Blake (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0058

JASON BLAKE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	BEACH, T FORREST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2023
DATE OF JUDGMENT:	16 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 52
JUDGMENT APPEALED FROM:	[2021] VCC 1664 (Judge Chambers)

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CRIMINAL LAW – Conviction – Appeal – Three charges of sexual offending against one complainant – Jury convicted applicant on two charges, but acquitted him on third charge – Whether verdicts inconsistent – Not reasonably arguable that verdicts inconsistent – Whether convictions unreasonable or unable to be supported – Inconsistencies in complainant’s evidence – Evidence of applicant’s good character – Whether it was open to jury to convict in light of quality of complainant’s evidence, inconsistencies in evidence, alleged implausibilities, evidence of applicant’s good character and applicant’s denials – Open to jury to convict on whole of the evidence – Any possible doubt capable of being resolved by jury’s advantage of seeing and hearing witnesses – Appeal dismissed.

M v The Queen (1994) 181 CLR 487, MacKenzie v The Queen (1996) 190 CLR 348, MFA v The Queen (2002) 213 CLR 606, Pell v The Queen (2020) 268 CLR 123, Dansie v The Queen [2022] HCA 25, applied. R v Buckley (2004) 10 VR 215, Woods v The Queen [2019] VSCA 259, Palliyaguruge v The Queen [2022] VSCA 159, Charles (a pseudonym) v The Queen [2022] VSCA 166, referred to.

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Counsel
Applicant:		Mr J O’Connor
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Richard Davis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
T FORREST JA
KAYE JA:

On 5 July 2021, following a six day trial in the County Court, the applicant was found guilty of one charge of committing an indecent act with a child under 16 (charge 1) and one charge of sexual penetration of a child under 16 (charge 2). Charge 2 was a course of conduct charge.[2] The applicant was acquitted of a third charge (charge 3) which alleged a separate occasion of sexual penetration with a child under 16. On 22 October 2021, following a plea hearing, the applicant was sentenced to a total effective sentence of six years and six months’ imprisonment, with a non-parole period of four years and three months.[3]
[2]See cl 4A of Schedule 1 of the Criminal Procedure Act 2009.
[3]DPP v Blake(a pseudonym) [2021] VCC 1664 (‘Sentencing Reasons’).
The applicant now seeks leave to appeal against his conviction. The applicant’s proposed grounds of appeal are as follows:
1.The jury’s verdicts on charges 1 and 2 are unreasonable or cannot be supported having regard to the evidence.
2.The convictions on charges 1 and 2 are unsafe and unsatisfactory as they are inconsistent with the acquittal on charge 3.

Background facts

The complainant in respect of all three charges was the applicant’s then partner’s daughter. The applicant commenced a relationship with the complainant’s mother, Angela Roman,[4] in 2012. At that time, Ms Roman and her two children (the complainant and her brother) were living in South Australia. They moved to Victoria to live with the applicant in 2014.
[4]A pseudonym.
The applicant was 44 years old at the time of the offending and the complainant was between 13 and 14 years old.
When Ms Roman and her children first moved in with the applicant, he was living in Echuca and working on a dairy farm nearby. During that period, Ms Roman was receiving cancer treatment and while the applicant took her for treatment at Mount Gambier Hospital, the children would stay with the applicant’s parents. In 2014, the applicant became ill and the family moved to live with the applicant’s parents until Christmas time. The applicant worked for a brief period in Cobram and then Gippsland. The complainant started at a school nearby.
In May 2015, the applicant and Ms Roman purchased a house in Morwell to renovate. The applicant continued working on the Gippsland farm and would travel on weekends to work on the house in Morwell. The complainant would often come with him.
The applicant was promoted after working at the farm for a few months, and in August 2015 the family moved to a property near to the farm.
In April 2016, the applicant resigned from the farm, and he, Ms Roman and the complainant moved into the property in Morwell. Each had their own bedroom. The complainant was not going to school during this time.
In August 2016, the applicant secured a job with a dairy farm, and the complainant moved there with him in order to continue her schooling nearby. Ms Roman travelled to South Australia and Tasmania, and then subsequently returned to live in Morwell. After two to three months, the complainant returned to live with her mother in Morwell before she, her brother and Ms Roman returned to live in South Australia.

