SUPREME COURT OF QUEENSLAND

CITATION:	R v Clifton (a pseudonym) [2022] QCA 24	
PARTIES:	R
v
CLIFTON (a pseudonym)
(appellant)	
FILE NO/S:	CA No 77 of 2021
DC No 76 of 2020
DC No 579 of 2021	
DIVISION:	Court of Appeal	
PROCEEDING:	Appeal against Conviction	
ORIGINATING COURT:	District Court at Bundaberg – Date of Conviction: 26 March 2021 (Loury QC DCJ)	
DELIVERED ON:	4 March 2022	
DELIVERED AT:	Brisbane	
HEARING DATE:	7 February 2022	
JUDGES:	Sofronoff P and Mullins JA and Kelly J	
ORDER:	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged with five counts of rape, one count of exposing a child to an indecent act and one count of indecent treatment of a child – where the appellant was found not guilty on two of the rape counts and guilty of the remaining counts - where the appellant was 25 and the complainant was 13 at the time of offending – whether the jury’s acquittal on two counts rendered the guilty verdicts inconsistent
Criminal Code (Qld)
Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, distinguished
MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, applied
Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75, applied
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, applied	
COUNSEL:	S A Lynch for the appellant
C N Marco for the respondent	
SOLICITORS:	Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent	
[1]	SOFRONOFF P:  The appellant was charged with five counts of rape, one count of exposing a child to an indecent act and one count of indecent treatment of a child.  A jury found him not guilty on two of the rape counts and guilty on the remaining five counts.  The appellant appeals on the ground that the jury’s acquittals on counts 5 and 6 rendered the guilty verdicts unreasonable.
[2]	The prosecution called four witnesses.  The first of these was the complainant.  She gave pre-recorded evidence and evidence at the trial.  Her evidence can be summarised as follows.
[3]	When she was 13 years old the complainant stayed overnight at the home of one of her mother’s friends, a woman named Karen.  The appellant was Karen’s partner.  One morning when Karen was away on an errand, the appellant entered the area in which the complainant was sleeping and crawled into bed with her.  The appellant was then 25 years old.  He began asking her sexually provocative questions and then stroked her.  He then slipped his hand down her pants and inserted his fingers into her vagina.  This was count 1 (rape).  He then took his penis out of his pants and began to masturbate himself.  This was count 2 (exposure of a child to an indecent act, under care).  He then removed the complainant’s pants, positioned her legs so that she was unable to move easily and penetrated her vagina with his penis.  This was count 3 (rape).  He told her to feign waking up when Karen returned and to tell nobody what he had done.  The jury found the appellant guilty of these three offences.
[4]	Subsequently, on an outing to Paradise Dam, while the complainant was sunning herself at the edge of the dam, the appellant joined her and kissed her on the mouth.  This was count 4 (indecent dealing).  The jury found the appellant guilty of this offence.  A little later he persuaded her to go with him to a parked car.  He pushed her into the car and got in himself.  He then penetrated her vagina with his fingers.  This was count 5 (rape).  The jury acquitted the appellant on this count.
[5]	Later, during a birthday celebration for the complainant’s brother, while family members were riding motorcycles and quad bikes around the family property, the appellant and complainant went for a ride on a quad bike.  The appellant stopped the bike in an isolated spot pretending that the bike had failed.  He took his penis out of his pants, forced open her mouth and pushed her head down so that he could insert his penis into her mouth.  This was count 6 (rape).  The jury acquitted the appellant on this count.
[6]	On another occasion, the complainant had gone to Karen’s (and the appellant’s) property to ride Karen’s horses.  While Karen was away shopping, the appellant told the complainant that he wanted to show her something in a nearby caravan.  When they entered the caravan, he pushed her onto a bed, removed her shorts and inserted his penis into her vagina.  This was count 7 (rape).  The jury found the appellant guilty on this count.
