Abdel (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0198

MOHAMED ABDEL (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	BOYCE, WHELAN and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2024
DATE OF JUDGMENT:	18 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 36
JUDGMENT APPEALED FROM:	[2022] VCC 1113 (Judge Tiwana)

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CRIMINAL LAW – Appeal – Conviction – Three charges of sexual offending against one complainant – Jury convicted on a charge of rape, but acquitted of one charge of sexual assault and could not agree on another charge of sexual assault – Whether verdicts inconsistent – not reasonably arguable that verdicts inconsistent – Application for extension of time – Application to extend time refused.

CRIMINAL LAW – Appeal – Conviction – Whether jury’s failure to agree on a verdict on one charge relevant to the doctrine of inconsistent verdicts – Pillay v The Queen (2014) 43 VR 327 followed.

MacKenzie v The Queen (1996) 190 CLR 348, MFA v The Queen (2002) 213 CLR 606, Woods v The Queen [2019] VSCA 259, applied.

Pillay v The Queen (2014) 43 VR 327, Crofts v The Queen [2018] VSCA 197, followed.

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Counsel
Applicant:		Ms M Brown
Respondent:		Dr N Rogers SC
Solicitors
Applicant:	Slink & Keating, Barristers & Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
WHELAN JA
T FORREST JA:

Introduction

On 11 February 2022, after an eight day trial in the County Court, the applicant was found guilty, by majority verdict, of rape (charge 3), and not guilty of sexual assault (charge 2). The jury were unable to reach a verdict in respect of a charge of sexual assault (charge 1). On 21 July 2022, following a plea hearing, the applicant was sentenced to 4 years and 2 months’ imprisonment with a non-parole period of 2 years and 6 months.
The applicant seeks leave to appeal against his conviction. The applicant’s proposed ground of appeal is in the following terms:
The conviction is unreasonable or cannot be supported having regard to the evidence as the verdict on charges 1 and 2 is logically inconsistent with the verdict on charge 3.
The application for leave is out of time by approximately four months; thus the applicant must apply for an extension of time within which to file the application for leave. The application to extend time is opposed by the respondent. The evidence relied upon in support of the application to extend time is thin. In a supporting affidavit, the applicant’s solicitor states that whereas the applicant was sentenced on 21 July 2022:
Funding could not be obtained until merit of appeal against conviction and sentence was received from Counsel…
There was a delay in receiving advice from Counsel and therefore delays in obtaining funding.
The merit of the applicant’s proposed ground of appeal is likely to be relevant to whether an extension of time should be allowed. It was on this basis that full oral argument was heard. Determination of the application to extend time may thus be deferred until the merit of the applicant’s proposed ground is assessed.

Background facts

The applicant and the complainant are brother and sister. The applicant was born in 1972, the complainant in 1996. The applicant emigrated to Australia from Iraq in 1990 when he was about 18 years of age. The complainant, her mother, father and siblings emigrated to Australia from Iraq in 2013. The family lived first with the applicant at the applicant’s address. The family then moved to a second address. The applicant continued to live at the first address. The family, without the applicant, then moved to other suburbs. The applicant would visit the family at these addresses. The family moved back with the applicant in around June 2017.

The Crown case

The Crown case on charge 1 was that the applicant sexually assaulted the complainant in her room in 2016 when the family were residing away from the applicant. The applicant was assisting the complainant to change a handle on the door of her room so that the door would lock. The prosecution case was that the applicant closed the complainant’s door, put his hand under the complainant’s T-shirt, touched the complainant’s breast, and, while he was rubbing the complainant’s breasts, rubbed his knee against the complainant’s vaginal area. The rubbing of the vaginal area constituted an uncharged act.
The Crown case on charge 2 was that in August 2017, at the applicant’s address, the applicant came into the complainant’s bedroom at around 2:00 am while she was asleep and rubbed the complainant’s vaginal area with his hand, over her clothing, for a few seconds.
The Crown case on charge 3 was that in February 2018, again at the applicant’s residence, the applicant prepared a bath for the complainant. The complainant had earlier suffered a car accident and, in consequence, her left hand and part of her arm was in a cast. The bath was prepared with rose petals, candles and bubbles in the water. The complainant took a photo of the bath and posted it on Snapchat. The posted photograph depicted the bath with two emojis and an accompanying narration in Assyrian. The complainant undressed and got into the bath and the applicant moved his hand towards her vagina. The applicant rubbed her vagina up and down between the clitoris and the urethral opening with two fingers.

