Nguyen v R

1. [1]

   MACFARLAN JA: In 2015 the applicant, Mr Van Chien Nguyen, was tried in the District Court before a judge and jury on an indictment alleging that he had committed a number of offences on 29 December 2013 in relation to his then partner.

2. [2]

   At the commencement of the trial, the Indictment contained the following counts:

   1. (1)

      Intentionally damaging property, namely a mobile phone the property of the complainant.

   2. (2)

      Attempting to have sexual intercourse with the complainant without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence the applicant recklessly inflicted actual bodily harm on the complainant.

   3. (3)

      In the alternative to (2), assaulting the complainant and at the time of the assault committing an act of indecency on her.

   4. (4)

      Assaulting the complainant.

   5. (5)

      Assaulting the complainant thereby occasioning actual bodily harm.

3. [3]

   The complainant’s evidence at trial was to the effect that the applicant became angry when he returned home on 29 December 2013 to find the complainant speaking on her mobile phone. The applicant took the phone from the complainant and threw it on the ground, damaging it (Count 1). The applicant then grabbed the complainant and pushed her onto the bed. He straddled her with his body and held her down by her arms. She yelled “No” and told the applicant to get off her. The applicant exposed his penis and pulled down the complainant’s underwear. Whether his penis penetrated her vagina was the subject of the evidence referred to below in relation to Count 2. The applicant also struck the complainant a number of times with a torch (Count 4) and with a hammer (Count 5).

4. [4]

   In light of the complainant’s evidence at the trial, the Crown sought, and was granted, leave to amend Count 2 in the Indictment to remove the words alleging an attempt. The charge thus became one of the commission of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900 (NSW), rather than an attempt offence under s 61P. The Crown submitted, without contradiction from the applicant’s trial counsel, that if the jury was not satisfied that the applicant had committed the primary offence (aggravated sexual intercourse without consent), it was nevertheless open to it to convict the applicant of attempting to commit that offence. The trial judge subsequently summed up to the jury on that basis, and the jury adopted this approach by returning a verdict of guilty of an attempt to commit the Count 2 offence, rather than guilty of the substantive offence itself. The jury also found the applicant guilty of the offences alleged in Counts 1, 4 and 5. Count 3 did not arise as it was a further alternative to Count 2.

5. [5]

   The applicant seeks leave to appeal against his conviction on the attempt charge (that is, on the statutory alternative to the amended Count 2) on the grounds that:

6. [6]

   In summary, the applicant’s argument in support of his application for leave to appeal is as follows:

   1. (1)

      In her evidence at the trial, the complainant clearly stated that the applicant did in fact have sexual intercourse with her, rather than that he attempted unsuccessfully to do so.

   2. (2)

      The jury’s verdict of not guilty on the amended Count 2 indicates that it formed an adverse view in relation to the complainant’s evidence, that is, it rejected her explicit evidence that the applicant’s penis penetrated her vagina. The applicant subsequently acknowledged that “rejection” in this context referred to the jury not accepting the complainant’s evidence as proving penetration beyond reasonable doubt.

   3. (3)

      As the Crown’s case on the alternative attempt charge was also dependent upon acceptance of the complainant’s evidence, and the quality of the complainant’s evidence regarding the attempt was no higher than that relating to the substantive offence, the jury should have returned a verdict of not guilty to the statutory alternative attempt charge as well. Its verdict of not guilty of the substantive offence was inconsistent with its conviction of the applicant of the attempt offence.

   4. (4)

      The conviction on the attempt charge should be quashed because, as the complainant’s evidence could not be relied upon, there was no evidence to support this conviction. The conviction also cannot be reconciled with the evidence of penetration that the plaintiff gave at trial, which was rejected by the jury.

   5. (5)

      Alternatively, for the same reasons, the verdicts indicated that the jury took an impermissible compromise approach to the discharge of its duties.

THE COMPLAINANT’S EVIDENCE CONCERNING PENETRATION

1. [7]

   The complainant is a native Vietnamese speaker (as is the applicant). She described her English as “80 percent” (T84) and gave evidence with the assistance of an interpreter. Before the complainant gave the presently relevant evidence there were difficulties with the interpreter, resulting in the replacement of the interpreter (T91, 95).

