BF v R

[2019] NSWCCA 321

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	BF v R [2019] NSWCCA 321
Hearing dates:	16 October 2019
Date of orders:	24 December 2019
Decision date:	24 December 2019
Before:	Macfarlan JA at [1]; Johnson J at [53]; R A Hulme J at [54]
Decision:	(1) In lieu of the suppression order made in the District Court on 12 June 2018, order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that for a period of 5 years from the date of this order publication of any information tending to reveal the identity of the complainant, the applicant, any of their children or any witnesses or persons named in the trial (other than police officers) in connection with these proceedings be prohibited. (2) Order (1) is made on the grounds stated in ss 8(1)(a), (c) and (d) of that Act and is to apply throughout the Commonwealth. (3) Grant leave to appeal against the applicant’s convictions. (4) Dismiss the appeal.
Catchwords:	CRIME – conviction appeal – whether unreasonable verdicts – sexual and violent acts committed against de facto partner – whether jury’s verdicts of not guilty on ten counts and guilty on three others are inconsistent – logical and reasonable explanations available for verdicts – appeal dismissed
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1), 12 Crimes Act 1900 (NSW), ss 33(1), 35(4), 66I, 66J, 93G Criminal Appeal Act 1912 (NSW), s 5(1)(b)
Cases Cited:	Holloway v R [2017] NSWCCA 17 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 MG v R [2017] NSWCCA 14 Nguyen v The Queen [2017] NSWCCA 145 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Category:	Principal judgment
Parties:	BF (Applicant) Regina (Respondent)
Representation:	Counsel: A Hughes (Applicant) B Hatfield (Respondent)   Solicitors: AA Criminal Lawyer (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/363277
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 June 2018 File Number(s): 2015/363277

Judgment

1. MACFARLAN JA: The applicant was tried in the District Court before a jury on 13 charges arising out of sexual or violent acts alleged to have been committed by the applicant in relation to his female de facto partner (“the complainant”) over a period of approximately 13 years. The applicant pleaded not guilty to all 13 counts on the indictment.

2. Six counts related to offences contrary to s 61I of the Crimes Act 1900 (NSW) of having sexual intercourse with the complainant without her consent, knowing that she was not consenting (counts 1, 2, 3, 7, 12 and 13). A further count charged the aggravated form of this offence, pursuant to s 61J of the Crimes Act, the circumstance of aggravation being that at the time of the intercourse the applicant intentionally inflicted actual bodily harm on the complainant (count 8).

3. The remaining counts charged the following offences:

Count 4: Carrying a firearm with disregard for the safety of the complainant, contrary to s 93G(1)(c) of the Crimes Act.

Counts 5 and 9: Reckless wounding of the complainant, contrary to s 35(4) of the Crimes Act.

Count 6: Wounding the complainant with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act.

Counts 10 and 11: Causing grievous bodily harm to the complainant with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act.

4. The jury returned verdicts of guilty in relation to counts 4, 5 and 6 and not guilty in relation to the remaining counts.

5. The applicant seeks leave to appeal against his convictions on the following ground:

“The verdicts of the jury in respect of counts 4, 5 and 6 should be set aside on the ground that they are unreasonable, or cannot be supported having regard to the evidence, and the verdicts of not guilty in respect of counts 1-3 and 7-13.”

6. As this ground raises questions of fact, the applicant requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

7. In written and oral submissions on appeal, counsel for the applicant, Dr A Hughes, confined his argument to one that, in light of the jury’s ten not guilty verdicts, it must be taken to have had “serious concerns in relation to the complainant’s credibility”, with the consequence that its verdicts of guilty on counts 4, 5 and 6 could not reasonably have been supported “on the basis of her evidence alone”. He then submitted that the other evidence available in respect of those counts did not support the jury’s verdicts of guilty.

RELEVANT LEGAL PRINCIPLES

8. The principles applicable to an unreasonable verdict ground of appeal were summarised by Bathurst CJ (with the concurrence of Johnson and Fullerton JJ) in Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84] as follows:

“The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the court is required to make its own “independent assessment of the evidence”. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the court also stated (at 494) that “[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced” and “[i]t is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred”: see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59].”