The trial

The Crown, at trial, called the complainant who gave evidence in support of the three charges. The complainant’s mother was called to give evidence, inter alia, concerning the family constellation, dates of emigration from Iraq and the various locations at which the family resided.
The Crown also called the complainant’s psychologist. She gave evidence about a consultation with the complainant a day after the alleged commission of charge 3. It was during this meeting that the complainant complained about being sexually assaulted by the applicant. The psychologist then notified police.
The informant gave evidence of having received a complaint from the complainant on the day of the complainant’s consultation with the psychologist. The informant later took a statement from the complainant and interviewed the applicant. The informant produced the applicant’s record of interview. The applicant denied, in his record of interview, having offended against the complainant. He admitted, however, having prepared a bath for the complainant with rose petals, candles, and bubbly water.

Prosecution evidence

The complainant

The complainant’s evidence concerning charge 1 was that on a day in February 2016, at around midday at the family’s address, when some family members were still in the house, the applicant was changing the door handle of her bedroom door so that it could lock. At this time, the complainant’s father was in his bedroom. The father’s bedroom was opposite the complainant’s room; his door was open. The complainant’s other brother, and that brother’s wife, were together in their room at the time. Their room was situated next to the complainant’s room. Their door was closed.
The complainant said that after the applicant fixed the door handle:
He came towards me, he closed the door, he came to me and he said, ‘I won’t do anything’ and he put his hand under my T-shirt and he touched my breast and he was rubbing them and he put his leg in the middle of my thighs.
The complainant said that the applicant touched the complainant under her bra. The applicant used his thumb and index fingers to touch the complainant’s left and right nipples in a twisting fashion, and meanwhile he was rubbing his knee against the complainant’s vaginal area. The applicant told her to ‘Hush’. This lasted about a minute. The complainant asked ‘What are you doing?’ and pushed the applicant before he left the room. The complainant stayed in her room, crying, until her mother and sister came into her room about 10 to 15 minutes later.
The complainant did not tell her mother or her sister what had happened. Shortly after, the complainant’s other brother came into her room. The complainant told him that the applicant had touched her. Later, the complainant’s sister drove the complainant to a friend’s house. When she arrived at the friend’s house, the complainant told the friend what had happened.
The complainant returned home after about an hour and told her mother that ‘[the applicant] harassed me’. Her mother told her that ‘[the applicant] is sitting outside distressed or crying’. The relationship between the complainant and the applicant then ‘went back as before’.
The complainant gave evidence concerning an uncharged act, namely, that in or around February 2018, at the applicant’s address, the applicant entered the complainant’s upstairs bedroom and said to the complainant, who was laying on her bed: ‘Stay still and whatever I do it’s okay’ and ‘Whatever I do, go with it’. As he said this, the applicant was trying to take off the complainant’s bra. The complainant told the applicant to ‘Get out’ and the applicant left. The applicant’s mother and father were in the house at the time.
The complainant’s evidence concerning charge 2 was that in August 2017, again at the applicant’s address, the complainant went to bed at around 10:30 pm. At about 2:00 am, whilst asleep, the complainant felt a hand rubbing on her groin area above her clothing for a few seconds. She awoke to see the applicant. The complainant was asked to demonstrate where the rubbing occurred. The prosecutor considered that the complainant was demonstrating rubbing on her ‘vaginal area’. The judge disagreed. The judge thought that the complainant was demonstrating being rubbed ‘close to but not on the genital area’. Defence counsel considered that the complainant’s demonstration indicated an area being rubbed that was ‘lower than the vaginal area’. At one point, when the complainant was asked about whether the complainant had a blanket over her, she answered: ‘on top of the blanket he put his hand’. Once the complainant was fully awake, she immediately got up and the applicant said to her ‘I brought you a bag so you can put your clothes in it’. The applicant then left the room.
The next morning, the complainant, the applicant and their father caught a plane interstate for the complainant’s sister’s wedding. Whilst interstate, the complainant told her mother, her other brother, and her sister about what had happened. The complainant, the applicant and their father returned to the applicant’s address some days after the wedding.
