R v Cahill[2014] QCA 208

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant was charged with one count of assault with intent to commit rape (count 1) and three counts of sexual assault (counts 2 to 4).  All offences were alleged to have been committed on 11 October 2012 on the same complainant, the partner of the appellant’s cousin.  The jury found the appellant not guilty on counts 1 to 3 but convicted him on count 4.  The sole ground of appeal against conviction is that the verdict of guilty is unreasonable because it cannot be supported by the evidence and is inconsistent with the verdicts of acquittal.

2. Morrison JA has set out most of the relevant aspects of the evidence and identified the issues so that my reasons for allowing this appeal can be briefly stated.

3. Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the appellant to demonstrate that the differing verdicts are so illogical and unreasonable that they should be set aside: Mackenzie v The Queen.^[1]

4. I agree with Morrison JA that the guilty verdict on count 4 is not illogical or unreasonable when considered with the not guilty verdict on count 1.  The prosecution case on the charge of attempted rape was not strong.  The jury may well have concluded that the prosecution did not prove beyond reasonable doubt that the appellant’s actions as outlined by the complainant in her evidence went far enough to constitute a physical attempted rape.  They may also have been left in doubt as to whether he intended to rape her.

5. I also agree with Morrison JA that the guilty verdict on count 4 is not illogical or unreasonable when considered with the not guilty verdict on count 3.  The jury may have determined to give the benefit of the doubt to the appellant as the complainant did not mention the events particularised as count 3 (making her touch the zipper area of his trousers) when she complained to her mother in her first statement to police.

6. The position, however, is different in respect of the not guilty verdict on count 2. This was particularised as “trying to undo her blouse”. The complainant gave unequivocal evidence, unchallenged by other evidence, that after the appellant had threatened and physically assaulted her in an isolated area and demanded sex, he grabbed her around the throat, pushed her onto the bonnet of the car and started to undo the buttons on her blouse. She added that he kept trying to undo her buttons.^[2]  In answer to a question by the police officer who first interviewed her she agreed that he tried to rip her clothes off.^[3]  In cross-examination she said he started to undo her buttons with one hand.  After reviewing the evidence on count 2, I cannot accept that the jury could have acquitted him on the basis that her buttons may have come undone during some struggle in the course of count 4.  Nor can I accept the respondent’s contention that the jury may have been in doubt as to whether the alleged conduct was indecent in light of the complainant’s evidence as to the context and the circumstances preceding the alleged unbuttoning.  Count 2 was a significant part of the complainant’s narrative of the evening’s events.  The inconsistency in these verdicts cannot be shrugged off as “merciful”.  I can find no intellectually honest way to reconcile the jury’s rejection of the complainant’s evidence on count 2 with their guilty verdict on count 4.

7. There were some puzzling aspects to the evidence. The complainant testified that the appellant sexually assaulted her. He stated that he wanted to have sex with her but desisted well prior to penetration, apologising for his actions and blaming it on his having taken the drug “ice”. On her account, after the appellant quite violently attacked her and she was crying and upset, he drove her home. They stopped at an ATM on the way so that she could take out $350 for him.  CCTV footage was tendered^[4] of her at the ATM.  It clearly depicts her not as crying nor distressed but as composed and in control.  She made no attempt to get assistance from others who were in the vicinity or from anyone at the nearby Kmart store which was open.  She returned to the car and the appellant immediately drove her home.  The state of her clothing did not correlate with her account of events in that it was neither damaged nor dirty and nor had she physical injuries to support her account.  Within minutes of arriving home and speaking to her mother she made a complaint which was broadly consistent with her evidence, other than that she made no mention of count 3.  By contrast with her appearance at the ATM, she was so tearful and distressed that her mother called the police and ambulance.  Her conversation with the ambulance and police officers shortly afterwards was recorded.^[5]  The complainant was so distressed that she bordered on hysteria.  This contrasted starkly with her appearance shortly beforehand at the ATM.  A jury may well have been concerned as to whether these matters affected the complainant’s reliability.

8. After the complainant spoke to police she participated in the following pre-text telephone call with the appellant:^[6]

“COMPLAINANT:Um, I think we should talk about what happened the other night.

APPELLANT:Mmm.  Did you go to the police and all that?

COMPLAINANT:Yep.

APPELLANT:Yep.

COMPLAINANT:Um, yeah, I did.

…

Um, I thought I should call you.

APELLANT:Yep.

COMPLAINANT:Um, since you didn’t go home.

APPELLANT:Hey?  What’d you say?

COMPLAINANT:I said I thought I’d call you since you didn’t go home.  Um, ‘cause I seen SY and SE - -

APPELLANT:Mmm.  Yeah, I know that, I’ve been talking to them.

COMPLAINANT:You what?

APPELLANT:I’ve been talking to Mum and Dad.

COMPLAINANT:Yeah?

APPELLANT:Mmm.

COMPLAINANT:Are they all right?

APPELLANT:Hey?  Yeah.

COMPLAINANT:Mmm.  Did you tell them?

APPELLANT:Hey?  I talked to ‘em a bit, yeah.  The - what’s happening?  Are the police coming to look for me?

COMPLAINANT:I don’t know.  They don’t um tell you that stuff.  Um but what are you gonna do now?

APPELLANT:Trying to see my daughter one time, [INDISTINCT] my daughter forever.  Fucking try and see her one time before I get sent to jail I guess [INDISTINCT].

COMPLAINANT:Is she back?

APPELLANT:Hey?

COMPLAINANT:Are they back now?

APPELLANT:No.  They moved to Mackay.  They’re never coming back again.

COMPLAINANT:Are you gonna go to Mackay?

APPELLANT:I don’t know what I’m gonna do.  I just need to see my daughter one last time.  [INDISTINCT] anyway, BC, I’ve gotta go.

COMPLAINANT:Oh - -”

9. It is difficult to know what to make of this conversation in light of the evidence that the appellant had said he was involved in dishonesty and illegal drugs. But the jury could have inferred he thought that she had spoken to police about what happened between them, that the police would come for him and that he would go to jail as a result.  It was therefore capable of supporting the complainant’s evidence in a general way, although not as to any particular count.

