R v PBI[2022] QCA 170

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with North J.

Introduction

2. [2]
   NORTH J:  The appellant was tried before a jury in the District Court at Charters Towers on a four count indictment.  The jury returned verdicts of guilty on Counts 1 and 2 and not guilty on Counts 3 and 4.
3. [3]
   The events charged were alleged to have occurred in a single episode on 21 August 2020.  Count 1 alleged that the appellant unlawfully assaulted the complainant and did her bodily harm and Count 2 alleged that the appellant unlawfully and indecently dealt with the complainant.  Count 3 alleged that the appellant unlawfully and indecently dealt with the complainant and Count 4 alleged that the appellant attempted to unlawfully and indecently deal with the complainant.  In each of counts 2, 3 and 4 it was alleged that the complainant was a child under 16 years and was relevantly under the appellant’s care.
4. [4]
   The sole ground of appeal under the Amended Notice of Appeal filed by leave is that:

“The verdicts of guilty on counts 1 and 2 were unreasonable in circumstances where they are inconsistent with the verdicts of acquittal on counts 3 and 4.”

The principles of law engaged by the ground of appeal

5. [5]
   The principles and considerations to be evaluated when it is submitted that a jury verdict by reason of its inconsistency is unreasonable were considered by the High Court in MacKenzie v The Queen^[1] and reaffirmed and applied in Jones v The Queen.^[2]  They have been followed and applied in many cases since.^[3]  A useful summary of the principles and considerations is contained in the judgment of Morrison JA in R v Fanning^[4] where his Honour said:

“[20] In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of ‘logic and reasonableness’:

‘… 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.’

[21] Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts.  They include:

1. (a)
   the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or a misunderstanding of their function, or an uncertainty about legal differences between the offences, or a lack of clarity in the instruction on the applicable law;
2. (b)
   as the test is one of logic and reasonableness, the question is whether a reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;
3. (c)
   if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;
4. (d)
   different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;
5. (e)
   different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;
6. (f)
   a jury may decide that it would be oppressive to convict on all charges and give a ‘merciful verdict’;
7. (g)
   a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;
8. (h)
   in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and
9. (i)
   it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.”

(footnotes omitted)

6. [6]
   Of relevance in this appeal, some observations by Sofronoff P in R v Conn; R v Conn; Ex parte Attorney-General (Qld):^[5]

“Frequently the argument that a miscarriage of justice has occurred and can be demonstrated by what is said to be an irreconcilable inconsistency of verdicts is raised in cases in which the sole evidence implicating an accused is the uncorroborated evidence of a complainant. There will often have been a delay in the making of any complaint. Commonly it can then be said that there is no apparent difference in the character or quality of the evidence given by a complainant to prove each of the counts. However, it cannot be maintained that these factors alone would justify a conclusion that there has been a miscarriage of justice in any case in which a jury has convicted on some counts and acquitted on others. That is so because the significance of features like these will also depend upon the facts of a particular case, the way the trial has been conducted by the prosecution and the defence and the content of the Judge’s directions to the jury.”

(Footnotes omitted)

7. [7]
   Further, of relevance are the observations of Sofronoff P where his Honour observed:

“It must constantly be borne in mind, when considering such a ground of appeal, that it is not for the Crown to justify or to rationalise verdicts of conviction and acquittal. Differing verdicts are inherent in trials of multiple counts, particularly when a jury is warned against propensity reasoning. It is for an appellant to demonstrate a miscarriage of justice by showing, by reference to the facts, the evidence, the witnesses and the conduct of the trial, that the differing verdicts are actually irrational or repugnant to each other and not merely that they might be.”^[6]

(Footnotes omitted)

The prosecution case and the evidence at the trial

8. [8]
   The particulars of the acts alleged in the respective counts were provided to the jury:

“Count 1: Assault occasioning bodily harm

The defendant placed hand/s around the complainant’s throat and applied pressure. The complainant sustained the following injuries that interfered with her comfort:

1. a.
   Linear abrasions under both ears consistent with scratch marks; and/or

1. b.
   Linear abrasions on the right neck consistent with scratch marks; and/or

1. c.
   Petechial lesions (round spots that appear on the skin resulting from bleeding) consistent with blunt force trauma to the right neck.

Count 2: Indecent treatment of a child under 16, under care

The defendant used his penis to rub the complainant’s bottom, on the outside of her clothing.