On 17 February 2018, the complainant and her mother were involved in a car accident. The complainant suffered a fractured left wrist. Her left hand and part of her arm were placed in a cast.
The complainant gave evidence about the applicant having assisted her with showering on 20 February 2018.
The complainant’s evidence concerning charge 3 was that on 22 February 2018 the applicant again assisted the complainant to wash. Assistance was required due to the complainant’s injury. This took place in a bathroom upstairs at the applicant’s property. The applicant said to the complainant: ‘I’ve got a surprise for you’. When the complainant entered the bathroom she saw ‘bubbles in the water … flowers and … candles’. The applicant asked the complainant if she liked it; the complainant replied ‘yes’.
The complainant took a photograph of the bath and posted it on Snapchat. This photograph was tendered in evidence. The photograph depicted a bathtub strewn with rose petals and lit by two candles located at one end of the bath. The posted photograph was accompanied by two ‘emojis’ and text in the Assyrian language. Both ‘emojis’ were of smiling or laughing faces, one with love-hearts as eyes and the other with each eye shedding a tear. The accompanying text, as translated, stated: ‘I will make for me a romantic atmosphere inside it’.
The applicant assisted the complainant to remove her clothing, including her shorts, bra and underwear until she was naked. The applicant wrapped the complainant’s cast in a plastic bag and helped her into the bath. He sat on the edge of the bath and began to wash the complainant’s body with a ‘loofah’. He told the complainant to relax.
The complainant felt the applicant’s hand move towards her vagina and then felt him rub her vagina up and down between the clitoris and the urethral opening with two fingers. The precise location of the applicant’s fingers was described by the complainant by her marking two ‘X’s on a pictorial depiction of a vagina. This picture was ultimately tendered in evidence. The complainant told the applicant to ‘Get out’ and he left the bathroom. The complainant washed herself, got out of the bath, and went to her bedroom.
A short time later, the applicant went into the complainant’s bedroom with insurance papers relating to the car accident. The complainant said: ‘Get out from here’. The applicant left the bedroom.
The following day, on 23 February 2018, the complainant attended an appointment with her psychologist. The complainant told the psychologist about what the applicant had done to her in the bathroom with his hand. She said that: ‘he did it a few times’ and stated:
… the first time he touched my breast and he put his leg between my legs and upper thigh. And the second time, he tried to take my bra off. And the third time, when I was asleep, and he came to my bed. And the fourth time, this is the one in the bathroom.
The psychologist said to the complainant: ‘If you want, I can all the police and ask them about advice.’
When cross-examined, the complainant said that she was certain that during the commission of charge 1 her mother was out. She confirmed that when the applicant was working on the door handle of her room, her father’s room was opposite hers and her father was in his room with his door open. The complainant said that her father could have seen into the complainant’s room. She did not call out to anybody during the commission of the offending that related to charge 1. After the commission of charge 1, when the complainant returned home from visiting a friend, the complainant and the applicant started talking to each other.
The complainant said that the applicant’s hand, during the commission of charge 2, was touching her groin area on top of a very thick blanket. She was taken to the appointment that she had had with her psychologist on 23 February 2018. The complainant agreed that she had told the psychologist that she felt the applicant’s hand on her body on top of the blankets. She said that she could not remember whether she told the psychologist that the applicant touched her down the side of her body. She admitted that, in respect of the charge 2 offending, she had told police that the applicant was standing over her, that the covers were pulled back, and that the applicant’s hand was going up and down on her vagina.
As to charge 3, the complainant said that she told her psychologist that this had occurred in the bath. She said that the psychologist assisted her to go to the police. The complainant called her mother from the police station and told her mother that the applicant was harassing her. She described an interview with a police officer on 31 January 2022 during which she told the police officer that the applicant had rubbed two fingers in the area of her vagina. The next day, on 1 February 2022, the complainant was shown a picture of the genital area of a female. She told the police that she had been touched by the applicant, in the area that she had marked, with two fingers for two to five seconds.
In re-examination, the complainant said that when the charge 3 offending occurred, her father was home but he was downstairs.