10. My inability to find a logical basis to explain the jury’s verdicts of not guilty on count 2 and guilty on count 4 strongly suggests that the jury dealt with the difficulties arising from the evidence in this case, not in accordance with their oaths and affirmations, but by reaching a compromise verdict.  The verdicts are inconsistent.  For these reasons I would allow the appeal against conviction and set aside the guilty verdict.

11. Very often this conclusion leads to the entering of a verdict of acquittal but the appropriate relief will depend upon the facts of each case.^[7]  Here there was ample uncontested evidence from the complainant upon which a jury acting reasonably and in accordance with their oaths and affirmations could convict on count 4.  The fact that this jury acted unreasonably in apparently reaching a compromise verdict in acquitting on count 2 and convicting on count 4 should not deprive the prosecution of the opportunity of pursuing count 4 before a reasonable jury.

12. For these reasons I would allow the appeal against conviction, set aside the verdict of guilty and order a retrial on count 4.

13. GOTTERSON JA:  I agree with the President that, for the reasons given by her, the appeal should be allowed and a re-trial on count 4 ordered.

14. MORRISON JA:  This is an appeal against a conviction, after trial, on one count of sexual assault.  The appellant faced four counts, all stemming from a single course of events on 11 October 2012.

15. The four counts can be summarised in this way:^[8]

1. Count 1 – assault with intent to rape; the particulars were that the appellant manifested an intention to rape the complainant by his assault in the following way:

• choking the complainant; and/or

• placing her on the ground; and/or

• pulling her (along the ground); and/or

• trying to tape her hands with duct tape; and/or

• pushing her (into a car); and/or

• grabbing her hand, which was holding a phone, and striking her hand against the car seat; and/or

• pulling her hair;^[9] and/or

• trying to undo the buttons on her blouse; and/or

• placing her hand against the outside of his pants; and/or

• kissing her; and/or

• touching her breasts; and/or

• touching her in the area of her vagina.

Unlawful and indecent assault, three counts as follows:

2. Count 2 – trying to undo the button on her blouse;

3. Count 3 – placing her hand on the outside of his pants; and

4. Count 4 – touching her breast, and/or kissing her, and/or touching the area of her vagina.

16. As can be seen from the previous paragraph, count 1 included the conduct which was the subject of each of counts 2, 3 and 4.

17. The appellant was found guilty of count 4, but not guilty of counts 1, 2 and 3.  The appeal against his conviction is on the ground that:  “The verdict of guilty is unreasonable because it cannot be supported by the evidence and is inconsistent with the verdicts of acquittal”.^[10]

Legal principles

18. Where an appeal is based on the contention that verdicts are inconsistent, the applicable principles are well settled.  They were set down in Mackenzie v The Queen^[11] but are conveniently summarised by this Court in R v CX:^[12]

“[33]A number of matters of principle have been settled about the assessment by appellate courts of claims of inconsistent verdicts by a jury.

1. Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.  Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.^[13]

2. Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?^[14]

3. Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted.  It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.^[15]

4. The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal only that the jury 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, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.

5. Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.^[16]

6. Accordingly, as Callinan J wrote in Osland v The Queen,^[17] there is an important distinction between an acquittal and a disagreement by jury; a disagreement on one count is not necessarily inconsistent with a conviction on another, where an acquittal might be, for the reasons explained by McHugh J in Osland.  As Keane JA wrote in R v DAL^[18] at [23], a failure to agree on a number of charges does not necessarily imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the count or counts on which it convicted a defendant, in the same way that verdicts of acquittal might, and which would therefore throw the integrity of the guilty verdicts into question.

7. It is therefore incorrect to describe as inconsistent with other verdicts the (non) result in counts on which a jury has failed to reach a verdict; that failure is indicative only of the inability of the jury unanimously to reach a verdict on those particular counts one way or another.^[19]

8. Further, the failure of a jury to agree on some verdicts on a number of charges may be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all of the elements of the offence in question.  That explanation does not necessarily throw the integrity of guilty verdicts on other charges into question.^[20]

9. Likewise, where there are a large number of counts on an indictment, there is scope for merciful disagreement by way of a refusal by some jurors to convict on some of the plethora of charges brought against a particular defendant, even though the jury are not prepared unanimously to acquit.^[21]”

The appellant’s contentions

19. The appellant contended that the prosecution’s case depended largely upon acceptance of the complainant’s evidence, and her evidence accorded with the particulars upon which the prosecution relied for each count. Therefore, the acquittal on counts 1, 2 and 3 could not be attributed to an absence of evidence establishing the acts.  Further, the evidence to establish count 2 (attempting to undo the buttons on her blouse) and count 3 (forcing her hand against the area of his crotch) would, if accepted, clearly establish an indecent assault.  Thus, acquittals on those counts cannot be due to doubt about whether the acts were indecent.  Nor did the complainant’s evidence permit any view that if an assault occurred, it was lawful.  There was therefore no difference in the quality of the complainant’s evidence across any of the four counts.

20. There was evidence of complaint by the complainant to her mother and boyfriend (Mr LP), in which she complained about the acts which would establish counts 2 and 4.  Neither witness asserted that she complained about the acts constituting count 3.  Therefore, the absence of any complaint about count 3 was not a factor in the decision to acquit on it.

21. Therefore, it was contended, the only rational explanation for the acquittals on counts 2 and 3 were that the jury was not satisfied that the complainant had been assaulted in the way in which she claimed.  If that was so, and therefore the complainant was not accepted as being both truthful and reliable on those counts, that doubt should have carried over into the determination on count 4.  It was contended that there was no logical or reasonable basis in the evidence to return different verdicts on counts 2, 3 and 4.

22. The appellant also pointed to the absence of any damage to the complainant’s phone or her clothes, and the very minor injuries sustained. It was pointed out that the absence of such damage or injury may have contributed to the decision to acquit on counts 1, 2 or 3. However, if that were so, those aspects of the evidence would also compel an acquittal on count 4.

23. Finally, the appellant pointed to the inconsistency between the conviction on count 4 and the acquittal on count 1, particularly referring to the fact that the acts constituting count 4 included touching the complainant’s breasts and touching in the area of her vagina.  That touching would arguably have constituted a clear manifestation of an attempt to rape, yet the jury acquitted on count 1.

