R v Philip Mundle

Verdicts on separate counts are not logically inconsistent merely because they differ. The question is whether no reasonable jury, properly applying the law and facts, could have reached them and whether the inconsistency makes the guilty verdict unsafe. Jury directions must be read fairly and as a whole. Where jurors are directed to consider counts separately and may return the same or different verdicts, an appellant who considers that counts stand or fall together should seek a specific direction. Different verdicts may be rational where the elements differ. A jury may therefore be sure of vaginal penetration, including labial penetration, while being unsure whether the anus was penetrated.

The appellant was convicted at the Crown Court at Luton of vaginal rape, acquitted of anal rape, and received an extended determinate sentence. No verdict was taken on an alternative attempted rape count. He appealed against the rape conviction, arguing that the verdicts were logically inconsistent because the complainant alleged both forms of penetration and the evidence did not permit the jury to distinguish between them. The central issue was whether the acquittal on anal rape rendered the conviction for vaginal rape unsafe.

Appeal dismissed. The Court of Appeal held that the conviction for vaginal rape was safe.

1. The judge’s summing-up, written directions and route to verdict had to be read fairly and as a whole. The jury was directed to consider the vaginal and anal rape counts separately, to convict only if sure of guilt on the particular count, and that its verdicts could be the same or different. The judge gave no direction that the counts stood or fell together, and the defence did not seek such a direction.
2. The applicable test was laid down in R v Durante [1972] 1 WLR 1612 and approved in R v Fanning [2016] 1 WLR 4175. The appellant had to show that no reasonable jury which had properly applied its mind to the facts could have reached the verdicts. He also had to show that the alleged inconsistency rendered the guilty verdict unsafe, as explained in R v Mote [2007] EWCA Crim 3131 at [15]. Where the defence considers that counts must stand or fall together, it should ask the judge for an appropriate direction, consistently with R v W (Martyn) (unreported 30 March 1999).
3. The evidence permitted the jury to distinguish between the counts. The complainant’s references to her bottom were imprecise, and the jury’s question showed that it distinguished penetration of the anal orifice from contact between the buttocks. Once properly directed, the jury could be unsure that anal penetration had occurred without treating the complainant’s evidence as wholly unreliable for the vaginal count.
4. The jury was entitled to find vaginal penetration, including penetration between the labia, while remaining unsure whether the anus had been penetrated. The different verdicts were therefore logically consistent, and the conviction was safe.

The appeal was dismissed.

• Court of Appeal (Criminal Division): on 24 October 2024, the appeal against conviction was dismissed. The conviction for vaginal rape was held safe: [2024] EWCA Crim 1289.
• Crown Court at Luton: the appellant was convicted of vaginal rape on 30 October 2023, acquitted of anal rape, and sentenced on 15 December 2023. The sentences for assault by beating of an emergency worker and vaginal rape were ordered to run consecutively.