R v Wilson [1999] VSCA 89

" 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 has 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 reasonable doubt which the 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 a 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 to set aside a verdict based on that evidence."

92. For my own part, I must say that I do not have the doubt of which the court was speaking in M; nor do I think that there is a possibility that an innocent person has here been convicted. If ever there was a case in which the jury enjoyed an advantage over an appellate court, this was it. Although there were factors, to which the jury was fully alerted, affecting the credibility of McGivern, there was, to my mind, ample evidence upon which the jury was entitled to act to convict the applicant of counts 8, 13 and 14. The jury were not bound to quarantine their consideration of these counts to the evidence which had been specifically and directly given in relation to them. They were representative of a series of events which occurred during a short space of time and in respect of which the jury was entitled to regard the applicant as the principal co-ordinator. According to F, whilst she was on the floor being beaten and kicked, he was on his feet and immediately to her right from which direction heavy kicks were landing, one of which broke her nose. Immediately after the physical beating ceased, he was the one who commanded her, so she said, to strip naked and whom the jury was entitled to find organised the sexual assaults upon her. For this, and other reasons, the jury was entitled to be satisfied that the applicant was encouraging the sexual assaults which constituted counts 13 and 14. It was he, so the jury was well able to find, who intended that F should be sexually humiliated and degraded by making her strip and lie on the floor on her back. No matter that McGivern said that he was commanded by Honeysett to have sexual intercourse with F, it was well open to the jury to find, in my view, that the applicant was encouraging that act. There was evidence, upon which the jury was entitled to act, that it was the applicant who had said, when McGivern had completed his act of sex, that it was W's "turn". Indeed, on a view of the evidence open to the jury, it would, I think, have been perverse for it not to have found that the applicant was a prime mover of all the sexual assaults which occurred in the lounge room immediately following the physical assaults.

95. Nor, in my view, is there anything inconsistent about these verdicts, either in respect of those returned against the applicant or as between his convictions and Honeysett's acquittals. Indeed as the argument on the appeal progressed it seemed to me that Mr Holden was confining his submission of inconsistency to the inconsistency of the verdicts returned on counts 8, 13 and 14 against the applicant with the verdicts returned in favour of Honeysett on the same counts.

98. Before an appellate court can find inconsistency between verdicts (and here I do not mean "technical inconsistency"), it needs to be shown that no reasonable jury, who had applied their minds properly to the facts, could have arrived at the conclusion which they did. It has often been said that appellate courts are reluctant to accept submissions that verdicts are inconsistent and that, if there is a proper way in which the court may reconcile those verdicts, allowing it to conclude that the jury performed their required function, that conclusion will generally be accepted (McKenzie v. R. (1996) 190 C.L.R. 348 at 367 per Gaudron, Gummow and Kirby, JJ.). Thus, if there is evidence to support the verdicts said to be inconsistent, it is not for the appellate court to substitute its own view for that of the constitutionally appointed tribunal. In this regard, and indeed in this case, it must be remembered that the trial judge gave separate consideration directions and also directions as to the dangers of acting on the evidence of witnesses considered by the law to be unreliable.

101. When these principles are applied it can, I think, be seen that there is no relevant inconsistency between the verdicts returned against the applicant and those in favour of Honeysett. Although the Crown alleged that both were jointly responsible for the assault alleged in count 8, the evidence against Honeysett was considerably weaker than the evidence against the applicant, the strength of which I have already described. Although F alleged that Honeysett had held a knife to her throat and threatened to kill her, there was considerable doubt about the strength of this evidence, both as to whether it occurred and, if so, when it occurred. I have already noted that it was W's evidence that it was Jamie who was wielding the knife.

104. But, more significantly, it was the evidence of F that Honeysett was not involved in the physical assaults which were the subject of counts 8 and 9, and her evidence also suggested that he was not and could not have been involved in the rapes upon her by McGivern. In the course of her evidence about who was involved in the physical assaults upon her she said (transcript pp.150-152):

"It was hard for me to know ... exactly where and who the blows were coming from but, as I said, I do know Karl Wilson was involved ... "

"Who is the 'rest of them'; who was in the incident and who was not; can you say that?" Answer: "I can tell you that much, yes." His Honour: "Tell us." Answer: "Honeysett wasn't involved; he was sitting down sort of ... drifting off to sleep."

112. And again, whilst being cross-examined by the applicant's trial counsel, she said:

Question: "You've described Jamie, McGivern and Julie as involved."

Answer: "Not Harold Honeysett, Harold Honeysett was not involved ..."

Question: "But he was just a little bit later on with the knife, according to you"

123. F's evidence also tended to suggest that Honeysett had no interest in the sexual assault which followed the physical assaults, again because he was asleep. At transcript page 269 F was specifically asked in re-examination by the prosecutor:

"When the intercourse took place between you and McGivern, both in terms of his penis in your mouth and his penis in your vagina, what state was Harold Honeysett in at that stage?"

