The Queen v P[1999] QCA 411

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 130 of 1999

Brisbane

[R v P]

THE QUEEN

v

P

Appellant

Pincus JA

Thomas JA

Chesterman J

Judgment delivered 28 September 1999

Joint reasons for judgment of Thomas JA and Chesterman J; separate reasons of Pincus JA dissenting in part

APPEAL AGAINST CONVICTION ALLOWED. CONVICTIONS ON COUNT 6 AND 7 SET ASIDE. NO RETRIAL ORDERED.

1. PINCUS JA:  I have read the joint reasons of Thomas JA and Chesterman J and subject to the question of re-trial, dealt with below, I agree with them.  The jury convicted on count 7 and that conviction must be set aside for the reasons explained by Thomas JA and Chesterman J.  The fact that the verdict on count 7 is being set aside on the ground of inconsistency of verdicts does not imply that the jury were necessarily wrong to convict on count 7;  the basis of our decision is that there was insufficient logical foundation for convicting on count 7 while acquitting on counts 1 to 5.  That the results of the jury's deliberations were irrational is, in the present case, underlined by the fact that they convicted on count 6 which was not only the weakest of the Crown cases, but so weak that the guilty verdict on that count was plainly wrong. 

2. That the jury has reached inconsistent verdicts does not necessarily mean there can be no new trial.  It was contended before us that such a course would be unusual, but I have found no authority supporting that proposition.  It is my view that the Court should be inclined to order a new trial where a verdict is set aside on the ground of inconsistency, where the Crown evidence on the verdict set aside appears to be reasonably credible.  That is so, in my opinion, with respect to count 7.  It is true that if there were a new trial on count 7, that would be presented to the jury as a single instance without the background of the other alleged offences in respect of which there have been acquittals;  that might make the Crown’s task more difficult.  But I am unable, with respect, to conclude that that is a fatal objection to an order for a new trial.

3. For these reasons I would allow the appeal, set aside the convictions on counts 6 and 7, but order a new trial with respect to count 7.

4. THOMAS JA AND CHESTERMAN J: The appellant was tried in the District Court on an indictment which alleged he:

1. maintained an unlawful relationship of a sexual nature with his daughter who was under the age of sixteen, in the course of which he indecently dealt with her;

2. indecently dealt with his daughter between 1 December, 1997 and 6 January, 1998;

3. indecently dealt with his daughter between 1 December, 1997 and 6 January, 1998;

4. committed incest on his daughter on 23 December, 1997;

5. committed incest on his daughter on 24 December, 1997;

6. indecently dealt with his daughter on 25 December, 1997;

7. committed incest on his daughter on 5 January, 1998.

5. The appellant was acquitted of counts 1-5 inclusive but convicted on counts 6 and 7.  He was sentenced to eighteen months imprisonment for indecent dealing and four years and nine months for incest.

6. The evidence for the Crown came principally from the complainant, a friend to whom she complained of her father’s conduct and a medical practitioner who, on examination, noted a transection to the hymen indicative of contact with something like a finger or an erect penis.  It was not possible for the doctor to estimate the date the tissue was damaged.  Other witnesses testified as to the opportunity the appellant may have had to commit some of the offences and, to that extent, offered corroboration for the complainant.  The appellant’s wife, the complainant’s mother, was called by the Crown but asked no questions of substance.  In cross-examination she supported the appellant who gave evidence in his own defence and denied any misconduct.  The case depended entirely upon the word of the complainant against that of the appellant.

7. The appeal is brought on the ground that the convictions are unsafe and unsatisfactory because the verdicts of guilty are inconsistent with the appellant having been acquitted on counts 1-5.  The argument is that there is no rational basis for satisfaction of guilt beyond reasonable doubt with respect to some of the offences but not as to the others.  All depended upon an acceptance of the complainant’s evidence and rejection of the appellant’s denials.  If her evidence was not thought to be sufficiently trustworthy to support a conviction on five of the seven offences it should not have been thought trustworthy for the other two.

It should be pointed out that the offence charged first on the indictment could not be made out unless there was a conviction on at least three of the other offences.  An acquittal on that charge was inevitable when the jury convicted the appellant on two counts only. 

