SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:  I gratefully accept North J’s recitation of the facts and statement of relevant principle but am unable to agree that the appeal should be dismissed.  Consent was not an issue on the trial.  The alleged acts of sexual handling constituting counts 1 to 4 inclusive were denied by the appellant. 

[2] The trial judge directed that the jury had to be satisfied beyond reasonable doubt that the alleged digital penetration had to have taken place without the consent of the complainant “freely and voluntarily given”.  There was nothing in the evidence capable of suggesting that the acts constituting count 3 could have been consensual.  The contrary was the case.  The complainant’s evidence was that the appellant “grabbed” her by the arms and “kind of pulled [her] onto him.”  The flavour of her evidence was that the alleged conduct caused her shock and distress.  Counsel for the respondent properly conceded that there was evidence that the complainant “was resistant and that she was unhappy and that she was disturbed about it and so forth…”.

[3] In my respectful opinion, the different verdicts for counts 2 and 3 could not be explained rationally by the necessity to prove absence of consent in respect of count 3.  Consent was not made an issue: it was a non-issue.  This conclusion receives some support from the note received from the jury given to the trial judge:

“count 1:  ‘Look at [complainant’s] evidence (DVD) in relation to lifting of the shirt, original and cross-examine.  Count 2, look at [complainant’s] evidence in regard to describing the lifting of the shirt in both interviews.  Count 3, look at [complainant’s] evidence in regard to the position of them sitting in the chair (both interviews).  Count 4, position of Pop and [complainant] in spare bedroom when the wrestle started (both interviews).’ ”

[4] Not only did the note suggest that the focus of the jury’s attention was not on consent, it is reasonable to infer that if the jury had been concerned about the question of consent, it is likely that they would have sought further directions in that regard.

[5] It was argued by counsel for the respondent that the primary judge’s directions concerning delay in making the complaint and the lack of fairness to the appellant arising out of the delay as a result of the loss of the prospect of a medical examination could explain the acquittal.  That explanation may be thought highly unlikely.  It was not suggested that the complainant experienced any injury, pain or even physical discomfort from the digital penetration.  There was no reason for the jury to conclude that there was any real prospect of a medical examination providing evidence of material value.  In any event, the primary judge instructed that the complainant’s evidence had to be “scrutinise[d] with great care” before they could find the accused guilty of count 3, not that the jury could acquit because of the delayed complaint even if they concluded beyond reasonable doubt that the elements of count 3 were satisfied.

[6] After the jury had been deliberating for about six hours, the primary judge had them brought into court at 8.51 pm in order to discuss whether they wished to continue their deliberations that evening.  At the conclusion of his remarks, the judge asked whether there was anything that he could assist the jury with.  The speaker responded:

“If I may ask a question?  What happens if you just can’t get a verdict?  There’s no way in the world anything that you see or ask your Honour to say is going to sway some people to go one way or the other?”

[7] The primary judge then gave a conventional direction about the resolution of an impasse in deliberations.  The jury retired at 8.59 pm.  At 10.13 pm the court was informed that verdicts had been reached.  It is a reasonable inference to draw from the speaker’s comments that the jury was having difficulty in reaching a unanimous verdict.  There is then a possibility, more likely to my mind than any other explanation, that the different verdicts for counts 2 and 3 were the result of a compromise.

[8] This case was a difficult one for the jury.  It was a word against word case, its outcome being almost entirely dependent on which of the complainant or the appellant was believed.  For the prosecution to succeed, the jury had to be satisfied of the appellant’s guilt beyond reasonable doubt. 

[9] The fallibility assessments of credibility made solely by reference to demeanour have long been recognised.[1]  The complainant’s evidence was not corroborated in any respect and such objective evidence as existed may be thought to offer marginally more support for the defence case than the prosecution’s.

[10]  The complainant’s paternal grandmother, her younger sister and her father all gave evidence.  None of them had noticed anything untoward or inappropriate in the appellant’s conduct in relation to the complainant.  There was no evidence that, at any time, the relationship between the appellant and the complainant was strained or distant.  The unchallenged evidence of the appellant’s wife was that there was no change in the interaction between the appellant and the complainant in respect of their horseplay.  Also, the incident the subject of counts 2 and 3 was alleged to have occurred in a room with an open door accessible to anyone in the house at the time.