9. In Nguyen v The Queen [2017] NSWCCA 145 at [34]-[48], I reviewed relevant authorities concerning the principles applicable to an unreasonable verdict ground of appeal where the ground is sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17). With the concurrence of Campbell J, I stated the following conclusions (at [48]):

“These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see Mackenzie at [34] above), that is, if there is ‘a logical and reasonable basis for sustaining the differentiation that the jury drew’ (see MFA at [42] above). Such a basis may exist if the quality of the complainant’s evidence in a case involving sexual offences varied between counts (compare Jones at [36] above). There are many reasons why this may occur. One is that in some respects a complainant may have resorted ‘to a degree of exaggeration in order to reinforce his or her account’ (see Markuleski at [39] above; TK at [44] above). Alternatively, the complainant’s account of events concerning a particular count may be implausible because of the nature of the events described (see MG at [45] above). Further, if parts of a complainant’s evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant’s evidence as compared to other parts (see MG at [46] above). Such considerations may lead the court to the conclusion that a jury’s differential verdicts are the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count (see Holloway at [47] above).”

10. Further elaboration of these principles is to be found in this Court’s judgment in Vasilevski v The Queen [2019] NSWCCA 277 at [115] and [117] as follows:

“In TK, Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, described the approach to be taken as follows. At [128] and [130], she said:

‘…In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis… [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility’ [emphasis in original].

…

Finally, a verdict of acquittal on one or more counts involving the same complainant does not mandate a conclusion that the jury regarded the complainant as untruthful generally. As explained in MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [34]:

‘…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…’”

THE CHARGES AND THEIR EVIDENTIARY SUPPORT

Count 1 – the Ouzo bottle

11. This charge arose out of the discovery by police of a roll of undeveloped film in the applicant’s safe when police executed a search warrant. One of the photographs depicted an Ouzo bottle in the complainant’s vagina. The complainant said that she had no memory of the incident or of consenting to the insertion of the bottle. Items depicted in the photograph enabled the complainant to date it to early 2002.

Count 2 – use of a dog

12. This charge was based on the complainant’s evidence that on an occasion when the applicant and complainant were drinking alcohol and consuming drugs, the applicant accused the complainant of infidelity, which she denied. As supposed punishment for “lying” to him, the applicant allegedly forced the complainant to have sexual intercourse with one of their dogs for approximately 3-4 minutes. The complainant alleged that the applicant filmed the incident. No footage depicting any sexual act with a dog was however found when the police searched the home.

Count 3 – further use of a dog

13. This charge was based on the complainant’s evidence that in response to a further accusation of infidelity and the complainant’s denial of it, the applicant again forced the complainant to submit to sexual intercourse with a dog. The complainant again alleged that the applicant filmed the incident, but no footage was located in the police search.

Counts 4 and 5 – shooting by an air rifle

14. These charges related to an incident alleged to have occurred when the applicant and complainant were again drinking alcohol and consuming drugs. The complainant said that she fell asleep and when she awoke the next morning she felt sick and noticed blood when she went to the toilet. She said that she did not know why she was bleeding. Two weeks later, the complainant felt an object near her vagina when inserting a tampon. When she told the applicant, he allegedly told her that he had shot her when she would not wake up. The complainant sought medical treatment and an air rifle pellet was surgically removed from her perineum.

Count 6 – use of a knife

15. This charge again arose out of an occasion when the applicant and complainant were drinking alcohol and consuming drugs. The complainant said that she fell asleep and that when she awoke the next morning she was naked and in pain. There was blood on the bed sheets and her buttock was stuck to a sheet. When the complainant asked the applicant about the blood, he allegedly told her that he had carved his name on her buttock with a Stanley knife. When the complainant looked in the mirror she saw three letters spelling the applicant’s abbreviated first name, about three inches in height, carved into the side of her buttock.

