AKG v The State of Western Australia - [2024] WASCA 139

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   AKG -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 139
CORAM:   MAZZA JA
HALL JA
VANDONGEN JA

HEARD:   14 AUGUST 2024
DELIVERED          :   8 NOVEMBER 2024
FILE NO/S:   CACR 133 of 2023
BETWEEN:   AKG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   RUSSELL DCJ
File Number            :   IND 1296 of 2022

Catchwords:

Criminal law - Appeal against conviction - Whether verdicts of guilty were unreasonable or cannot be supported

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)(a)
Criminal Code (WA), s 329(4)
Evidence Act 1906 (WA), s 39D, s 106HB

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S F Rafferty SC
Respondent	:	G N Beggs

Solicitors:

Appellant	:	David Manera
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
MHS v The State of Western Australia [2024] WASCA 85
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

JUDGMENT OF THE COURT:

At all material times, the appellant's biological daughter, E, lived at the family home with the appellant, E's mother, and E's three older brothers. E's older sister lived overseas.
The appellant was a fly-in/fly-out (FIFO) worker. When he was home, he would regularly hug E. However, the appellant would also frequently grope E's breasts and thrust his penis up against her while they were both clothed. This happened so regularly that when E looked back on when she was living at home with her father, many of the occasions on which this occurred did not stand out in her memory.
The appellant was convicted by the majority verdicts of a jury of several sexual offences that he was alleged to have committed against E between 2018 and 2021. E was between 11 and 14 years old during that period. By majority verdicts, the jury also acquitted the appellant of some of the other sexual offences with which he had been charged.
The appellant now appeals against the convictions that were entered against him. He argues that the jury's verdicts of guilty were inconsistent with their verdicts of not guilty.
For the following reasons, we are not persuaded that the different verdicts returned by the jury are anything other than the product of deliberations undertaken by a reasonable jury, properly applying their minds to the fact‑finding process they were entrusted to perform. The jury's verdicts are not relevantly inconsistent.
We would not grant leave to appeal in relation to the sole ground of appeal. In those circumstances, the appeal is taken to be dismissed.

The charges

The appellant was charged with seven counts of indecently dealing with E, a child under 16 years who he knew to be a lineal relative, contrary to s 329(4) of the Criminal Code (WA) (Code).
Those charges concerned four occasions on which E could specifically remember that her father behaved towards her in a sexual way.
On the first of those occasions, the appellant was alleged to have thrust his penis against E's buttocks (count 1). The appellant was found guilty of that charge.
On the second occasion, the appellant was alleged to have thrust his penis against E's buttocks (count 2) and also against her vagina (count 3). The appellant was convicted of the offence charged in count 2 but acquitted of count 3.
In relation to the third occasion on which the appellant was alleged to have indecently dealt with his daughter, the appellant was alleged to have once again thrust his penis against E's buttocks (count 4). The appellant was found not guilty of this offence.
The fourth and final occasion on which the appellant was alleged to have offended against his daughter concerned three separate offences that the appellant was alleged to have committed as part of a course of conduct. The appellant was alleged to have thrust his penis against E's buttocks (count 5), to have rubbed his penis using E's hand (count 6), and to have touched E's breasts (count 7). The appellant was convicted of the offences charged in counts 5 and 7, but he was acquitted of the offence charged in count 6.
Before summarising the evidence that was adduced at the appellant's trial, it is convenient to first identify the ground of appeal relied on by the appellant, and the relevant principles that must be applied to deal with that ground.

Ground of appeal

The ground of appeal relied on by the appellant is in the following terms:
1.The verdicts of not guilty in respect to counts (3), (4) and (6) are inconsistent with the verdicts of guilty with respect to counts (1), (2), (5) and (7).
PARTICULARS
1.1The verdicts do not stand together as an exercise in fact finding based on logic and reasonableness. There were no factors relevant to the charges of which the appellant was acquitted which would explain a reason for doubting the credibility of the complainant in respect to those counts and then accepting the credibility of the complainant in respect to the counts of which the appellant was convicted.
The relevant principles to be applied in circumstances in which it is asserted on appeal that verdicts of guilt returned by a jury should be set aside because they are inconsistent with verdicts of acquittal entered by the same jury are well established. Those principles were again recently re-stated by this court in MHS v The State of Western Australia.[1]
[1] MHS v The State of Western Australia [2024] WASCA 85 [89] - [92].
In our view, the following principles are of particular relevance in the context of this appeal:
(a)There are, in general, two circumstances in which the presence of an inconsistency in verdicts may result in the setting aside of a conviction. First, circumstances of 'legal inconsistency', where verdicts cannot sit together as a matter of law. Secondly, circumstances of 'factual inconsistency', where as a matter of logic and reasonableness the verdicts cannot sit together. In this case, the appellant contends that the verdicts of acquittal entered in respect of counts 3, 4 and 6 are factually inconsistent with the verdicts of guilty for counts 1, 2, 5 and 7.
(b)In the case of 'factual inconsistency', an appellant must establish that a verdict or verdicts of guilty cannot stand with a verdict or verdicts of acquittal. The relevant issue is whether no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the different verdicts. If there is a proper way to reconcile the verdicts, such that it can be concluded that the jury performed their functions as required, that conclusion will generally be accepted. As was noted by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen:[2]
[2] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 368.
[A] residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggest a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.' (emphasis added) (footnotes omitted)
(c)All of the circumstances of the case must be taken into account in making an assessment about whether, as a matter of logic and reasonableness, the different verdicts can stand together. Those circumstances include the context of the system within which juries function, and their role in that system. As Gleeson CJ, Hayne and Callinan JJ explained in MFA v The Queen,[3] features of that context include:[4]
First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required … every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. 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. In addition to want of supporting evidence, other 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.
(d) It may be more difficult to reconcile different verdicts in the context of offences that are alleged to have occurred as part of a course of conduct, particularly where the State's case depends on the evidence of only one witness, whose evidence is otherwise unsupported by any independent evidence.
(e)Appellate courts must be astute to the possibility that different verdicts may be the logical and reasonable product of the jury's advantage of having seen and heard the witnesses. The record of the trial that is assessed by an appellate court may not reveal all the factors the jury took into account in arriving at their verdicts.
(f)An appellate court may reach a conclusion that a jury took a merciful view of the evidence relating to one or more charges, a legitimate function that has always been exercised by juries.
(g)Ultimately, a complaint that a jury has reached inconsistent verdicts is a contention that a verdict or verdicts of guilty are unreasonable or cannot be supported, having regard to the evidence for the purposes of s 30(3)(a) of the Criminal Appeals Act 2004 (WA). That is why the test is unreasonableness, not inconsistency.[5]
[3] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606.
[4] MFA [34].
[5] MFA [35] ‑ [36].
Against the background of these well-established principles, the appellant's contention begins with the indisputable premise that the State case depended on the jury accepting, beyond reasonable doubt, that E's evidence was both honest and reliable. On that footing, the appellant then argues, in effect, that the jury must have concluded that E was not an honest or reliable witness in relation to counts 3, 4 and 6, and that the jury therefore could not, as a matter of logic and reasonableness, have found that she was honest and reliable in relation to the other counts on the indictment and returned verdicts of guilty in respect of counts 1, 2, 5 and 7.
The appellant also contends that the verdict of not guilty returned for count 3 cannot stand with the verdict of guilty for count 2, and also that the verdict of not guilty for count 6 cannot stand with the verdicts of guilty for counts 5 and 7, because counts 3 and 6 were both alleged to have formed part of respective courses of conduct.
In order to assess the appellant's contentions, it is necessary to examine the evidence that was adduced at the appellant's trial.