Respondent’s contentions

24. The respondent pointed to the fact that the defence case (put in cross-examination) was that the appellant and complainant had engaged in consensual sexual intercourse in the car.  That was contradicted by text messages which the appellant had sent to his estranged girlfriend, in which he said nothing had happened between them.  Further, the prosecution case gained some support from the discovery of duct tape in the appellant’s car, and the prompt complaint.

25. Reasons were advanced as to why there was no relevant inconsistency between the verdicts. Count 1 required proof of a specific intent, namely the intent to rape.  In that regard the respondent pointed to the fact that the appellant had spoken to the complainant about being given a “hand job”, that there were no penetrative acts, and the appellant finally desisted when pushed and kicked away.  Therefore, it was said, the jury may have entertained a reasonable doubt about the specific intent to rape.

26. The respondent contended that the gravity of the conduct for each of counts 2, 3 and 4 was different. In respect of those counts the jury was directed that they had to be satisfied that the conduct was relevantly indecent. As to that, an attempt to undo the buttons on her shirt may not have been considered to have been indecent by the jury. Likewise, count 3 concerned the appellant’s placing of the complainant’s hand on the outside of his pants.  Her evidence was that it was placed on his pants “where your zipper is” and the complainant then pulled her hand away.  In those circumstances it was contended that such conduct would not inevitably be assessed as indecent by the jury.  By contrast, count 4 concerned much more serious allegations, including rubbing the complainant’s breast under her shirt, and touching the area of her vagina inside her trousers.  That conduct, if proved, could only be assessed as indecent.  Therefore there were reasons, tested by logic and reasonableness, why the jury might have come to different verdicts.

The complainant’s evidence

27. As at 11 October 2012 the complainant, who worked at the Commonwealth Bank at Aitkenvale, had been engaged to Mr LP for about four and a half years.  The complainant had known the appellant for about four years, the appellant being Mr LP’s cousin.

28. On 11 October 2012, at about 7.00 pm the appellant asked the complainant if he could come to her house and speak to her.  She agreed and he arrived shortly thereafter.  He told the complainant that he had robbed a house and taken a safe with money in it.  He said he had buried the money at Toolakea Beach, that he had to go to the police station that night about the money, and he wanted to tell the complainant about it, so that if anything happened to him the complainant would be able to tell his girlfriend where the money was.  After trying to write instructions as to the location, the appellant suggested it would be better if they went out to the location, so he could show her where it was, and she could take a photo of it.

29. When they arrived at Toolakea Beach Road they turned off the main road, onto a bitumen section, and then onto a dirt road.  Eventually they located a place which the appellant identified as the right location.  The complainant got out of the car in order to take a photo on her phone.  At that time the appellant put his arm around her neck and started to choke her.  She tried to grab his arm to pull it down, but unsuccessfully.  She called out to him, saying his name a couple of times, and the appellant told her to be quiet.  The appellant was squeezing her neck so tightly that she was having trouble breathing and talking.  She hit him in the face with her phone, which caused him to ease the pressure.  At that point, “he held me up, put his hand up a bit higher and held me up a bit higher off the ground.”^[22]  The complainant said she could not breathe or talk and thought she was going to pass out.  She let her whole body relax and pretended that she had fainted, at which point “He laid me down on my front on the ground and … Right next to the car”.^[23]

30. At that point the complainant tried to crawl away and she then said:

“And I’m not sure quite how but [the appellant] dragged me back along the ground and up against the back of the car.  And he had had black duct tape in his hand and he was trying to put my hands together and tape them up.”^[24]

31. The complainant tried to push him away, keeping her hands apart and trying to get to her feet. She tried to persuade him to desist and the appellant kept saying, “just let me tape your hands, just let me tape you up”.^[25]  In the course of that struggle the appellant pushed the complainant into the back seat of the car, at which point she pulled the tape off and tried to keep the appellant away by pushing and kicking.

32. The appellant continued to say, “just let me tape your hands up”, and the complainant resisted, crying and saying, “no”. At that point the appellant tried to take the complainant’s phone from her, struggling with the complainant, and “then he sort of grabbed my hands and banged them against the back of the seat … trying to get it out”.^[26]  He obtained the phone and threw it into the back of the car.  The complainant had started screaming, and the appellant told her, more than once, to be quiet.  She said she would stay quiet if he moved away.  The appellant moved out of the car and was standing with his hands on the bonnet.  Once again he said, “just let me tape you up and we can talk”.^[27]  Again, the complainant refused.

33. The complainant suggested they have a cigarette and the appellant moved back around to the driver’s side of the car, reaching in to obtain cigarettes. At that point the complainant said she got out of the car and moved around to the passenger side, “just to keep the car between”.^[28]  The appellant moved around the car and sat in the front passenger seat.  At that point they were positioned so that the passenger side door was open but between the appellant and complainant.

34. The appellant then said, “this is going to happen, I don’t want to hurt you”, to which the complainant responded by urging him to think what he was doing, to think of his girlfriend and her fiancé. The appellant then tried to get her to come around the door by waving at her and saying, “come here, come here”.^[29]  The appellant grabbed the complainant’s arm and tried to pull her over to him, but she pushed the car door into him and moved away.  At that point the appellant got up and came around to the complainant.  They ended up at the front of the car in the headlights.

35. The appellant then started to move towards the complainant, who pretended to be ill, making retching noises and bending over. The appellant said to her “just take your shirt off and I’ll take you home”, and he moved towards her and “started to undo the buttons of my shirt”.^[30]  The complainant tried to persuade the appellant to stop, by urging him to think about his family and that it was cheating.  The appellant grabbed her around the throat and pushed her back on the bonnet of the car and “he just kept trying to undo my buttons more”.^[31]

36. In the complainant’s resistance she grabbed the windshield wiper, at which point the appellant became angry and told her to get off the front of the car. The appellant seized her by the belt buckle on the back of her pants and the back of her hair. He pushed her head-first into the back seat on the passenger side.  She reached over the back of the seat to find her phone and the appellant tried to take the phone from her.  He said, “it’s like that, is it.  You want to play nice.”^[32]  He reached into the pocket of the door,^[33] and the complainant told him to take the phone, and handed it to him.  At that point the appellant was “sort of half in, half out with, like, a knee on the seat and one leg out on the ground”.^[34]  The appellant took the phone.  Then the evidence continued:^[35]

“Did you see what happened to it?--- Yeah.  He looked at it for a minute and then he put it back into the back seat and then he sort of stepped back out of the car, just standing there.  Dean had grabbed my hand and he pushed it against the front of his pants and I pulled my hand back.