8. The topic was discussed by the High Court in MacKenzie v The Queen (1996) 190 CLR 348.  Speaking of inconsistencies between verdicts upon different counts in an indictment, Gaudron, Gummow and Kirby JJ said in their joint judgment at 366 that the test is one of logic and reasonableness.  Their Honours continued (at 367) that there is

“... 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”.

However, the judgment continues (at 368):

“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 common sense 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 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.”

9. Their Honours approved what had been said in an unreported judgment of Devlin J in R v Stone (unreported, 13 December 1954),

“When an appellant seeks to persuade this Court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon 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 are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand”.

10. Jones v The Queen (1997) 191 CLR 439 is a decision of the High Court allowing an appeal against conviction on the basis that verdicts were inconsistent.  Jones had been charged with three acts of sexual intercourse with a twelve year old girl.  He was convicted on two counts but not the third.  The Court did not refer to MacKenzie nor to other authorities relevant to inconsistent verdicts.  Rather the topic was approached by an inquiry as to whether the convictions were unsafe or unsatisfactory.  The principal argument for their being so was inconsistency.  The Court reaffirmed that the test for determining whether a conviction is unsafe and unsatisfactory is that found in M v The Queen (1994) 181 CLR 487 at 493-4:

“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 ...

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.”

11. In applying that test to the facts in Jones, Gaudron, McHugh and Gummow JJ said (at 453):

“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 ... was a rejection of the complainant’s account of the events which were said to give rise to that count ... the jury’s rejection of the complainant’s account on the second count diminished her overall credibility ... 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.”

The effect of the authorities on this point were summarised by this court in R v Maddox (CA No 299 of 1998, 4 December 1998) by saying that it is only where a reasonable jury, who had applied its mind properly to the facts of the case, could not have arrived at the verdicts that there will be inconsistency.  This will be so only if there is no rational basis for distinguishing between verdicts. 

12. The respondent advances three bases for distinguishing the verdict on count 7 with those on counts 1-5.  It is said that any one or a combination of these bases provides a rational basis for the distinction made by the jury.  They are:

1. a fresh complaint about the offence alleged in count 7 was made by the complainant to a school friend;

2. her evidence of the circumstances which constituted the offence was more detailed than with respect to any of the offences in the other counts;

3. the offence alleged in count 7 was the closest in time to the complainant’s having spoken to police and prosecuting authorities and first giving evidence.

13. It will be noted that these points of distinction are not relied upon to support the conviction on count 6.  The evidence in support of that count was exceptionally sparse and could not constitute proof of the offence.  The appellant argues that the conviction on count 6 demonstrates that the jury had not applied its mind properly to the facts because any rational discernment between the counts must have led to an acquittal on count 6 which is manifestly the one least supported by evidence.

14. The only evidence in support of count 6 occurred in chief.  The complainant was not cross-examined about the episode.  The evidence was (R37.50-38.8):

“Christmas Day of 1997, do you remember that day? - That was when we went to church in the day, and that night he came into my bedroom to do something of the same nature to me, and I don’t remember exactly what happened, but I remember that he wanted to take off my clothes and I told him no.  Because I said to him, ‘Why go to church five times on one day and then come home and do this to your own daughter?  It’s not right.’ And so he left me alone that night.

How many churches was it that you went to on Christmas Day? - We went to church on five times to four different churches.

When you said that to him, do you remember if he said anything? - Probably just something like, ‘Yeah, you’re right’ or - I don’t know”.

15. Just before that passage in her evidence the complainant had said that on 23 December and 24 December 1997 the appellant had taken her from her bedroom into the living room where “he had sexual intercourse” with her.  A description of those occasions was (R36.53-37.49):

“I want to take you to 23 December 1997, two days before Christmas.  Do you remember that day? - Yes.

Where were you that day? - I don’t remember what happened during the day, but I remember that night that he came into my room and he took me out - I think he took me out into the living room and he had sexual intercourse with me.

Where were you before you went into the living room? - I was in my bedroom sleeping - or not sleeping, but lying there.

Do you remember whereabouts in the living room you were when you had sexual intercourse? - Probably on the floor, because I don’t remember doing it on the couch - on the new sofa, just in front of the fireplace.

Did you have clothing on when you went into the living room? - Yes

Did you remain fully clothed in the living room? - No.  He took my clothes off or he had me take them off.