[11]  The complaint in respect of counts 1, 2 and 3 was delayed.  Although the complaint was made within two days of the count 4 incident, the complainant had had ample opportunity to complain to her father before she did.  Her complaint emerged after pressure had been applied to her to apologise to the appellant for “being abusive and rude to him.”  The complainant’s father described her as being “furious” and “in arage” when she said to him, “Poppy’s been abusing me for years, sexually abusing me.” 

[12]  The complainant gave a detailed and quite vivid account of the touching of the breasts (count 2) which merged into the pushing of her legs apart, the pulling forward of her underpants and the insertion and movement of the appellant’s finger “for one or two minutes” (count 3).  She explained that the appellant quickly extracted his finger when her father was heard walking up the hallway.  She described how the appellant was sitting when her father came into the room and sat down, explaining that he “like put his arms on the side”. 

[13]  Counts 2 and 3 concerned the same sequence of events and were not separated by the complainant in her narration.  The jury could not rationally accept the evidence of the complainant about touching on the breast and reject her evidence about digital penetration.  If any part of such an incident was more likely to have assumed prominence in the complainant’s mind it was surely the more serious and invasive of the two types of alleged acts.  The jury’s acquittal on count 3 necessarily meant that they were not satisfied beyond reasonable doubt of the truth of her evidence concerning the part of the incident the subject of that count.  It follows from the nature of the incident and the complainant’s evidence in relation to it that, rationally, they could not have been satisfied beyond reasonable doubt of the truth of her evidence as to count 2. 

[14]  In cross-examination, the complainant said of the count 1 touching that she thought “…it might have been accidental, but when he did it the second time [referring to count 2]…[she] didn’t think it was accidental any more.” 

[15]  Counsel for the appellant submitted with considerable force that if the jury had a reasonable doubt about count 3 then they must, necessarily, have also had a reasonable doubt in respect of counts 1 and 4 as well as count 2.  The argument, perhaps, would have been more compelling if advanced in support of an argument that the verdicts were unsafe and unsatisfactory.  The incidents the subject of counts 1 and 4 were each separated from the incident the subject of counts 2 and 3 by about a year.  Moreover, the circumstances in which the offending conduct was alleged to have occurred differed in each case.  Count 1 was the first of the alleged incidents.  It occurred, according to the complainant, after her sister had left the room to get a drink.  Count 4 occurred when, again in the context of a “play fight”, the complainant’s sister left the room after being hurt.  That incident was in close proximity to the time of the making of the complaint.  The counts 2 and 3 incidents were not alleged to have occurred in the context of a “play fight”.

[16]  The above differences could serve to provide a rational explanation for distinguishing between counts 1 and 4 on the one hand and counts 2 and 3 on the other.  And, the trial judge directed that there were, in effect, four separate trials within the one proceeding and that each charge had to be considered separately.

[17]  Consequently, it seems to me that there is a rational basis on which the guilty verdicts for counts 1 and 4 can stand with the not guilty verdict for count 3.

[18]  For the above reasons, I would allow the appeal but only to the extent of setting aside the conviction on count 2.

[19]  MARGARET WILSON AJA: I agree with the order proposed by North J and with his Honour's reasons.

[20] NORTH J:  The appellant was convicted following a trial before jury in the District Court on 17 June 2011 of three counts of indecently dealing with his granddaughter, a child under 16 years of age.  He was acquitted of one count of rape involving his granddaughter.  He appeals against his conviction on the grounds that the verdicts of guilty on the counts of indecent dealing are inconsistent with the acquittal on the count of rape.  It is contended that, in the circumstances of the prosecution case (the only evidence against the appellant being that of the complainant) if the jury had a reasonable doubt at the offence of rape then it ought to have entertained a doubt of his guilt on the other charges.

The Crown Case

[21] The three acts of indecent dealing concern the touching of the complainant's breast all of which offences were alleged to have occurred at the home of the appellant and his wife when the complainant and her sister were visiting.  Two of these acts were alleged to have occurred in broadly similar circumstances.  It was common ground that the complainant and her younger sister would sometimes engage in horseplay with their grandfather.  This might involve a deal of wrestling, pushing or shoving with the young sisters acting as playful aggressors. 