The State case

Evidence of E

Part of E's evidence‑in‑chief was contained in a visually recorded interview that took place on 26 May 2021. That interview was admitted in evidence at the appellant's trial in accordance with s 106HB of the Evidence Act 1906 (WA). In that interview, E spoke about the four separate incidents on which she alleged that the appellant had sexually interfered with her. However, E did not recount the incidents in a chronological manner. Instead, she commenced by describing what she said occurred during the 'last time' the appellant touched her. That occasion ultimately came to be reflected in the offences charged in counts 5, 6 and 7. E then described the conduct that related to the remaining counts on the indictment.
Later, on 3 October 2023, E gave evidence at a special hearing in advance of the appellant's trial. That evidence was recorded and subsequently played at the appellant's trial as part of E's evidence‑in‑chief.
Given the nature of the ground of appeal, it will be necessary to reproduce large portions of what E said in her visually recorded interview, and in her pre‑recorded evidence. However, before setting out E's evidence it is necessary to note that the transcript of those occasions only records what was said. Plainly enough, the transcript does not record any physical demonstration E gave of what occurred.
This court has not had the benefit of seeing E give those physical demonstrations. The court has not seen the recordings of either E's visually recorded interview or of her pre‑recorded evidence. Neither party submitted that there was anything in the video recordings, which can only be discerned visually, that was likely to affect the court's assessment of the evidence.[6]

Counts 5, 6 and 7

[6] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [36].

At the appellant's trial, the incident that formed the basis of counts 5, 6 and 7 was known as the 'Wi‑Fi incident'.
In her visually recorded interview, E said that the Wi‑Fi incident occurred on 9 May 2021. She said that her mother was at work at a night shift, and that everyone else in the house was in their bedrooms. She estimated that the incident occurred about 20 or 30 minutes after her mother left for work, which was usually 9.45 pm or 9.50 pm.
E said that she was awake in her bedroom, using her laptop, when the appellant knocked on her door. She said that she just ignored the appellant and continued listening to music. E said that the Wi‑Fi then stopped working. She said that she knew the Wi‑Fi had stopped working because she was listening to music on a music streaming platform, and one song kept repeating. She said that the Wi‑Fi box was in her parents' bedroom.
When E realised that the Wi‑Fi had been turned off, she went out into the kitchen and put the kettle on to make some coffee. She said that while she was standing at the fridge, the appellant pulled her into his bedroom by her wrist. When E resisted, the appellant said 'No, come. It's okay'. E said later that she stood at the door of her parents' bedroom and refused to go inside. However, the appellant pushed her into the room. E said that upon entering the bedroom, the appellant turned her around and 'started thrusting on [her], on [her] behind'.
E was then asked to describe what then occurred in the appellant's bedroom:
A. So the last time my dad touched me was two days before my mum hit me, so on the Sunday. So I - well, that was the 9th, I'm pretty sure ‑ ‑ -
Q. Mm hm.
A. - - - of May. Um, and it was - my mum had gone to a night shift. Um, everyone was in their rooms. Um, I was awake in my room and I was on my laptop and my dad basically knocked on my door and I just ignored it and just kept listening to music and stuff and he knocked on it again and it kept happening and then until the Wi-Fi went off and then I know - and like I went outside when I knew the Wi-Fi went off and then he kind of took me into his room. He came outside and took me into his room and the lights were off, like everything was like dark in the room and he basically came behind me and started like thrusting on me and was telling me to touch it and I didn't want to. Um, and, yeah, he kept - I think he got a little bit agitated, um, after I kept saying, 'No.' So, yeah, and then he like pushed me up against the corner and grabbed my hair and the corner where the door meets the wall and made me touch it and, uh, the up and down motion, um, and kind - and he at the same time was thrusting and he put my - he put his, uh his other hand on the back of my head and kind of forced it down, um, and kept - - -
Q. Mm hm.
A. - - - doing that until he finished and that was that and then after that he just told me to get out, so I left the room, went back to my room and cried and then went on with (indistinct) my music. That was the last time.
Before summarising the evidence any further, it is necessary to briefly say something about E's allegation that she had been hit by her mother.
Evidence was adduced at the appellant's trial that E moved out of her family home with one of her brothers and his partner, after a violent incident occurred between E and her mother. It is not necessary to reproduce the details of that incident in these reasons. It is enough to note that it was alleged that E's mother struck E on the head during an argument, and that this caused E some physical injuries.
Shortly after leaving home in an injured state, E disclosed to her brother and his partner that the appellant would come into her bedroom at night. She was taken to hospital. She then spoke to police and was placed into care.
Later in the visually recorded interview, E provided more detail about the Wi‑Fi incident:
Q. Okay, yeah. Mm hm. And what was the very first thing that happened when he took you to his room?
A. Um, turned me around and started thrusting on me, on my behind.
Q. And that was the first thing that happened when you entered the room?
A. Yeah.
Q. Mm. And then what happened the very next thing?
A. The very next thing? It was him ask telling me - like grabbing this hand - - -
Q. Mm hm.