Where was he when he grabbed your hand and pushed it against the front of his pants?--- Standing in front of the door.

So where were you at that stage?--- Still in the back seat.

Okay.  And he was in front of the door.  How was he positioned?--- Just standing.

Okay?--- He was slightly leant over, where he – he could see me.

And you say front of his pants.  Can you tell the jury exactly where on the front of his pants he put your hand?--- Like, where your zipper is.

So where his zipper was?  You’ll have to verbalise the answer because - - - ?--- Yes.

And you pulled your hand away?--- Yes.

And what did you do then?--- Dean had – he was trying to convince me to give him a – a hand job and he would take me home.”

37. At one point in cross-examination the complainant was questioned over what she had told the police in her statements. The topic was the last answer above. It was suggested that in her first statement she had not mentioned the appellant “asking you to give him a head job”.^[36]  The complainant agreed with that proposition, and, and shortly thereafter, with the description that what the appellant asked for was “a head job”.^[37]  It may be that the jury took the view that there was no difference in what was being referred to by the complainant, merely a difference in the level of detail.^[38]

38. At this point of the narrative the complainant said that she refused his request, and the appellant became angry and climbed in on top of her. Then followed this description:^[39]

“And what was he doing at that time?--- He just hopped on top of me – on top of me and he was trying to kiss me on – on the lips and I kept moving my head away and he’d reached up in – into my shirt and he – he grabbed –grabbed me.

Where did he grab you?--- On my breast.

How did he do that?  What - - -?--- He reached in under my shirt, but on top of my singlet and he squeezed.

When you say squeezed, what was he squeezing?--- Squeezing my – my breast.  He had started trying to kiss my neck and I was struggling and he grabbed me by the back of my hair and he pulled my hair right back.

…

[Complainant], I think before the lunch break you were describing you were in the backseat of the car with the defendant pulling back your hair, or pulling your head back by your hair, and kissing you.  Where was he kissing you?--- On my neck.

Okay.  And what did he do then?--- He then reached his hand down under the top of my pants and started to, like, rub me there.

When you say on the top of your pants, whereabouts on the top of your pants?--- My vaginal area.”

39. The complainant described struggling against the appellant, kicking him, yelling at him and urging that if he stopped she would not tell anyone, including Mr LP.  The appellant started to get upset and he said, “this isn’t me”.^[40]  The appellant then started to cry, saying (with reference to what he had done), “we’ll always know and that it would always be between us”, to which the complainant urged that she and the appellant would pretend and, “No one will ever know”.^[41]  At that point the appellant desisted, and in answer to the complainant’s question about what was going on, said that he had taken “ice”.^[42]  He asked the complainant if she would swear not to tell anyone, and she did so.  They got back in the car and headed back the way they had come.

40. As they were driving back the appellant started to roll one of his own cigarettes, but the complainant offered him one of hers. He took it and, “I started to do my buttons up on my shirt and I noticed my badges were gone”.^[43]  The appellant apologised and shortly thereafter asked if he could borrow some money from the complainant.  He nominated $300.  The complainant proposed that he take her to the Commonwealth Bank ATM at Kmart because then she would not be charged any fees on the withdrawal.

41. On the way back into town the complainant asked the appellant question after question “just to sort of keep him talking all the way in”.^[44]  She then described what happened at the ATM, in these terms:^[45]

“… And then we pulled off and to Kmart and I told [the appellant] to park in the clear zone next to – next to the ATM.  And there was – there was a Asian man using the ATM and so I just sat in the car.  When he moved off to the side I asked [the appellant] if he wanted me to go get the money and he said yes, so I got out.  And I went up to the ATM and I didn’t have enough money in my account.  I would need to transfer it on my phone and I opened it and I thought [the appellant] would think I was texting someone so I moved back to the car and I said I had to transfer it.  And I leaned my phone in so he could see what I was doing and I asked him how much he wanted and he asked for 350.  I said that’s fine and I transferred it over and went back to the ATM.  And I put my card in and I kept looking around to see if the security guards were there because there’s usually two of them there.  But I didn’t see anyone so I just got my money and I got back in the car and I gave it to [the appellant] and he put it in the ashtray in the front part of the car.  And then he pulled out to go back down to take me home.”

42. When the complainant was dropped home she went into the kitchen and found her mother, whom she tried to tell what had happened. Mr LP was phoned, and he came straight home.  Shortly after that an ambulance and the police attended at her house.  The complainant told the ambulance and the police what had happened.

Cross-examination of the complainant

43. The CCTV footage from the ATM where the complainant withdrew money was tendered as exhibit 26.  The complainant was questioned as to why she did not appear upset when standing at the ATM.  She disagreed with the suggestion, and said that she was crying at the time, though you could not see it clearly on the screen.^[46]

44. She was also questioned about the fact that the ATM was next to an open Kmart store, but she did not take the opportunity to take refuge in the store. Her answer was that she had not thought, at the time, about walking into the centre.  Rather, she explained, she was focussed on the fact that there were usually two security guards there, and she kept looking around for them.^[47]  She said “I didn’t think anything ahead of that”.^[48]  She said she was at the ATM, she was “looking for the two security guards that usually are at Kmart”, and “I hadn’t thought to speak to anyone else.  I was focused on keeping an eye out for the two security guards”.^[49]

45. The complainant, in re-examination referred to her conduct at the ATM machine in this way:

“I was just so close to home and I kept thinking I’m just – I’m almost home and to look for our security guards that are usually there, and when they weren’t, I just kept thinking I’m close to home, like, it’s not far and it’s over soon.”^[50]

46. In relation to her clothing the complainant said that it was “filthy” afterwards, but not damaged or torn.^[51]

47. As to the conduct concerning count 3, the complainant agreed that the first time she had told the police about that matter was in her third statement.^[52]  The same applies to the evidence that the appellant asked her to give him a “head job”.  The explanation that she gave was that when she had been given her first statement, she re-read it and made notes as to what was not in there.  That was produced to the police and led to the third statement being made.^[53]  The complainant said that the process with the police was that there was “a lot of back and forth without actually sitting down and doing a … physical statement”.^[54]  She explained that she wrote down matters she remembered on spare note paper and gave it to the police.

