R v R[2001] QCA 142

COURT OF APPEAL

McPHERSON JA

WHITE J

HOLMES J

CA No 316 of 2000

THE QUEEN

v.

R(Appellant)

BRISBANE

DATE 17/04/2001

JUDGMENT

McPHERSON JA:  The appellant was tried in the District Court at Bundaberg on an indictment charging six counts of rape and two of indecent assault.  He was found guilty of five counts of rape but acquitted of one charge of rape and of the two counts of indecent assault.  This is his appeal against those convictions.

The alleged offences took place during a period of about six weeks in 1998 when the complainant was staying with the applicant in a cabin, or what was described at times as a humpy, in the country.  She is the appellant's natural daughter although she and her father, the appellant, had had no association at least from the time of her birth until these incidents in 1998.  She was by then 16 years old and he about 55.  Their coming together at this late stage was precipitated by the fact that she was having psychiatric problems, had attempted suicide and said she wished to get away from her mother.

The case at trial presented some surprising features which caused the trial Judge, contrary to his normal practice in such matters, to provide this Court with a detailed report expressing his concerns about the evidence.  The rapes or some of them were alleged to have taken place in the appellant's bed in the cabin.  One or more of them that took place there occurred at a time when another woman, DJ, was sleeping in the bed beside the complainant.

The complainant made no complaint to her nor to her half brother who at the time was living in the cabin or in an adjoining caravan, nor to her mother whom she telephoned with some frequency during her stay in the country; nor did she complain to a medical practitioner whom she consulted in Gin Gin on three occasions, nor to a counsellor at the Mental Health Unit in that town whom she also saw.

The immediate problem with the convictions is the alleged inconsistency of the verdicts of not guilty on counts 3, 5 and 6 with the guilty verdicts on the other five counts.  There was evidence from DJ that she had seen the appellant and the complainant kissing passionately and at the same time engaging in mutual fondling of each other's genitalia.  Conceivably, that might go to explain the verdicts of not guilty on counts 3 and 6 which were the charges of indecent assault.  The jury might perhaps have considered there was a question whether the Crown had proved beyond reasonable doubt that the complainant had not consented to such conduct on those occasions having regard to the evidence about what had been done between them on a previous occasion.

But that would not explain why the jury acquitted on the charge of rape in count 5.  The leading authority on inconsistency of verdicts is now Jones v. The Queen (1997) 191 CLR 439.  In considering that decision more recently in R v. P. [2000] 2 Qd.R. 401, at 404, Justices Thomas and Chesterman, with whom Justice Pincus agreed on this point, said that it is only where a reasonable jury, having applied their minds properly to the case, could not have arrived at the verdicts that are challenged that there will be an inconsistency warranting intervention on appeal.  This will be so, their Honours went on, "if there is no rational basis for distinguishing between the verdicts".

The mystery in the present case in why the jury returned verdicts of guilty on all other charges of rape but not on count 5.  The evidence on each charge was the same in the sense that it consisted of the uncorroborated testimony of the complainant.  If the jury doubted her word on count 5 there is no apparent reason why they should not have done so on the other counts charging rape against the appellant.  Equally, if they accepted her evidence on the other counts, no rational explanation of why they should not have done so in relation to count 5 appears from anything we have been able to discover in the record.

Before us on this appeal counsel have not been able to suggest any feature of the evidence on that particular count that distinguished it from the other rape charges.  It is to my mind not an occasion on which the jury could be seen simply to have decided to be "merciful" in relation to that charge.  It could scarcely have had made a difference whether the applicant was convicted of six counts or only five counts of raping his daughter. 

It follows, in my opinion, that the appeal should be allowed, the convictions quashed and the verdicts set aside.  In R v. P., at p.411, the majority said that a new trial was justified only where inconsistent verdicts of not guilty can be seen not to have been the result of the jury's unanimous opinion.  That would make it a difficult test for the Crown to satisfy on an appeal in most cases. 

Quite apart from that, however, the leading Australian authority on the matter of ordering new trials is to my mind the decision of Director of Public Prosecutions for Nauru v. Fowler (1984) 154 CLR 627, in which it was said that:

"In deciding whether it was in the interests of justice to require a new trial the Court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction."

For my part, and looking at the evidence as well as at the report of the trial Judge in this case, I cannot persuade myself that this is a case in which a new trial should be ordered.  It is right to say that Mr Heaton for the Crown candidly acknowledged that it was difficult to justify an order for such a trial in the present case. 

In all the circumstances it is therefore my conclusion that the appeal should be allowed and the convictions and verdicts set aside in respect of each of counts 1, 2, 4, 7 and 8 in the indictment.  Verdict and judgment of acquittal will be entered in respect of each of those counts.

WHITE J:  I agree with the orders proposed by the learned presiding Judge for the reasons which he has expressed.

HOLMES J:  I agree also.

McPHERSON JA:  The orders will be as I have stated them.