2. [8]

   There were also difficulties with the second interpreter. The Crown summarised these in submissions to this Court as follows:

3. [9]

   In the quotations of the complainant’s evidence and statements that follow, parts that are of particular importance to my reasoning at the end of this judgment have been put in bold.

Evidence-in-chief

1. [10]

   The complainant gave the following evidence-in-chief as to what occurred when the applicant was on top of her on the bed:

2. [11]

   Later in her examination-in-chief, the complainant gave the following evidence:

Cross-examination

1. [12]

   In cross-examination, the complainant confirmed that she had told the truth in a written police statement provided to Detective Constable Everett on 30 December 2013. The statement included the following:

2. [13]

   When given the opportunity to clarify an earlier answer that she had given in cross-examination, the complainant said through the interpreter:

3. [14]

   When cross-examined about the absence of reference in the police statement taken by Detective Constable Everett to the applicant’s penis being pushed on or into her vagina, the complainant said:

4. [15]

   The complainant asserted that she had told another police officer, Detective Sergeant Plumridge, that the applicant’s penis had penetrated her vagina (T252-3). She agreed that, as recorded in a written statement taken by Detective Sergeant Plumridge on 9 January 2014, she had told him that the applicant pressed his penis against her vagina and said “I’m not sure if he pressed it more than once, but my vagina was dry and it would not go in”. However she added in her oral evidence that “[h]is penis did go inside” (T260).

5. [16]

   Counsel then put to the complainant that she had told Detective Sergeant Plumridge the following:

6. [17]

   She gave the following further evidence in cross-examination:

7. [18]

   The complainant gave the following evidence in re-examination:

8. [19]

   Detective Constable Everett said in evidence that the complainant did not tell him that the applicant had penetrated her with his penis. Detective Sergeant Plumridge did not give evidence.

CLOSING ADDRESSES

1. [20]

   The Crown submitted to the jury that if it was not satisfied of each of the elements of Count 2 as stated in the amended Indictment, it was entitled “to consider whether the accused intended and attempted to commit the offence of sexual intercourse without consent in circumstances of aggravation” (T376).

2. [21]

   In indicating to the jury that it was open to it to return a verdict of guilty on Count 3 (indecent assault), the Crown said:

3. [22]

   In his closing address the applicant’s trial counsel referred to the inconsistency between the complainant’s oral evidence concerning penetration and the statements that she gave to the police. He suggested that if there were incorrect assertions in the statements about the lack of penetration, the complainant would have drawn the Crown’s attention to the incorrect assertions in a conference with the Crown prior to the trial, at the very latest.

4. [23]

   In response, the Crown submitted that it was open to the jury not to be satisfied beyond reasonable doubt that penetration had occurred, but to accept the remainder of the complainant’s evidence. The effect of its submission was thus that any adverse view that the jury may ultimately reach in relation to the complainant’s evidence of penetration was not a view that the jury should necessarily take in relation to the remainder of the complainant’s evidence.

THE SUMMING UP

1. [24]

   In summarising the Crown’s submissions, the trial judge noted that “[w]ith respect to count 2, the amended count, the Crown relied upon the evidence of [the complainant] as to penetration, i.e. sexual intercourse” (p 28). Her Honour also referred to the Crown’s submission that the statutory alternative of the attempt charge was available if the jury was “not satisfied beyond reasonable doubt that sexual intercourse took place” (p 29).

2. [25]

   The trial judge’s directions to the jury included the following as to the amended Count 2 and its statutory alternative:

3. [26]

   Having instructed the jury to consider each charge separately and informing it that it would be required to return a separate verdict of guilty or not guilty for each charge, the trial judge continued:

4. [27]

   The trial judge added:

THE SUBMISSIONS ON APPEAL

1. [28]

   The applicant submitted that the complainant gave clear oral evidence that penetration had occurred and in doing so resiled from her previous statements to police that were either silent as to sexual intercourse, or referred to the applicant attempting to have sexual intercourse (see above at [12] and [15]). He submitted that, as the jury found the applicant not guilty on the amended Count 2, it must not have accepted the complainant’s evidence in relation to the actual penetration. He submitted that the “quality of the victim’s evidence was no higher in respect of the original Count 2 [attempted sexual intercourse] than the quality of her evidence in relation to the amended Count 2 [sexual intercourse without consent]” (at [70]). On his submission, in these circumstances the jury should also have found the applicant not guilty on the statutory alternative attempt charge, as the Crown case on that count was wholly dependant upon the complainant’s evidence. Therefore, on the applicant’s submission, the conviction on that count should be quashed. The applicant recognised that the position was otherwise in respect of Counts 1, 4 and 5 where the complainant’s evidence was corroborated by physical evidence (damage to the phone and the injuries on her body).