[22] On the occasion of the first offence[2] the complainant, her sister and the appellant had been engaging in horseplay in the appellant's bedroom when the complainant's sister left the room.  The complainant was sitting on the edge of the bed when the appellant pushed her down onto the bed, pulled her shirt up placing his hand under her bra and fondled her breast.

[23] On the occasion of the last offence[3] the complainant and her sister had been horse-playing with the appellant in a bedroom in the house.  Her sister left the room and the appellant pushed the complainant down onto a bed and lay down next to her then with his right hand, he pulled her shirt up, moved her bra from her breast and fondled her breast.

[24] On the occasion of both counts 1 and 4, the sisters were in their grandparents' care, staying overnight.[4]  According to the complainant they occurred approximately two years apart.

[25] The second indecent dealing[5] was alleged to have occurred about one year after the first and one year before the third but it occurred in different circumstances.  That day they were visiting their grandparents with their father (a serving police officer) and his partner, their stepmother.  The complainant gave evidence that late in the afternoon she, her sister and her grandfather were watching television in one bedroom of the grandparents’ house.  The door of the bedroom was open.  The girls' father, his partner and their grandmother were in another room, the lounge dining area.  The appellant was seated in a chair and the two sisters were seated on the floor.  When the complainant's sister left the room the appellant pulled the complainant up onto his lap, pulled her shirt up and placed his hand under her bra and fondled her breast.

[26] There is another circumstance that distinguishes the occasion of the second of the three indecent dealings.  It was the occasion of the rape alleged against the appellant.[6]  The complainant's evidence was that after fondling her breast the appellant moved his right hand down inside the pants she was wearing and inserted a finger into her vagina.  The complainant said that the appellant stopped and withdrew his finger when her father was heard apparently approaching the bedroom.

[27] There were no witnesses to any of the acts alleged.  The first complaint the complainant made to anyone of the events was to her father, a day after the last of the indecent dealings alleged.  The complainant was 12 when the dealing alleged in count 1 occurred, 13 when the dealing alleged in count 2 (and the alleged rape) occurred and 14 at the time of the last dealing alleged in count 4.

The Defence Case

[28] The appellant gave evidence.  He agreed that he and his granddaughters occasionally engaged in the horseplay described above.  He denied any wrongdoing.

The Directions to the Jury

[29] The learned trial Judge gave careful directions to the jury concerning the charge of rape.  He directed the jury that they had to be satisfied that the accused had penetrated the complainant's vagina with his finger and that he did so without her consent.  He directed the jury to consider each charge separately, evaluating the evidence to decide whether, beyond reasonable doubt, the Crown had proved essential elements and that while their verdicts on the separate charges need not be the same they "must be honest and logical depending, upon the evidence" accepted. 

[30] Further in the circumstance that the complainant's evidence was uncorroborated and of the delay in her complaining of the rape, his Honour gave a Longman direction.[7]

[31] His Honour's direction included:

"But in the circumstances, because of this delay in reporting this alleged offence, the fairness of the trial for the accused in respect of the alleged second incident and count 3, in particular, has necessarily been impaired by that delay in reporting the matter. Consequently, I instruct you that you must scrutinise the complainant's evidence with great care before you could find the accused guilty of count 3."[8]

Arguments on Appeal

[32] The appellant appeals against his conviction on the indecent dealings (counts 1, 2 and 4) seeking orders that the convictions be quashed and that verdicts of not guilty be substituted.  In his written outline in support of the appeal counsel submitted:

"(13)… the contention is that if the jury were not satisfied of guilt beyond reasonable doubt in respect of the allegation of rape by digital penetration, then that doubt must also have reasonably been held in respect to the other allegations.  In respect to Count 3, rape, no issue of consent was raised, but simply that the act did not happen.  As indicated above, the complainant's evidence was that she was pulled into the chair by the Appellant whereupon he then committed Counts 2 & 3, so if her evidence as to the acts, (plural), convinced the jury as to the truth that they did occur, consent could not have been the deciding factor in favour of acquittal on rape.  It must be that the jury were not satisfied about the allegation of rape, and thus, it is submitted, they should necessarily have had a reasonable doubt about Count 2.

(14)The elements of rape are (1): penetration, and (2): without consent.  In this trial, the evidence was such that the jury, once satisfied that penetration occurred as alleged, could not have had any reasonable doubt as to lack of consent by the Complainant.  As already stated the only issue at trial was did the incidents happen at all?

