Fanning & Ors v REGINA

Factual and Procedural Background

This opinion addresses a series of appeals concerning the proper approach to applications for leave to appeal where it is contended that jury verdicts were inconsistent. The court heard multiple appeals together, including those of appellants referred to as Fanning, Kerner, Tomas Osianikovas and Kasparas Smilginis, and De Jesus. Each appellant was tried on indictments involving multiple counts of sexual offences, with verdicts comprising both convictions and acquittals. The appellants challenged the safety of their convictions on grounds of alleged inconsistency between verdicts. The court also reviewed the historical and legal framework governing appellate intervention in cases of inconsistent jury verdicts.

Legal Issues Presented

1. What is the proper legal test for determining whether inconsistent jury verdicts render a conviction unsafe?
2. What burden of proof lies on an appellant seeking to overturn a conviction based on inconsistent verdicts?
3. How should appellate courts approach alleged inconsistencies in verdicts arising from multiple counts, including those involving allegations from a single sexual encounter versus multiple events over time?
4. What role do jury directions and the credibility of witnesses play in assessing the safety of inconsistent verdicts?

Arguments of the Parties

Appellant Fanning's Arguments

• The verdicts convicting on some counts of indecent assault but acquitting on others, including rape counts within the same timeframe, were inconsistent.
• The jury's acceptance of the complainant's evidence on some counts but rejection on others was illogical and unjustifiable.

Appellant Kerner's Arguments

• The convictions on counts supported by some corroborative evidence were inconsistent with acquittals on counts relying solely on the complainant's word.
• The absence of certain child protection records and lack of DNA analysis rendered the trial unfair.
• There was a lurking doubt as to the safety of the convictions based on credibility issues and comments by the trial judge.

Appellants Tomas Osianikovas and Kasparas Smilginis' Arguments

• The jury verdicts convicting on one count of rape but acquitting on others within the same sexual encounter were inconsistent and perverse.
• The admission of certain interview passages was prejudicial and caused unfairness.
• The summing up inadequately reflected the defence case.
• Cross-examination on certain text messages was wrongly disallowed.
• Sentencing was manifestly excessive given the alleged inconsistencies.

Appellant De Jesus' Arguments

• The conviction on one count of rape was logically inconsistent with acquittals on other counts involving the same complainant.
• The jury must have been confused or adopted a wrong approach, especially given the heavy reliance on the complainant's credibility.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Hopkins-Hudson (1950) 34 Cr App R 47	Constitutional deference to jury verdicts; verdict must be supported by evidence; appellate court will not set aside verdict unless no reasonable jury could have reached it.	Affirmed the constitutional position of the jury and limited judicial interference to cases lacking evidential support or misdirection.
R v Martyn W (1999)	Jury verdicts not precision instruments; courts must be cautious not to usurp jury role.	Emphasized respect for jury’s role and cautioned against over-analysing jury reasoning.
R v Stone (1954)	Burden on appellant to prove that inconsistent verdicts cannot be reconciled by any reasonable jury.	Established the foundational test for inconsistent verdicts, adopted formally in later cases.
R v Hunt [1968] 2 QB 433	Appellate court will quash verdict only if inconsistency renders it unsafe.	Reviewed precedent and endorsed the safety test for inconsistent verdicts.
R v Durante [1972] 1 WLR 708	Formal adoption of Stone’s test requiring appellant to show verdicts are so inconsistent as to demand interference.	Reaffirmed the burden on the appellant and clarified the threshold for appellate interference.
R v Drury (1972)	Not all inconsistent verdicts require quashing; depends on facts.	Illustrated that some inconsistencies may not render verdict unsafe.
R v Segal [1976] Crim LR 324	Logical inconsistency does not necessarily mean verdict is unsafe.	Example where jury’s verdict was formally inconsistent but safe and reasonable.
R v McKechnie (1992)	Applied Stone and Durante test strictly for inconsistency.	Allowed appeal on inconsistency grounds applying established test.
R v McCluskey (1994)	Adopted Stone and Durante approach; introduced gloss regarding jury confusion.	Suggested that confusion might render verdict unsafe, adding nuance to test.
R v Trundell (1991)	Inconsistency may arise from jury confusion; such confusion renders verdict unsafe.	Introduced a more complex approach focusing on jury confusion as a ground for quashing.
R v Harrison [1994] Crim LR 859	Applied McCluskey/Trundell approach emphasizing jury confusion.	Adopted the more elaborate test beyond Stone and Durante.
R v Aldred & Butcher [1995] Crim LR 160	Appellant must show jury confused and verdicts unsafe and unsatisfactory.	Reinforced requirement to prove serious jury confusion for appellate intervention.
R v Campbell (1996)	Verdicts not logically inconsistent may still be unsafe if jury failed to rationally apply mind.	Expanded scope of inconsistency to include irrational jury reasoning.
R v Van der Molen [1997] Crim LR 604	Adopted approach focusing on jury confusion and rationality in verdicts.	Supported the broader approach to inconsistency beyond formal logic.
R v Clarke and Fletcher (1997)	Appellant must show logical inconsistency and no legitimate explanation.	Clarified that legitimate reasoning explaining inconsistency precludes quashing.
R v G (Steven) [1998] Crim LR 483	Questioned how logically inconsistent verdicts can be explained by legitimate reasoning.	Highlighted tension in the test and emphasized the need for clear explanation.
R v Bell (1997)	Logical inconsistency generally required; rare exceptions where facts render verdict unsafe.	Reaffirmed logical inconsistency as essential but allowed for exceptional cases.
R v Dhillon [2010] EWCA Crim 1577	Summarized test: logical inconsistency necessary but not sufficient; burden on appellant; case-specific.	Current authoritative statement of law on inconsistent verdicts.
R v Dobson [2011] EWCA Crim 1856	Explanation for inconsistency must fall within parameters of judge’s summing up.	Qualified Dhillon’s test by limiting acceptable explanations.
R v RB [2013] EWCA Crim 2301	Only satisfactory explanations justify dismissal of appeal despite inconsistency.	Further refined the application of Dhillon’s principles.
R v Formhals [2013] EWCA Crim 2264	Applied Dhillon test without reference to Stone and Durante.	Demonstrated current practice favoring Dhillon’s approach.
R v Cova Products [2005] EWCA Crim 95	Suggested burden of proof might lie with Crown but not adopted.	Rejected in later cases; burden remains on appellant.
R v Mote [2007] EWCA Crim 3131	Confirmed burden on appellant to show verdict unsafe due to inconsistency.	Rejected staged burden of proof approach.
R v Angel (1992)	Credibility of witness may vary between counts; jury may accept evidence on some counts and reject on others.	Rejected simplistic assumptions about witness credibility across counts.
R v C [2008] 1 WLR 966	Jury verdicts not inconsistent merely because they accept some parts of complainant's evidence and not others.	Confirmed rationality of differentiated credibility assessments by jury.
R v Beach & Owens [1957] Crim LR 687	Jury must be directed if guilt on one count depends on guilt on another.	Confirmed importance of proper jury directions in complex cases.