A. - - - and telling me to - he was pulling (indistinct) thing and telling me to touch it. I said, 'No.'
Q. Mm hm.
A. And he kept pulling it and I kept saying, 'No,' and he kept pulling it then he got agitated and went to like the corner of the room, of his bedroom, and like grabbed - and (indistinct) there.
Q. Okay. So he's pulled you into the room.
A. Yeah.
Q. And how was his body and your body when he's - when you've got into the room?
A. So I came into the room - - -
Q. Yeah.
A. - - - first and I was facing this way and he was behind me - - -
Q. Mm hm.
A. - - - and he kind of just held and started thrusting up on me.
Q. Mm hm.
When E was asked in the visually recorded interview to provide further details about the Wi‑Fi incident, the following exchange took place:
Q. Okay. And then he's come behind you and he's started thrusting immediately?
A. Yeah.
Q. And you said he's grabbed your - your - where did he grabbed [sic] your - -
A. Like here.
Q. Yeah. Okay.
A. Yeah.
Q. So you're showing me your wrist.
A. Yep.
Q. Yeah. So he's grabbed just near your wrist?
A. Yeah.
Q. And - - -
A. And told - pulled it down to his private part - - -
Q. Yeah.
A. - - - and told me to touch it and I said, 'No.'
Q. Okay. And what's another name for a private part?
A. Um, penis.
Q. Yeah.
A. Yeah.
Q. Okay. And at this stage, how were his clothes?
A. Um, they were on. He was trying to, um, touch my breast - - -
Q. Mm hm.
A. - - - and I kind of like - like, 'No.'
Q. Mm hm.
A. Went like that like, 'No.' I had my hands crossed and stuff.
Q. Yeah.
A. And he was trying to take it out and I was like, 'No.' I got scared and just - - -
Q. Mm.
A. - - - then kept saying, 'No.'
Q. Okay.
A. Then he got agitated and - - -
Q. So - - -
A. - - - pushed me to the corner.
Q. So remembering I wasn't there, in as much detail as possible, explain to me how and what he was doing when he was trying to touch your breasts.
A. Um, he was trying to put his hand up my shirt - - -
Q. Mm hm.
A. - - - and I basically said, 'No,' and - - -
Q. Mm hm.
A. - - - started like - like this, like doing that - - -
Q. Yeah.
A. - - - like crossing my hands over my breast - - -
Q. Yeah.
A. - - - to like stop any like hand from going - - -
Q. Mm. Yeah.
A. - - - and touching - - -
Q. Mm hm.
A. - - - my breast.
Q. Okay. And you mentioned you had a top.
A. Um, my top?
Q. Yeah.
A. Yeah.
Q. Yeah. What were you wearing?
A. I was wearing just I think shorts and a top - - -
Q. Mm hm.
A. - - - kind of patterned.
Q. Okay.
A. Yeah.
Q. And when he tried to - so he's got your wrist and he's tried to make you touch his penis - - -
A. Yeah.
Q. - - - did you touch his penis?
A. No, I kept saying, 'No,' for - - -
Q. Mm.
A. - - - the first time and then he got agitated and I got pulled to the corner - - -
Q. Mm hm.
A. - - - and he just - he - as soon as I touched it, closed my eyes and just stopped(?) breathing for a bit - - -
Q. Mm hm.
A. - - - and he had his hand over my hand and was doing it - - -
Q. Mm, okay.
A. - - - and then my wrist got sore - - -
Q. Mm.
A. - - - after that, so I (indistinct) it off as he was thrusting.
Q. When you were in the corner - - -
A. Yeah.
Q. - - - how was his body and how was your body?
A. So his hand was on the back of my neck and my- all of my back was kind of like arched down - - -
Q. Mm hm.
A. - - - and he was standing up - - -
Q. Mm hm.
A. - - - um, and thrusting on my backside - - -
Q. Mm hm.
A. - - - and basically my hand was the only thing that was up kind of - -
Q. Mm hm.
A. - - - touching it.
Q. Mm hm.
A. Yeah.
Q. So, um, just to clarify, was he standing in front of you or behind you?
A. Behind.
Q. Okay.
A. Yeah.
Q. And when he's moved you to the corner, um, did your hand touch his penis?
A. Not before moving into the corner, no.
Q. Okay. So not before?
A. Yeah.
Q. But - - -
A. As soon as I got into the corner he did start - - -
Q. Okay.
A. Yeah.
Q. Okay. And in as much detail as possible, what happened when you touched his penis?
A. Um, like he grabbed me and touched it - - -
Q. Yeah.
A. - - - and I didn't want to - - -
Q. Mm.
A. - - - so I was kind of like, you know - - -
Q. Yeah.
A. - - - trying to take my hand back and he was kind of forcefully - - -
Q. Mm.
A. - - - holding it and then going in like - like squeezing my hand and then kind of going like that - - -
Q. Mm hm.
A. - - - um, with his hand over the top - - -
Q. Yep.
A. - - - and doing it and it was just like that for the rest until he finished.
Q. Mm hm.
A. Yeah.
Q. Okay. Um, and was this on top of clothing or under clothing?
A. Um, with clothing on.
Q. Mm hm.
A. Yeah.
Q. So, um, was your hand what was your hand touching?
A. Uh, I think it was with clothing on cos [sic] - yeah, it was with clothing. Yeah.
Q. Yeah.
A. Um, it was touching the fabric, or whatever, he was wearing like on top of it.
Q. Yeah. So the fab - just to clarify, the fabric on top of the penis?
A. Yeah.
Q. Okay. So you mentioned to me that he, um, forced your head down.
A. Yeah.
Q. Explain to me what you mean by that.
A. So - - -
Q. Is that what you've already described to me?
A. Um, the left - - -
Q. Yeah.
A. - - - hand was like at the back of my neck - - -
Q. Yeah.
A. - - - and it was like - went to the back of my neck - - -
Q. Yeah.
A. - - - and it was like getting pushed down.
Q. Okay. And was he standing in front of you or behind you?
A. Behind me.
Q. Okay.
A. Yeah.
Q. Yeah. And you mentioned 'until he finished'.
A. Yeah.
Q. What do you mean by that?
A. Um (indistinct) I guess.
Q. Mm hm.
A. Yeah.
Q. Yeah. What - what could you feel when he finished?
A. Um, like his hand off my hand - - -
Q. Yeah.
A. - - - and, yeah, he was like - like gasping, I guess, and, yeah. That's all I felt - I heard.
Q. Okay.
A. And then after that I just left the room - - -
Q. Yeah.
A. - - - and he told me to get out of the room.
Q. Okay.
A. And, yeah.
Q. When, um, he was making you rub your hand up - - -
A. Yeah.
Q. - - - and down, could you feel anything different?
A. Um, I - I could like feel it, like - it was like strong - - -
Q. Mm.
A. - - - like it was weird.
Q. And - but we're talking about - - -
A. The penis.
Q. Okay.

