are important.
123 The notion that a verdict may be unsafe or unsatisfactory for reasons other than sufficiency of the evidence was picked up in Mackenzie, with specific application to cases of asserted inconsistency.
124 It is also of significance that, in Markuleski, while quoting from M, the Chief Justice drew upon the reasoning, and the test propounded (specifically with application to cases of asserted inconsistency) in Mackenzie. And, at [10], the foundation for the test his Honour applied was not "upon the whole of the evidence", but "the whole of the facts and circumstances of a particular case".
125 And, in MFA where again the issue concerned a diversity of verdicts, in [34] the reference point was widened from "the whole of the evidence" to "the facts and circumstances of the particular case".
126 The distinction is not mere pedantry. To succeed in an M ground, an appellant must identify shortcomings and inadequacies in the evidence. A Jones ground may succeed, notwithstanding that no such shortcomings or inadequacies can be demonstrated.
127 What is implicit in that paragraph of MFA is that, where unreasonableness of a verdict of guilty is asserted by reason of a mix of verdicts, the inquiry is wider than that stated in M. In M no question of inconsistency arose, and, in cases of that sort, the inquiry is as to the adequacy of "the whole of the evidence" to support the verdict. In cases of the Jones variety, a further dimension is added - the "circumstances" of the particular case. That goes beyond "the whole of the evidence" and includes an examination of the significance of the acquittals, and what can be read into those verdicts.
128 That is not, on my reading, an adoption (for inconsistent verdict cases) of the most commonly quoted M test. The foundation for the test stated in MFA is not confined to "the whole of the evidence" but incorporates "all of the facts and circumstances of the particular case". That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. The inquiry may also permit examination of circumstances that give "insight" (Mackenzie), to the extent that is permissible, into the jury's thinking. Having regard to the willingness of the jury, in this case, to disclose its reasoning (through its regular communications) and, more particularly, to the unusual circumstances showing a degree of dissension during the process of deliberation, that is here of some considerable relevance.
129 In cases where the asserted unreasonableness is founded upon inconsistency, it is not unusual to find that little, if any, attention is paid to the quality of the evidence. That was the case in Mackenzie, it was the case in Jones, and it was the case in Norris (although in each of the last two cases, supplementary matters augmenting the doubts occasioned by the acquittals were added) in the reasoning to the conclusions.
130 Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.
131 I say that the task of determining whether the acquittal is due to doubts about the complainant's credibility is more difficult for this reason. It is not uncommon to find that the explanation for conviction on the one hand, and acquittal on the other, is to be found in some corroborative (often even usually, circumstantial) evidence of another witness. But, logically, how can this be seen as other than casting doubt upon the credibility of the complainant? It suggests that the complainant is accepted only where externally corroborated in some detail. In other words, his/her credibility is in question unless supported by some external factor.
132 It is of some significance that these issues arise commonly in cases of allegations of sexual impropriety, where, typically, the principal, and often the only, evidence of the central event is that of the complainant. Corroborative evidence may be, and often is, sought elsewhere but this is usually of a circumstantial kind.
133 Doubt about credibility of a witness is not the only available explanation for acquittal on one or more counts on an indictment, even in circumstances where the prosecution depends entirely or very substantially upon the evidence of that witness - invariably, in a trial involving sexual offences, the complainant. One alternative explanation is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged. That this possibility may appropriately be taken into account was reaffirmed as recently as 2002, in MFA. Another possible explanation is compromise amongst a divided jury: see R v Crisologo (1997) 99 A Crim R 178. An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts.
134 Where the correct explanation is compromise, the accused person has received the benefit of an acquittal or acquittals to which he or she is not entitled. That is because a jury acting in accordance with its duty ought, if it be the case, to declare its inability to reach a unanimous (or, since May 2006, an appropriate majority) verdict. It is then a question for the Director of Public Prosecutions whether the accused person is to be tried again.
135 Mackenzie, Jones and Norris all appear to have proceeded upon the basis that, absent the acquittals, the evidence adduced was sufficient, and was not relevantly tainted, to support the convictions. I do not mean to suggest that Jones creates a separate entity of unreasonable verdict: that is expressly contradicted by MFA. It is also clearly contradicted by the last paragraph in the joint judgment in Jones itself. But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open "upon the whole of the evidence". It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury's thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant's veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).
136 In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: see, for example, Mackenzie (at 367); R v Landsell (NSWCCA, unreported, 22 May 1995 per Gleeson CJ). It is only in circumstances where the evidence points, and points clearly, even unequivocally, to departure from those obligations that an appellate court will come to such a view.
137 As I have already mentioned, the Jones approach comes into play only if there is no rational explanation for the diverse verdicts. It is in that circumstance that the court must determine whether the only reason for the acquittals is doubt about the complainant's credibility; (if so, then that doubt must be applied to the remaining counts); or whether the jury has exercised its inherent right to correct what it sees as unfairness in the criminal process; or, finally, whether a divided jury has compromised. If compromise is the favoured explanation, then, as I have indicated above, the accused person has received an unwarranted bonus in the acquittals and the correct order is an order for a new trial on those counts on which the jury convicted.
138 This requires the appellate court to examine the evidence for an explanation or explanations, other than scepticism about the complainant's credibility, for the acquittals. I propose to do that shortly, following the approach taken by counsel for the appellant.