Count 3: Indecent treatment of a child under 16, under care

The defendant used his thumb to touch the complainant’s vagina, skin on skin.

Count 4: Attempted indecent treatment of a child under 16, under care

The defendant attempted to use his hand/s to touch the complainant’s breast/s.”^[7]

9. [9]
   The complainant was the 14 year old daughter of the appellant’s former partner.  The appellant had been in a relationship with the complainant’s mother when the complainant was a young child and they had remained in contact.  At the time of the alleged offences the appellant was 45 years old and living on a rural property on the outskirts of Charters Towers.  An arrangement had been made for the complainant to stay with the appellant at his property for the weekend.^[8]  The appellant lived in a caravan on the property.  After dinner, the complainant and the appellant retired to the caravan to sleep.  He laid on one bed and she on another.  He asked her to cuddle him but she refused then he sat at the end of her bed and spoke to her about touching herself.  He went back to his bed and said “if I wanna fuck then we can fuck”.^[9]  The following day the complainant and the appellant argued about her wish to return home and he confiscated her phone and there was a physical altercation between them.  In the evening she changed her pyjama top and pants and went to bed in the caravan.  Later that night the appellant woke the complainant up and he told her he wanted to lie with her and cuddle and she said no and rolled over and went back to sleep.
10. [10]
    She was roused a second time when:

“COMPLAINANT …then he had got on top of me and he started strangling me like.  First I thought he was trying to kill me because of how strong his grip was, and I tried to get away and then I tried to scream but he ended covering my mouth with his hand.  And I rolled over and he’d shoved my head into the pillow and then he started grind himself on me and I couldn’t get away.  And he kept trying to feel up my body.  Some point during then, I had felt, fallen off the bed and he had dragged me back onto the bed and, um, he started feeling up again while I was still trying to get away.  And he put his hands up my shirt and tried to play with my breasts while I was on stomach and I kept trying to block his hands. He kept grinding with me then he kept trynna pull my pants down and that.  And at some point, he had put his hands down my pants.  I asked him why he had, why he was doing this and why he wouldn’t leave me alone and he said that because he was horny and because I was right there.  And then he groped my butt and wouldn’t leave me alone for a while.  And then, um, after a while he stopped, …”^[10]

11. [11]
    She gave further evidence touching upon these events:

“COMPLAINANT Where he, um, he got on top of me and he stra-, started strangling me.  First I thought I was gonna die because, um, with how his grip was, I thought he was trynna kill me doing that.  And felt like if he had of squeezed any harder, I was gonna, my neck was gonna snap or something.  And then I, when he had loosened up his grip, I tried to scream which caused to, um, put his hand over my mouth.  And then at some point, I had rolled over onto my stomach trying to get, get out of his grip and he had had held my head into the pillow so that I couldn’t breathe or move.  And I tried to get out of his grasp then and he started grinding himself on me and started feeling me up and then at some point yeah and then I had fallen off the bed and he’d got threw, got throw me back onto the bed and then he started grinding on me again and trying to feel me up.  And then he told me to roll over onto my back and I refused.  And he said that he was going to use force if I didn’t, if I refused to lay on my back.  So he kept grinding on me and tried, hmm, started trying to put his hand down my pants and that and like tried to keep him out of that but he ended up putting it downs, down playing with my butt and that.  And um, and then he tried to lower and said that he wanted to play with my pussy and that and I didn’t want him anywhere near, then tried to get away more.  And after a while, he’d taken his hands out of my pants and tried to grope my boobs again but af-, and then I kept trynna block his hands with my arms and after a while he stopped.  And I’d curl up into a ball and asked him why he had done that.  Ah, and he said because of what I had, why I wanted to go home about what he had said and said that if I was gonna lie that he may as well make it worthwhile.

SCON EDWARDS: So at the beginning of that you were telling me about, he tried to strangle you.

COMPLAINANT: Hmm.

SCON EDWARDS: In as much detail, explain to me how he tried to strangle you.

COMPLAINANT: He had gotten on top of me and put his hands around my neck and was, had incredibly strong grip around and trying to choke me.

SCON EDWARDS: Mmhmm.