Court's Reasoning and Analysis

The court commenced by reaffirming the constitutional primacy of the jury in determining questions of fact and emphasized that the appellate courts must be cautious in interfering with jury verdicts. The foundational legal principle is that a verdict must be supported by some evidence and that appellate courts should not substitute their own view of facts for that of the jury.

The court reviewed the historical development of the test for inconsistent verdicts, beginning with Devlin J’s clear formulation in R v Stone, which places the burden on the appellant to prove that no reasonable jury could have arrived at the conflicting verdicts. This test was formally adopted in R v Durante and has been the cornerstone of appellate review.

The court acknowledged the emergence of a more complex approach in later cases, which introduced considerations of jury confusion and rationality beyond mere logical inconsistency. However, the court expressed reservations about this evolution, noting that many such judgments were unreserved and lacked clarity, and that the original test in Stone and Durante remained the sound legal foundation.

The court emphasized that the test is fact-specific and applies equally to multiple counts arising from a single sexual encounter or from events over a longer period. The jury is best placed to assess witness credibility, emotional states, and other nuances that may lead to apparently inconsistent verdicts that are nonetheless safe.

Regarding the burden of proof, the court confirmed that it lies on the appellant to demonstrate that the verdicts are unsafe due to inconsistency. The court rejected proposals to shift this burden to the Crown.

The court also addressed the issue of witness credibility, affirming that it is permissible for a jury to accept a witness’s evidence on some counts but not others, and that such differentiated assessments do not render verdicts inconsistent or unsafe.

The necessity for clear and appropriate jury directions was emphasized. Generally, juries should be directed to consider each count separately, unless the defence requests a direction that guilt on one count depends on guilt on another. Failure to seek such a direction precludes later complaints of inconsistency based on the jury’s independent consideration of counts.

Applying these principles to the specific appeals, the court carefully examined the factual contexts and jury directions in each case. It found that the verdicts were not logically inconsistent in a manner that no reasonable jury could have reached. The court highlighted legitimate reasons for the jury’s differentiated verdicts, such as differing supporting evidence, witness credibility assessments, and the jury’s opportunity to observe witness demeanour.

The court rejected arguments that the verdicts were perverse or unsafe, concluding that the jury’s verdicts could stand together and reflected proper application of the law and evidence.

Holding and Implications

The court DISMISSED all appeals challenging the safety of convictions based on alleged inconsistent jury verdicts.

The direct effect of this decision is to uphold the convictions of the appellants in the respective cases. The court reaffirmed the established legal test from R v Stone and R v Durante, emphasizing the burden on appellants to prove that no reasonable jury could have reached the verdicts. The court cautioned against overcomplicating the law on inconsistent verdicts and stressed adherence to the constitutional role of the jury.

No new legal precedent was set; rather, the court clarified that the longstanding test remains authoritative and should be applied consistently without unnecessary elaboration. The decision underscores the importance of jury directions, the assessment of witness credibility, and the fact-specific nature of appeals based on inconsistent verdicts.