Brooks v The Queen, unreported; CCA SCt of WA; Library No 7160; 16 June 1988

M v R [1994] HCA 63; (1994) 181 CLR 487

1 MALCOLM CJ: This is an application for leave to appeal against the applicant's conviction in respect of an offence of indecent dealing with a child under the age of 14 years contrary to s 183 of the Criminal Code as it stood in 1978. The indictment contained seven counts of indecent dealing. The applicant was convicted on count 2 and counts 4 to 7 of the indictment, but was found not guilty on counts 1 and 3. The application for leave to appeal was made on the ground that:

"The guilty verdict by the jury in respect of count 2 ... be set aside on the ground that it is unreasonable."

2 It was contended on behalf of the applicant that the jury's guilty verdict in respect of count 2 was logically inconsistent with the verdict of not guilty in respect of count 1 and, therefore, unreasonable. I have had the advantage of reading in draft the reasons to be published by Miller J for rejecting that contention. I agree that the application for leave to appeal should be dismissed for those reasons, but I have thought it convenient to add my own reasons for reaching the same conclusion.

3 Count 1 alleged that on a date unknown in 1978 at Dalkeith the applicant unlawfully and indecently dealt with the complainant, a child under the age of 14 years. Count 2 alleged that on the same date and at the same place the applicant unlawfully and indecently dealt with the complainant, a child under the age of 14 years.

4 The facts are set out in detail in the reasons to be published by Miller J. Suffice it to say that count 1 involved the applicant being on top of the complainant, who was lying on her back on a mattress and moving his body backwards and forwards with his genital area "lined up" with the complainant's genital area. This was referred to at the trial by the trial Judge as an activity "appropriately described as simulated intercourse". Following this, the complainant said that the applicant lifted up her skirt, probably pulled her underwear down and then inserted his finger in her vagina, moving his finger backwards and forwards. The applicant then put his finger in his mouth. This second incident was the subject of count 2.

5 The relevant facts in relation to count 3 were that on a later date in 1978 or 1979 the complainant was taken fishing by the applicant on the beach at Leighton, together with her brother. Later, her brother was told to go back to the car. When he had gone the applicant got on top of the complainant when she was lying on her back and rubbed himself against her in a forwards and backwards motion in the same way as alleged in respect of count 1. They were both fully clothed and the incident lasted for a couple of minutes. Details of the remaining four counts in respect of which the applicant was found guilty are set out in the judgment of Miller J.

6 As can be seen from the judgment of Miller J, no complaint was made on behalf of the applicant about the directions to the jury and, in particular, the directions to consider the evidence in relation to each of the counts separately. It was submitted on behalf of the applicant that the verdict of not guilty in respect of count 1 was logically inconsistent with the verdict of guilty in respect of count 2, because both counts related to "the same incident". In my view, the verdicts related to two separate and distinct incidents, although both were said to have occurred on the same occasion. The jury were perfectly entitled to bring in separate and distinct verdicts. There was no necessary or logical connection between the two incidents. The learned Judge made it clear in his directions to the jury that they were required to consider each count separately and separately analyse the evidence as it related to that count. The jury were also told that their finding in respect of any one charge did not dictate what their finding must be in respect of any other charge.

7 His Honour also directed the jury that, in respect of each charge, it was necessary for them to consider the elements of the charge. As his Honour put it:

"I emphasise it is important that you separately consider each charge. This is not a job lot. Each charge requires your separate attention although it may well be that some of your findings of fact and a lot of the evidence you will find common to all charges in your assessment of the evidence. Each charge is identical from the point of view of the elements that the Crown must establish as each charge is one of unlawfully and indecently dealing with the complainant. There are five elements that the Crown must prove to establish the offence of unlawful and indecent dealing. Those elements are, firstly, that there was a dealing; secondly, that the dealing was indecent; thirdly, that the dealing was unlawful; fourthly, that the complainant was dealt with by the accused person and, finally, that the complainant was at the relevant time a child under the age of 14 years. So you must be satisfied in respect of each count that there was a dealing, that it was an indecent dealing, that it was unlawful, that it was the complainant who was dealt with by the accused, and that she was at the relevant time a child under the age of 14 years."