The complainant’s mother

The complainant’s mother gave evidence that the complainant asked the applicant to change the lock on her door. The complainant had gone out and bought a lock with the applicant. The mother was in the kitchen and her husband was in his bedroom when the lock was being changed. The mother did not see the complainant and the applicant.
Whilst at the sister’s wedding interstate, the mother noticed that the complainant was upset. The complainant told her that she was ‘upset with [the applicant]’ but said nothing further. The mother noticed over the next eight to ten days, whilst interstate, that the complainant and the applicant did not talk to each other.
After the car accident, the mother spent about 40 days in hospital. During that time the mother learned that the complainant had attended the police station and made a complaint against the applicant. The mother called the complainant to question her as to why she had made the complaint. The complainant said ‘he [the applicant] harassed me’. After going to the police station, the complainant did not return home.
Under cross-examination, the mother confirmed that the father was in his bedroom during the charge 1 door-handle incident.

The complainant’s psychologist

The complainant’s psychologist gave evidence that when the complainant attended a face-to-face appointment on 23 February 2018, this was in fact the third time that the two had met. The psychologist said that:
she didn’t have the same confidence… she said that she’d been in a car accident… she just presented as a little more fragile… we started talking and I — I’d — I wondered initially if perhaps she was presenting that way because of the accident, and so we asked — I asked her about the accident, and it was not terribly severe, but she — she had this arm — her arm broken. And as we kept talking, she — she got a little bit more distressed, and she started crying, and I asked her what was wrong. And, um, she said that her brother had touched her inappropriately. And she didn't use the word inappropriate, but she said her brother touched her while he was showering her. And she was very upset and confused about that.
…
I asked her — I asked her what had happened, um, and what — what did she mean, like, she was upset. And she said he — her brother had touched her down there and she — she sort of did this with her hands, from she — she said down there
…
so she did that movement, sort of like, down there, pointed with her hands down there, across her pelvis area.
The psychologist asked the complainant what the context of all this was and the complainant said that the applicant was washing her and washed between her legs. The complainant pointed to her vaginal area. The applicant had put his hands between the complainant’s legs and washed her. It made her very uncomfortable. The psychologist asked her if there had been any other times when she felt uncomfortable and the complainant said that there had been a time:
…where she had been in her bedroom, and he had come in and put his hands on her breasts. And there had been another time where she had been lying in bed and he came to her room and she was lying down, and he ran his hand down the length of her body. Over the top of the — the top of the — the — blankets.
The complainant said that the applicant had done these things. The psychologist said that when the complainant described these things she was teary, her eyes welled with tears and she was breathless. The complainant was genuinely upset, crying and distressed. The psychologist then rang the police and a report was made.
When cross-examined, the psychologist said that she took notes. She was unable to review the notes because they had been destroyed by water damage a couple of years earlier. The psychologist confirmed that the complainant used the word ‘touched’ and that the event occurred in the shower. As to the touching, the psychologist described a circular movement with both hands with all fingers facing downwards, the hands rotating below the witness’ waistline in the general direction of the upper leg/groin/ genital region. The witness’ recollection was that she had been told by the complainant that the touching had occurred between the complainant’s legs. It was very clear to the witness that the complainant described being touched in her genital area.

