly then occurred. If this be so, then the acquittal on Count 3 would not necessarily involve any rejection by the jury of the accuracy or honesty of the complainant's evidence. The point being made - that it was open to the jury to find that the gun played no role in the robbery - should not be confused with the proposition that a person in possession of an offensive weapon, but who is not brandishing the weapon, cannot thereby be guilty of an offence under s 97. Section 97 merely requires the possession of a weapon such that where the victim is aware that the accused is armed, the offence could, circumstances depending, be found proven.
34 The jury's acquittal on Count 2 is more problematic although, as I have pointed out in [22] above, there was a significant delay between the time of the sexual assault and the first complaint by the complainant to any person in authority. The evidence established that the complainant did not tell the police (or the ambulance officer) at the scene that she had been sexually assaulted. She did say that the worst of the physical incidents was being knocked about in the car with the gun which occurred in the laneway behind the Hyatt. She said that the reason she did not tell anyone about the sexual assault was that she was in shock and did not want to talk to a male about it although the evidence established that she was alone with the female ambulance officer (Ms Solrai) on the way to St Vincent's Hospital.
35 Accordingly, there was a basis upon which the jury may well have had a reasonable doubt as to the reliability of the complainant's evidence with respect to this charge. But it does not follow that that doubt went so far as to justify the conclusion now pressed upon us by the appellant that the jury must have rejected her evidence as so unreliable and/or lacking any element of truth that their apparent acceptance of her evidence with respect to Count 1 was so infected as to be unreasonable or unsupportable.
36 As I have emphasised, no charge was preferred against the appellant with respect to his alleged physical assault upon the complainant with the handgun in the laneway behind the Hyatt. Accordingly, in one sense it was unnecessary for the jury to consider whether they accepted or rejected the complainant's evidence on that matter. However, in my opinion, it was open to the jury to convict the appellant on Count 1 simply upon the basis that they accepted her evidence that, after she had requested the appellant and MacDonald to let her out of the car when it was in Macleay Street, they refused and thereby detained her for what could only, sensibly and logically, be for their own advantage, namely, because they intended to steal her money.
37 As I have already observed, the jury may well have considered that the complainant's money was stolen but that Count 3 was not established, as the appellant was not armed with his handgun at the time the robbery took place. The trial judge had on a number of occasions directed the jury that they must be satisfied beyond reasonable doubt that the appellant was armed with an offensive weapon and that he and his co-accused robbed the complainant at that time. In other words, it is quite possible the jury were not satisfied of the coincidence of time which that direction required. However, they may still have accepted that her money was stolen and that would be sufficient for the purpose of the second element of Count 1. My point is that there is a logical explanation for the jury's acquittal of the appellant on Count 3 which does not necessarily involve their rejection of the reliability and accuracy of the complainant's evidence that her money was taken.
38 The appellant's submission to this Court was encapsulated by Adams J during argument by the following question to which counsel answered in the affirmative:
"So does it amount to this, your case is that the only proposed stealing to which the advantage related was the bum bag or possibly what was concealed on her person. The jury disbelieved for whatever reason the complainant about those matters and it must follow then they could not be satisfied beyond reasonable doubt that there was the particularised advantage?"
39 Counsel then summarised his argument in the following terms:
"The case as presented by the Crown relied upon the credibility of Ms Henderson. It also particularised the advantage that was sought in relation to the detaining as being the two counts on the indictment that the jury found the accused not guilty of. Therefore, the jury rejected the advantages that were particularised by the Crown and were the elements of the offence on the count that they convicted upon."
40 It will thus be seen that the appellant's case depended on acceptance of the submission that the jury simply disbelieved the complainant that money, whether from her person or her bumbag, was stolen from her so that even if she was detained (which was not seriously disputed), it was not for the advantage particularised in the charge. However, for the reasons adverted to above, I do not consider that the jury's acquittal on Count 3 was necessarily or inevitably based upon their rejection of the complainant's credibility or reliability as a witness.
41 The appropriate test for determining whether a verdict is unreasonable or unsupportable within the meaning of s 6(1) of the Criminal Appeal Act 1912, was authoritatively stated by the High Court in MFA v The Queen (2002) 77 ALJR 139 at 144 [25] and 155 [97]. In so doing the justices accepted that that test was as formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493 (and applied by that court in Jones v The Queen (1997) 191 CLR 439 at 452):
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, the court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
42 In MFA the High Court approved a number of principles enunciated in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 in respect of the application of the test in circumstances where the unreasonableness is said to lie in factually inconsistent verdicts of the jury. Thus, Gleeson CJ, Hayne and Callinan JJ stated the following (at 145-146 [34]):
"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, ever juror must be satisfied beyond reasonable doubt of every element in the offence. 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. Thirdly, there is the consideration stated by King CJ in R v Kirkman , and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed." (emphasis added)
43 Their Honours then went on (at 146 [35]) to reject as erroneous the proposition that where multiple offences are alleged involving the one complainant then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Their Honours thus emphasised (at 146 [36]) that the test established by s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency.
44 McHugh, Gummow and Kirby JJ in their joint judgment in MFA also referred to the principles in MacKenzie noting that the instant case was not one where "logic and reasonableness" necessarily dictated a common approach to the several verdicts concerned. At 154 [85] they continued in these terms:
"In judging suggested inconsistency, this Court said in MacKenzie that 'if there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted'. The Court cited with approval the remarks of King CJ in R v Kirkman to the effect that juries may not always act 'in accordance with strictly logical considerations' or even 'in accordance with the strict principles of the law which are explained to them'. Juries sometimes give effect to 'their innate sense of fairness and justice' as well as to their sense of proportion and compassion."
45 Their Honours acknowledged (at 154 [86]) that cases do arise where different verdicts returned by a jury represent "an affront to logic and common sense" and suggest a compromise in the performance of the jury's duty. However, for the reasons to which I have referred, I do not consider that the jury's conviction of the appellant on Count 1 can be described this way. I have already explained why I consider that the jury's acquittal of the appellant on Count 3 was not necessarily related to any disbelief of the complainant's evidence. So far as Count 2 is concerned, the remarks of the Gleeson CJ, Hayne and Callinan JJ, which I have emphasised in [40] above, are clearly apposite to the present case. There was no objective evidence of digital penetration and that, coupled with the delay in complaint, may well have caused the jury to be cautious in finding the offence proven beyond reasonable doubt. As their Honours observed, such an approach does not necessarily involve a rejection of the complainant's evidence. Something additional may well have been required by the jury but was absent.
46 Nevertheless, the appellant relied upon the following passage for the majority judgment in M (at 494):
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
47 In my opinion, the evidence of the complainant did not lack credibility in the sense referred to in the above-cited passage. A careful reading of the transcript leads me to the conclusion that the complainant gave her evidence clearly and forcefully. When cross-examined by counsel for the appellant she said, and in fact volunteered, that after she was pushed out of the panel van her recollection was not that coherent (at T.15); that she was in shock (at T.17) particularly when the police and ambulance arrived (at T.89-90). She volunteered (at T.43) that
"after the events in the laneway everything became very blurry because I was hit that many times up the head with the gun, I had, was sort of semi-conscious"