(15)It is submitted that the verdict of "not guilty" on rape can only be explained in that the jury were left in a reasonable doubt that penetration occurred.  Given that her evidence, if credible, could leave no room for doubt as to penetration, then, with the acquittal on Count 3, it becomes nigh on impossible to see how the jury could be satisfied of guilt on Count 2, the alleged deliberate touching of her breast under her bra during the same incident.  The different verdicts on Counts 2 and 3 are not able to be reconciled.

(16)A "Markulewski" direction was given during the summing up, which, it is submitted, further reinforces that the differing verdicts on Counts 2 & 3 are irreconcilable.

(17)A "Longman" direction concerning delay in complaint was given concerning Counts 1, 2, and 3, with particular emphasis being placed on the delay in complaint for Count 3, where it was said that a medical examination may have been of assistance one way or the other.  "Because of this delay in reporting ... the fairness of the trial for the accused in respect of the alleged second incident and count 3 in particular, has necessarily been impaired by that delay in reporting the matter."

(18)The argument then proceeds that, if the jury cannot be satisfied about Counts 2 & 3, then they necessarily must entertain a reasonable doubt about Count 1, which is said to have occurred 12 months or so before Counts 2 & 3, and once there is reasonable doubt about those 3 counts, the allegation the subject of Count 4…"

[33] In argument, counsel contended that consent could not have been a ground for the acquittal, that the jury must have had a doubt about the complainant's account of the circumstances of the alleged offence.  The submission was that if the jury had a doubt about the complainant's account relating to the rape, logically it should have had a doubt about her account of the indecent dealing which she said occurred on the same occasion.

[34] In his outline counsel for the respondent submitted:

"The trial was conducted by the defence on the basis that the events described by the complainant happened or they did not.  That approach does not mean, however, that the jury was entitled to ignore the element of consent which was not common to the other counts.

Further a rational jury might have decided that the failure to make timely complaints to touches on the breast was understandable and not particularly damaging to credit, but when it fell to consideration of the qualitatively different, and more violative, allegation of digital penetration, they had a doubt based on the failure to make a timely complaint.

Most compellingly, however, is the fact that his Honour gave the jury a specific Longman type warning with respect to Count 3.  The point made was that the failure to make an immediate complaint meant that the opportunity was lost for medical examination to cast light on the issue of whether there had been penetration or not.  He foreshadowed doing so before addresses.  He gave the direction, focusing on Count 3.  The direction spoke of the need to "scrutinise with great care" the evidence of the complainant before the jury could convict on Count 3."

In argument he expanded upon the issue of consent pointing to the absence of any express evidence by the complainant of words or conduct indicating that she did not consent.

Case Law

[35] We were directed by counsel to some of the leading decisions in the High Court[9] and in this Court[10] bearing upon the issue of inconsistency.  In the joint judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen, their Honours said[11]:

"..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.

...

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 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.  It is impossible to state hard and fast rules.  "It all depends upon the facts of the case."

[36]  In Jones v The Queen[12] a jury convicted on two counts of rape of a young female and acquitted on a third.  In the joint judgment of Gaudron, McHugh and Gummow JJ their Honours said:[13]

"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. …. 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. ….

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.

Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant's evidence with considerable care - (1)her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence."

[37]  In R v SBL[14] Applegarth J (with whom Chesterman JA and Wilson J agreed) in the course of a careful review of the authorities made the following points[15]: 

"[32]A jury's verdicts of acquittal on some counts do not amount to a positive finding by the jury that the events as recounted by the complainant did not occur.  They show no more than that the jury was not satisfied to the requisite standard that the acts alleged in those counts occurred or occurred at the times or in the circumstances particularised in them.

[33]The appellant relies upon passages from the joint judgment of Gaudron, McHugh and Gummow JJ in Jones v The Queen.  In that case their Honours observed that it was difficult to see how it was open to the jury to be convinced beyond reasonable doubt of the guilt of the appellant with respect to the first and third counts, when there was '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 decision in Jones' case was that in the circumstances of that case the acquittals reflected upon the credibility of the complainant's evidence on all counts.  In R v KET Winneke P observed:

‘…it would be wrong to draw from the decision of Jones' case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury's acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.’