The Crown case

In 2016, the complainant was living at the Morwell house with the applicant, while her mother and brother were living elsewhere. On one occasion while they were living at Morwell, the applicant had been drinking alcohol when he approached the complainant, who was standing by the fireplace, hugged her and tried to kiss her on the lips. The complainant ‘freaked out’ and moved to a couch. The applicant then took the complainant into a bedroom and, lying in a spooning position, made the complainant touch his penis with her hand. The complainant moved her hand away, but the applicant moved her hand back onto his penis (charge 1 — indecent act with a child under 16).
The following day, the applicant went to a hotel with the complainant and bought condoms from a vending machine in the toilet. Back at the house, the applicant asked the complainant to come to the bed with him. He put a condom on and inserted his penis into the complainant’s vagina. Following this first occasion, the applicant had penile/vaginal intercourse with the complainant, ‘not every day, but basically most days’ (charge 2 — sexual penetration of a child under 16 — course of conduct).
On another occasion, at the Morwell house, when the complainant’s mother was at the shops, the applicant made the complainant perform oral sex on him (charge 3 – sexual penetration of a child under 16).

The trial

At trial, the complainant’s evidence, which had previously been recorded at a special hearing,[5] was played to the jury. After the recording of the special hearing was played, the prosecution called Ms Roman, Ms KT (a friend of Ms Roman) and the informant. Additionally, it tendered a number of text messages which it contended supported the Crown case.
[5]See s 370 of the Criminal Procedure Act.
The applicant gave evidence at trial, and called his then current partner, Ms GS. The applicant denied all of the allegations made against him.
At trial, the credibility and reliability of the witnesses, and in particular the complainant, was in issue. Ultimately, the dispute at trial was whether, on the whole of the evidence, the Crown had proved the alleged offending beyond reasonable doubt.