Are you able to be a little more detailed about what happened after your clothes came off? -  I know he had sexual intercourse with me on that night, but I don’t remember how it happened and what exactly happened. 

Okay? - And the night before, I’m pretty sure that he did the same thing, but I don’t remember for certain.

Just dealing with the night of 23 December, do you remember if he ejaculated that night? - Yes, I think it was in my mouth.

The next day was Christmas Eve, 24 December.  Do you remember what you did that day? - Went to church in the day, and that night he came into my bedroom and he had sexual intercourse with me again.  It happened much the same as it did on the 23rd, but again I don’t remember details.

Do you remember if anything was said on the night of the 24th? - No.

I should have asked you this earlier about the night of the 23rd:  could you see his penis that night? - I don’t remember.  I don’t think so.

Are you able to say how it is you know that it was his penis that he was using? - Because I could feel it was his penis, and his hands were somewhere else.

And on the night of the 24th, how are you able to say that it was his penis that he was using to have sexual intercourse? - Because again I could feel it, and his hands were somewhere else.”

16. In cross-examination it was pointed out to the complainant that in her statement she had described the offence alleged on 23 December as occurring in her bed.  She could not explain the divergence in his testimony nor remember in which room her father had penetrated her.  She said it occurred “Wherever ... Maybe it did occur on the bed then.  I don’t know.  I don’t remember” (R73.40).  When asked to explain what happened that night she said “I know it happened, but I don’t really remember” (R73.44).  She conceded she did not remember “how it happened or ... where it happened” (R73.50) or indeed, anything about the incident.  When asked whether the appellant would have taken her clothes off she said:  “probably” (R74.1).

17. In relation to the alleged offence committed on 24 December her recollection was that the circumstances were “About the same as the 23rd” (R75.3).  When asked how she could be sure incest had occurred when she could not recall where or what had happened her answer was: “Because I remember the dates” (R75.8).  When asked:

“But you can’t recall anything that happened?” (R75.10)

Her answer was:

“I know it happened”.

18. It is apparent why the jury may not have been satisfied beyond reasonable doubt by the complainant’s evidence that the appellant had committed incest upon her on 23 or 24 December.  But having come to the view that the evidence was not sufficiently persuasive to satisfy them to the requisite standard one is baffled when one tries to discern why the jury would be satisfied beyond reasonable doubt by the evidence in relation to count 6, of indecent dealing on 25 December.  Not only does that evidence contain no more detail than was asserted in relation to the two previous counts but the complainant does not even make a bare assertion about the occurrence of some act which might be recognised as indecent dealing.  She says no more than the appellant came to her room intending some sexual misconduct but went away when he was told the awfulness of what he intended.  If the jury disbelieved an express allegation of incest because of the absence of supportive detail, and some indication of confusion as to the detail that had been offered, it is impossible to see how it could rationally have been satisfied beyond reasonable doubt of the occurrence of an offence of indecent dealing when the complainant could not describe anything that might amount to such a thing.

19. A conclusion that the verdicts on counts 4 and 5 and that on count 6 are inconsistent, as explained in the authorities, appears inescapable.

20. It should be mentioned that the Crown did not seek to support the conviction on count 6, accepting that the evidence was insufficient to sustain it.  There is the further problem that the evidence is not, as a matter of law, capable of establishing an offence against s 210 of the Criminal Code which makes it an offence to “indecently deal” with a child under sixteen.  “Deal with” is defined to include “doing any act which, if done without consent, would constitute an assault as defined” by the Criminal Code.  The prosecutor at the trial had relied upon R v S [1996] 1 Qd R 559 in which McPherson JA and Helman J said, speaking of the section which previously contained the offence,

“The expressions ‘deal’ and ‘deal with’, which in this context have the meaning ‘to have to do with’, ‘to act towards’ or ‘to treat (in some specified way)’ (Oxford English Dictionary), are plainly capable of a wide application, which is not confined to, even if it includes, an assault as defined.”

That part of their Honours’ judgment was concerned to answer a submission that an indecent dealing could only be constituted by an act which would amount to an assault.  The case concerned an adult who had instigated a child to perform acts of indecency upon him.  S did not touch the child, and he consented to what he had her do to him, so there was no assault.  The remarks quoted from the judgment must be understood in that context.  Their Honours were not offering an abstract definition of what constitutes “dealing” by reference to phrases of metaphysical obscurity.  An unexpressed desire to commit an act of indecency does not amount to indecent dealing.