8 His Honour then went on to give detailed directions regarding each of the elements. So far as the indecency aspect of the charges were concerned, his Honour said:

"The expression 'indecent' has no definitive or specified legal meaning. It is taken in its ordinary context as meaning anything that is unbecoming or offensive to ordinary standards of propriety. There must be a sexual connotation to the activity. It must be an activity which offends community standards of propriety prevailing at the relevant time. There would be no better issue for a jury's determination than whether certain conduct offended community standards of propriety because we have 12 members of the community to bring that to bear.

It's a matter for you to decide whether or not in each charge there was a touching and whether or not that touching was indecent. However, if you are satisfied that the events occurred in the way the complainant said they occurred then I think you would have little difficulty in concluding that there was a dealing, a touching, and that was a touching in a manner which offends, and at the time offended, community standards of propriety."

9 In Stone, unreported; Court of Criminal Appeal (England), 13 December 1954, Devlin J said:

"When an appellant seeks to persuade this court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably have come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that."

10 That test was applied in Kirby (1972) 56 Cr App R 758 at 759 - 760 by Edmund Davies LJ, who pointed out that there was no general rule that the mere fact that a jury had returned inconsistent verdicts meant that any convictions which may have resulted must be quashed. Each case turns on its own facts. For example, inconsistent verdicts based upon differing credibility findings on different aspects of the same set of basic facts may be set aside as inconsistent, as was the case in Drury (1971) 56 Cr App R 104. In R v Kelly (1985) 38 SASR 561 the jury acquitted the appellant on a count of rape and convicted him on a count of oral rape. The appellant had admitted that penetration had taken place on both counts, but claimed that the complainant had consented to the penetration. The evidence relating to consent on both counts was substantially the same. In those circumstances, it was illogical for the jury to have found the appellant not guilty on the one count but guilty on the other.

11 In Garrett (1988) 40 A Crim R 213, a decision of the Court of Criminal Appeal of South Australia, at 218 King CJ found it difficult to accept that, in relation to three counts of rape, the jury could consistently find the appellant guilty of the third count, but not guilty of the first two counts in circumstances where proof of all three charges depended upon the complainant's "veracity and reliability". The rapes the subject of the second and third counts both occurred on the same weekend after an uninterrupted series of violent acts. Consequently, there was a significant connection between the facts on which the second and third counts were based: see Freshwater v R, unreported; CCA SCt of WA; Library No 940386; 12 July 1994 at 6 per Ipp J.

12 The passage in Stone had earlier been approved by Parker LCJ in R v Hunt [1968] 2 QB 433. It was applied in Victoria by McInerney J in R v Nanette [1982] VicRp 8; [1982] VR 81 at 83; in South Australia in R v Kelly, supra, by Zelling J at 562; in Western Australia in Dalla Volta v The Queen, unreported; CCA SCt of WA; Library No 930118; 5 March 1993; Orr v The Queen, unreported; CCA SCt of WA; Library No 9036; 5 September 1991 per Wallwork J at 9; and Saibu v The Queen, unreported; CCA SCt of WA; Library No 930498; 22 July 1993 per Pidgeon J at 7 - 8.

13 In R v Kirkman (1987) 44 SASR 591 at 593, King CJ pointed out that courts:

"... must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a Judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and may have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a Judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump at the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. The jury may be quite reasonable at arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count on the information. I mention that point as a matter of general observation, but I think it is unnecessary to look to considerations of that kind in the present case."

14 In McKenzie v The Queen (1996) 190 CLR 348 Gaudron, Gummow and Kirby JJ (with whom Dawson and Toohey JJ agreed on this issue) stated a number of propositions at 366 - 368. The first was that a distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve because there will be two verdicts on the face of the record which, in law, cannot stand together. The second proposition is not relevant in the present circumstances to the extent that it related to different verdicts affecting co-accused or persons tried separately in relation to connected events. In so far as the proposition referred to different verdicts affecting the same accused it was only to distinguish that case.