[7]	Proof of the offences depended upon the complainant’s evidence.  No witness could give evidence that directly supported her allegations but there was some indirect support for her allegations.  The complainant’s brother gave evidence confirming that the complainant had visited Karen’s home, confirming some of the events at the birthday celebration and at the picnic at Paradise Dam.
[8]	The appellant did not give evidence and did not call any evidence.  The defence that emerged in the cross examination of the complainant was a denial that the appellant had committed any of the offences.  The denial was sought to be supported by an asserted motive for the complainant to lie.  It was put to the complainant that she had falsely inculpated the appellant to protect her then boyfriend’s reputation.  The complainant denied this and said that she had never had sexual intercourse with her boyfriend.
[9]	The defence sought to support the appellant’s denial by pointing to the implausibility of the complainant’s allegations.  It was put to the complainant that on each of the occasions on which she alleged that the appellant had committed an offence, there were people nearby who must have heard any commotion, who might have walked into the place where she said that the offences were being committed and who, in any event, might easily have seen what was happening.  The complainant’s explanations for these propositions varied.  In relation to counts 1, 2 and 3, she said that she had tried to scream but the appellant had held a hand over her mouth.  She said that those offences had been committed in a shed in which she and younger children were sleeping, and her area was partitioned off.  She said that the main house, in which Karen’s father lived, and where he might have been at the time, was a distance away and, anyway, the father was deaf.  She said that the children who might have been nearby were very young and would have been too frightened to interfere.
[10]	In relation to the offence committed in the car at Paradise Dam, it was put to her that the car was only about 15 or 20 metres away from the place in which the group had set out their picnic.  It was put to the complainant that anybody might have seen what was happening.  So too, in relation to the offence of indecent treatment, committed in the open, it was put to the complainant that anybody might have seen the appellant kiss her if that had happened.  The complainant said that there were not many people in the vicinity and the kiss was quick and surreptitious.
[11]	The evidence to prove the offences on which the jury returned a guilty verdict differed in a significant way from the evidence to prove the two counts on which the jury returned verdicts of not guilty.
[12]	Each of the guilty verdicts were in relation to offences that the complainant said had been committed in a circumstance in relation to which no other person could give evidence that undermined her account.  Thus, counts 1, 2 and 3 had been committed in the complainant’s sleeping area, in a part of a shed that was shielded from the view of children sleeping nearby.  Of course, none of these very young children were called as witnesses.  Count 7 was committed in a caravan while Karen was away.  Count 4, the surreptitious kiss at Paradise Dam, was an act that was over and done in a moment: “he bent down and kissed me”.
[13]	Counts 5 and 6 were different.
[14]	Count 5, the rape in the car at Paradise Dam was described by the complainant in this way.  The appellant approached her where she was sitting and asked her to come with him.  She told Karen that she was going to the bathroom and then followed the appellant to the car.  The appellant opened the car door and “shoved” the complainant inside “then crawled in on top of” her and shut the door.  He then “pushed” her down so that she was lying on the car seat and “he crawled on top” of her and “he started fingering” her.  He then asked her if she “wanted to suck his penis” and she declined.  He then said, “we better get out of this, people are gonna start to get suspicious”.
[15]	It was put to the complainant in cross examination that “everybody would have seen it if that had happened”.  She replied that they should have but nobody did.
[16]	Defence counsel cross examined the complainant’s brother about the circumstances at Paradise Dam.  There was the following exchange:
“All right. And you never saw [the complainant] and [the appellant] alone at any time, did you?---No. [The appellant] was mostly driving the boat, which we did pretty much all day, doing the water sports and that.
Right?---Yep.
And [the appellant’s] car was parked in view of the area where you had lunch, where - - -?---Yes.
- - - you set up. Yep. And lunch was held on the grass between where the boats would pull up and where the car - - -?---Yep.
- - - was parked. And his car was parked parallel to the grass with the passenger side - - -?---Yep.
- - - in your view? Yep. And so if – for example, if [the complainant] and [the appellant] had walked to the car and jumped in the back seat, people would have noticed it, wouldn’t they?---Well, yeah.