2. [29]

   The applicant submitted that, unlike the position in Stinson v R [2006] NSWCCA 191, there was no basis in the evidence for the jury concluding that the complainant was mistaken as to there having been penetration.

3. [30]

   The applicant submitted in the alternative that the jury’s verdicts on the amended Count 2 and the statutory alternative indicated that it had engaged in an impermissible compromise. He did not however advance any submissions as to how, if his unreasonableness ground of appeal (Ground 1) failed, his compromise ground (Ground 2) might succeed. In my view, if Ground 1 fails, Ground 2 must also fail as there would be in those circumstances no basis remaining for an argument that a compromise had occurred.

4. [31]

   For its part, the Crown submitted that the evidence revealed logical reasons why the jury might not have been satisfied beyond reasonable doubt that penetration had occurred, yet have been duly satisfied of the elements of the attempt charge.

Basis of proposed appeal

1. [32]

   Ground 1 of the appeal for which leave is sought is founded upon s 6 of the Criminal Appeal Act 1912 (NSW). This section obliges this Court to set aside a conviction if the verdict of the jury upon which it is based “is unreasonable, or cannot be supported, having regard to the evidence … or that on any other ground whatsoever there was a miscarriage of justice”. In determining such a ground, this Court is required to make “an independent assessment of the evidence, both as to its sufficiency and its quality” (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14]).

2. [33]

   The application for leave to appeal in this case is advanced on the limited basis described in [6] above, namely that the jury’s verdicts of not guilty of aggravated sexual assault but guilty of attempt to commit aggravated sexual assault were inconsistent, and accordingly the attempt conviction was unreasonable. The applicant did not suggest any other basis upon which it was not open to the jury to accept the complainant’s evidence. Nor did he suggest that the complainant’s evidence, if accepted, would be insufficient to ground the verdicts on each count. In these circumstances it is appropriate to deal with the appeal on the limited basis upon which it is put.

Legal principles to be applied

1. [34]

   In Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Gaudron, Gummow and Kirby JJ said that the test of whether there is inconsistency between jury verdicts upon different counts “is one of logic and reasonableness” and that:

2. [35]

   Their Honours indicated that appellate courts should not be too ready to conclude that verdicts could not be reconciled but that:

3. [36]

   In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 the accused was acquitted of sexual intercourse with a female child (the second count in an indictment), but convicted on the first and third counts. The Court found that, in light of the jury’s finding on the second count, it was not open to it to be satisfied beyond reasonable doubt of the accused’s guilt on the first and third counts. The quality of the complainant’s evidence on the second count was held to be no higher than that upon the first and third counts.

4. [37]

   Gaudron, McHugh and Gummow JJ considered that the jury’s finding of not guilty on the second count “damaged the credibility of the complainant with respect to all counts in the indictment” and that there was “nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those [first and third] counts than it was in relation to the second count” (at 453).

5. [38]

   In R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Spigelman CJ emphasised first that “[w]hether or not the failure of the jury to accept the complainant’s version in one respect ought to have led … the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances”, and secondly that the High Court held in Jones that “on the facts of that case the acquittal necessarily undermined the credibility of the complainant’s evidence about other alleged incidents” (at [65], emphasis added). His Honour said further that the “case law since Jones has frequently concluded that a jury was not obliged to have a reasonable doubt about the complainant’s credibility in general, when it did not accept her (it is usually ‘her’) version of events to the criminal standard in some respect or respects” (at [79]).

6. [39]

   In the same case, Wood CJ at CL said that Jones “does not deny to a jury the right to accept the evidence of a complainant in relation to one event, and to maintain a reasonable doubt about another event described by that witness” (at [212]). Amongst his Honour’s list of possible bases for juries differentiating between verdicts, his Honour included the situation where a complainant resorted “to a degree of exaggeration in order to reinforce his or her account” (at [235]).