The earlier touching of the breasts had occurred in the previous months — fairly recently. The psychologist recalled that she was told that the applicant had touched the complainant’s breasts.
As to the charge 2 incident, the psychologist’s recollection was that she was told that the complainant was under the blanket, ‘the bedding, the doona, whatever it was’. The description was that the applicant ran his hand down the side of the complainant’s body as she was lying in her bed.

The informant

The informant gave evidence of having met the complainant with her psychologist on 23 February 2018. The complainant made a disclosure of sexual assault. The complainant completed a statement on 6 March 2018. On that date, the complainant supplied a screenshot of the bathtub. The applicant was interviewed on 11 April 2018. The informant gave evidence concerning her difficulties in obtaining evidence from other members of the complainant’s family as well as the complainant’s friend.
The informant produced the applicant’s record of interview. In his record of interview with police, the applicant agreed that he had fixed a door handle on the complainant’s door but said that the complainant’s room and his father’s room were very close to one another; the hallway that separated the two rooms was ‘narrow’. His brother’s room (the room that the brother shared with his wife) was ‘just next door’. The applicant denied closing the complainant’s door other than to check if the lock was working. The applicant denied the charge 1 offending. He said that his father ‘was there’, that is, in the complainant’s room, and was asking ‘what are youse doing?’. The father was ‘sitting looking at us’.
The applicant denied entering the complainant’s room and trying to remove her bra. He denied the allegation forming the substance of charge 2. The applicant said that he had assisted the complainant to wash her hair, legs and back after her car accident but that the complainant was not naked when this occurred. The applicant assisted the complainant to shower on a number of occasions. On the second and third occasions of such assistance, the complainant was in her bra and underwear. He also rubbed the complainant’s back and legs with Voltaren gel. Once the applicant used muscle-relaxing oil on the complainant. He also gave the complainant a full massage when she was in her bed, but she still had her underwear and bra on.
The applicant agreed that he had prepared a bath for the complainant. He said to the complainant: ‘Ooh, then I’ll make you a special one’. He got the complainant ‘candles and bubble thingy.’ The applicant said:
I made the bath for her and I did the candles … and I helped her in the bath.
The applicant said that the complainant was naked when she was in the bath. The applicant was shown the picture of the bath taken by the complainant. After helping the complainant into the bath, the applicant said that he went downstairs. The applicant said that the complainant got out of the bath herself. He said that he got the candles from Safeway. He bought the candles specifically for the bath. The applicant denied penetrating the complainant’s vagina. He said that he ‘surprised’ the complainant with the bath.
The informant was cross-examined about her inability to obtain statements from various witnesses. When the complainant made her first statement to police she told police that the complainant had said the she felt a finger moving around her vagina area, and then the applicant put his finger in the complainant’s vagina just a little for one or two seconds. When the informant spoke to the complainant again on 31 January 2022, the complainant said that the applicant touched her vagina but it ‘did not go in’. Then, on 1 February 2022, the informant met again with the complainant and they went through the ‘anatomy of the vagina, the cheeks, the lips of the vagina, the clitoris and vulva’.

Defence evidence

The defence did not call any evidence.