Yeah. And if you’d seen it, you would have investigated further, wouldn’t you?---Yeah.”
[17]	The complainant gave some peripheral details about the rape on the quad bike during the birthday celebrations.  She told police that while the offence was being committed, as they were seated on the quad bike in an isolated spot, the appellant heard the brother’s motorcycle approaching:
“COMPLAINANT:	Um, and he’s like well your brother’s comin’. I was like, I thou-, I thought to myself well thank god for that.
POLICE:	Mmhmm.
COMPLAINANT:	Um and, he started to wipe up again and we took off and soon as, like we got downhill of the, downhill of the dam I saw my brother, um, my brother basically nodded at me and he was like, and then, ‘cause my brother knows about the whole thing. Um, and then when we stopped riding the bikes my brother had a massive go at him, just hit him for it. He didn’t say anything of, um, acknowledgement of, just and then, [the appellant] just thought he was having a play fight and stuff, ‘cause they, they usually wrestle a lot.
POLICE:	Yeah, okay so tell me everything about your brother knowing.
COMPLAINANT:	Um, well I told my brother because they were close, they were close mates. Um--
POLICE:	Yeah.
COMPLAINANT:	And then I told my brother and he’s, my brother’s like he’s a complete arsehole I, I never expected him to do that.
POLICE:	And w--
COMPLAINANT:	I was like yeah well neither did I. And then, um going down the dam hill, ‘cause I was on the bike with [the appellant], um my brother, yeah had, had the funny feeling so he looked at me, and like, he gives me this look that, just siblings have the connection for.
POLICE:	Yeah.
COMPLAINANT:	Then he nodded at me and I nodded back, and, yeah he, he knew.”
[18]	She also told police that she had made a preliminary complaint to her brother:
“POLICE:	When did you tell your brother?
COMPLAINANT:	Um, he was kinda’ there when I told Mum about the whole [appellant].
POLICE:	Yeah.
COMPLAINANT:	So he was, he was there when I told Mum.
POLICE:	In February this year?
COMPLAINANT:	Yeah.
POLICE:	But he knew earlier because he, he had a fight with [the appellant] is that--
COMPLAINANT:	Yeah.
POLICE:	Right? So when was the first time you told your brother?
COMPLAINANT:	Um, probably about the second time [the appellant] sexually assaulted me--
POLICE:	Mmhmm.
COMPLAINANT:	I Told him.
POLICE:	Tell me everything about telling your brother.
COMPLAINANT:	Well, ‘cause he’s my big brother [INDISTINCT], I told him, oh, he, ‘cause like we don’t live a house or anything so, I went to his caravan, I was like can I talk to you? It a-, it’s about [the appellant]. I was like, I said, I said can I talk to you? It’s about [the appellant]. ‘Cause we use the name [the appellant] um. And he’s like oh yeah sure, what’s it about? I was like, he sexually assaulted me twice. And [my brother], I seen my brother’s face from just, like, normal colour to partly pale but partly red.
POLICE:	Mmhmm.
COMPLAINANT:	Um, with anger and stuff. And he wasn’t happy about it. And then from then on he kept an eye on me whenever [the appellant] was around.”
[19]	In examination in chief, the brother said this:
“Right. Well, tell us about going riding with [the appellant] and [the complainant]?---Well, we’ve got two powerlines in our paddock. I was – we – like, we left the house yard, because our lawn’s sort of like that – like, we went down and went around the track and whatnot.
And then they disappeared and I was sitting on the big powerline, which sort of runs across the paddock. And I was sitting there and then – that’s when I seen them coming up from the dam near the house.
So how long would they have been out of your sight for?---Probably 10, 15 minutes, if that.”
[20]	In cross examination, the complainant’s brother gave this evidence:
“Right. So on your 16th birthday, when you were riding motorbikes around, you were – you were chasing [the appellant] around, weren’t you? He was on his bike, you were on your bike and following - - -?---Yeah. I’d - - -
- - - each other around?--- - - - just passed them when they went out of my view.