15 The third proposition was that where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts against an accused in a criminal trial, the test is one of logic and reasonableness. It was in this context that the test formulated by Devlin J in R v Stone, supra, was approved. Their Honours went on to state as their fourth proposition at 101:

"Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts allowing it to conclude that the jury perform their functions 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. In a criminal appeal the view may be taken that the jury simply followed the judge's instruction to consider the case presented by the prosecution in respect of each count and apply to each count the requirement that all of the ingredients must be proved beyond a reasonable doubt. Alternatively the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to and often exercised by juries. ..."

16 Their Honours went on to cite in this context the passage in the judgment of King CJ in R v Kirkman, supra, as to which their Honours said, "We agree with these practical and sensible remarks".

17 The fifth proposition was that, as expressed at 101 - 102:

"Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent on the public record an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or a lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside."

In this context, R v Drury, supra, was cited.

18 The sixth proposition was that the obligation to establish inconsistency of verdicts rests upon the person making the submission: R v Hunt, supra, at 438; and Kirby, supra. An example of the application of McKenzie v The Queen by this Court may be found in Ellis v The Queen, unreported; CCA SCt of WA; Library No 970480; 26 September 1997.

19 In Jones v The Queen (1997) 191 CLR 439 at 450 - 452 Gaudron, McHugh and Gummow JJ re-examined the power of a Court of Criminal Appeal to set aside a verdict on the ground that it was unsafe or unsatisfactory in the context of s 6(1) of the Criminal Appeal Act 1912 (NSW) which, for relevant purposes, is in the same terms as s 689(1) of the Criminal Code of this State. Their Honours said at 450:

"In M v The Queen [(1994) 183 CLR 487 at 492 per Mason CJ, Deane, Dawson and Toohey JJ], the majority said that although the phrase 'unsafe or unsatisfactory' does not appear in s 6, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence. In the same case, McHugh J said (at 523) that a 'miscarriage of justice' arises whenever the accused has not had a fair trial according to law or whenever the nature of the evidence, the directions to the jury or the procedures that were followed raise a real doubt as to whether the conviction can be regarded as a safe or just conviction. Having regard to the statements in M, there can be no doubt that 'a miscarriage of justice' occurs where the findings or the verdicts of the jury raise a real doubt as to whether a conviction is safe or just."

20 Their Honours went on to state the test for determining whether a verdict is unsafe or unsatisfactory at 450 - 451 in terms that, as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M at 493, namely:

"... whether the court thought that upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty."

21 In Jones at 451 - 452 their Honours repeated the explanation relating to the way in which the test was to be applied. Approaching the matter in that way, I would see no reason to disturb the verdicts of the jury in this case: cf Eastough v The Queen, unreported; CCA SCt of WA; Library No 980108; 12 March 1998 per Pidgeon J at 29 - 30; and Wheeler v The Queen, unreported; CCA SCt of WA; Library No 980193; 20 April 1998 per Walsh J at 10 - 11. As Kennedy J said in Eastough, supra:

"Appeals based on inconsistency of verdicts commonly fail by reason of the fact that there is to be found in the evidence some particular feature which explains why the jury could have distinguished between the evidence on the various counts in the

indictment and convicted the accused on some counts, while acquitting him on others."

22 In the present case, the jury may not have been satisfied beyond reasonable doubt that the conduct the subject of count 1, which was similar to the conduct the subject of count 3 in respect of which the applicant was also acquitted did not involve conduct which, in their opinion, was sufficiently indecent (given the fact that both were fully clothed) so as to justify a verdict of guilty or, having regard to the fact that the events occurred more than 20 years prior to the time of the trial, they were not sufficiently convinced of its accuracy and regarded the evidence of the digital penetration in relation to count 2 as something which the complainant was more likely to recall accurately. In my view, there was ample reason in this case, as Miller J has demonstrated in his reasons for judgment, for the jury to reach the verdicts which they did in respect of counts 1 and 3 in a manner which did not result at all in the verdict of not guilty in respect of count 1 being inconsistent in any way with the verdict of guilty in respect of count 2.

23 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of the Hon the Chief Justice and Miller J. I agree with those reasons for judgment and there is nothing I wish to add.

24 MILLER J: The applicant seeks leave to appeal against a conviction for the offence of unlawful and indecent dealing in the District Court at Perth on 7 April 2000. The single ground of appeal is that the guilty verdict of the jury should be set aside on the ground that it is unreasonable. Particulars appended to the ground contend that the verdict of the jury was logically inconsistent with its verdict on the preceding count.