It can be seen from this lengthy passage taken from the visually recorded interview that E spoke about three different sexual acts, and that on occasions she physically demonstrated what she said the appellant had done to her.
The first act E spoke about was an act where the appellant thrust his penis against E's buttocks while she was facing away from him, and bent over. The second act was that while the appellant was thrusting his penis against E's buttocks, he grabbed hold of her wrist, pulled her hand back and put it on his penis, over his clothes. E alleged that the appellant then forced her hand to rub his penis while he was thrusting against her buttocks. E appeared to physically demonstrate how the appellant did this act on at least two occasions.
These two allegations formed the basis of the offences charged in counts 5 and 6.
E also said in the visually recorded interview that the appellant had tried to touch her breasts. However, E did not initially say that the appellant actually touched her breasts. It was only later when the interviewer sought further details from E, that she then said that the appellant also touched her breasts in the course of the previously described conduct:
Q. Okay. Do you remember a time when he's touched you on the breasts?
A. Um, well, that night Sunday - - -
Q. Mm hm.
A. - - - that was it, um, that was that. Um, couldn't really do that cos [sic] one hand was there - - -
Q. Mm.
A. - - - I was closing my eyes and I couldn't - couldn't really do anything.
Q. Okay.
A. I - - -
Q. So I don't think we mentioned about, um, him touching your breasts on Sunday.
A. No.
Q. We're talking about Sunday the 9th, aren't we?
A. Yeah.
Q. Okay. So tell me about that?
A. Um, basically his one hand was there and his - - -
Q. Mm hm.
A. - - - hands (indistinct) and his other hand's kind of groping my breast.
Q. Okay.
A. Yeah.
Q. And what exactly was he doing with the hand that was groping your breast?
A. The - which hand, the groping - - -
Q. So you said one hand was groping your breast.
A. Yeah.
Q. What exactly was he doing with that hand?
A. Just squeezing it - - -
Q. Mm hm.
A. - - - and it kind of hurt.
Q. Mm hm.
A. Yeah.
Q. And was this on top of or underneath your clothing?
A. Um, on top of because I was using this hand to like kind of pull down my shirt.
Again, it is apparent that E gave a physical demonstration of how the appellant was able to touch her breasts while committing the other offences charged in counts 5 and 6.
As has already been mentioned, E's evidence was pre‑recorded on 3 October 2023, in advance of the appellant's trial. In her pre‑recorded evidence, E was asked further questions about the Wi‑Fi incident. When she was asked to describe the incident the subject of count 6 in more detail, E gave the following evidence:
You also - you talked in this incident about [the appellant] standing behind you?---Yeah.
And he was trying to get you to touch his penis and you did touch his penis?---Yeah.
If [the appellant] was standing behind you, can you describe what sort of movements you were doing or what sort of movements he was doing so that you could reach his penis?---Like - like he would thrust on my back and he would grab - he would grab my arm to like forcefully like make me touch it, and he would just say like, 'Touch it', and I'm like, 'no', or something like that, and - - -
Okay. So for the transcript [E] was moving her right arm slightly back at an angle as if it was coming behind her. Does that movement that you made is that what [the appellant] was doing with your arm?---Yeah, he would grab it and like just like try to make me do it, but (indistinct).
Okay. You also talked about that last incident about [the appellant] touching your breast area?---Mm hmm.
You said that it was when you came into the room, but before he pushed you into the corner. Where - where were his hands? Was that - is that what he was touching you with?---Yeah.
Yes. And what were you doing with your arms?---So when I walked in?
Yes, when [the appellant] was trying to touch your breast or touched your breasts - - -?---Mm.
--- where - where were you - where was he?---He was like behind me and I would have like cover, like try cover my like chest area, like my breast.
Okay. And for the transcript [E] has just crossed her arms in front of her chest in like a - an X-shape. And did he actually touch your breasts?---Yeah.
Okay. You also spoke about [the appellant] in that incident putting his hands on the back of your neck?---Mm hmm.
Do you remember if that was before or after he touched your breasts?---After.
After. And which hand did he use to - to put on your neck?---His right.
Right hand. And was that the hand that he'd been using to touch your breasts?---No, his left hand.
His left hand. Now, what - where was his left hand at that time?---It was like on like my - to here, he was holding like my neck down with his right and then it was - I couldn't tell you, like I would - don't remember.
That's okay. That's okay.
It is convenient at this point to make two observations about this part of E's evidence concerning the Wi‑Fi incident.
Firstly, E physically demonstrated how she said the appellant grabbed hold of her hand and made her touch his penis while he was thrusting against her buttocks, how she tried to stop him from touching her breasts, and how the appellant had hold of her neck. Clearly, this court has not had the benefit of having seen E's demonstrations.
Secondly, a degree of confusion can be detected in E's evidence about the mechanics of how the offences in counts 5, 6 and 7 were committed. In that regard, E said that the appellant was thrusting on her back when he was standing behind her, and that while he was doing this he grabbed her right hand and forced her to touch his penis. Given the position E said she was in at that time, the jury may well have concluded that the appellant must have used his right hand to grab hold of her hand. However, only a short while later in her evidence, E then appeared to say that the appellant also had hold of her neck with his right hand. When E was then asked where the appellant's left hand was at the time, she initially began to answer, before retreating and saying that she could not remember.
E said that this incident stood out to her as it was the first time the appellant had pushed her head down in the way that she described. She was able to remember the date on which it occurred. She said it happened on the Sunday before her mother hit her, and said the date was 9 May 2021.
The appellant's trial counsel cross‑examined E about the incident the subject of counts 5, 6 and 7 at the pre‑recording of her evidence. In her evidence, E gave a lengthy description of what occurred in the course of that incident which did not appear to correlate with what she had previously said about that incident in her visually recorded interview:
So, your Honour, that's counts 5 to 7.
So, [E], can you just tell us how this one started, how this incident started, on 9 May?---I - I - I think I remember what it is but I'm not too sure, it's, like, right, but I think everyone was in their rooms …
That's okay?--- [MG] was with her kids and the Wi-Fi so obviously the Wi-Fi box was in my parents' room, like, we - under - I think I showed you guys that, and I was on my laptop listening to, pretty sure I was listening to something or was watching something and it stopped. And, like, you just - I knew from then, like, the Wi-Fi - the Wi-Fi stopped. So I was, like, okay, he's put it off, whatever, like, it's not - it doesn't matter. But then I went outside into the kitchen, I think I was making tea or something, I don't know, but I remember putting the kettle on and from that I was at the kitchen, like the fridge, and from the fridge he's pulled me, like, he's come out of his room and he pulled me in. I'm pretty sure that's the one I'm thinking of if that's the last one that's ever happened that I'm thinking of. And then, I'm, like - I'm, like - like, we were fighting at the door, like, his door, and I was trying to get away. I don't know where I was facing or how I was facing but I was trying to get away and I could - I don't know, I think I was in the room and then I got out but I'm not too sure so I can't tell you if I was or wasn't. But, like, I was at - I know I was at the door, I don't know if I was out or in, and I was, like, trying to get out, and then [E's brother] walked into the kitchen or said something, and he's, like, said my name, or something like, 'Oh, you' - something along those lines. My dad's, like, pushed me out of the door, like, a full, like, push out of the door. So I'm pretty sure that was, like, the last incident, where something's happened, yeah.
Okay. So that's everything you say happened on the last occasion, on 9 May 2021?---Well, it's everything I can remember at this moment, yeah.
Okay. So there was no thrusting his penis on you on this time?---I think he was, like, when I was trying to go. Like, we were fighting. I think he was, he was trying to hold me back, but I can't tell you if there was, cos [sic] I don't know, like, at this moment.
Okay. So we're talking about the last time that something happened?---Yeah, like, I don't - look, I - I don't know.
Okay. So you don't know if he was thrusting on you? Is that - just so I'm clear on your evidence?---Look, I don't remember.
Later in her cross-examination about this incident, and when she was reminded that she had already given evidence that the appellant touched her on the breasts during this encounter, E said that the appellant grabbed her breasts while she was struggling to get out of the bedroom. E also said that as this was happening, one of her brothers came into the kitchen and called out. She said that the appellant then pushed her out of the bedroom. E gave evidence that she then had a conversation with her brother while they were in the kitchen, before they both then retired to their own bedrooms.