21. It is not possible to overlook the jury’s solecism in convicting on count 6 while acquitting on counts 4 and 5 when considering whether there is a rational basis for also convicting on count 7.

22. The complainant’s evidence was (R39.1-.13):

“On 5 January 1998 my father came into my bedroom like he did often ... I pretended to be asleep but he came into my bedroom and he saw me and he said he left and then he came back in later on that night and I was still awake. By this time I was facing the wall where the bed is, I was facing the wall opposite the window and he put his hand up my back and he rubbed it, he massaged me and that was when I turned around [and] ... I asked him ‘How did you know I was awake?’ and he said ‘I didn’t’.  Then I told him not to do anything to me and he said ‘No, I just want to massage you’.”

They spoke about her wish to go to some friends.  The appellant gave his permission.  The complainant’s evidence continued (R39.20-.53):

“So I gave him a kiss and hug, just a cuddle, a kiss on the forehead and hugged him and then he turned round and he started kissing me in the way that he used to ... On my mouth the way that I described the first time it happened.  He started to take off my clothes and I don’t know how much clothes ended up coming off - if he took them off or if I did, but I know that I was protesting all through it.  Then I said to him ‘That’s not what I meant, that I wanted you to take off my clothes’.  He said ... he wanted to give me a kiss and cuddle back.  He ended up touching me with his fingers around my vaginal area and then he put his penis around where my vagina area was and pushed it against me until it was in.  I was moving away from him and ... I turned around and I was tapping on the wall ... to make a noise ... I was trying to wake someone up because I didn’t want it to happen anymore ... He ended up ejaculating.  Just before he did he pulled it out and said ‘Look I’m going to ejaculate.  Do you want to open your mouth?’ and I said ‘No go away from me’.  I huddled into a corner and he had my clothes on the other side of the bed so I grabbed my clothes.  As he left he went into the bathroom because I could hear water ... and he came in later on to apologise ... and told me he was sorry, that it won’t happen again like he did often when he had sexual intercourse with me ... That was the last time”.

23. The complainant did not retract or alter her evidence in cross-examination.  Perhaps the only point of note is that her parents’ bedroom was next to hers and the separating wall was thin.  She had heard her mother awake not long before but did not call out for her assistance even though she claimed to be attempting to attract attention by banging her arm against the wall.  She was uncertain about some points of detail.  She did not know whether the appellant ejaculated into his hand or whether he dressed himself in her bedroom.

24. We have mentioned the three points which the respondent submits could form a rational basis for making a distinction between count 7 and the others.  The first point was the fresh complaint in relation to count 7. 

What happened was that on 6 January, the complainant went to the house of a school friend.  The two girls talked.  The friend, whose mother was a counsellor, apparently had an interest in sexual abuse within families.  She had compiled her own quiz on the subject which she administered to the complainant.  Having answered some questions the complainant explained (R40.39-.47):

“She finally got it out of me.  I don’t know how but she asked me questions and finally got it out of me and she said, ‘Who is it that has done this to you?’ and I said it was my father.  I didn’t at first, but she said ... ‘Do I know him?’ ... and so she got it out of me that it was my Dad.  She goes ‘When was the last time he did it to you?’, and I told her it was last night”.

She returned to her friend’s house the next day, 7 January.  The friend’s mother was informed of what had been said and took the complainant to the police station where the complaint was made. 

The friend gave a similar account.  Her evidence was (R103.54-104.39):

“I asked her if she was ever sexually abused or assaulted ... She said maybe ... She told me that she had a back problem and her father used to give her back massages and while he was doing that he would feel her in other places ... I asked her ... when did anything happen and she said about two years ago or something and I asked her when the last time happened and she said it was on the Monday”.

25. That evidence does not show that a complaint was made soon after the alleged incest on 5 January and with respect to that offence alone.  Rather it is evidence that the entire misconduct of the appellant was elicited from her at that time by the astute questioning of a friend.  It is difficult to regard this as a complaint in relation to that offence any more than in relation to any other offence, although it is true that the story has more recency in relation to the last offence than the earlier ones.  But viewed objectively this is too flimsy a basis for convicting on this offence and not on the others.