Count 7 – further use of a dog

16. This charge again arose out of an occasion when the complainant and the applicant were drinking alcohol and consuming drugs. The complainant gave evidence-in-chief that whilst she did not “remember a lot of it”, she recalled the complainant bringing in one of the dogs and making her “do it again”, referring to having forced sexual intercourse with the dog. The complainant could not recall whether she had seen video footage of any such act with that particular dog. The complainant did not think that the applicant had recorded that incident (cf Crown’s Submissions at [13]).

Counts 8 and 9 – use of safety pins

17. These charges arose out of an occasion when the complainant passed out after consuming alcohol and drugs. She gave evidence that when she awoke the next morning she felt pain around the vaginal area when she went to the toilet. She said that she then discovered that three safety pins had been threaded through the skin of her labia so as to close the skin over her vagina. The complainant screamed out to the applicant who allegedly told her that he had inserted the pins whilst the complainant was asleep. She said that he then used his mobile phone to photograph her before removing the three safety pins from her labia. The photograph was not recovered and the complainant did not seek medical attention for her injuries.

Counts 10 and 11 – tattoos

18. These charges once again arose out of an occasion when the complainant fell asleep when she and the applicant were drinking and consuming drugs. She gave evidence that when she awoke the next morning she felt pain around her vaginal and mouth areas. The complainant asked the applicant why she was so sore and, using a mirror he showed her that she had the three letters of his first abbreviated name tattooed on her bottom lip and also on her right labia. The applicant allegedly told her that he had done this whilst she was passed out. The complainant did not seek any medical attention as she said that she felt ashamed.

Count 12 – use of an electrical insulator

19. This charge arose out of the discovery by police on one of the applicant’s lap top computers of a photograph depicting an electrical insulator inserted into the complainant’s genitalia. The complainant gave evidence that she had no memory of the incident and did not consent to the electrical insulator being inserted into her vagina.

Count 13 – use of a golf club

20. The complainant gave evidence of an occasion when she passed out after drinking alcohol. She said that when she awoke she was naked and the applicant was standing at the end of the bed having placed the handle of a golf club inside her vagina.

THE COURSE OF THE TRIAL

21. The first part of the complainant’s evidence-in-chief at the trial was constituted by a video recorded statement which was played to the jury. The complainant then gave further evidence-in-chief and was cross-examined. She gave evidence concerning the incidents referred to above and of two pretext calls with the applicant which were recorded by the police.

22. Three of the complainant’s family members gave evidence, including in relation to her lifestyle and drug taking.

23. A medical practitioner gave evidence of a forensic medical examination of the complainant that was conducted after the complainant was interviewed by the police. The examination provided support for the occurrence some years earlier of the carving with the use of a knife (count 6) and of the tattooing (counts 10 and 11). It did not provide any support for, but did not contradict, the complainant’s evidence concerning the air rifle and safety pins (counts 4, 5, 8 and 9). The practitioner said that she had not expected that physical evidence of safety pin penetration would still be visible long after the alleged events, in circumstances where the safety pins were removed “fairly soon afterwards”.

24. Another medical practitioner gave evidence that some years earlier she had removed an air rifle pellet from the complainant’s genitalia (see counts 4 and 5).

25. The police officer in charge of the investigation of the complaints against the applicant gave evidence, including of the discovery of video footage depicting sexual activity between the complainant, the applicant and a member of the complainant’s family when present at the same time.

26. The applicant gave evidence in his own case denying the commission of the offences with which he was charged.

The applicant’s submissions on appeal

27. In his written submissions on appeal the applicant first emphasised the importance of the credibility of the complainant to the outcome of the trial. Both the Crown and the applicant in closing addresses recognised that and, in summing-up to the jury, the trial judge referred to it as the “central issue”. AB 13 Her Honour gave the jury a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) as follows:

“If you were to find the accused not guilty on a particular count, and particularly if that was because you might have had doubts about the credibility, that is the truthfulness or reliability of [the complainant], then you would have to consider how that conclusion affects your consideration of other counts, because her credibility obviously is relevant and substantially important in relation to each and every charge that you have to consider.”