Count 1

After E had recounted in her visually recorded interview what she said happened during the Wi-Fi incident, she was asked about the 'first time that something happened'.
E said that the first time something happened was when she came home from primary school one day. At the appellant's trial, this incident became known as the 'primary school incident'.
According to E, she walked home from school that day. When she arrived home, she looked in her mother and father's bedroom to see if they were home. The appellant was in his bedroom. No one else was home at the time.
E said 'hi' to the appellant, he gave her a hug and asked her about her day. E said that the first time the appellant hugged her was a 'normal hug'. They were standing face-to-face. However, when the appellant hugged E a second time, he came from behind her and thrust up against her.
When she was asked to provide further details about this incident, E gave the following answers:
Q. Yeah, okay. And just to make sure I - I'm thinking of the same thing, you said he was thrusting. And what happens when he was thrusting?
A. Um, like it would he'd be behind me - - -
Q. Mm hm.
A. - - - and just kind of like rub his penis - - -
Q. Mm hm.
A. - - - on my behind.
Q. Mm hm.
A. Yeah.
Q. Okay. And what could you feel when he was rubbing his penis on your behind?
A. I could feel his penis.
Q. Yeah.
A. Yeah. Like the first five or two minutes, I don't know - - -
Q. Mm hm.
A. - - - wouldn't feel anything and then it kind of like hit you that - - -
Q. Mm hm.
A. - - - there was something there.
Q. Okay.
A. Yeah.
Q. And what felt different in that - after the first two minutes?
A. It was like - oh, just like more noticeable, like - - -
Q. Yeah.
A. - - - you could feel like, I guess, the hardness.
Q. Yeah.
A. Yeah. You could like feel it - - -
Q. Mm.
A. - - - the penis being rubbed against - yeah.
Q. And then what happened after you felt that hardness?
A. Um, I'm pretty sure - I don't know, to be honest.
Q. That's okay.
A. I'm not sure.
Q. It was a while ago.
A. Um, he might have finished and then let me go, but I don't remember, to be honest.
Q. Okay. And, um, what had happened with your clothes and his clothes?
A. Um, I took mine straight off, my school clothes.
Q. So, um - so when he was thrusting and rubbing - - -
A. Yeah.
Q. - - - um, was he clothed or not clothed?
A. Uh, he was clothed.
Q. Okay. And what about yourself?
A. I was clothed, too.
E was also asked further questions about the 'primary school incident' during the pre‑recording of her evidence. E said that this incident occurred on a Wednesday. She said she knew it was a Wednesday because she would finish school early on a Wednesday but her brothers would finish school later in the day, and the appellant would return home from his FIFO job on Wednesdays.
E also remembered that she was wearing some 'pinkish like reddish Nike shoes' that her mother had bought for her. She remembered those shoes because people at school had been complimenting her about them.
In cross-examination, E confirmed that when the appellant was thrusting against her, she could feel his penis rubbing on her 'behind'. She said that while this was happening, she was standing up, but her upper body was bent forward.
E also agreed that while she had given evidence that the appellant was thrusting up against her outside her parents' bedroom, she had previously told the prosecutor that she was on her parents' bed when this occurred. E also confirmed that she had previously told the prosecutor that the appellant made her remove her shoes before she got onto the bed.
However, E maintained that what she had said in her evidence, and what she had told the prosecutor, were both the truth. She said that the thrusting happened when they were standing up and that it also happened while she was on the bed. She said she remembered her mother later yelling at her for leaving her shoes in her parents' bedroom.

Counts 2 and 3

In her visually recorded interview, E was asked about 'another time that something happened that was different'. This incident became known at the appellant's trial as the 'incident that [E] could not breathe'.
E said that this incident happened at night. She was 13 years old, but she could not recall what time of year it was. E said that she was talking to the appellant in his bedroom. She thought that her mother was at work.
The following questions and answers were recorded in E's visually recorded interview:
A. Um, there was one time, that was when kind of like he was on top of me - - -
Q. Mm hm.
A. - - - on his bed and I couldn't breathe. He was again thrusting - - -
Q. Mm hm.
A. - - - on me, but I was upwards - - -
Q. Upwards?
A. Um, I was - he kind of pushed me onto the bed and I was on the bed and he just laid on top of me---
Q. Mm hm.
A. - - - and started thrusting and I couldn't breathe - - -
Q. Mm hm.
A. - - - and, yeah, when - yeah, I was facing upwards and he was - - -
Q. Oh, yeah.
A. - - - facing downwards.
Q. Mm hm. So what were you doing before you got into the bed - you were in the bedroom?
A. Um, what I think - probably the same - probably pulled me in - - -
Q. Mm hm.
A. - - - and, yeah - and then prob - probably I was - actually, I was right next to the bed - - -
Q. Mm.
A. - - - when he was thrusting and then he kind of like pushed me onto the bed and then he got onto the bed and then he started thrusting.
Q. Mm hm.
A. Yeah.
Q. So what were you doing before he was thrusting at - next to the bed?
A. In the room?
Q. Yeah.
A. Kind of just there.
Q. Mm hm.
A. It was - like in the room.
Q. Mm.
A. I think we might have been having a conversation about something ‑ - -
Q. Mm hm.
A. - - - or talking and then I was just about to leave - - -
Q. Mm hm.
A. - - - then - then say bye I think from the door and the lights went off and then he kind of was thrusting on me next to the bed where I was ‑ ‑ -
Q. Okay. So what was the very next thing that happened between you're about to leave and him turn - and - sorry, and the lights turning off?
A. Um, he was - just came up to the light switch - - -
Q. Mm.
A. - - - turned it off and the door - - -
Q. Mm hm.
A. - - - got locked, I'm pretty sure - - -
Q. Mm hm.
A. - - - maybe, like I forgot - - -
Q. Yeah.
A. - - - and he kind of like held the top of my shoulders - - -
Q. Yeah.
A. - - - and turned me, started thrusting on my back behind and then pushed me all the way up to the bed - - -
Q. Mm hm.
A. - - - and then pushed - pulled me on the bed and then started thrusting on top - - -
Q. Mm.
A. - - - and then - then I couldn't breathe.
Q. Mm hm.
A. Yeah.
Q. And then what happened?
A. Then I guess he kept going till he finished again.
Q. Mm hm. And then - then what?
A. Went out, like to my room, I'm pretty sure I had a shower if I remember - - -
Q. Mm.
A. - - - I remember going and, yeah, was in the shower crying a little bit - - -
Q. Mm.
A. - - - and then came out and went to sleep.
Q. Okay. And when you were in the bedroom, what happened to your clothes?
A. Um, they were on. He was trying to take them off and - - -
Q. Mm.
A. - - - that was the one thing I couldn't - I didn't think about it, I just was holding onto my clothes - - -
Q. Yeah.
A. - - - while he was on top of me. I wasn't moving or anything.
Q. Yeah.
A. I was just making sure my clothes were on.
Q. Mm.
A. Yeah.
Q. And what were you wearing at the time?
A. Um, probably shorts and big shirt.
Q. Yeah.
A. No idea, to be honest.
Q. That's okay. And how was it that he was trying to get your clothes off?
A. Oh, kind of started pulling them - - -
Q. Yeah.
A. - - - and stuff.
Q. Mm hm. And what about his clothes? What happened to them?
A. Um, I can't remember. I think he might have been wearing them - he was wearing - I don't think they was ever, um, um, a time where he took them off.
E said that after this incident she went to her bedroom, had a shower, and went to sleep.
E was cross‑examined in some detail about the conduct the subject of counts 2 and 3. In that regard, evidence was elicited from E that the appellant was thrusting on her while she was leaning over her parents' bed. E said that she was lying face down on her parents' bed while this was happening. She explained that the appellant was standing up 'over [her]', and that he was thrusting against her 'bum'. She said she could feel that his penis and his thighs were making contact with her 'bum'. However, she also said that she could not see how the appellant was positioned from the position she was in, lying face down on the bed.
E then explained that the appellant 'flipped' her over so that she was looking at the roof 'just like a tin soldier type thing'. She said that the appellant then lay on top of her, and that she could not breathe. She said:
Okay. And you say that when you were - you were put onto your back, so your [sic] face up?---Mm hmm.
That - you couldn't breathe, is that - is that because his weight was on top of you?---Yes.
Okay. So are you saying that his body was like lying directly on top of you?---Yeah.
Okay. So you were both in the - like, you said tin soldier?---Yep.
So he was on top of you directly?---Mm hmm.
Okay?---Yes.
And you say while he's in that position on top of you - so his whole body - is it almost like your head and his head are at the same position and - - -?---Yeah, I'm pretty sure his - he was breathing next to me. Like, I could hear him breathing. Like, do you - yeah.
Okay?---I'm pretty sure.
Okay. And so you say while he was on top of you like that, he was thrusting?---Yes.
So was his hands out on the bed, like, in front of him for support then? Is that what you say?---I think so. But he was, like, laying on top of me. So his hands were, like, next to mine. So like I was like a tin soldier, and his hands were like - arms were like right - out of my arms, like, like that. Like, over - not over me, but next to my arms. You get what I mean?
So he had his arms, you say, out to the side of his body?---Yeah. Like, they were out to the side. Like, they're probably at the same length as my shoulders. Like, they were, like, right next to my shoulders. But they were like, out. They weren't - like, I was, like, a tin soldier, and he was like, like, that.
Okay?---Get what I mean?
All right. So he's lying on top of you?---Yes.
And you say his arms were out to his sides?---Yeah.
Close to your shoulders, is that right?---Most likely. Well, yes. It was right. Sorry, I won't say most likely.
Okay. And that - he's stayed in that position on top of you with his arms out the whole time until this ended?---I think he might have moved to his elbows, like, he's like that now. It's like - - -So you're just doing a movement like - - -?---Yeah.- - - the forearm, is that - - -?---Forearms. Yeah. The forearms on the bed. He would probably - he might have moved to, like, his forearms to my shoulders. But I can't tell you that cos [sic] I don't know. I don't recall if he did that or not. But I do remember his arms. Yeah.
Okay. And then how has this incident come to finish?---I was - I was telling him that I couldn't breathe. Like to get off me, like, I couldn't breathe.
And then what happened?---And then, like, I think he kept going. Well I was, like, really struggling hard. So I broke the tin man position.
How did you do that?---Like, I was quite squeezing, like, my arms to get up. Like, just not up and up, because he was already on top of me. To kind of, like, push, like, his chest off me at least. Like, it didn't work. But still, it was like a sign, like, I couldn't breathe. So then he got off.

