Dhillon v R.

On an appeal alleging inconsistent jury verdicts, the statutory question remains whether the convictions are safe. Logical inconsistency is necessary but is not by itself sufficient. The appellant must show that no explanation, properly open to a fair-minded jury on the evidence, can reconcile the verdicts and that their inconsistency puts the safety of the convictions in doubt.

Where counts concern different acts in a single sexual encounter, disparate verdicts require close examination. A jury may assess parts of a witness’s evidence differently, but it cannot rationally distinguish between closely contemporaneous acts of agreed occurrence, consent or reasonable belief without an evidential basis. A real risk of compromise without the required certainty renders the convictions unsafe.

At the Crown Court at Southwark, the appellant was convicted by a 10–2 majority of assault by penetration and sexual assault. He received concurrent sentences totalling 18 months’ imprisonment and became subject to Part 2 of the Sexual Offences Act 2003. He was acquitted of further counts, including a sexual-assault count based on oral sex.

The parties agreed that the acts charged in the two counts of conviction and the oral-sex count had occurred. The trial issue was consent, and whether the appellant reasonably believed that the complainant consented. All counts arose from one sexual encounter. The appeal challenged the convictions on the basis that the acquittal on the oral-sex count was logically inconsistent with them and made them unsafe.

1. Appeal allowed. The convictions on counts 1 and 3 were unsafe and were quashed.

2. The court reaffirmed that the governing question is the statutory safety of the conviction. In an inconsistent-verdict appeal, logical inconsistency is a necessary condition but not a sufficient one. The appellant bears the burden of showing that the inconsistency places the safety of the convictions in doubt. The court must consider the evidence and the issues actually before the jury, while recognising that no universal formula can resolve every case.

3. A verdict may remain safe despite a logical inconsistency if there is an explanation that a fair-minded jury could properly have reached on the evidence. A jury may accept some parts of a complainant’s evidence and be unsure about others. That is commonly capable of explaining different verdicts concerning separate sexual incidents. The court applied the approach expressed in R v Cross [2009] EWCA Crim 1553 and the caution concerning credibility in R v G [1998] Crim LR 483.

4. This was different. The counts concerned facets of one encounter, and the parties had both accepted that the oral sex charged in count 4 occurred. Once the jury accepted the complainant’s evidence about the acts in counts 1 and 3, it had no rational evidential basis for rejecting her evidence about count 4. Nor could a reasonable jury find that the appellant had a reasonable belief in consent to oral sex but not to the breast touching. The evidence placed those acts virtually together, without a basis for a material change in his perception of consent.

5. The prosecution’s suggestion that the acquittal was merely an explicable, favourable perversity did not preserve the convictions. The majority verdict after lengthy deliberation created a real risk that the jury had adopted a wrong approach or reached a compromise without the necessary certainty on the counts of conviction. The guilty verdicts were therefore unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions: [2010] EWCA Crim 1577.
• Crown Court at Southwark: Convicted the appellant by a 10–2 majority of assault by penetration and sexual assault, while acquitting him of three other counts.