28. As noted at [7] above, the applicant submitted on appeal that the jury’s not guilty verdicts indicate that the jury must have had serious concerns in relation to the complainant’s credibility. The applicant submitted that that being the case, the jury could not reasonably have relied on the complainant’s evidence to convict him on counts 4, 5 and 6.

29. On appeal the applicant first relied particularly on the not guilty verdicts on counts 10 and 11 (the tattooing charges) because, he said, those counts were similar to count 6 (the knife charge) as both involved the permanent scarification or marking of the complainant and were the subject of evidence from the applicant that the complainant consented to the conduct. The applicant referred to propositions put by the Crown to the applicant in cross-examination (and accepted by the applicant) to the effect that both tattooing on sensitive parts of the body and cutting a person’s bottom with a knife would be painful.

30. The applicant submitted that the jury must have considered it a reasonable possibility that the complainant had consented to the tattooing, and submitted that the jury should therefore have accepted that it was a reasonable possibility that she consented to the use of a knife on her as well.

28. Secondly, the applicant particularly relied on the not guilty verdicts on counts 1 and 12 (the Ouzo bottle and insulator charges) which the applicant submitted indicated that the jury accepted that someone other than the applicant might have committed the acts the subject of those counts. Equally, it was said, someone else may have done the shooting the subject of counts 4 and 5.

29. The applicant also contended that because the complainant could not recall being shot by the air rifle, the Crown had to rely in relation to counts 4 and 5 upon an acknowledgement of responsibility that the applicant allegedly made in one of the pretext calls. In the pretext call, the complainant asked the applicant if he remembered shooting her, to which he replied “[n]ot exactly no, I know I did yeah”. In the same pretext call, the applicant, when asked again about the incident, responded “I don’t even remember that”. The applicant later stated in the call that “[t]he only thing that I am sorry for is the air rifle”. The applicant submitted that, properly understood, the applicant’s statements in that call concerning the air rifle however simply indicated that he had no recollection of the shooting.

DETERMINATION OF THE APPEAL

33. To determine whether there is an inconsistency between the jury’s verdicts of not guilty on 10 of the counts and guilty on the other three, it is necessary to consider, count by count, why the jury may have returned the verdicts it did and whether the differing verdicts are capable of logical and reasonable explanations consistent with the proper performance by the jury of its duties. As “the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals” (see [10] above), the counts upon which the applicant was acquitted are referred to first.

Counts 1 and 12 – the Ouzo bottle and the electrical insulator

34. The complainant did not give evidence that the applicant was responsible for the count 1 incident because she had no memory of it occurring. The prosecution case was founded upon a photograph of an Ouzo bottle in the complainant’s vagina. The jury may well however have had a reasonable doubt as to whether the complainant did not consent to that occurring. Relevant to that possibility, the applicant gave evidence-in-chief that “not very far into” his relationship with the complainant, she inserted into her genitalia “various objects”, such as deodorant cans and fruit. The applicant said that “later on” into the relationship she would use vibrators and dildos. In cross-examination the complainant did not accept that she inserted deodorant cans or fruit into her genitalia, but she did accept that she used dildos and vibrators.

35. A possible alternative explanation for the applicant’s acquittal on count 1 is that the jury may not have been satisfied beyond reasonable doubt that the applicant was responsible for inserting the Ouzo bottle into the complainant’s vagina. The jury may have been encouraged to have a reasonable doubt about whether the applicant took the photo, and whether he inserted the bottle, by somewhat equivocal evidence given by the complainant and one of the complainant’s family members. When asked whether the photograph was taken by her best friend, the complainant responded: “No, it – I don’t know. No, I don’t know. I don’t recall the photograph being taken”. T 230 The evidence of the family member was that she did not recall whether she had taken photographs of the complainant “other than fully clothed with or without objects inside her”. When pressed by a question as to whether it was “something you could have done but you don’t recall, or something you definitely do?”, the family member responded only “I do not remember”. I note however that the primary judge remarked in her summing up that this family member was an “unlikely candidate” as she would have only been a child when count 1 was alleged to have occurred.