7. [40]

   In MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Gleeson CJ, Hayne and Callinan JJ said that “the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case” and continued:

8. [41]

   Their Honours instanced a situation in which a complainant had been shown to be “more reliable about some parts of his or her evidence than about others” as a factor that “might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence” (ibid).

9. [42]

   McHugh, Gummow and Kirby JJ expressed similar views, emphasising that Jones was “a very fact-specific case” and concluding that, in the case before their Honours, there was “a logical and reasonable basis for sustaining the differentiation that the jury drew” (at [89]).

10. [43]

    In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, the jury returned differential verdicts on 12 counts in the indictment. The Court rejected the proposition that the acquittals on some counts could be taken as signifying a general doubt about the complainant’s credibility. Simpson J (with whom Latham J agreed) said that “[e]ven if (which I do not accept) [the jury] took the view that [the complainant] had exaggerated incidents that were relatively common place in the marriage, that does not necessarily damage her credibility in relation to the other counts” (at [184]). Simpson J said that “the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. If such an explanation can be found then Jones has no application” (at [130]).

11. [44]

    McClellan CJ at CL did not appear to agree with the qualification that excluded doubts about the complainant’s credibility. His Honour appeared to consider that it was sufficient if the appellate court could discern any rational basis for the jury’s differentiation between verdicts. Thus his Honour emphasised that “a jury does not have to be satisfied beyond reasonable doubt that all of a complainant’s evidence is an accurate or even truthful account of all of the facts relevant to all of the counts … [A]s Wood CJ at CL pointed out in R v Markuleski, a complainant, concerned that she may not be believed, may exaggerate or embellish her account of particular events” (at [7]).

12. [45]

    In MG v R [2017] NSWCCA 14 the jury returned differential verdicts on 14 counts of child sexual assault and related offences. After reviewing relevant authorities, Hoeben CJ at CL (with whom Johnson and Latham JJ agreed) observed that “[i]f there is a proper way by which the appellate court may reconcile verdicts allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted” (at [88]). His Honour found that there was “a logical and reasonable explanation for why the jury might not have been satisfied beyond reasonable doubt as to the occurrence of the incident in count 4 (penile-vaginal intercourse)” (at [90]). His Honour noted that the sequence of events described by the complainant in relation to this account, whilst not being physically impossible, was unlikely to have occurred. His Honour referred to the “implausibility” and the “discrete shortcomings” of this evidence (at [90]-[93]) compared to that relating to the counts upon which guilty verdicts were returned.

13. [46]

    In respect of other counts upon which the jury returned verdicts of not guilty, his Honour observed that the complainant’s evidence lacked the corroboration which existed in relation to counts upon which a guilty verdict was returned. He concluded that this provided a reasonable and logical explanation for the differential verdicts.

14. [47]

    The decision in Holloway v R [2017] NSWCCA 17, delivered by the same bench on the same day as MG v R was delivered, provides a further illustration of this Court finding reasonable explanations for differential verdicts. In that case, Latham J (with whom Hoeben CJ at CL and Johnson J agreed) said that “[f]ar from an inconsistency in the application of the mens rea requirements of each offence, the jury’s verdicts demonstrate a conscientious approach to the directions of the trial judge and a careful consideration of all of the evidence” (at [32]).

Conclusions

1. [48]

   These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see Mackenzie at [34] above), that is, if there is “a logical and reasonable basis for sustaining the differentiation that the jury drew” (see MFA at [42] above). Such a basis may exist if the quality of the complainant’s evidence in a case involving sexual offences varied between counts (compare Jones at [36] above). There are many reasons why this may occur. One is that in some respects a complainant may have resorted “to a degree of exaggeration in order to reinforce his or her account” (see Markuleski at [39] above; TK at [44] above). Alternatively, the complainant’s account of events concerning a particular count may be implausible because of the nature of the events described (see MG at [45] above). Further, if parts of a complainant’s evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant’s evidence as compared to other parts (see MG at [46] above). Such considerations may lead the court to the conclusion that a jury’s differential verdicts are the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count (see Holloway at [47] above).