A short while later, E gave the following evidence:
So the question, though, is about how you say [the appellant] was able to try and take your clothes off?---Yeah.
He was in that position on top of you on the bed?---So cos [sic] I was like in a little tin man soldier part, he tried to - like he just - he was like grabbing the bottom, so he was on top of me, he was on top of me, he was grabbing like the bottom of my shorts and like, cos [sic] I was already in tin man position, I could like keep them up already, like still, and then - then he went to - you know the position I just said with his arms next to my shoulders.
Yes?---Yeah.
So I understood, sorry, can you just explain that? So at what point do you say he tried to take your shorts off?---So when he flipped me over.
Yes?---So that's when he tried to take - but I was already in a tin man position, like that, so my hands were already where my shorts like already were so I was like holding them up. Do you know what I mean?
Was he trying to take - according to you you're saying he was trying to take your clothes off while he's thrusting on top of you?---No. Like, I'm flipped so I was facing down.
Yes?---And then I'm flipped so I'm like facing upwards now.
Yes?---And now because you're at that point that's how he was taking them off, like trying to. He didn't.
But is that while he was thrusting on top of you when you're face up?---No, he wasn't. I don't think so. I don't know. I don't recall, but I only recall that part.
It may be noted that although E gave evidence, consistent with the particulars of count 2, that she could feel the appellant's penis on her 'bum' when the appellant was thrusting up against her while she was lying face down on his bed, at no stage did she give any evidence that she felt his penis on her vagina as particularised in count 3.

Count 4

In her visually recorded interview, E said that in 2021, when she was 14 years old, and during the second term of school, she was at a shopping centre with some of her friends. E said that she and her friends had stopped there to get food before going on to rugby training after school. E remembered that it was a Thursday because that was the day she had training, and because the shops were open late.
E said that before arriving at the shopping centre, she called the appellant and asked him for some money to buy food. The appellant agreed, and when she and her friends arrived at the shopping centre, E called the appellant to ask for a code so she could access cardless cash. The appellant agreed to provide E with a code, but he asked her, 'Can we do it tonight?'
E explained that the appellant would often ask her 'can we do it tonight?' or 'can I put it in?', when she would ask him for things. She said that she would always say 'no' to the appellant. E said that she understood the appellant to be asking whether he could put his penis into her vagina. E said the appellant would often talk about it 'like it was a normal thing'. She explained that although she would refuse the appellant's advances and say that she was scared, the appellant would tell her that it was okay, and tell her that he would get condoms and lubricant. E said that despite talking about it, the appellant never put his penis into her vagina.
When E arrived home later that evening, the appellant was there, but her mother was at work. E went to her bedroom. Later, the appellant knocked on E's bedroom door, but she ignored it. When E went into the kitchen, the appellant saw her and pulled her into his bedroom.
E said that once she was in his bedroom the appellant locked the door and started to thrust his penis against her from behind. The appellant also tried to make E touch his penis, but she said, 'No'. E did not touch the appellant's penis, but he continued thrusting against her until he was 'finished'. When asked what she meant by 'finished', E said that she thought that the appellant had ejaculated.
For reasons that will shortly become apparent, it is only necessary to note one aspect of the cross‑examination about the incident the subject of count 4. In cross‑examination, E confirmed that the incident that was the subject of count 4 occurred on a Thursday night after her mother left the house to work a night shift. E also said that she thought her mother's night shifts would start at 8.00 pm, but accepted that they could have begun at 10.00 pm.

Other evidence

The State also adduced evidence from MG, the partner of one of E's older brothers.
MG said after she had children in late 2020, she moved in to live with E and her family. MG gave evidence about the layout of the family home. She also gave evidence about some of the dynamics in the family, including evidence about the hours that various people worked, how the children were dropped off and collected from school, and how E and her siblings were treated by their mother and by the appellant.
MG also explained what occurred when E moved out of home. In that regard, MG gave evidence that after E had been hit by her mother, she, E and E's brother left the family home to take E to hospital. MG said that in the car on the way to the hospital, E told her that the appellant would come into her bedroom at night.
The investigating officer, Detective Senior Constable Shanyn Bosveld also gave evidence at the appellant's trial. In the context of the ground of appeal, it is unnecessary to say anything further about that evidence.

Defence case

The appellant elected not to give evidence. However, several witnesses were called to give evidence as part of the defence case.
Evidence was elicited from two of E's older brothers. Both gave evidence about a range of topics. However, there is no suggestion that their evidence is any way relevant to determining the issues raised by the ground of appeal. Accordingly, it is not necessary to make any further reference to their evidence.
E's mother also gave evidence in the defence case. It is only essential to refer to one aspect of her evidence. Contrary to E's evidence that the incident the subject of count 4 occurred on a Thursday night when her mother was at work on a night shift, E's mother gave evidence that she did not work a night shift on any Thursday night during 2021. The evidence given by E's mother about her work schedule at the relevant time was corroborated by documented work attendance records for the relevant period.