26. The next point was that the offence the subject of count 7 was recent in time when the complaint was made to the police and statements were taken so that there is more chance that the event was fresh in the complainant’s memory.  That much is true but the events which constituted the offences alleged in counts 4 and 5 were only two weeks older.  It is difficult to see why the complainant should have a reliable memory for an event two days old but not for two similar events fourteen and fifteen days earlier.  Moreover, the jury convicted on count 6 which allegedly occurred on 25 December, 1997, only one and two days later in time.  Proximity in time between complaint and offences is not a sufficient basis for rationally accepting evidence in relation to one offence but not the others.

27. The third point is also superficially true.  The complainant’s account of the appellant’s incestuous act on 5 January stands in stark contrast to the plain recitals that he was intimate with her on 23 and 24 December.  The contrast, however, gives rise to as much concern as satisfaction that it offers verisimilitude.  It seems more than odd that the complainant could recall so graphically what had happened on 5 January but not the slightest surrounding circumstance for either offence a fortnight before.

28. Moreover, the complainant’s evidence in relation to counts 2 and 3, which were of indecent dealing, was quite detailed.  The first occurred when she, the appellant and her younger brother and sister, were swimming in a pool at a home owned by friends who had gone shopping and allowed the appellant’s family to use the pool.  The complainant gave a good description of the occasion and that the appellant (R34.46-.59):

“touched me around my legs and my vaginal area when we were in the swimming pool ... pretending he was just playing around with me ... He lifted the swimming suit up from underneath where my vaginal area was and he touched me with his fingers there ... He just said ‘Oh, do you like it, do you like it’”.

The second occasion, the subject of count 3, involved the appellant fondling the complainant’s vagina and procuring her to put her hand on his clothing in the vicinity of his crotch to stimulate him.  At the time they were alone in the appellant’s car driving to another friend’s to obtain water from the friend’s spring.  Again, the complainant’s evidence was given with some particularity.  She said, having explained she and her father were alone (R36.54-37.15),

“I asked my father if we could get some KFC, because we don’t usually eat take-away and I wanted some KFC because it smelled nice ... and he said ‘Maybe ...’ ... we were in the car and there was no other cars around.  So I was sitting in the passenger seat and he was sitting in the other seat ... and he touched me.  I was wearing a short black skirt, and he touched me underneath my skirt and I was wearing underwear ... and he lifted up the underwear and he touched me ... where my vagina was with his fingers.  And he had me touch his penis with my ... right hand and I didn’t want to ... I felt really uncomfortable in the car while he was driving.  I was getting nervous and I didn’t want him to do anything, to have an accident or something, so I just did what he said.  And he had an erection, and then ... just before we were to reach the house that we were going to, he said ... ‘Oh, no, I’ve got an erection’ and that it is not good for them to see him like that just after being in the car with just me”.

She gave further detailed answers to specific questions in chief.  The appellant was touching her just outside her vagina.  She could not recall if he was putting his fingers inside or not.  She recalled him saying “Let me take your hand so that you can touch me too” and her complying from fear that he might have an accident if she refused.  She could not recall if he was wearing shorts or jeans but recalls putting her hand “on top of his penis” which was inside his clothing.  She recalled buying KFC on the return journey. 

29. The jury acquitted the appellant of indecent dealing consisting of the alleged incidents in the car.  In terms of the detail of the account it seems to us indistinguishable from the subject of count 7.  The same is true, though to a lesser extent, of the comparison between the particularity of the description of the facts led in support of count 2.  The incident itself was less complicated so the description of it was necessarily briefer.  The absence of amplification in the account of the offences does not seem to be a rational basis for rejecting her evidence on counts 2 and 3 but accepting it on count 7.

30. The test, in the end, is whether there is a significant possibility that an innocent person has been convicted.  There will be such a possibility if the jury’s verdicts cannot stand together in the sense that the differing verdicts demonstrate that the jury could not reasonably have come to the conclusion it did.  It is not lightly to be concluded that verdicts are inconsistent and, for that reason, unreasonable.  There must be no discernible rational basis for the differing verdicts.  Approaching this matter with the reluctance compelled by the authorities there still does not appear any rational basis for accepting the complainant’s evidence in relation to count 7 but rejecting it for each of counts 2, 3, 4 and 5.  The conclusion is strengthened when one has regard to the jury’s acceptance of the appellant’s guilt in relation to count 6 with respect to which the complainant’s evidence does not prove any conduct on the part of the appellant that could be understood to be indecent dealing.  If the jury had approached their task reasonably, and rationally, in determining which offences were proved beyond reasonable doubt and which were not, they could not have included count 6 amongst those in the first category.  The verdict of guilty on count 7 cannot therefore be ascribed to a sensible analysis of the evidence or of the credibility of the complainant.