As Wood CJ at CL stated in Markuleski:

‘There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness… In many cases, conversely, it will be possible to identify a possible basis for a differentiation between verdicts…’

[34]The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant's evidence on one count, ought to have such a doubt with respect to other counts.  However, it does not follow that that must necessarily be the case.  As Jones, Markulewski and later cases establish, whether or not a not guilty verdict involves a diminution in a complainant's credibility or reliability so that the jury ought to have had a reasonable doubt with respect to other counts depends on the complainant's evidence and the surrounding circumstances.  The issue remains one of fact and degree in the circumstances of the particular case as to whether the difference in verdicts is such that, as a matter of logic and reasonableness, the verdicts should be regarded as inconsistent. There may be an acceptable explanation for divergent verdicts in a case in which there is not ‘an integral connection between the counts’ or where there are circumstances present which do not compel the conclusion that the complainant's overall credibility was so diminished that the jury should have acquitted on the other counts.’

[38]  The case law demonstrates that circumstances suggestive of inconsistency frequently arise when, following trials where multiple sexual offences are alleged, the jury returns verdicts of acquittal on some charges and conviction on others.  This is most acute when there is little or no corroborative evidence and the credibility of the complainant and the accused is at the heart of the case. 

Are the Verdicts Inconsistent?

[39] The burden of persuasion of inconsistency is on the appellant.[16]  Counsel for the appellant contended that the issue of consent to rape could not have been troubling to the jury as an explanation for the verdict.  He pointed out that the complainant gave no evidence of any struggle, protest or resistance to the advances of her grandfather when giving evidence about the circumstances of the events alleged in Counts 2 and 3.  So at trial little was said about this issue, as might be expected at a trial when the accused denied any sexual encounter, the complainant gave no evidence directly bearing upon the issue and was a 13 year old in the circumstances that applied.  Consequently the complainant was not cross-examined about consent. 

[40] But that submission overlooks that there was evidence given by the complainant on the occasion of the last indecent dealing (count 4) that the jury might well have considered significant upon the issue of consent on the occasion of the rape one year earlier.  In the statement the complainant gave to the police when interviewed[17] she said that (on the occasion of the indecent dealing charged at count 4) after the appellant fondled her breast he moved his hand down towards her undies and pyjama bottoms and pulled them out, that she struggled and pushed him and then got off the bed and left the room.  In her pre-recorded evidence she said, of this occasion, that she "pushed him away”.

[41] Thus there was evidence before the jury contrasting the complainant's behaviour when her grandfather molested her on the occasion of counts 2 (and 3) with the occasion of count 4.  On the occasion when she said she was digitally penetrated she gave no evidence of any conduct suggestive of a struggle or protest but on the last occasion when he indecently dealt with her, she gave evidence of a struggle and resistance when he moved his hand down towards her undies and pyjama pants.  When it is recalled how carefully and emphatically his Honour directed the jury to scrutinise the evidence with great care, it is possible, consistent with the respect the law assigns to juries, to reconcile the verdicts.  Consent is not an element of the offences the accused was convicted of on counts 1, 2 and 4 but it is for the offence of rape.  Thus there is no legal or logical inconsistency between an acquittal on a charge of rape with a conviction upon a charge of indecent dealing alleged to have happened at the same time, providing there is an explanation in the circumstances of the evidence before the jury to account for that.  This occurs here; the jury might, quite properly, have had a doubt concerning consent.  That doubt would not affect the credit of the complainant; she was not asked about consent.

[42] One matter might be emphasized from the foregoing, lest there be any misunderstanding, the analysis of the basis for the jury verdict should not be taken to suggest that in, order to prove the absence of consent beyond reasonable doubt, there must be evidence from a complainant of some verbal protest or physical conduct manifesting resistance.  Consent must be "freely and voluntarily" given[18] and is not given if there is a submission by a young person to the advances of a person in authority.  Here it was for the jury to draw inferences and to consider whether it was persuaded beyond reasonable doubt[19] of all of the elements of the offence of rape.  The acquittal on the count of rape in this instance is not an example of a "merciful verdict"[20] but demonstrates the consequence of a jury verdict after a careful and logical consideration of the evidence.  In this case there is a "proper way" in which the verdicts of the jury can be reconciled.  The members of the jury might well have held a reasonable doubt upon the issue of consent.

Order

[43] The appeal should be dismissed.