Prosecution evidence

The complainant

The complainant gave evidence at a special hearing on 23 October 2019. In her evidence in chief, she adopted the contents of two VAREs.[6] The first VARE was recorded on 31 January 2018, and the second was recorded on 18 June 2018. The recordings of the VAREs were played at the trial, as was the recording of the special hearing. Broadly speaking, the complainant gave evidence in conformity with the Crown case.
[6]See s 367 of the Criminal Procedure Act.
In the first VARE, the complainant described the circumstances surrounding charge 1 as follows:
I was laying on the couch and he came in and he’s like, ‘Would it be so bad if you came in my bed and hugged me?’ and I said, ‘No,’ and he — he said, ‘Well, come on then,’ and then I went and laid in bed with him and then he touched me. He kept putting my hand on his penis. He said everything was gunna be OK.
A little later in the first VARE, the complainant described the circumstances leading up to the first charge as follows:
That day mum and him had had an argument and we’d gone down to Morwell and he had gotten drunk. He was drinking and I was standing near the fireplace and he’s come up and he’s given me a hug and then he tried to kiss me and I just freaked out. I didn’t even know what to do. I just thought that’s how, like, a normal father treated his daughter, like, I’ve never grown up with my dad, and then that’s when I went — I went to bed. I went on the couch and then that’s when he came out and said [‘Would it be so bad if you came in my bed and hugged me?’].
The complainant then said:
I was laying there and he just kept putting my hand on his penis and I didn’t even know what to do. It makes me sick. That’s when he did and then it just went on from there. He just kept doing it.
…
It was on the mattress in a bedroom and it was in a spooning position.
…
And he kept putting my hand on his penis.
In relation to charge 2, the complainant said:
[T]he next day, he went and brought condoms and he told me everything’s gunna be OK. and that’s — that night he did it.
…
He — he told me it was gunna be OK. and that the first time should be special and he just did it.
The complainant said that she was 13 ‘when all this started’, and that the occasion of the first charge was ‘the first time that anything happened’. A little later in the first VARE, the complainant again said that the first occasion of sexual intercourse was on the day after the applicant had made her put her hand on his penis. The complainant said:
[H]e started first and then that’s when the next day, he went and got condoms.
…
We were at the pub and he went into the toilets and they had one of them machine things and that’s how he got it.
…
Yeah, and we had lunch and then we went back to the house. That’s when he said everything would be OK. and that, like, the first time should be special and that’s when it happened and I told him to stop.
The complainant described the applicant putting a condom on, being on top of her, and she telling him to stop. She said, ‘After a few times of me saying stop, he did get off’.
The complainant said that the applicant ‘kept doing it’. She said: ‘[He] continued doing it, and I don’t know why I didn’t say anything to anyone. I just didn’t think anyone would believe me’.
Later in the first VARE, the complainant said: ‘He used to say if I never come back to him, he’s gunna hunt me down and kill me and I didn’t know if he was joking’.
The complainant was asked how often the applicant would put his penis in her vagina. She said: ‘Not every day but basically most days’. She said that this occurred up until she moved in March 2017.
Having described the circumstances of charge 2, the complainant was asked whether there were any other times that things happened in Morwell. The complainant said:
I don’t really remember but I know when mum used to go to the shops - like, ‘cause mum - we end up - then [the applicant] end up losing his job and we end up moving in with, like, in Morwell, all three of us, and every time mum used to go down to the shop, he used to, like, do the exact same thing.
...
Like, he - he used - he - he wanted me to suck his penis every time mum went down the shop.
When asked whether she could think of a particular time that this happened, the complainant said that it was when her mother went down to Woolies and was getting something for tea. When asked whether the applicant did or said anything, the complainant said that she did not think he said anything and ‘he sort of made me’.
A little later in the first VARE, contrary to her initial description of the applicant requiring her to suck his penis ‘every time mum used to go down to the shop’, the complainant said that the one occasion she described was the only occasion that she sucked the applicant’s penis.
As to telling anyone about what the applicant was doing to her, the complainant said that, a few weeks before the first VARE, she told Ms KT and, later on the same day, her mother, what the applicant had done.
The second VARE contained detail about a pregnancy test that the complainant said that she took in a hotel toilet. In the second VARE, the complainant described a conversation with the applicant in which she told him that she thought she was pregnant. Specifically, the complainant said:
Well, it - it first started - I was telling him that I think I was - or, like, I thought I was pregnant and, like, mum walked in and he turned around and told her, but he said that it was - I think I was pregnant from someone from school.
...
And then he ended up - or, Well, a couple of days later he ended up getting a pregnancy test and I wasn't - I wasn’t pregnant.