Right?---Because they were behind me and I’m not looking behind. I’m going in front.
All right. Well, I suggest that you were never more than 100 metres away from them, were you?---Yeah. Roughly.
Do you remember when you gave a statement to police on the 23rd of March 2016? Do you remember you said in your statement:
Can’t remember losing sight of [the complainant] and [the appellant] for a long period of time. I was following them for a while. I was about 100 metres away. If I didn’t lose sight of them, it would not have been more than five minutes.
Do you accept you said that in your statement back then?---Yes.
All right. And that statement, very close to the events back then, would have been accurate, wouldn’t it?---Yes.
All right. And you accept you never told the police when you made this statement on the 23rd of March 2016 that you saw [the complainant] and the [appellant] coming down the track from the middle dam, did you?---No.
All right?---I thought I did. Sorry.
And that’s because that didn’t happen, did it?---It did happen.”
[21]	Then there was the following exchange:
“And [the complainant] never told you on that day that [the appellant] had sexually assaulted her, did - - -?---No.
No. And – and you never had a – a proper fight with the - - -?---No.
- - - [appellant] that day, where you punched him in the jaw, did you?---No.
No. And that’s because the first time you ever heard any allegations about what was said to have happened between [the complainant] and the [appellant] was when the police contacted you, wasn’t it?---No. I heard something when [the complainant] mentioned it to mum.
Okay. Well, just going back to the statement you made on the 23rd of March 2016, do you recall paragraph 14 of that statement:
The first I heard anything was said to have happened between [the appellant]and [the complainant] was when the police came around two days ago and police spoke with me.
Do you recall that being in your statement that you signed?---No.”
[22]	The brother’s evidence about events at Paradise Dam supported the defence case about the improbability of the complainant’s account.  His evidence about the events at the birthday supported the complainant’s evidence as far as his confirmation about the appellant’s opportunity to commit the offence was concerned.  However, his contradiction of her evidence about there having had been a violent altercation with the appellant on that day weakened the prosecution case.
[23]	The jury retired to consider its verdict at 3.42 pm on the second day of the trial.  At 4.39 pm that afternoon, the jury asked to hear the complainant’s evidence again.  This was done on the following day, the third day of the trial, and then Loury DCJ repeated the following direction:
“The prosecution’s case relies wholly on the evidence of [the complainant], and what you make of it. The [appellant’s] case is that none of these events occurred. In order to return verdicts of guilty on any of the counts, you must be satisfied beyond reasonable doubt of the honesty and accuracy of [the complainant’s] evidence in its essential features. Any reasonable doubt you have concerning the truthfulness or reliability of [the complainant’s] evidence in relation to any one or more of the counts, or in relation to the chook pen incident, whether by reference to her demeanour or for any other reason or reasons, must be taken into account by you in assessing the truthfulness and reliability of her evidence generally.”
[24]	That afternoon, the jury asked for further directions about penetration, which Loury DCJ gave them.  On the morning of the fourth day, the jury sent a note to say that they were having difficulty reaching a unanimous verdict on one of the counts.  They also asked to listen to the brother’s evidence in its entirety and to part of the complainant’s evidence about the incident on the quad bike.  That part contained her description of the rape on the quad bike and how long it took.  The learned judge told the jury:
“You must try to reach a unanimous verdict on each of the seven counts, but there are seven separate charges. You must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you’re satisfied beyond reasonable doubt that the prosecution has proved its essential elements. You will return separate verdicts in relation to each charge. The evidence in relation to the separate offences is different and so your verdicts do not need to be the same. The elements of some of the offences are different and so your verdicts need not be the same.
If you have a reasonable doubt concerning the truthfulness or reliability of [the complainant’s] evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons that must be taken into account in assessing the truthfulness or reliability of her evidence generally. If you find that you cannot reach a unanimous decision on one or more of the counts, there are some further directions I can give you which may assist you.”