The trial judge's directions

The trial judge gave the jury standard directions about the presumption of innocence, as well as directions about the onus and standard of proof. Her Honour also instructed the jury that before convicting the appellant of any offence, they were required to be satisfied beyond reasonable doubt of all of the elements of that offence.
The trial judge gave further directions that were of the following effect:
(a)The jury were the sole judges of the facts, the 'credibility or believability of each witness, and the weight of the importance to be given to their testimony'. It was for the jury to decide what evidence was important.
(b)It was for the jury to decide whether they considered that a witness was truthful, and whether a witness's evidence was accurate and reliable. It was open to the jury to conclude that a witness was honest but that they were otherwise unreliable, and that it was open to accept part of a witness's testimony while rejecting other parts. It was also for the jury to decide whether to accept all, some, or none of a witness's evidence.
(c)In deciding what evidence to accept, it was open to the jury to have regard to the way in which a witness presented when answering questions in court, including in any pre‑recorded evidence. The jury were free to take into account not only what witness said, but also the impression they gave, their demeanour, their age, their level of education, and any other matters that the jury might think affected the credibility of their evidence. This included 'the ability and the opportunity that a witness had to see, to hear or to know the things that a witness gave evidence about, and the circumstances they were in at the time'.
(d)The jury were required to consider each charge separately, and the jury's verdicts did not have to be the same for each charge. The jury were told that after considering all of the evidence, they might find the accused not guilty of all charges, they might find him guilty of all charges, or they might find him guilty of one charge and not guilty of another charge.
The trial judge explained to the jury the requirement that before convicting the appellant of an offence, they were required to be satisfied beyond reasonable doubt that the State had proved all the elements of that offence. In doing so, her Honour said that the central issue for them to decide was whether the specific form of touching alleged in relation to each count happened.
On several occasions, the trial judge specifically identified the particular act the jury were required to be satisfied about before convicting the appellant of the count they were considering. Relevantly, in the context of the ground of appeal, her Honour identified the act in relation to count 3 as being '[the appellant] thrusting his penis against [E's] vagina'. In relation to count 4, it was '[the appellant] thrusting his penis against [E's] buttocks'. In respect of count 6, it was '[the appellant] rubbing his penis with [E's] hand over the top of his clothes'.
Because there had been delay between when the incidents the subject of counts 1 to 3 had occurred and the trial, the trial judge gave the jury a Longman direction.[7] In that direction, the trial judge told the jury:
(a)The State's case in relation to each count depended upon acceptance of E's evidence as to the alleged incident.
(b)Because of the crucial nature of E's evidence, the jury were required to scrutinise her evidence about every alleged offence and, in particular the offences charged in counts 1, 2 and 3, with special care.
(c)Because there had been a delay in relation to E complaining about the conduct the subject of counts 1, 2 and 3, it was critical that the jury be satisfied of the truthfulness, the reliability and the accuracy of E's evidence as to the essential facts of the conduct alleged in relation to each of those charges, and that E was speaking from a genuine, accurate memory. The delay had also meant that the appellant had suffered certain forensic disadvantages.
(d)Because of the delay it would be unsafe to convict the appellant on the evidence of E in relation to counts 1, 2 and 3, unless having carefully considered E's evidence in relation to those counts, and taking full account of the directions, they were satisfied beyond reasonable doubt as the truth and accuracy of E's evidence.
[7] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
The trial judge also gave the jury a 'family violence direction' under s 39D of the Evidence Act. In that context the trial judge told the jury that experience shows:
(a)that people may react differently to sexual abuse in a family context;
(b)that it is not uncommon for a person who has been subject to sexual abuse in a family context to stay in the family;
(c)that it is not uncommon for such people not to report sexual abuse, particularly when the complainant is a child; and
(d)that decisions made by such people about how to address the abuse may be influenced by a variety of factors.

The jury's deliberations and verdicts

In support of his argument that the jury's verdicts in respect of counts 3, 4 and 6 were factually inconsistent with the other verdicts, the appellant places some reliance on what occurred during the jury's deliberations, and on the fact that the jury reached majority verdicts. It is said that the time that was taken for the jury to reach their verdicts, and the fact that the appellant was convicted by majority verdicts, supports a conclusion that the jury reached compromise verdicts.
As was made clear in the reasons of Gleeson CJ, Hayne and Callinan JJ in MFA,[8] a ground of appeal that asserts that a judgment of conviction should be set aside because the verdict upon which that conviction was based is inconsistent with a not guilty verdict or a series of not guilty verdicts, is a ground that the verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence. Accordingly, it is not clear how or why the time taken by a jury to reach a verdict, or the fact that majority verdicts were reached, could bear upon the proper consideration of the merits of such a ground.
[8] MFA [35] - [36].
The appellant contended that these factors lead to an 'inevitable conclusion that a compromise was reached'[9] by the jury in arriving at their verdicts. That submission may have been derived from the observations made by Gaudron, Gummow and Kirby JJ in MacKenzie, which I have reproduced earlier in these reasons. However, the submission fails to recognise that the question is not whether the jury may be seen to have reached a compromise. Indeed, compromise is likely to be commonplace in joint decision making inherent in jury deliberations. Instead, the relevant question is whether different verdicts represent and strongly suggests a compromise of the performance of the jury's duty because they are an affront to logic and commonsense. The length of a jury's deliberations, and the fact that a jury reached majority verdicts, are factors that are unlikely to inform the resolution of that question.
[9] Appellant's submissions, par 19.
It is, however, relevant to note that while they were deliberating, the jury asked that the evidence relating to counts 2 and 3 be provided to them, as well as some other evidence that was given by E's mother about E's shoes. Although the trial judge decided not to provide the members of the jury with a copy of the transcript of the relevant evidence, she did read the evidence to them. Accordingly, the jury had the benefit of having heard E's evidence about counts 2 and 3 on two separate occasions.