48. The complainant referred to the time when she was lying in the dirt on the road.^[55]  She confirmed that she was on her front and that, when she tried to crawl away, she was pulled backwards.  When asked whether this would have involved him dragging her through the dirt, she said:  “As I said in my statement, I can’t recall how he had done it, but I got taken backwards”.^[56]  She said that her face was not pulled through the dirt, but she could not remember how it was that she was pulled backwards.^[57]  The episode when the complainant was on the ground and pulled backwards went to count 1, and not counts 2, 3 or 4.

49. At the point where she had been dragged backwards and put up against the back of the car, she saw the duct tape in the appellant’s hand.^[58]  She said that the appellant was attempting to tape her hands up, trying to wrap them like a cross and keep them together.^[59]  This conduct was relevant to count 1 only, and not to any of counts 2, 3 or 4.  She identified that it was black duct tape which was used^[60] and she “pulled it apart and shook it off”.^[61]

50. As to count 2, the complainant said that the appellant started to undo the buttons with one hand, and she could not recall how many buttons he did undo.^[62]  In that process none of the buttons were ripped off, nor did he try and tear the top off.^[63]

51. As to the conduct the subject of count 4, the complainant said she had no bruising on her breast.^[64]  She said that she would not describe the way in which she was grabbed by the hair (when the appellant started to kiss her on the neck) as being forceful or violent.^[65]

52. The case as put to the complainant in cross-examination was that all activities at Toolakea Beach that night were entirely consensual, including kissing outside the car and then having sex on the back seat.^[66]  Further, that the reason for her complaints was that the appellant said they should tell Mr LP what happened, and the complainant objected to that.  The complainant disagreed with all of those propositions.

Evidence of other witnesses

53. The complainant’s mother gave evidence. She saw the complainant return to the house at about 8.30 pm, and within a few minutes was speaking to her upstairs.  She said the complainant’s clothes and hair were dishevelled, her clothes were not straight and proper, and she was red and watery in her eyes and appeared to be crying.^[67]  The complainant had told her what had happened earlier that evening.  Whilst the precise detail did not match the complainant’s evidence, much of the substance of what the complainant had said in evidence was contained in her complaint to her mother.  During this time the complainant was crying very persistently.  At the end of the complainant’s recounting of what had occurred, Mr LP was called and her mother spoke to him, and after he arrived home a decision was made to call the police and ambulance.^[68]

54. Mr LP was also called to give evidence.  He said that he was called whilst at work and went home where he found the complainant in a distraught condition.  The complainant was crying, could not talk and was hyperventilating.^[69]  The essential features of what Mr LP could recall the complainant telling him were that the appellant had “grabbed around her breast region and groin”,^[70] tried to tape her hands and feet, threatened that he would get a knife if she did not cooperate, and tried to force her to take her clothes off and give him a head job.^[71]  She also mentioned getting $350 from the ATM.

55. Mr LP also gave evidence that earlier in the day he had received a text from the appellant asking, amongst other things, whether he was working night shift, which Mr LP had confirmed.^[72]

56. One of the ambulance paramedics gave evidence of a conversation between a police officer, the paramedic and the complainant during the trip to hospital.  The conversation was taped and became exhibit 31.  Under cross-examination she said that she did not see any marks or bruising on the wrists or neck at the time.^[73]  Further, that there was nothing unusual that she noticed about the clothes that the complainant was wearing at the time.^[74]  The police officer who accompanied the complainant in the ambulance to hospital gave evidence.  That police officer said the complainant was very upset and distressed at the time.^[75]

57. The medical practitioner who examined the complainant at hospital on the night of the events also gave evidence.  The examination was limited because the complainant actually did not want a full examination.^[76]  She referred to a small scratch on the back of her hand, and the doctor confirmed there was such a mark.^[77]  Apart from the mark on the hand, the complainant said she did not have any other injuries.

58. A police officer who detained the appellant on the night in question, and searched his car, gave evidence that the appellant told him there might be a knife in the driver’s side door and some other knives.^[78]  During the search two pocket knives were found in the driver’s side door, and a 20 centimetre hunting knife in a brown sheath was found under the driver’s seat.^[79]

59. The appellant’s partner^[80] was called.  Her evidence was relevantly confined to explaining that when she spoke to the appellant about the circumstances his response to say that there was nothing to be told and that the complainant was making up things about him.^[81]

60. Two witnesses were called to testify as to telephone records relating to the appellant and the complainant.^[82]  A further witness was a person who was withdrawing cash at the ATM about the same time as the complainant.  He could not recall seeing a woman withdrawing money, nor did he hear anything unusual such as crying or sobbing.^[83]

61. An investigating police officer was called to tender various photographs. They included photographs of duct tape found in the appellant’s vehicle.^[84]  There were two rolls of tape, one red and one blue.  She also gave evidence of DNA testing on the complainant’s bra, which showed only the complainant’s DNA.

62. A second doctor was called. She examined the complainant two days after the event.  The complainant gave her a history of having been sexually assaulted, strangled around the throat, but with no penetration.  The doctor noticed that there was no bruising around the neck, but that her right shoulder was tender to palpation anteriorally, with a decreased range of motion.

63. Finally, a police officer was called to produce the items of clothing that were taken from the complainant on the night of October 12, 2012. They became exhibit 49.