Applicant’s submissions

In writing, and consistent with the terms of the proposed ground of appeal, the applicant submitted that the verdicts were logically inconsistent. Nevertheless, the written submissions also appeared to allege that the verdict of guilty on charge 3 was unsafe and unsatisfactory due essentially to alleged defects that were inherent in the complainant’s evidence. Those alleged defects centred, in large part, upon the issue of penetration. At the oral hearing of this matter the applicant expressly eschewed any reliance upon the notion that the verdict on charge 3 might be unsafe and unsatisfactory in the traditional sense, that is to say, due to some deficiency in the quality of evidence that had been led in support of that charge. Any suggestion that the Crown might have failed to prove penetration was expressly disavowed. The case ultimately mounted in this Court was one of inconsistency, namely, inconsistency between the verdict of guilty on charge 3, on the one hand, and the acquittal on charge 2 and failure to agree on charge 1, on the other.
It was submitted that the jury’s acceptance of the credibility and reliability of the complainant was a pre-requisite to conviction on all of the charges. Where the complainant had given a fairly consistent level of detail across all of the charges, either at trial or in her complaint to the psychologist, and where defence counsel had closed on the basis that this was an ‘all or nothing case’, it was submitted that there was ‘no apparent pathway’ that could explain the verdict of acquittal on charge 2, the verdict of guilty on charge 3 and the inability to reach a verdict on charge 1.
It was submitted that the photograph that the complainant took of the bath in respect of charge 3 could not explain the conviction on this charge because it was not apparent that the complainant had any concerns about what had been planned insofar as the bath was concerned. It appeared to be conceded, however, that the father’s presence in his bedroom, near to the complainant’s room, was a matter that the jury were entitled to consider when determining whether they were satisfied of the commission of charge 1.

Respondent’s submissions

The respondent submitted that evidence led in support of charge 3 was of a different quality to the evidence led in respect of the other charges. This more than adequately explained the differing verdicts and the failure to agree. Paramount here was the photograph taken by the complainant of the bath depicting the candles, rose petals and the accompanying text that described a ‘romantic atmosphere’. There was, moreover, no issue that the scene depicted in the photograph was linked to the applicant. The applicant had admitted, after all, that he had prepared the bath.
The respondent submitted that the complainant was unequivocal that the charge 3 event had occurred in the bath. The psychologist’s memory of having been told that the event occurred in the shower was explicable by virtue of the loss of her notes. The psychologist’s memory had to be wrong in this respect, in any event, due to the photograph.
It was directly after the bath incident referable to charge 3, and the complainant’s complaint to the psychologist, that the complainant left home. Leaving home corroborated the bath incident’s commission whereas the complainant continued to interact with the applicant after the commission of the events led in support of charges 1 and 2.
The respondent submitted that the complainant’s evidence in support of charge 2 was, unlike charge 3, inconsistent. Whereas in court the complainant said that the applicant rubbed her on her vaginal area over her clothing, the psychologist said that she was told by the complainant that the applicant ‘ran his hand down the side of her body… he ran his hand down her body as she was lying in bed’. Moreover, the complainant had said in her police statement that the applicant was standing over her, that the covers were pulled back, and that the applicant’s hand was going up and down on her vagina. Even the complainant’s evidence in chief left a doubt whether the applicant had touched the complainant on her vagina or her upper leg. The vagina had been particularised in the charge.
The jury’s inability to agree on charge 1 was explicable on the basis that the act was inherently unlikely when the father was so close by. There was also an inconsistency about where the mother was. The complainant was sure that the mother was out whereas the mother said that she was at home.