36. The position was relevantly the same in relation to count 12 which involved the insertion of an electrical insulator into the complainant’s vagina.

Counts 2, 3 and 7 – the use of dogs

37. Proof of these counts was substantially dependent on the complainant’s evidence, although the pretext calls arguably provided some support for the view that at least one such incident had occurred. In the pretext call, when the complainant raised the incident involving the dogs with the applicant, he responded that “[i]t only happened once”. Unlike the position in relation to a number of other counts, there was otherwise no objective evidence to corroborate the complainant’s evidence.

Counts 8, 9 and 13 – the safety pins and the golf club

38. Proof of these offences was also dependent upon the complainant’s evidence, there being no objective or other evidence to support them.

Counts 4 and 5 – shooting with the air rifle (guilty verdicts returned)

39. There was a reasonable basis upon which the jury, which convicted the applicant on these counts, could have regarded the evidence on them as significantly stronger than on the counts on which it acquitted the applicant. First, there was objective evidence that the complainant was in fact shot, as an air rifle pellet was surgically removed from her perineum. Secondly, it was open to the jury to take the view that in light of the nature of the act in question there was no reasonable possibility that the complainant consented to it. On the other hand, it is possible that the jury might have had a reasonable doubt about the complainant’s lack of consent in relation to counts on which it acquitted the applicant, including counts 10 and 11 concerned with tattooing.

40. On appeal, the applicant responded with three arguments against this process of reasoning.

41. First, the applicant contended that medical records in evidence conflicted with the complainant’s evidence as to the discovery of the air rifle pellet. The medical records do not however provide support for this argument. In fact, by recording that the complainant said that she had been shot two weeks earlier but had been “[t]oo embarrassed to seek medical attention”, the medical records supported the complainant’s evidence that the discovery of the pellet at the hospital was not the first time at which she became aware of it. There is nothing in the medical notes which in my view rendered a conviction on counts 4 and 5 unreasonable or detracted from the reasons that I have given in [39] above as to why the jury may have distinguished these counts from those on which it acquitted the applicant.

42. Secondly, the applicant submitted that he had not admitted in the relevant pretext call that he was responsible for the shooting (see [32] above). It is true that there is some ambiguity in what the applicant is recorded as having said to the complainant in that call. Whether or not in fact the jury however derived assistance from it, it was nevertheless open to it to be satisfied beyond reasonable doubt that counts 4 and 5 had been proved on the basis of the complainant’s evidence generally and the two matters to which I have referred in [39] above.

43. That the jury may not have been prepared to convict on other counts on the basis of the unsupported complainant’s evidence did not mean that it could not rely on the complainant’s evidence in other respects to the extent that the jury regarded it as, in whole or in part, corroborated by objective evidence. As explained in MFA v R, whilst a jury might consider that it is probable that a complainant is telling the truth, it might “require something additional before reaching a conclusion beyond reasonable doubt” (see [10] above).

44. Thirdly, the applicant submitted that because the jury “accepted in relation to counts 1 and 12 that it might have been someone else who committed those acts”, it should have entertained a reasonable doubt that it was the applicant who shot the complainant. Although it is a possibility, it is not however certain that the jury did accept that someone other than the applicant might have committed the acts in counts 1 and 12. Instead, as I have said at [34] above, the jury might have acquitted the applicant on those counts on the basis that it was not satisfied beyond reasonable doubt that the complainant did not consent to the acts the subject of the counts. The possibility of this being the case was real in light of the applicant’s evidence-in-chief that the applicant observed the complainant putting objects such as deodorant cans, fruit, vibrators and dildos inside her vagina.