31. In our opinion the test is satisfied and the convictions on counts 6 and 7 should be set aside so it becomes necessary to consider whether there should be a retrial on count 7.  The appellant contended that there should be no such order.  The Crown only faintly resisted.  The decision is far from easy:

“... the relief which is appropriate depends upon the facts of the particular case”: MacKenzie at 368.

The difficulty lies in ascertaining what was the basis for the inconsistent verdicts.  As was pointed out in Crisologo (1997) 99 A Crim R 178 there are a number of possibilities.  

32. One is that the jury, acting with more humanity than logic, decided it would be unfair or oppressive to convict on all charges.  The jury’s “prerogative” to prefer mercy to justice is an accepted part of its function.  It was expressly so recognised in MacKenzie at 367 quoting with approval the remarks of King CJ in R v Kirkman (1987) 44 SASR 591 at 593.  If this appears the explanation for inconsistent verdicts they will be allowed to stand.

33. Another explanation is that the verdicts represent a compromise between members of the jury.  Some jurors who were not satisfied beyond reasonable doubt that the appellant was guilty of any charge may have surrendered their opinion to others who were so satisfied on all charges in return for the surrender of those jurors of their opinion.  If this were the situation the appellant should not have been convicted because there was not a unanimous decision that the accused was guilty on any count.  A conscientious jury would have informed the judge of the divergence of view and a new trial would have occurred: see Crisologo at 184.  If it appears that compromise is the explanation then logically all verdicts should be set aside and a new trial ordered.  There being no power to set aside verdicts of not guilty a new trial must be limited to the charge on which the appellant was convicted.

34. These are not the only possibilities.  The jury may simply have got things wrong for some unidentifiable reason.

35. Guilty verdicts which are quashed because they are inconsistent with verdicts of not guilty are an illustration of the wider principle that convictions which are unsafe and unsatisfactory must be set aside: MacKenzie at 365.  In Jones the convictions were unsafe because the jury, having exhibited a reasonable doubt with respect to one of the offences charged, should have entertained a reasonable doubt as to the others with respect to which the calibre of evidence was the same.  This reasoning will apply to all cases of inconsistent verdicts (apart from the “prerogative” instances) where it appears that an acquittal was unanimous.

36. It follows that it is only where verdicts of not guilty can be seen not to have been the result of the jury’s unanimous opinion that it will be proper to order a new trial.  Where the explanation for inconsistent verdicts may be that the jury was mistaken in some respects but nevertheless unanimously had a reasonable doubt about guilt on at least one charge, an accused is entitled to an acquittal on all.

37. We would respectfully disagree with the proposition found in Crisologo (at 184):

“Where a jury returns different verdicts on two or more charges, proof of which depends upon acceptance of the evidence of a particular witness or witnesses, and those verdicts cannot logically be reconciled, it will be necessary for an appeal court to attempt an assessment of the explanation for the apparently irreconcilable verdicts.”

In our view a verdict should generally be accepted at face value so that an acquittal indicates all jurors entertained a reasonable doubt.  The jury's verdict is inscrutable and there are dangers in judges asserting what "must" have been the explanation for a decision.  It will usually be impossible to discern what lies behind a verdict. The court should not in every case “attempt an assessment of the explanation for apparently irreconcilable verdicts”, but only where there are clear indications of a lack of unanimity, and then with great caution.  A conclusion that there has been a compromise should not be arrived at without tangible indications such as those adverted to by Simpson J in Crisologo at 183.

38. There are no such indications in the present appeal.  The verdict in respect of count 6 indicates, clearly enough, that the jury were mistaken in their appreciation of the facts or of the law, but it does not necessarily indicate that overall the verdicts were a compromise.  It does not show that all of them did not have a reasonable doubt with respect to some of the counts.

39. In these circumstances it seems to us that the Court is not justified in ordering a retrial.