In Ganiji v R, the CCA has denied an appeal against conviction for one count where the jury acquitted on a second count. In doing so, Basten JA discussed the circumstances in which it will not be appropriate to conclude that two verdicts are inconsistent.
CONTENT WARNING: SEXUAL VIOLENCE
Mr Ganiji was a taxi driver who was charged with having sexual intercourse with a passenger without consent (Count 1) and with indecently assaulting her (Count 2).
The applicant argued the verdict of guilty for Count 1 was not supportable in light of the verdict for Count 2. The premise for this argument was that if the jury did not find the complainant credible with regard to the second count, they should not have found her credible on the first. In other words, these were so-called ‘inconsistent verdicts.’
Basten JA (Lonergan and Button JJ agreeing) rejected this ground of appeal. In doing so, his Honour discussed how so-called ‘inconsistent verdicts’ need to be analysed in order to determine there is a problem with the jury’s deliberation.
First, it is important to note that the mere fact of an acquittal on one count and a conviction doe not in itself mean that the verdicts are inconsistent. This will be so even where the counts are closely related. (In this respect, Basten JA counsels that it may be appropriate to avoid term ‘inconsistent’ because it obscures further analysis.) This is because task is to come to a view as to whether the evidence proves the elements of each offence beyond reasonable doubt (at ).
Where there are supposed inconsistent verdicts, ‘[t]he critical circumstance said to raise possible error is that [the verdicts] depended upon the jury accepting the evidence of the complainant’ (at ) wholesale, without having regard to the surrounding circumstances including other evidence and the particular facts in issue.
Certainly, in some situations, a jury may make “a single discrete finding [of the credibility of] a witness, with equal levels of conviction or uncertainty in relation to all aspects of her evidence” (at ). However, this will not always – or even usually – be the case. A jury may accept some aspects of a complainant’s evidence while holding doubts about other aspects. Accordingly, it is necessary to look to the surrounding context in which that evidence is given “to determine whether there is a rational basis upon which” to make such distinctions.
Where do we look for a ‘rational basis’?
A rational basis may be disclosed in the ‘facts and circumstances of the particular case’ (at [XX], quoting Simpson J’s remarks in TK v R). His Honour again quotes Simpson J:
[a] complainant’s recollection of a sequence of events over time will contain inaccuracies, internal contradictions or other imperfections which leave a jury unsure about the Crown case on particular counts.
Those ‘inaccuracies, internal contradictions or other imperfections’ may not bear on the particular issue(s) for any given count.
While, practically speaking, this may take the form of looking for reasons for an acquittal, Basten JA cautions against this way of thinking about it, noting that ‘the appeal involves a challenge to the conviction’ (at ).
The rational basis in this case
As noted above, in Ganiji the two counts were intercourse without consent and indecent assault.
Regarding Count 1, the defence was that there was intercourse, but that it was consensual. So the dispute was limited to consent. In addition to the complaint’s testimony, there was other evidence that supported a conclusion that the complainant did not consent.
This included evidence from her neighbour, and her neighbour’s friend, in the immediate aftermath of the attack that she had been subjected to sexual violence. There was also evidence from a friend who spoke to the complainant the next day which related details of the intercourse. The complainant’s report to the ambulance officers and the initial notes taken by the attending officer also supported her evidence that there was no consent. This contrasts with the evidence of the applicant which was that the complainant has offered him a blow job in return for a ride home.
Regarding Count 2, the alleged indecent assault was the applicant touching the complainants breasts. Unlike Count 1, the occurrence of this conduct was not conceded by defence. Thus the issue included whether the conduct actually took place. The CCA took the view that the evidence in this respect was far less conclusive. This was because no report of this was made to the attending officer or the paramedics. There was also was there no contemporaneous corroborating evidence from other witnesses.
Ultimately, far from being indicative of impermissible reasoning, different verdicts may in fact indicate the robustness of a jury’s reasoning process. In this respect, Basten JA quotes Simpson AJA in AH v R:
“ In fact, in my opinion, differential verdicts, far from providing an indication that a jury has fallen down in its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count.
This post was originally published on Amicus on 3 September 2019