COMPLAINANT: Which it was hard to breathe.  Couldn’t breathe.”^[11]

12. [12]
    With respect to the circumstances of count 2 the complainant’s account was:

13. [13]
    The complainant gave an account of the circumstances concerning counts 3 and 4:

“SCON EDWARDS: Okay.  A, you then said he reached down and felt your pussy.  In as much detail as you can and I know it’s very difficult, tell me everything about that.

COMPLAINANT: He had put his down, he’d put, put his hands down, he put his hand down my pants and at first he was groping my butt and then he moved down lower and tried to like touch my pussy. And I kept trynna move away and trying to get his hands out of my pants and um, after a while he finally took it out and then, um, then went back to rubbing up my back and my sides and that while he was grinding on my butt and that.

SCON EDWARDS: Was his hand inside your pants—

COMPLAINANT: Mm.

SCON EDWARDS: Or underwear?

COMPLAINANT: Um, it was inside my underwear and that.

SCON EDWARDS: Righto, and did he actually touch your pussy?

COMPLAINANT: He tried to feel it.

SCON EDWARDS: Alright, and then you he tried to feel your boobs.

COMPLAINANT: Mmhmm.  I kept blocking them with my arms”^[13]

14. [14]
    The complainant was asked further questions by the police officers:

15. [15]
    The following morning, Saturday 22 August 2020, the complainant received a phone call from her mother.  She told her mother that the appellant had grabbed her around the throat, molested her and touched her.^[15]  Her mother told her to go to the front of the appellant’s property and wait for police.  Police arrived and took her to the police station.  Police also spoke to the appellant at this time.  This was recorded and played to the jury.  The appellant told the police that he heard the complainant speaking to her mother and knew the nature of the allegations but that the complainant had fabricated them because she was desperate to go home and would say anything.  He said there’d been a scuffle the night before because she “chucked a tantrum” when her mother didn’t answer her calls.  He also said that in the morning he’d noticed marks on her neck from where he had put his hand.
16. [16]
    The complainant was examined at the Charters Towers Hospital on 22 August. She was observed to have sustained linear abrasions under both ears consistent with scratch marks, linear abrasions on the right cheek consistent with scratch marks and petechial lesions consistent with blunt force trauma to the right neck.^[16]  The doctor’s opinion was that the complainant’s injuries were consistent with strangulation.^[17]
17. [17]
    Forensic testing of the complainant’s pyjamas revealed the following:

“The presence of a mixed DNA profile (four contributors) on a tape lift taken from the inside waistband of the complainant’s pyjama pants. The complainant was a match as one of the four contributors. As was the appellant.^[18]

The presence of a mixed DNA profile (four contributors) on a tape lift taken from the left inside front top of the complainant’s pyjama top. The complainant was a match as one of the four contributors. As was the appellant.^[19]

The presence of a single DNA profile on a tape lift taken from the inside surface of the complainant’s underpants. The complainant was a match for that profile. However, possible additional low-level DNA was observed that fell below the reporting threshold for forensic DNA testing.”^[20]

The rival contentions

18. [18]
    In support of the appeal the appellant emphasised that the offending conduct occurred in a single episode and not as a series of discrete acts alleged to have occurred at different times or places.  The account as described was brief in which all four offences were committed in quick succession.  In those circumstances, it was submitted that there was no discernible basis for distinguishing the quality of the complainant’s evidence concerning any one count from the others.  Thus, it was submitted the acquittal on counts 3 and 4 necessarily demonstrated that the jury did not accept the complainant’s evidence concerning the episode which, it was submitted the jury had to accept before it could bring in a guilty verdict on either count 1 or 2.  Acknowledging that the jury had been directed to consider each count separately and was told that their verdicts did not have to be the same on all counts, the appellant submitted that because the occurrence or episode occurred with each asserted offence occurring in quick succession, it could not be said that the jury simply followed the trial judge’s instruction.  Further it was submitted as a matter of logic that the complainant’s evidence on counts 3 and 4 having not been accepted common sense suggested that it ought to have affected the jury’s assessment of the complainant’s credibility in respect of counts 1 and 2.  It was submitted that there was no rational basis upon which the complainant’s narrative of the episode could be disentangled and result in a conviction on two counts and acquittal on two counts.
19. [19]
    In oral submissions the counsel for the appellant submitted that there was a single integral connection between all the counts in which the complainant described as a single indivisible event involving multiple alleged offences.  Counsel submitted that the DNA evidence did not offer any basis for distinguishing between the counts nor did the preliminary complaint evidence of the complainant’s mother.  Counsel submitted that the acquittals on counts 3 and 4 demonstrated the jury’s lack of confidence in the complainant as a reliable and credible historian.
20. [20]
    The respondent submitted that the verdicts were not inconsistent, the differences between the verdicts being explicable because of the evidence produced to the jury.  In regard to count 1 (as particularised) the respondent submitted that the count was supported by three pieces of evidence, the complainant’s account, the medical evidence and the photographs of marks and abrasions put into evidence.  With regard to count 2 the respondent submitted that the count, as particularised, was supported by the complainant’s account and also found support in the preliminary complaint evidence.  Correspondingly in respect of counts 3 and 4 the respondent submitted that there was very limited support from the complainant’s account concerning those counts and the DNA evidence and the preliminary complaint evidence was in both cases either neutral or unsupportive.