Proposed ground 1: inconsistent verdicts

Inconsistent verdicts: principles

The principles relating to inconsistent verdicts are set out and discussed in the High Court’s decisions of MacKenzie v The Queen[1] and MFA v The Queen.[2] These principles were summarised by this Court in Woods v The Queen[3] as follows:
[1](1996) 190 CLR 348; [1996] HCA 35 (‘MacKenzie’).
[2](2002) 213 CLR 606; [2002] HCA 53 (‘MFA’).
[3][2019] VSCA 259 (Maxwell P, Kaye and Niall JJA).
Where the inconsistency is said to be based on jury verdicts on different counts, the test is essentially one of logic and reasonableness. The applicant must demonstrate that no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the conclusion reflected in the verdicts.
In determining that question, it must be borne in mind that, where the accused is indicted on a number of separate charges, the jury is ordinarily directed that it must give separate consideration to each charge. In this State, that direction is regularly accompanied by a specific direction that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection, or non-acceptance, of a particular aspect of a witness’ evidence, does not necessarily mean that the jury must accept or reject the whole of that witness’ evidence. Directions to that effect were given to the jury in the present case.
Further, in considering whether the jury’s verdicts are inconsistent in the sense described above, it is necessary to keep in mind that, in a criminal trial, particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal on a charge on the indictment does not necessitate the conclusion that the jury found the relevant witness’ evidence, on that charge, to be unsatisfactory, unreliable or untruthful. In MFA, Gleeson CJ, Hayne and Callinan JJ stated:
A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. ... factors 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 might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
In addition, it has been recognised that, in a case in which an accused faces a number of charges, a jury may take a merciful view of the facts on a count or some particular counts. As observed by Gleeson CJ, Hayne and Callinan JJ in MFA, ‘it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only’.
In MFA, and in MacKenzie, the High Court approved the following observations by King CJ in R v Kirkman to the same effect:
Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
As a corollary of those considerations, an appellant who relies on inconsistency of verdicts as a ground of appeal, or as an aspect of a ground of appeal, bears a high onus of persuasion. In essence, taking into account the matters to which we have referred, in order to make out the ground of inconsistency, the appellant must demonstrate that the different verdicts returned by the jury represent ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[4]
[4]Ibid [75]–[80] (citations omitted).
There is an additional complication in this case concerning the principles that relate to inconsistent verdicts. This is that the applicant’s argument sought to bring to bear upon the relevant inconsistency the fact that the jury were unable to reach a verdict in respect of charge 1. Whether a jury’s failure to agree can be used for this purpose has been the subject of some discussion.
The matter was examined at some length by this Court in Pillay v The Queen.[5] In Pillay it was determined that the inconsistent verdicts doctrine, as a basis for submitting that convictions are unsafe and unsatisfactory, could be invoked when comparing a guilty verdict with a mere inability on the part of the jury to agree in respect of another charge.
[5](2014) 43 VR 327, 329–33, [14]–[29]; [2014] VSCA 249 (‘Pillay’).
In Crofts v The Queen,[6] Priest JA analysed various different approaches that have been taken to this issue by State and Territory courts within Australia.[7] Ultimately, his Honour concluded:
Regardless of the apparently ongoing debate concerning the application of the ‘doctrine’ of inconsistent verdicts to a case such as the present [where a conviction on one charge was said to be inconsistent with a mere failure to agree on another], in my view it is not necessary to try and fit the basis of this Court’s intervention into a particular doctrinal pigeon-hole. I consider that there is much to be said for the view, expressed in GW,[8] that the debate whether the kind of ‘inconsistency’ in a case such as this is the same as an ‘inconsistency’ between a verdict of guilty accompanied by one of not guilty, is barren; since I consider that — in accordance with the statutory foundation of this Court’s jurisdiction — the underlying concern must be whether the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.[9]
[6][2018] VSCA 197 (‘Crofts’).
[7]Ibid [23]–[26] (Priest JA).
[8]GW v The Queen (2015) 306 FLR 104; [2015] ACTCA 15 (Murrell CJ, Refshauge and Ross JJ) (citation not in original).
[9]Crofts [2018] VSCA 197, [27] (Priest JA).
In Crofts, Weinberg JA noted that in circumstances where ‘the Crown did not challenge the correctness of Pillay’, his Honour was prepared to
proceed upon the basis that an inconsistency between a verdict of guilty, and an inability to arrive at a verdict on a different, but closely related charge, can, in some cases, give rise to an inconsistency of a kind that would render the conviction unsafe.[10]
[10]Ibid [108].
Hargrave JA, in Crofts, followed Pillay, albeit his Honour cautioned that this Court in Tukuafu v The Queen,[11] had ‘emphasised that a failure to reach a verdict should not be equated with an acquittal.’[12]
[11][2014] VSCA 345, [25].
[12]Crofts [2018] VSCA 197, [82] (Hargrave JA).
As in Crofts, the Crown in this Court did not challenge the correctness of Pillay. Like their Honours in Crofts, we are prepared to proceed on the basis that it is at least competent for the applicant to rely on the jury’s failure to agree on charge 1 as a basis for quashing the applicant’s conviction on charge 3 when it comes to alleged inconsistency. Whether that submission is upheld is another matter.