2. [49]

   In my view the inference to be drawn in the present case is that the jury returned differential verdicts as a result of its careful attention to the trial judge’s directions and the evidence, rather than as a result of some inappropriate compromise or other departure from its duties. Therefore the differential verdicts can be reconciled on a logical and reasonable basis. This conclusion is supported by the following circumstances:

   1. (1)

      The complainant’s evidence at trial concerning penetration contained inconsistencies. On a number of occasions, she said that penetration did not occur (these statements have been put in bold in the quotations above). In other parts of her evidence she said that penetration had occurred. Nevertheless both parts of that evidence were consistent with the applicant having, at least, attempted to have sexual intercourse with the complainant. The doubt that was raised only related to whether there was in fact penetration. The jury were well entitled to find that the attempt was proved beyond reasonable doubt, whilst its success was not.

   2. (2)

      It was not suggested before this Court that the complainant’s evidence on other aspects of the applicant’s conduct demonstrated any inconsistency.

   3. (3)

      The complainant’s evidence clearly suffered from language and interpretation difficulties. These are evident from the quotations above and are reflected in the Crown’s submissions concerning the difficulties experienced with the second interpreter (see [8] above). These difficulties may have caused the jury to be particularly cautious in accepting the complainant’s evidence on a topic in relation to which her evidence appeared to have been inconsistent.

   4. (4)

      Unlike her evidence on other topics, the complainant’s evidence at trial that penetration occurred was not corroborated by the statements she gave to the police. The first of those statements did not make any suggestion that there had been actual or attempted penetration and the second indicated that there had been attempted but not actual penetration (see [12] and [15] above). The statements were made within a matter of weeks after the events of 29 December 2013, whereas the complainant’s evidence at trial was not given until almost two years after those events. The jury would have been well entitled to take the view that the police statements (one of which referred to an attempt to have intercourse) were likely to be more reliable than the complainant’s evidence at trial.

   5. (5)

      The complainant’s evidence as to the general circumstances of what occurred was corroborated by evidence of bruising and other injuries to her body. Although there was not shown to be any bruising in her genital area, this evidence supported her description of what, on her evidence, was at least an attempt to have sexual intercourse in the course of the applicant holding her down on the bed. There was no corresponding evidence corroborating her evidence of penetration.

3. [50]

   For these reasons, the applicant has not established that there is a conflict between the jury’s verdicts, or that the jury engaged in an impermissible compromise. As a result, the application for leave to appeal should be dismissed.

4. [51]

   ADAMSON J: I have had the benefit of reading the reasons of Macfarlan JA in draft. I agree with his Honour’s conclusions that there is no inconsistency between the jury’s verdicts and that, accordingly, the verdicts were not unreasonable. I wish to add a few remarks of my own.

5. [52]

   I am indebted to Wood CJ at CL’s detailed analysis in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [202]-[238] in which his Honour explained, by reference to authority and his lengthy judicial experience at trial and on appeal, what can be drawn from jury verdicts; how an inconsistency can be discerned; and how an apparent inconsistency can be explained. For present purposes, the following summary suffices. What can be drawn from a verdict of not guilty is that the jury was not satisfied beyond reasonable doubt of the particular charge. It cannot be inferred from a “not guilty” verdict that the jury “rejected” the evidence of the complainant on that charge since the jury may have been satisfied that the offence probably occurred as she described in her evidence but retained a reasonable doubt.

6. [53]

   In the present case, the jury’s verdict of “not guilty” of the amended charge 2 (sexual intercourse with the complainant without her consent in circumstances of aggravation (recklessly inflicting actual bodily harm)) can be explained by the possibility that the jury retained a reasonable doubt about penetration. The jury’s verdict of “guilty” on the statutory alternative to the amended charge 2 indicated that the jury was satisfied beyond reasonable doubt that the applicant had attempted to have sexual intercourse with the complainant without her consent in circumstances of aggravation (recklessly inflicting actual bodily harm). The jury was not required to be satisfied beyond reasonable doubt that the applicant had penetrated the complainant when it considered the statutory alternative to the amended charge 2. There is no inconsistency between the verdicts.

7. [54]

   I propose that leave to appeal be granted but that the appeal be dismissed.

8. [55]

   CAMPBELL J: I agree with Macfarlan JA for the reasons his Honour gives that the applicant has not demonstrated that the jury’s verdict is unreasonable because it is tainted by compromise or otherwise. I agree with the order his Honour proposes.