25 The applicant was tried in the District Court on 6 and 7 April 2000 on an indictment which contained seven counts of unlawful and indecent dealing with a child under the age of 14 years. The seven counts represented four occasions upon which the applicant was alleged to have sexually interfered with his daughter, who was clearly on each occasion a child under the age of 14 years. Counts 1 and 2 alleged that on a date unknown in 1978 at Dalkeith the applicant had unlawfully and indecently dealt with his daughter. As she was born on 12 June 1972 she was then between the ages of 5-1/2 and 6 years. Count 3 alleged an unlawful and indecent dealing between 31 December 1977 and 1 July 1978 at North Fremantle, at which time the complainant would also have been between 5-1/2 and 6 years of age. Counts 4 and 5 alleged incidents of unlawful

and indecent dealing between 1 June 1980 and 1 January 1981 at Three Springs, at which time the complainant was between 8 and 8-1/2 years. Counts 6 and 7 alleged unlawful and indecent dealing between 11 June 1982 and 30 June 1983 at Hamilton Hill. The complainant would then have been between 10 and 11 years of age. The jury returned verdicts of guilty in relation to all counts, save for counts 1 and 3. It is because of the verdict of not guilty on count 1 on the indictment that the applicant contends that his conviction on count 2 was unreasonable.

26 In order to consider this submission it is necessary to set out the facts which supported each of the allegations contained within the indictment. Counts 1 and 2 related to an occasion on a date unknown in 1978 when the complainant was living with her family in Waratah Avenue, Dalkeith. The complainant said that she was then at Dalkeith Primary School and "5-1/2, 6". She said that in the backyard of the family home there was a shed in which there was a mattress leaning against one of the walls. She testified that the applicant had put that mattress on the ground, put his hands on her shoulders, put her on the mattress and then placed himself on top of her. Both the complainant and the applicant were fully dressed but whilst in this position the applicant was alleged to have moved his body "in a forwards and backwards motion ... his genital area was lined up with my genital area. He was rubbing himself against me in a forwards and backwards motion and I could feel the zip on my skin". The complainant testified that this incident had occurred for some four minutes or so, following which the applicant had lifted up her skirt, probably pulled her underwear down and then inserted his finger in her vagina where he moved it in a forwards and backwards motion. Her reaction was that she felt "scary ... it hurt. I made a noise and that's when he stopped". After putting his finger into the complainant's vagina he allegedly placed that finger into his mouth whilst turning to one side.

27 The facts in relation to count 3 on the indictment were that on an occasion when the complainant was in year 1 at Dalkeith Primary School ("it would have been in '78/79") she was taken fishing with her father and brother in an area near the old Dingo Flour Mill. She testified that the vehicle had been parked and that they had walked to the beach where her brother was told to go back to the car. After he had gone the applicant had got on top of the complainant while she was lying on her back in the sand. She testified that he again started "rubbing himself in a forwards and backwards motion" which was similar to what had happened in the shed at the back of the house. Again, the parties were both fully clothed and the incident occurred for a couple of minutes.

28 The allegations contained within counts 4 and 5 were said to have occurred some time in 1980 at which time the complainant was 8. She had travelled to Three Springs to see her father who was then separated from her mother. She and her brother were staying at the Three Springs Hotel with the applicant. At around 6 or 6.30pm the applicant had asked the complainant's brother to go and get fish and chips, following which, whilst only the applicant and the complainant were in the room, she was either told or motioned to get on one of the single beds and whilst on her back the applicant had got on top of her, rubbing himself in a forwards and backwards motion with his genital area "lined up with my genital area". Again, both parties were fully dressed. The incident occurred for a couple of minutes and was similar to what had occurred on previous occasions. After this the applicant had allegedly put his finger in the complainant's vagina and moved it in a forwards and backwards motion for one or two minutes. He then put his finger into his mouth and according to the complainant, turned to one side whilst doing so.

29 Counts 6 and 7 related to unlawful and indecent dealings at Hamilton Hill in 1982 or 1983, at which time the complainant was 10 years of age. The applicant was then living in Hamilton Hill and was visited by the complainant and her brother. Whilst asleep on a folder bed in the loungeroom of the house the complainant was awoken by the applicant who was alleged to have placed his finger in her vagina and then his tongue in her vagina. Each of these incidents was said to have lasted for a couple of minutes.