Proposed ground 1: analysis

The jury in this case was directed that it was required to consider each charge separately in the light only of the evidence that applied to that charge; and, that in assessing the evidence, it was up to the jury to decide how much or how little of the testimony of any witness it would believe or rely on. Thus, the jury were correctly told that parts of a witness’ evidence could be accepted or, on the other hand, rejected; and different verdicts might be returned in respect of each charge.
There was no inconsistency between the jury’s conviction of the applicant on charge 3, on the one hand, and his acquittal on charge 2 and failure to agree on charge 1, on the other. To the contrary, there is logic and rationality that explains the approach taken by the jury.
Perhaps the most significant feature of the evidence, when it comes to the applicant’s proposed ground of appeal, was the photo posted by the complainant of the bath (and its accompanying narrative) that was referable to charge 3. The scene depicted, with rose petals, candles and bubbles, was indeed a ‘romantic atmosphere’ as the translated passage suggested. The photograph thus provided strong corroborative evidence supportive of the complainant’s version of having been sexually assaulted by the applicant. Of course, as indicated above, it was not put that had the jury been persuaded that such an assault had occurred it would not have been open to the jury to have found that there was penetration of the complainant’s vagina. There was, moreover, no issue that the applicant had prepared the bath — as depicted — entirely for the complainant’s benefit. He even admitted that he had been present when the complainant got into the bath naked.
The complainant, after the bath, complained the next day to her psychologist and the police, and then — unlike after the earlier alleged events — fully departed from the family home. That the psychologist recalled the complainant having said that this assault had taken place in the shower the jury might have thought to be of little consequence in circumstances where the psychologist’s notes of interview had been destroyed by water years earlier and where the psychologist was recounting purely from memory. And, as the respondent submitted, the photograph and admissions made by the applicant proved that the psychologists recollection of having been told that the charge 3 offending took place in the shower must have been faulty.
The evidence adduced in support of charge 2 was inconsistent and uncorroborated. Whereas the complainant’s version in court was that the applicant touched her in the groin area over her clothing, it appears that when she was called upon to demonstrate in court what she said had occurred it was unclear whether she was in fact depicting being touched on her vagina or her upper leg. Then, of course, there was the inconsistency inherent in the version that the psychologist said had been given to her by the complainant in respect of the charge 2 event. The psychologist recounted that the complainant told her that the applicant had come into her room when she was lying down and had run his hand down the length of her body over the top of the blankets. A further inconsistency in respect of charge 2 was the version that the complainant had given to the police, namely, that the applicant was standing over the complainant, that the covers were pulled back, and that the applicant’s hand was going up and down on her vagina. One can well understand why the jury might have felt unpersuaded by the complainant’s charge 2 evidence.

That left charge 1. This was, of course, the first allegation in time and might have been doubted by the jury essentially on the basis that it had come entirely ‘out of the blue’, and was inherently unlikely in any event given the close proximity of the father.
Far from constituting an affront to logic and rationality, a dispassionate analysis of the evidence in this case leaves the impression that the approach taken by the jury is perfectly explicable. By no means can it be concluded that the jury members must have foresworn their oaths in pursuit of unprincipled compromise. For completeness, had we been called upon to do so we would have rejected any contention that the verdict of guilty on charge 3 was unreasonable or unable to be supported having regard to the evidence because of any deficiency in the evidence adduced by the prosecution.[13]
[13]See para 50 above.
The applicant’s proposed ground of appeal is without merit.

Conclusion

Given that the proposed ground of appeal is without merit and the reasons for the delay are unpersuasive, the applicant’s application to extend time must be refused.
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[2024] VSCA 36

18 March 2024