The phone text evidence

64. The jury also had the benefit of the evidence concerning the phone texts between the appellant and his girlfriend (Ms Grimshaw).^[85]  The texts commenced on 12 October (the day after the events the subject of the offences) at about 8.00 am.  Ms Grimshaw interrogated the appellant as to why the complainant would say what she had said.  Then she said to the appellant that he apparently wanted to try and fix things up between them, “but u only jus tell me now tht she tried to kiss u??”^[86]  That exchange having happened at about 8.55 am, the texts continued with Ms Grimshaw asking him why the complainant would agree to go with the appellant, and that the appellant had apparently told her that the complainant went “to be lookout for u 2 steal weed”.^[87]  It must be noted that that suggestion was not one put to the complainant in cross-examination.

65. The texts continued later on the evening of 12 October.  Ms Grimshaw told the appellant that the complainant “has rung the police”.^[88]  The appellant then responded at 8.44 pm, saying that he was going to the police station on the following Monday to do a statement, and get the police to “have a look at cameras because they will prove that she was fine n happy getting money out when we got back from toolekia i think the simple cunt forgot we went there …”.^[89]  That reference led Ms Grimshaw to ask why the complainant had given the appellant money.  He answered, “She got it out 4 herself i just pulled in there 4 the mutt but she gave me 15 in coins cause i had no fuel”.^[90]

66. What is notable about that account are the lies told about: the amount of money the complainant withdrew and gave to him; and who it was for. Other evidence at the trial established conclusively that $350 was withdrawn from the ATM, and that $350 in cash was found in the centre console of the appellant’s vehicle. Thus, contrary to what the appellant said the withdrawal was not for the complainant, and he received much more than $15.

67. Ms Grimshaw continued to interrogate the appellant, and at about 9.32 pm asked for him to give her some kind of explanation. The response at 10.16 pm from the appellant was:  “i went there looking 4 c but he wasn’t there n she was out side so I stopped 2 say hello n she said she was bored so i just asked her”.^[91]  That account is contrary to the evidence given by the complainant, and was not put to the complainant in cross-examination.

68. There was obviously contact between the complainant and the appellant which was otherwise than by text, but by 11.15 pm Ms Grimshaw was accusing the complainant and the appellant of both being liars.  She levelled the accusation that:  “something happened between use!! shes either telling the truth or use fukt n shes feelin guilty so ahes made up tht story!! which 1 is it dean??”.^[92]

69. No response was received from the appellant and so Ms Grimshaw asked a number of times what was the correct story. Finally at 11.26 pm the appellant replied:  “No kristie nothing happened u will see the truth will come out”.^[93]  That response was a lie; on the case put by the appellant’s counsel to the complainant, it was untrue to say that nothing happened.

70. The answers did not apparently satisfy Ms Grimshaw, who sent her last text at 11.28 pm on that night asking:  “y wud u ask her to go for a drive??”^[94]

71. On 15 October the appellant sent a text to Ms Grimshaw at about 11.52 am.^[95]  In that message he said that he was going to see a lawyer that day because he had just been pulled over by the police, who ran his name and nothing came up, so that he doubted that the complainant had even talked to the police.  At 4.30 pm the pretext call between the complainant and the appellant was made.^[96]  In that call the appellant asked, when the complainant said they should talk about what happened the other night, whether the complainant had been to the police.  The complainant said she had.  Shortly after that the appellant asked, “are the police coming to look for me”, to which the complainant said she didn’t know and asked what he was going to do.  The answer from the appellant was:

“Trying to see my daughter one time, [INDISTINCT]^[97] my daughter forever.  Fucking try and see her one time before I get sent to jail I guess [INDISTINCT]^[98].”^[99]

The trial judge’s directions and summing up

72. No complaint was made about the learned trial judge’s summing up. In the conventional way the jury were reminded of the fact that the elements of the offences were different as between count 1 and the others, and for that reason the verdicts need not be the same.  The following passage reveals the way in which the learned trial judge dealt with it:^[100]

“The elements are different as between count 1 and the others and for that reason your verdicts need not be the same as between count 1 and 2 or 2 and 3 and 4.  But I should tell you this if you have a reasonable doubt concerning [the complainant’s] truthfulness or reliability in relation to any one of the counts, or more, whether by reference to her demeanour or for any other reason, that must be taken into account in assessing the truthfulness or reliability of her evidence in relation to the other charges and generally.  By that I mean this:  your general assessment of [the complainant], as a witness, will be relevant to all the charges but you will have to consider her evidence in respect of each charge when considering that charge.

And it may occur that in respect of one of the charges for some reason you are not sufficiently confident of her evidence to find the accused guilty in respect of that charge.  A situation may arise where, in relation to a particular charge, you get to the point where although you are inclined to think she is probably right you have some reasonable doubt about an element, or elements, of that particular offence.  And if that occurs of course you find the accused not guilty of that charge.  It does not necessarily mean you cannot find the accused guilty of the other charges.  You have to consider while you have that reasonable doubt about that part of her evidence and consider whether it affects the way you assess the rest of her evidence.  That is, whether your doubt about that aspect of her testimony causes you also to have a reasonable doubt about her evidence in relation to the other charges.”

73. From that the jury would clearly understand that there was no necessity that the verdicts be the same on all counts, and that acquittals could follow in respect of those charges where they were not sufficiently confident of the evidence to find the accused guilty in respect of that particular charge.

74. The jury were reminded a number of times that the complainant’s credibility and reliability were at the heart of the case.^[101]  Then, having been reminded also about the way in which they could accept or reject such parts of the evidence as they think fit, they were specifically reminded about the evidence from the complainant’s mother.^[102]  It was explained that such evidence was an exception to what would normally be hearsay on the basis that in relation to offences of a sexual nature, one would expect that the complaint would be consistent.  A summary of the mother’s evidence was then read out to the jury.  It contained most, but not all of the components of the particulars of the charges.  Further, some parts of the sequence of events, as given by the complainant, did not match that of the mother.^[103]  Absent from that account was any mention of the conduct constituting count 3, namely the placing of the complainant’s hand on the outside of the appellant’s pants.  Included in it were the two references to the appellant asking for a head job, and telling her to take her clothes off in order to give him a head job.

75. The jury were addressed as to how to deal with inconsistencies in evidence, and whether it diminishes the credibility of the complainant. Then the learned trial judge turned to the particular counts.