30 No complaint is made about the directions given by the learned trial Judge to the jury. Indeed, his Honour pointed out very clearly to the jury that they were dealing with seven separate trials in relation to which the evidence in each case needed to be separately considered. His Honour said:

"There are seven counts or charges in the indictment so that, as has been pointed out to you, in reality there are seven trials proceeding at the same time and each charge must be separately considered. That is, you must separately consider each charge against the accused and separately analyse the admissible evidence as it relates to that charge.

Your finding in respect of any one charge does not dictate what your finding must be in respect of any other charge. You simply select the charge that you are considering, you analyse the evidence that relates to that charge and you determine on that evidence and on your findings of fact in relation to the evidence whether the crown has satisfied you beyond reasonable doubt of the guilt of the accused person in respect of that charge. Then you proceed to consider the next charge and of course repeat the exercise with each charge.

I emphasise it is important that you separately consider each charge. This is not a job lot. Each charge requires your separate attention although it may well be that some of your findings of fact and a lot of the evidence you will find common to all charges in your assessment of the evidence."

These directions clearly required the jury to give careful consideration to the evidence relating to each of the separate counts on the indictment and it can be taken from the verdicts that they did so.

31 What is complained about by the applicant is that the verdict of the jury in respect of count 2 is logically inconsistent with its verdict on count 1 and therefore in the circumstances unreasonable. The submission is that both count 1 and count 2 relate to the same incident and if the jury found the applicant not guilty on count 1, it should have found the applicant not guilty on count 2, it not being possible to have a "split verdict". There is, however, a fundamental flaw in this submission. Counts 1 and 2 do not relate to the same incident at all. They relate to the same period of time and the same location, but the incidents which constitute each of the two counts were quite separate and distinct. Nor can it be said to be logically inconsistent that the verdict of the jury was guilty on one and not guilty on the other. As a matter of logic, the jury was entitled to convict on one and not the other, as they were separate and distinct sexual acts which were alleged.

32 In Balaam v R [2000] WASCA 292 at [15] - [16], I endeavoured to set out the current state of authority in relation to the test for an unsafe and unsatisfactory verdict. I there said:

"The test in determining whether a verdict is unsafe or satisfactory is that set out by Mason CJ, Deane, Dawson and Toohey JJ in M v R [1994] HCA 63; (1994) 181 CLR 487 at 493:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a 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.'

In Jones v R (1997) 191 CLR 439, Gaudron, McHugh and Gummow JJ (at 452) stated that the test formulated by the majority in M "must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory". In Jones the appellant was alleged, during 1991 and 1992, to have had sexual intercourse with a child under his authority. On each occasion the alleged conduct had occurred when the appellant (a gymnastics coach) had directed the complainant to go into a storeroom and lie on mats where he asked her to remove her pants in order that he could massage her legs. On each occasion it was alleged that he had massaged the complainant's vagina and then had inserted his penis into her. The jury convicted the appellant on the first and third counts on the indictment but acquitted him on the second. This led Gaudron, McHugh and Gummow JJ (at 453) to make these observations:

'The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is 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.' "

"If there is a proper way in which this Court can reconcile the verdicts of the jury, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict which is contended to be inconsistent, it is not the role of this Court to substitute its opinion on the facts for the verdict of the jury. The test is said to be one of "logic and reasonableness". It was put by Gaudron, Gummow and Kirby JJ in MacKenzie v R (1996) 190 CLR 348 (at 366) as follows:

'Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone unreported, 13 December 1954, is often cited as expressing the test:

"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, 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. 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. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.' "

34 It is only necessary to add the following words from the passage of Gaudron, Gummow and Kirby JJ in McKenzie v R (1996) 190 CLR 348 at [4] where their Honours said:

"In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

We agree with these practical and sensible remarks."