127. F replied that he was "dozing, going off to sleep", and then later, "He did not seem to be taking a lot of notice." It is true that McGivern's evidence was to the contrary - that Honeysett was on his feet with the steel bar forcing him to have sex with F. But, as the judge told the jury, McGivern was not only an indemnified witness but was, on one view of the evidence, an accomplice with an interest in excluding his own culpability and implicating the man who had earlier that evening assaulted him. In the face of F's evidence and the judge's instructions, it is not surprising to me that the jury had a reasonable doubt about the involvement of Honeysett in either the physical assaults or sexual assaults by McGivern upon F. In the course of his charge, his Honour had told the jury:

"If the prosecution fail to exclude the possibility beyond reasonable doubt that Honeysett was asleep in the living room when the acts of assault and sexual acts took place against F with McGivern and W, then you should acquit him of those counts relating to violence and sexual assaults ... ."

131. In the light of the evidence and the judge's directions it cannot, in my view, be said that the verdicts against the applicant and those in favour of Honeysett are logically inconsistent. Whilst I can understand Mr Holden's submissions that the evidence of the witnesses was in many cases internally inconsistent, it is for the jury to determine which evidence they are prepared to accept and which they are not. That is how juries are traditionally directed, and it is what they were told in this case. As Ormiston, J.A. has said recently in R. v. Hilsley [1998] VSCA 143 at para.65 (a case which appears in many respects to bear similarities to this):

"It is perhaps easy for an appellate court to read the transcript of evidence given at the trial and reach a conclusion that certain evidence is incapable of being accepted because of doubts and inconsistencies of its own and by comparison with that of other witnesses. Experience tells, however, that witnesses rarely tell precisely consistent stories and indeed judges and juries are frequently suspicious of versions which precisely coincide. In each case it is for the jury to be satisfied beyond reasonable doubt as to the essentials of each count. The circumstances surrounding the events are easily forgotten with time and, although effective cross-examination as to detail may show that a particular witness is a congenital liar, that is no more to be presumed than that others have a propensity to commit sins of a different kind."

135. It necessarily follows from what I have said that I am not in doubt about the logic attending these verdicts. The verdicts returned against and in favour of the applicant are not inconsistent with each other, nor are the verdicts returned against him on counts 8, 9, 13 and 14 inconsistent with the verdicts returned in favour of Honeysett on those same counts. Nor, in my view, can it be said that the nature and quality of the evidence upon which the jury acted was such as to render their verdicts unsafe. In broad terms it seems to me that this jury has accepted F as basically a witness of truth but, in accordance with the judge's directions, has not been generally prepared to act on it unless they have found some supporting evidence.

138. In my opinion the application for leave to appeal against conviction should be dismissed.

141. Mr Holden was unable to say much about the sentences imposed by his Honour. It is clear from his Honour's sentencing remarks that he was conscious of all the mitigating circumstances which had been put to him based upon the applicant's state of mind. Although that evidence indicated that the applicant had an apprehension of the nature of the acts which he committed, his Honour was not prepared to give full effect to the principles of specific or general deterrence, nor was he prepared to "load" the sentences by reason of the statutory concepts relating to persons who are deemed to be serious sexual offenders. It seems to me that it is impossible to regard the sentences imposed, either individually or in total, as outside the ranges available to the judge.

144. The failure of the judge to impose a sentence in respect of count 15 was clearly an oversight. Although that failure technically re-opens the sentencing discretion, counsel were agreed in their view that this Court should not remit the matter to the sentencing judge pursuant to s.568(5) of the Crimes Act, but rather should impose a sentence which this Court regards as appropriate to that count, and make it concurrent with the other sentences which his Honour has imposed. In my view that is an appropriate course to take. I would accordingly re-sentence the applicant as follows:

on counts 11, 18, 19, 20 and 21 - two years' imprisonment on each count;

on counts 13 and 14 - five years' imprisonment on each count;

154. I would direct that the sentences imposed on counts 11, 18, 19, 20 and 21 be served concurrently with each other but direct that the sentence on count 11 be served cumulatively upon count 8. I would further direct that the sentences imposed upon counts 13 and 14 be served concurrently with each other but the sentence on count 13 be served cumulatively upon counts 8 and 11. Otherwise all sentences are to be served concurrently. That means that the total effective sentence is one of nine years. I would direct that the applicant serve a minimum sentence of five years before becoming eligible for parole. I would declare that 600 days have already been served pursuant to the sentence.

159. I agree with the disposition of these applications proposed by the President for the reasons given by his Honour.

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

172. The application for leave to appeal against sentence will, for the reasons that I have indicated, be allowed but only to impose a sentence of two years upon count 15, a sentence which, apparently by oversight, his Honour neglected to impose.

175. The formal sentences will be of the order and in the manner which I have indicated in the reasons.