Scully, R. v

An appellant alleging inconsistent verdicts must show both a logical inconsistency and that no legitimate chain of reasoning could reconcile the jury’s conclusions. Acquittals on other counts from the same encounter do not make a conviction unsafe where the convicted count is supported by evidence which materially distinguishes it.

A Watson direction and a majority direction should not be delivered together. However, the resulting conviction is unsafe only if, in the circumstances, the direction created a significant risk that jurors were pressured to compromise their oaths. The appellate court must assess the whole context, including the jury’s deliberations and the terms of the direction.

The appellant was convicted at Guildford Crown Court of assault by penetration of the vagina, contrary to section 2 of the Sexual Offences Act 2003. He was acquitted of attempted rape and assault by penetration of the anus arising from the same encounter. He was sentenced to five years and four months’ imprisonment.

He appealed against conviction, contending that the mixed verdicts were logically inconsistent and that a combined Watson and majority direction rendered the conviction unsafe. If unsuccessful on conviction, he renewed his application for leave to appeal his sentence, arguing that the sentencing judge had made findings inconsistent with the acquittals and imposed an excessive sentence.

1. Appeal against conviction dismissed. The verdicts were not logically inconsistent. The jury could conclude that the complainant’s intoxication made her recollection of the detailed allegations of attempted rape and anal penetration insufficiently reliable for conviction. Those allegations depended entirely on her account.

2. The vaginal digital penetration was different. The appellant admitted it occurred. The jury could properly use that admission, together with the complainant’s injuries, her immediate complaint and the evidence of the struggle, to be sure that it formed part of a non-consensual assault. This provided a clear and sensible explanation for conviction on that count but acquittal on the others, distinguishing R v Dhillon (2011) 2 Cr. App. R. 10.

3. A Watson direction and a majority direction should not be given simultaneously. Applying the approach explained in R v Buono 95 Cr.App.R. 338 and Arthur [2013] EWCA Crim 1852, the question was whether the words used created a significant risk that jurors felt pressure to compromise their oaths. They did not. The jury had deliberated for a substantial period, had itself raised the prospect of a majority verdict, had received an express reminder of its oath, and reached intelligible mixed verdicts. The conviction was therefore safe.

4. Renewed application for leave to appeal sentence refused. The sentencing judge was entitled to make findings from the evidence as a whole, provided they were consistent with the verdicts. The evidence justified the conclusion that this was a grave, premeditated and violent exploitation of an intoxicated complainant. The sentence of five years and four months was not manifestly excessive.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 2288, dismissed the appeal against conviction and refused the renewed application for leave to appeal sentence.

• Guildford Crown Court: On 22 March 2013, convicted the appellant by a 10–2 majority of assault by penetration of the vagina and acquitted him of attempted rape and assault by anal penetration. On 19 April 2013, imposed five years and four months’ imprisonment.