[25]	The jury retired once more at 11.12 am and returned with their verdicts at 1.31 pm.
[26]	The appellant submitted that the jury rejected the complainant’s evidence about count 5, the rape in the car at Paradise Dam, yet they convicted on count 4, the kissing that preceded it.  The appellant also submitted that, in acquitting the appellant on count 6, the rape on the quad bike, the jury must have accepted the brother’s evidence and rejected the complainant’s evidence.  He submitted that the rejection of the complainant’s evidence on counts 5 and 6 is irreconcilable with their acceptance of her evidence on the other counts.
[27]	The flaw in that argument is that the acquittal on counts 5 and 6 does not necessarily connote that the jury “rejected” the complainant’s evidence.  In order to acquit the appellant on these two counts, the jury did not have to believe the complainant’s brother’s evidence or disbelieve the complainant’s evidence.  In relation to both count 5 and count 6, the brother’s evidence was capable of raising a doubt.  Acceptance by the jury that it did so did not have to impinge upon the complainant’s credit as a whole.  The jury was entitled to take the view that while the brother’s evidence could not be rejected out of hand and that it raised a reasonable doubt, it was not so cogent that it destroyed the complainant’s credit about the other offences.  The jury was directed three times about the effect that a credit finding on one count might have on the other counts.  The jury could have been in no doubt about that aspect of their reasoning task.  Nor could they have had any doubt that a doubt which they felt about the complainant’s evidence on two counts did not have to result in doubting or rejecting her evidence entirely.
[28]	The complainant’s evidence about the commission of the offences was comprehensive and detailed.  For example, her description of the first three offences which were committed in the bed at Karen’s house, was that the appellant began his sexual overtures in an apparently kindly and innocuous way and, by a steady progression from sexualised talk to some ambiguous stroking, he advanced to a request for oral sex and, upon the complainant’s refusal to partake in that act, to a non-consensual penile penetration. The jury was entitled to regard this kind of description of an attempted seduction as something that lent verisimilitude to her account.  The jury was also entitled to dismiss the complainant’s supposed motive to lie as lacking any plausibility and to reject the argument that the appellant was unlikely to have undertaken the risk of discovery involved in his behaviour.  Experience shows that juries frequently dismiss arguments of that kind.
[29]	Nor did the jury’s acquittal on count 5 logically require an acquittal on count 4.  The nature of the criminal behaviour was substantially different in each case and, while the brother’s evidence was capable of raising a doubt about count 5, the criminal act involved in count 4 could be accepted as having occurred surreptitiously and quickly under the noses of the other people present.
[30]	The authorities do not establish that a jury’s acquittal of a defendant on some counts and guilty verdicts on other counts, all depending to some degree on the evidence of a single witness, demonstrates that the guilty verdicts were unreasonable.  The obligation to establish that inconsistent verdicts are unreasonable lies on the person making that submission.  The kind of inconsistency in verdicts that will demonstrate a jury’s irrationality is an inconsistency that results in “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.
[31]	In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ said that where there is some evidence to support the verdict that is said to be inconsistent, it is not the role of an appellate court to substitute its own opinion for one that was open to the jury.  In that case their Honours approved King CJ’s dictum in R v Kirkman as follows:
“… juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
[32]	In this case, the jury must have accepted the complainant as an honest witness at least, having regard to their verdicts on counts 1, 2, 3, 4 and 7.  Her evidence about these offences was detailed and clear.  Her credit was supported by the evidence of preliminary complaint.  It follows that the jury must have accepted the complainant as both an honest and a reliable witness so far as her evidence about those counts was concerned. They were entitled to do so despite holding a doubt about her reliability on the counts on which they acquitted.