Discussion

21. [21]
    When regard is had to the evidence of the complainant^[21] it is apparent that the complainant’s evidence is much more detailed and explicit concerning counts 1 and 2 compared with her evidence concerning counts 3 and 4.  The complainant’s account of the events constituting count 1 concerning the strangulation^[22] is explicit.  When it is recalled that her evidence is supported by the medical evidence and photographs it was well open to a jury, if persuaded that the complainant’s evidence was reliable and accurate to be persuaded beyond reasonable doubt.  Similar considerations apply in relation to her evidence concerning count 2 with her description of the appellant “grinding” her.^[23]
22. [22]
    Different considerations apply when considering the evidence relating to counts 3 and 4.  There is a contradiction in the evidence concerning count 3.  The complainant’s evidence on the one hand was consistent with an account that the appellant did not actually touch her vagina skin on skin with his thumb as particularised^[24] but in a later passage she gave evidence that the appellant touched her vagina with his thumb but didn’t actually insert it.^[25]  With respect to count 4 evidence supporting that count^[26] offers little support for the count as particularised.  The appellant was charged with an attempt but the complainant’s evidence lacked detail and might not have satisfied the jury beyond reasonable doubt that there was sufficient evidence of an “overt” act (or acts) that would have been apparent to a bystander.^[27]
23. [23]
    As part of his careful directions to the jury his Honour instructed them to consider each charge separately and instructed them that their verdicts need not be the same^[28] and as part of this direction he gave a “Markuleski” direction.^[29]  On the view I take there is a marked difference in the potential persuasiveness of the evidence relating to counts 1 and 2 on one hand and 3 and 4 on the other hand consistent with the jury considering its verdict in light of the trial judge’s directions.  The verdicts, in my view, offend neither in logic nor in reasonableness.  The verdicts can be reconciled.  The evidence in support of count 1 and in support of count 2 is apt to be much more persuasive than the contradictory evidence relating to count 3 and the brief terse accounts concerning count 4.  Offending neither in logic nor in common sense the verdicts returned by the jury can be reconciled.  The record suggests the jury carefully followed the directions of the trial judge.

Order

24. [24]
    The appeal should be dismissed.

The Particulars – an observation

25. [25]
    The prosecution particularised the alleged offending acts.^[30]  During the prosecution opening^[31] the document was tendered and marked as an exhibit.^[32]
26. [26]
    The reception of particulars into evidence as an exhibit is an error.  The function of particulars is as part of the “pleadings” in a criminal prosecution that gives greater definition to the factual dispute and thus assists in identifying relevant evidence and thereby admissible evidence.^[33]  So particulars are useful to the parties, the trial judge and the jury.  But they are not part of the proof of the prosecution case and thus not evidence.  The proper practice is to record the particulars by marking them for identification as is done with other documents or hand outs given to the jury such as question trails, copies of relevant legislation, transcripts, directions or instructions.  The practice of marking particulars as an exhibit may in an exceptional case, confuse a jury and cause it to regard the document as part of the evidence, and with that as part of the  proof of the prosecution case.^[34]  In this case there was no suggestion of any confusion or misapplication by the jury nor can that proposition withstand examination.  To the contrary, the request for redirections^[35] sought a written “guideline” to enable the jury to consider in an ordered way the issues for consideration.  Furthermore the different verdicts suggest that the jury was not relevantly confused and considered each charge separately.^[36]
27. [27]
    HENRY J:  I agree with North J.