This passage underlines the need for an appellate court to ensure that full respect must be given to verdicts of the jury without attempts to reconcile them on the basis of logic or otherwise. In any event, in the present case it is not a question of logical reconciliation. The Crown properly points out that counts 1 and 2 described two very different acts. The jury were entitled to conclude beyond reasonable doubt that the occurrence of the events giving rise to count 2 (digital penetration of the vagina) would have made a very significant impression on the mind of a child aged between 5-1/2 and 6 years, thus allowing her to testify in relation to that event in a very credible manner. The jury may well have taken the view that because the complainant was of such a young age at the time of commission of this offence she may have been confused about the actual behaviour of the applicant in lying on her on the mattress as alleged. The Crown suggested that it may have been mistaken as "an over-zealous act of affection and therefore (having) no element of indecency". Whether this be so or not, it is conceivable that for one reason or another the jury may not have been satisfied beyond reasonable doubt that the incident occurred. Alternatively, the jury may have been satisfied that it occurred but not satisfied that it had the requisite element of indecency. That in the end was their exclusive preserve to determine. Whilst the description of the event might ordinarily be taken to constitute an act of indecency, it nevertheless remained for the jury to determine whether it was or not. The fact that both parties were fully dressed may have influenced the jury in this regard. As King CJ put it in R v Kirkman (supra) juries sometimes "apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law".

35 The fact that the jury acquitted the applicant on count 3 suggests that for one reason or another the jury was not satisfied beyond reasonable doubt that whatever it was the applicant did to the complainant on the occasions the subject of counts 1 and 3 constituted unlawful and indecent dealing. This may have been because the jury was unable to find beyond reasonable doubt the element of indecency, or it may have been because the jury was not satisfied beyond reasonable doubt that a girl aged between 5-1/2 and 6 years could accurately recount these incidents. On the other hand, the jury could clearly be satisfied beyond reasonable doubt (and was so satisfied) that the graphically described act of digital penetration which was the subject of count 2 had occurred. Even a 5-1/2 - 6-year-old girl might be expected to have remembered that incident, particularly the unpleasant sequal to the act which was so clearly described by the complainant.

36 It was the case that counts 1, 2 and 3 had occurred approximately 22 years prior to trial, and this meant that the jury was obliged to consider carefully the directions given by the learned trial Judge on the question of the complainant's capacity to recollect clearly what had occurred so long ago. In this regard his Honour had said:

"She is now aged 27 and was between the ages of approximately 5, 6 years and 10 to 11 years during the period of the alleged offences. In considering her testimony and evaluating her testimony you will have to take into account that she has given evidence of events that are said to have occurred a long time ago, 17 years having elapsed since the last of the alleged offences, and approximately 21 years since the first of them. The passage of so many years since the alleged offences brings into place several factors which require your special attention.

It is common knowledge, you wouldn't need to be told, that as a general rule human recollection dims with the passage of time. The passage of so many years between the alleged incidents and these charges being brought raises the question as to whether the complainant's recollection can safely be relied and acted upon. That is a specific issue that you must address in considering whether you can accept her evidence."

37 It is, of course, true that the jury convicted the applicant of unlawful and indecent assault in relation to an incident alleged to have occurred at Three Springs in 1980/81 when the applicant again placed himself on top of the complainant and rubbed his genital area against the complainant's genital area in the same way in which the complainant said this had occurred at Dalkeith and at the beach. This incident was the subject of count 4 on the indictment. In my view the verdict of the jury convicting the applicant of this count can be understood by the fact that the applicant was then between 8 and 8-1/2 years of age. The jury may have been satisfied beyond reasonable doubt that some 20 years later the complainant was able to recollect accurately and credibly that particular incident. Further, it may well have been that the jury was satisfied beyond a reasonable doubt of such an incident occurring in 1980/81 but left with some doubt as to whether or not the clear recollection of the incident on that occasion had unwittingly affected the complainant's capacity to recall accurately and credibly similar incidents in earlier years. There are many possible explanations and it is unnecessary to explore them all. It is sufficient to conclude that there was no logical inconsistency between the applicant's acquittal on count 1 and his conviction on count 2. There is indeed a proper way in which the court can reconcile the verdicts of the jury and nothing about those verdicts can be said to constitute "an affront to logic and reasonableness": McKenzie v R (supra) per Gaudron, Gummow and Kirby JJ at 366.

38 In my view the application for leave to appeal against conviction should therefore be dismissed.