76. As to count 1, the jury were specifically reminded that in order for that count to be made out the jury had to be satisfied that the appellant had the intention to rape the complainant.  The elements of rape were then examined, as well as the necessity for the Crown to prove what the appellant’s intention was.

77. Counts 2, 3 and 4 were then dealt with together,^[104] on the basis that in each case the Crown had to prove that the appellant assaulted the complainant, that is, touched her without her consent.  Having dealt with what was necessary to show whether something was unlawful, her Honour continued:^[105]

“But none of those things are really being promoted here.  It is a question of whether it happened or it did not.  That really is what it seems to me, anyway.  The prosecution must prove beyond reasonable doubt that if the act occurred, it was indecent.  What does that mean?  It bears its ordinary, everyday meaning.  It is what the community regards as indecent.  It is what offends against currently accepted standards of decency, and it must always be judged in the light of time, place and circumstances, and it is a jury question.  And I remind you that in count 2, it is trying to undo the buttons on her blouse; count 3, placing her hand on the outside of his pants; count 4, touching her breast and/or kissing her and/or touching the area of her vagina.

So it is a direct question whether you find, in respect of count 2, whether the act was indecent, count 3, was it indecent, if you’re satisfied already that he did it and that it was unlawful.”

Discussion

Count 1

78. In my view count 1 stands in a different position to the other counts.  In order to find the appellant guilty of that count, as directed by the learned trial judge, the jury had to be satisfied that the acts were carried out with the intention of raping the complainant.  This involved, as they were directed, that the particular conduct was carried out with the intention that there would be some form of penetration.^[106]  The complainant’s evidence, on one view, was more limited than that.  It is true that she was subject to an attack which involved choking, an attempt to tape hands, an assertion that “this is going to happen, I don’t want to hurt you”, the urging to take her shirt off, the attempt to undo her buttons, the reaching into the shirt and touching her on her breast, and reaching down the top of her pants.  However, there were components to the complainant’s evidence which may have caused the jury to doubt that it was carried out with the intention of rape.  At the point where the complainant had been pushed into the car the complainant’s evidence was that the appellant was trying to “convince me to give him a – hand job and he would take me home”.^[107]  When that was resisted the appellant reached into her shirt and put his hand down the front of the complainant’s pants.  Apart from trying to undo the buttons on her shirt, or urging her to take her shirt off, the complainant’s evidence did not include the appellant trying to take off any other part of her clothing, such as her pants, or telling her to do so.  In cross-examination the complainant confirmed that notwithstanding the attack, no damage was caused to any part of her clothing,^[108] and she reiterated her evidence of the appellant asking her to give him a head job.^[109]  Further, in the incident concerning undoing the buttons on her blouse, she confirmed that none of the buttons were ripped off in that process, nor could she recall how many buttons were undone.

79. In my view an explanation of the jury’s decision to acquit on count 1 is provided by the fact that they were not satisfied that rape was the intention, as opposed to some lesser intention manifested in the appellant’s demands for a hand job.  Even the evidence of his comment “this is going to happen, I don’t want to hurt you”, may not have been seen by the jury as taking things much further.

80. In my view that conclusion would not constitute an affront to logic and commonsense, but would indicate the jury’s attention to the task which they were directed to undertake, one element of which was to be satisfied about the specific intent to rape. Thus, in my view it was open to the jury to be satisfied that the physical acts were carried out, but nonetheless for the jury not to be satisfied that it had been proved beyond reasonable doubt that the appellant had the specific intent of carrying out rape.

Count 2

81. The evidence in respect of this offence was in relatively short compass. In her evidence-in-chief the complainant said the appellant told her to take her shirt off and “he came over and he started to undo the buttons of my shirt”.^[110]  Then when she had resisted his attempt to do so, she said that the appellant grabbed her around the throat and pushed her towards the bonnet of the car, and “he just kept trying to undo my buttons more”.^[111]  That activity ceased, according to the complainant, when she grabbed a windshield wiper and the appellant became angry and told her to get off his car.

82. The complainant also said that when she had persuaded the appellant to cease all of his actions, and he had asked her to swear not to tell anyone, they commenced to drive home. As they did she offered him one of her cigarettes which he took and “I started to do my buttons up on my shirt”.^[112]

83. In cross-examination it became apparent that the defence case was that all conduct was consensual. In fact, the case put was that the appellant and the complainant drove to a secluded spot in order to have consensual sex, which occurred in the back seat of the car and was preceded by the complainant taking her own clothes off. Then, as it was put, on the way back the appellant told the complainant that “We have to tell C”, which caused a dispute between them with the complainant threatening to make the appellant’s “life hard” and that she would “dob you into the police for everything you told me”.^[113]

84. As for cross-examination in relation to count 2 itself, that seemed confined to suggesting that the complainant’s clothing was not damaged.^[114]  The complainant agreed with this, saying that whilst her clothes were filthy, no buttons were missing^[115] and that when the appellant attempted to do so it was one-handed and none of the buttons were ripped off.^[116]

85. That evidence had to be viewed in light of the particulars of count 2 which were that the unlawful and indecent assault was “by trying to undo the buttons on her blouse”.^[117]

86. When the complainant’s mother gave evidence of what the complainant had told her on the evening, the only part that was relevant to count 2 was that when the appellant had got her into the back of the car and was trying to kiss her on the face and neck, he was then “trying to undo her shirt”.^[118]  When Mr LP gave evidence as to what the complainant had told him on the night, no mention was made of the attempt to undo buttons.

87. Faced with that evidence, and considering it in light of the particulars, it seems to me to be possible that the jury had a doubt about whether that particular conduct happened at all. According to the complainant’s evidence the appellant attempted to undo the buttons on her blouse in a one-handed attempt while at the same time holding her on the bonnet of the car with one hand on her throat, and all the while with the complainant struggling and pushing him away. The jury may well have thought that in such a circumstance some damage to the buttons or shirt would have been caused. Added to that is the fact that the complainant could not remember how many buttons were undone. It is true that in her evidence she referred to the fact that when they started to drive home she did up some buttons on her shirt, but that was after describing how the appellant had “reached up in – into my shirt and he – he grabbed – grabbed me … On my breast”.^[119]  The jury may have thought that the buttons that were done up on the way home were some that had been dislodged when the appellant reached up and into her shirt.