[33]	Appeals based upon the ground that a jury’s verdicts are unreasonably inconsistent with each other are frequently urged by submitting that, in acquitting an appellant, a jury must have acted upon the truth of the evidence of a witness whose evidence was at odds with a complainant’s evidence.  Such a submission is sometimes correct but not always.  A jury might be unwilling to regard the evidence of a witness who contradicts a complainant as wholly true and reliable but, at the same time, it might be unwilling to reject it.  If a jury is not prepared to reject such evidence, they have to conclude that the evidence raises a reasonable doubt about the appellant’s guilt.  It does not follow that all of the complainant’s evidence is thereby undone, although it might be.  As Spigelman CJ said in R v Markuleski, there are often a number of possible explanations for divergent verdicts that do not necessarily give rise to a doubt about the complainant's credibility on all counts.  For example, where there is contradictory evidence on one count but not on others, the jury may well have taken the view that there was no point in adding yet another verdict of guilty, so it was unnecessary to fully consider the conflicting evidence.
[34]	When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury, whose members had applied their minds to the evidence, could have arrived at the two different verdicts.
[35]	In this case, the jury acquitted on the counts which the brother gave certain evidence which, as circumstantial evidence, tended to suggest that two of the offences had not been committed.  The acquittals do not unequivocally imply that the jury accepted the brother’s evidence as true.  The acquittals demonstrate that the jury was not prepared to reject the brother’s evidence as untrue.
[36]	It is important to bear in mind that, the brother’s evidence did not contradict the complainant’s evidence about the commission of the offences.  It only tended to prove that the commission of particular offences was unlikely.  For example, the brother’s evidence about the offence that the complainant said had been committed in a parked car was incapable of excluding the possibility that the offence had been committed.  He merely gave his opinion that, if the appellant and the complainant had gone to the car and entered it, “people would have noticed”.  He also said that if he had seen them doing that, he would have investigated.  His opinion might have been unfounded and the fact that he did not see the couple go into the car hardly proved that they did not do so.  Nevertheless, his views, if accepted, tended against the commission of the offence. So too, in the case of the rape on the quad bike, the brother’s evidence was not capable of contradicting the complainant’s central allegation.  The fight that the complainant said took place was not essential evidence of the rape, although it was an important collateral detail.  The contradiction in the evidence about it could be explained in a number of ways and the jury, acting reasonably, did not have to conclude that the complainant was not truthful.  His evidence about the appellant’s limited opportunity to commit the offence on the quad bike was also not absolutely conclusive.  For example, one of the things that he told police was that the couple might have been out of his sight while riding the quad bike for not “more than five minutes”.  Five minutes might have been enough time in which to commit the offence as described by the complainant.
[37]	The jury were entitled to conclude that, in general, the complainant was an honest and reliable witness but that her brother’s evidence about two of the counts, even if not accepted as totally reliable, was capable of raising a doubt.  The different verdicts are consistent with such a conclusion.
[38]	This was not a case like Jones v The Queen in which evidence given by certain witnesses, the acceptance of which led to an acquittal on one count, must have involved a rejection of the complainant’s evidence.  As well, in that case there were also other factors, such as a delay in making any complaint, which affected the reasonableness of the two guilty verdicts.
[39]	Ms Marco, who appeared for the respondent, pointed out that in relation to count 5 the jury might also have had a doubt about the issue of consent.  Defence counsel at the trial had made a point about this in his address, referring to parts of the evidence that tended to raise a doubt about whether the complainant had not consented to the act of penetration in the car.  Ms Marco submitted that consent was an issue about which the jury had shown an interest by seeking a re-direction.  Those submissions should be accepted.  They show that there are other rational grounds that can explain the acquittal on count 5.
[40]	This is a case in which the verdicts are not rationally inconsistent with each other.  It is an example of a case in which the jury was directed correctly about the possible effect that credit findings in relation to some counts might, but need not, have upon other counts and about the requirement also to consider each count separately.  I would dismiss the appeal.
[41]	MULLINS JA:  I agree with the President.
[42]	KELLY J:  I agree with the reasons of the President and with the order proposed by his Honour.