45. Further, because she did not remember the incidents, the jury did not have evidence from the complainant about the circumstances in which the counts 1 and 12 incidents occurred. On the other hand, in relation to counts 4 and 5, it had the evidence of the complainant that she was in the company of the applicant when she passed out. As well, the jury had the complainant’s evidence in relation to counts 4 and 5 that when the complainant realised what had happened to her, the applicant admitted that he was responsible (see [14] above). It did not have any similar evidence in relation to counts 1 and 12. Yet further, it was open to the jury to treat what the applicant said during the pretext call as acknowledging his involvement in the counts 4 and 5 incidents (see [32] above).

46. These matters comprise ample possible reasons why the jury acquitted the applicant on counts 1 and 12 but not on counts 4 and 5.

Count 6 – use of the knife (guilty verdict returned)

47. As with the evidence relating to the other counts on which the jury returned guilty verdicts (counts 4 and 5), there was objective evidence, in this instance, that the injury in question had been inflicted by some such means as alleged (see [23] above). Additionally, the nature of the act was such that it was open to the jury to conclude that there was no reasonable possibility that the complainant consented to it. With corroboration of the complainant’s evidence to this extent, the jury may well have been prepared to act on her evidence that the applicant acknowledged to her that he was responsible for the carving (see [15] above). In any event, the jury had the complainant’s description of the circumstances in which she fell asleep before the carving occurred and the fact that the letters carved spelt the applicant’s abbreviated first name to assist it in reaching a state of satisfaction beyond reasonable doubt of the applicant’s guilt on count 6.

48. In support of his challenge to the count 6 conviction, the applicant contended that because the jury must have accepted that there was reasonable doubt as to whether the complainant consented to being tattooed by the applicant (counts 10 and 11), it should reasonably have entertained the same doubt concerning consent in relation to the knife incident (count 6).

49. The jury may well however have taken the view that whilst consent to tattooing was a realistic possibility, consent to being cut with a knife in the way that occurred was not. The jury may reasonably have been encouraged to draw such a distinction by the evidence as follows:

1. The complainant and the applicant jointly purchased the tattoo gun and they both had an interest in tattooing.

2. The complainant appeared to have accepted the possibility that she consented to the tattooing in one of the pretext calls when, in response to the applicant saying that he would not tattoo her without asking for the complainant’s agreement, she responded “[w]hile I was drunk and off my head on drugs, that’s a really good time to ask … ”.

3. The applicant gave evidence that it would not have been possible for one person to operate the tattoo gun and ink (which required two hands) as well as hold open the lip or labia in order to expose that part of the body for tattooing.

4. The complainant was not particularly emphatic in her evidence rejecting the proposition that she had assisted in the tattooing. She said “I don’t remember it”.

CONCLUSION AND ORDERS

50. Having conducted an independent assessment of the evidence, I have, for the reasons stated above, concluded that the jury’s verdicts of guilty on counts 4, 5 and 6 were reasonably open to it and that the acquittals on the remaining counts were not inconsistent with those verdicts. As I have explained, there are logical and reasonable explanations available for the verdicts reached by the jury on the different counts.

51. On 12 June 2018, the day upon which the trial judge sentenced the applicant, her Honour made a suppression order on the grounds specified in ss 8(1)(a), (c) and (d) of the Courts Suppression and Non-publication Orders Act 2010 (NSW) (“the CSNO Act”). Her Honour heard evidence in support of the making of that order and gave reasons why it was necessary. Those reasons remain applicable and justify the continuation of the order, albeit in the narrowed form that I propose below.

52. For these reasons, I propose the following orders:

1. In lieu of the suppression order made in the District Court on 12 June 2018, order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that for a period of 5 years from the date of this order publication of any information tending to reveal the identity of the complainant, the applicant, any of their children or any witnesses or persons named in the trial (other than police officers) in connection with these proceedings be prohibited.

2. Order (1) is made on the grounds stated in ss 8(1)(a), (c) and (d) of that Act and is to apply throughout the Commonwealth.

3. Grant leave to appeal against the applicant’s convictions.

4. Dismiss the appeal.

53. JOHNSON J: I agree with the reasons of Macfarlan JA and his Honour’s proposed orders.

54. R A HULME J: I agree with Macfarlan JA.

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Decision last updated: 24 December 2019