88. I do not accept the contention put by the respondent, namely that the jury took the view that merely to attempt to undo buttons, but not succeed, was not indecent. The jury had been instructed that “indecent” bears an ordinary and everyday meaning, and “is what the community regards as indecent”.^[120]  They were also directed that it must always be judged in the light of the time, place and circumstances.  Given the time and all the circumstances, particularly the urging to take her shirt off and give him a hand job, an attempt to undo the buttons could hardly be anything but an indecent act.

89. A second alternative is that the jury took a merciful view of the facts.^[121]  The conduct the subject of counts 2, 3 and 4 was also included in the particulars of count 1.^[122]  The jury may have concluded that as they convicted on count 4, but were not satisfied that the conduct otherwise was done with intent to rape, and therefore acquitted on count 1, that the prosecution was overdoing things by having separate counts for counts 2 and 3.  Thus, they may have decided that since they had found the appellant guilty on count 4, they would take a merciful view of counts 2 and 3.

90. The complainant’s evidence in respect of count 4 was consistent, including in her complaints to her mother, Mr LP and the police.  Count 4 involved much more serious actual contact than counts 2 and 3.  The certainty of the evidence and the gravity of the touching may well have played a part in the jury’s differentiating count 4 from counts 2 and 3.

91. No doubt the jury weighed the phone text evidence in their consideration of whether the complainant had satisfied them that the events took place, and whether they were satisfied that the offences had occurred. That evidence could only serve to support the complainant’s evidence in a general sense. That is another reason why the jury may have felt comfortable knowing that they had convicted on count 4, to take a merciful view on counts 2 and 3.

92. In accordance with the principles set forth in R v CX, can it be said that the jury’s acquittal on count 2 suggests a compromise in the performance of their duty or a confusion in their minds?  Further, can it be concluded that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the acquittal for count 2, when they found the appellant guilty of count 4?  Or, does the contended inconsistency between the guilty verdict on count 4 and the acquittal on count 2 merely indicate that the jury followed the instructions to consider separately the case presented by the prosecution in respect of each count, and applied the necessity of proof beyond reasonable doubt to each count?

93. In my opinion either of the two alternatives postulated above are sufficient to explain why the jury might have reached the conclusion to acquit on count 2 when they found the appellant guilty of count 4.  In reaching that conclusion I bear in mind the considerable advantage which the jury had, namely that of observing the witnesses as they gave evidence.  Their view of whether or not the count 2 conduct occurred would have been formed on the basis of their assessment of the complainant (in particular).

94. In my view the different verdicts on counts 2 and 4 do not lead to the view that there is an affront to logic and commonsense which is unacceptable, or the view that there is an injustice.^[123]

Count 3

95. The particulars of count 3 were that the unlawful and indecent assault occurred “by placing [the complainant’s] hand against the outside of his pants”.^[124]  The evidence to support that was that the appellant had shoved the complainant into the back seat on the passenger side, at which time the complainant tried to get her phone back and the appellant “had come in after me and was trying to take my – take my phone back from me”.^[125]  When he threatened to get something out of the pocket of the door, the complainant “leaned forward and … handed him my phone”.^[126]  At that point she said the appellant was “sort of half in, half out with, like, a knee on the seat and one leg out on the ground”.^[127]  Then having taken the phone and then put it back into the car, “he sort of stepped back out of the car, just standing there”.^[128]  It is at that point that the complainant said that the appellant “grabbed my hand and he pushed it against the front of his pants”, which she identified as being “where your zipper is”.^[129]  Thus, according to the complainant, at the point at which the events of count 3 occurred, the appellant was standing wholly outside the car, and she was still in the back seat.

96. In cross-examination the complainant accepted that she had not made mention of the conduct in count 3 in her first statement, and it only appeared in her third statement.^[130]  The complainant explained that after her first statement, she went home, re-read through it, and made notes about what was not in there.  They eventually became the matters in the third statement.^[131]

97. The conduct that was the subject of count 3 was not referred to by the complainant’s mother when she recounted what the complainant had told her that night.  The evidence of Mr LP did not include a reference to that conduct either.  Furthermore, in the interview with the police officer in the night in question, that aspect of the conduct was not mentioned by the complainant.

98. Given that state of the evidence, it is in my view, possible that the jury entertained a doubt about whether the events constituting count 3 actually occurred.  Of course, they had the advantage of actually seeing the complainant give evidence, and likewise the complainant’s mother and Mr LP.  However, the allegation was not made at the time, and only arose sometime later.  Further, the jury had to grapple with the proximity of the appellant and the complainant to each other at the time the events of count 3 were said to have taken place.  At that time the complainant was in the back seat of the car having been forced in head first, and the appellant was standing wholly outside the car, but leaning slightly over.^[132]  In that position, according to the complainant, he reached out and took her hand and placed it against the outside of his pants.  The contact was evidently fleeting, as the complainant immediately pulled her hand away.

99. In my view the two alternatives that applied to count 2, also apply here.  For the same reasons I cannot conclude that there is a relevant inconsistency so as to bring the case within the principles outlined in R v CX and Mackenzie.

Conclusion

100. For the reasons set out above I do not conclude that the different verdicts are an affront to logic and commonsense, nor do they indicate that the jury has compromised the performance of its duty or demonstrated some confusion or misunderstanding in their task.  There are rational explanations for why they reached the verdicts which they did, and those reasons provide a logical and reasonable basis for the jury’s verdicts.  In my view there is evidence which supports the verdicts, and the state of the evidence in respect of counts 1, 2 and 3 was such that the jury may well have had sufficient doubt as to warrant the returning of an acquittal.  It is not the role of this Court to substitute its opinion of the facts for one which was open to the jury.^[133]  The jury had the considerable advantage, which this Court does not enjoy, of seeing the witnesses and being able to assess their credibility overall and the reliability of their evidence count by count.  There is no warrant in this case for this Court to disturb their findings.

101. For those reasons I would dismiss the appeal.