Determination of appeal

The appellant's contentions that the jury's not guilty verdicts that were returned in relation to counts 3 and 4 were inconsistent with the verdicts of guilty returned for counts 1, 2, 5 and 7 may be disposed of shortly.
There are obvious, and entirely rational, explanations for the jury's decision to acquit the appellant of the offences charged in counts 3 and 4, having particular regard to the trial judge's directions.
Count 3 on the indictment alleged that the appellant indecently dealt with E by 'thrusting his penis against her vagina'. In a manner consistent with the way in which count 3 was particularised, the trial judge told the jury, on several occasions, that the specific form of touching they were required to find had been proved beyond reasonable doubt for the purposes of count 3, was the appellant thrusting his penis against E's vagina.
A careful review of E's evidence demonstrates that although she gave evidence that the appellant lay on top of her while she was facing upwards, and that he was thrusting against her while in that position, at no time did E ever actually say that the appellant's penis made contact with her vagina, either over her clothing or otherwise. It was open to the jury to think that her evidence in that regard stood in stark contrast with the evidence she gave about count 2, particularly in cross-examination, where she said that she could feel the appellant's penis making contact with her 'bum'.
The jury's not guilty verdict in relation to count 3 is not inconsistent with any of the guilty verdicts. The verdict in relation to count 3 does not require a conclusion that the jury completely disbelieved E, or that the jury found E to be generally dishonest or unreliable. The jury were told to scrutinise E's evidence in relation to counts 1, 2 and 3 with special care, and that because of the delay it was critical that they be satisfied of the truthfulness and reliability of E's evidence in relation to those counts. In that context, the not guilty verdict returned in relation to count 3 may be seen to reflect a logical and reasonable, but cautious, approach to the discharge of the jury's function.
The jury's not guilty verdict in relation to count 4 is also readily explicable.
In her visually recorded interview, E said that the incident the subject of count 4 occurred on a Thursday night in 2021, when her mother was out of the house, and at work on a night shift. When it was put to E directly in cross-examination that her mother never worked a night shift on a Thursday in 2021, E strongly maintained her evidence about when count 4 took place.
However, and as has already been explained, evidence was adduced as part of the defence case that demonstrated that E's mother did not work a night shift on any Thursday in 2021. Therefore, and as the appellant's senior counsel properly conceded at the hearing of the appeal, the jury's decision to acquit the appellant of the offence charged in count 4 is more than capable, as a matter of logic and reasonableness, of sitting together with the other verdicts that were returned by the jury.
The appellant's only remaining contention is that the jury's verdict of not guilty in relation to count 6 is factually inconsistent with the verdicts of guilty generally, but more specifically it is inconsistent with the guilty verdicts returned in respect of counts 5 and 7. In that regard, the appellant relies on the fact that the offences the subject of counts 5, 6 and 7 were all alleged to have taken place in the course of a single episode. The appellant submits, in effect, that in those circumstances the verdicts were inconsistent because, as a matter of reasonableness and logic, it must follow from the jury's conclusion that E's evidence was unreliable in relation to count 6 that her evidence about counts 5 and 7 was also unreliable.
At the hearing of the appeal the appellant's senior counsel further submitted that the jury's verdict in relation to count 6 was incapable of rational explanation because:
(a)The jury decided to convict the appellant of count 5, notwithstanding the fact that when she was asked in cross‑examination what happened on the last occasion the appellant touched her in a sexual way,[10] E did not mention that he had thrust his penis against her buttocks. When specifically asked by the appellant's trial counsel whether the appellant did thrust his penis against her, E said that she did not know and that she did not remember.
(b)The jury decided to convict the appellant of count 7 in circumstances in which E did not initially say in her visually recorded interview that the appellant actually touched her breasts, and only made it clear that this is what happened later in that interview. Further, during cross-examination E appeared to say that the appellant grabbed her breasts as she was struggling against the appellant to get out of the bedroom.
(c)The jury decided to acquit the appellant of count 6, although it concerned an allegation E made in her visually recorded interview, which she maintained in her pre-recorded evidence, and in circumstances in which she was not challenged about that conduct in cross-examination.
[10] Which, based on what she said in her visually recorded interview, was on 9 May 2021, a few days before E left the family home after she was hit by her mother.
There were undoubted differences between E's account in her visually recorded interview of what took place during the episode reflected in counts 5, 6 and 7, and what she said in her pre-recorded evidence. However, the jury, acting reasonably and logically, may well have reasoned that E's account in the visually recorded interview of what she said had taken place only two weeks before that interview, was likely to be more reliable than the account she gave in her pre-recorded cross‑examination over two years later. Based on what E said in her visually recorded interview alone, it was well open to the jury to find that the appellant had thrust his penis against her, as alleged in count 5, and that he had touched her on the breasts, as alleged in count 7.

It may be accepted that counts 5, 6 and 7 were alleged to have taken place as part of a single course of conduct. Accordingly, the jury's verdict of not guilty in relation to count 6 may appear, at first blush, to be anomalous.
However, it must be remembered that the jury were specifically directed that it was open to them to accept or reject some, part, or all of a witness's evidence, and that they were entitled to return different verdicts in respect of different counts on the indictment. In that context, it is important to appreciate that not only did E give oral evidence of what she said the appellant did in the context of count 6, she also gave several physical demonstrations of what occurred in both her visually recorded interview and then later in her pre-recorded evidence.
Neither party suggested that the court should view either E's visually recorded interview or her pre-recorded evidence for the purpose of examining the physical demonstrations she gave of what occurred in the context of count 6. Accordingly, this court has not had the advantage that the jury had of seeing any of those physical demonstrations. It is entirely possible that the jury might reasonably have considered that there were aspects of those demonstrations that caused them to draw back from making a finding to the criminal standard that the appellant had committed the specific act that was the subject of count 6.
It may be, for example, that with the benefit of seeing E's demonstrations, the jury had difficulty accepting that what she had described was physically possible. Further, E's evidence was that the appellant took hold of one of her hands and forced her to rub his penis when she was facing away from him, and while she was lying face down on her parents' bed. It would by no means have been unreasonable or illogical if, adopting a cautious approach, those circumstances gave at least some members of the jury pause for thought about whether E's hand had actually come into contact with the appellant's penis, or whether this was only what she believed had occurred.
During her pre-recorded evidence, E was asked by the prosecutor to describe the appellant's movements when he forced her to touch his penis. That evidence is reproduced earlier in these reasons at [39]. It appears from the transcript of her evidence that E experienced some difficulties in explaining exactly how the appellant forced her to touch his penis while he was, at the same time, thrusting against her buttocks.
Based on the prosecutor's description of E's demonstration, E moved her 'right arm slightly back at an angle as if it was coming behind her'. Given the position E said she was in at that time, if this is what occurred then the jury may well have concluded that the appellant must have used his right hand to grab hold of her hand. However, E then said that the appellant was using his right hand to hold her neck while thrusting against her. E then immediately changed her evidence to say that it was his left hand that was on her neck before she then, in what appears from the transcript to have been a moment of confusion, reverted to saying that he used his right hand to hold her down by the neck.
In these circumstances, the jury may have reasonably considered that although E honestly believed that the appellant had forced her to touch his penis, her evidence about the particular conduct she described was unreliable such that they were not prepared to accept that it occurred to the criminal standard of proof.
The jury may also have been reluctant to find that the State had proved beyond reasonable doubt that the appellant engaged in the particular conduct the subject of count 6 in circumstances in which at no point during her cross‑examination did she give evidence that the appellant grabbed hold of her wrist. This was a matter that was specifically drawn to the jury's attention by the appellant's trial counsel in her closing address.
For all these reasons, the appellant's contention that the jury's verdicts of guilty are inconsistent with their verdict of not guilty in relation to count 6 cannot be accepted.

Conclusion

The sole ground of appeal is without merit. For the reasons we have given, it is not reasonably arguable that the verdicts of guilty for counts 1, 2, 5, and 7 are unreasonable or cannot be supported, having regard to the evidence, on the basis that they are factually inconsistent with the verdicts of not guilty for counts 3, 4 and 6. Accordingly, we would refuse to grant leave to appeal.
In those circumstances, the appeal is taken to be dismissed.
We would make the following orders:
1.Leave to appeal is refused.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Honourable Justice Vandongen
8 NOVEMBER 2024