A little later in the second VARE, the complainant said that her mother walked in at the end of the conversation. The applicant ‘told her that basically I thought I was pregnant by someone at school and then she – she was the one that took me to get my rod’. The complainant said that it was a couple of days later that she went into Morwell with the applicant. The applicant ‘went into Woolies’, and the complainant ‘had to go into a pub and have my pregnancy test in a pub’. The pregnancy test was negative, and the complainant walked back out. The applicant had ordered food, so they sat and ate the food and then left the hotel.
The complainant was cross-examined in detail about the various places where she lived between 2014 and 2017. Various farms, country towns and other locations were identified and explored by the cross-examiner. The complainant said that the occasion where the applicant made her touch his penis occurred in Morwell, although they were not living there at that time. She said that the Morwell house was going to undergo a renovation at that time. The complainant was asked and answered the following questions about the furniture in the Morwell house at the time of the first incident:
And it [the Morwell house] was largely unliveable?---Ah, yes.
All right. And unfurnished while it was being renovated?---Yes.
All right. A couple of deck chairs?---Yeah.
No couch?---Nah.
And no beds in the house?---Um, I think there was a bed.
Can I suggest this; there were a couple of mattresses but no beds?---Ah, yeah, like that’s what I meant, mattresses, sorry.
The complainant was cross-examined about her relationship with her mother, and her mother’s mental health as follows:
You mentioned earlier that your mum had her own issues, can I ask you just some questions about your relationship with your mum over these years that you’re living with [the applicant]?---Yes.
Did you have a difficult relationship with Mum?---Um, yeah.
All right. She had some mental health issues?---Yes.
All right. At times she was suicidal?---Um, yes.
And in fact on one occasion you’d found her after she had had an overdose?
---Um, she had taken a few pills.
All right?---And she was just talking, um, weirdly, but she didn’t overdose.
But the police – sorry, she went to hospital though overnight?---Yes.
Okay. Did you find her quite difficult to live with at times?---Um, yes, at times.
All right. And you and she were fighting quite a lot?---Yes.
The complainant was questioned about why there was any need for secrecy in relation to the pregnancy test that she took in the hotel toilet, given that her mother knew about it. The complainant responded, ‘Because I was ashamed’.
The complainant was cross-examined about whether the applicant had asked her if she was sexually active. She was asked and answered the following questions:
Did [the applicant] ask you at the time if you were sexually active?---No.
Can I suggest that he did ask you that question but you didn’t answer it. Do you agree with that?---Yeah, I will agree with that.
The complainant was cross-examined to the effect that, at the time the applicant was offending against her, she knew that what he was doing was wrong. In the course of this cross-examination, the complainant was asked and answered the following questions:
All right. You knew at the time that what he was doing was inappropriate?
---Yes.
All right. You knew that at the time that he was your step-dad?---Yes.
It was clear to you what a dad should and should not be doing?---Yes.
Had you done Sex Ed at school at that point?---Ah, yes.
All right. And, can I say this, you knew that [the applicant] wasn’t allowed to have sex with you?---Yes.
He wasn’t allowed to put his penis in your vagina?---Yes.
He wasn’t allowed to touch you in a sexual way?---Yes.
He wasn’t allowed to attempt to kiss you in a sexual way? You knew that?
---Yes.
Later, the cross-examiner returned to the topic of the furniture in the Morwell house at the time of the first incident. The complainant was asked and answered the following questions:
All right. Do you remember this morning I was asking you questions about the furniture at Morwell?---Ah, yeah.
And you told us earlier that there was no couch at Morwell at that time. Do you remember giving that answer?---Um, yes.
All right. So when you say you’re lying on the couch, is that wrong?---No, it’s not.
All right. Can you explain how you were on a couch that is not in the house at the time?---Um, I’m sorry. I must have gotten my timelines mixed up, but there was definitely a couch.
All right. And you say that [the applicant] invites you to join him in his bed?
---Yes.
Can I suggest to you - - -?---In, like a mattress on the floor.
All right. Can I suggest to you at that time, [the applicant] didn’t have a mattress on the floor. Do you agree with that?---No, I don’t.
And can I say that [the applicant] says that he only had a swag, do you agree with that?---No, no, I do not agree with that at all.
At various points in the cross-examination, the complainant said, ‘I don’t remember most of it’ and/or ‘I don’t want to remember most of it, I really don’t’.
The complainant was cross-examined about the time between the first incident and the first occasion of penile/vaginal intercourse. She was asked and answered the following questions:
COUNSEL: [H]ow long after the first incident, so when [the applicant] attempts to kiss you and has you touch his penis, how long after that do you say the second thing happens?---Like when he inserted himself?
Yes?---That was the same day sorry, that’s where I was getting confused.
So do you say that the penis touching and his penis going in your vagina happen on the same day?---Yes that’s – that is what I said.
[W]hen you made your statement to the police, you told them that those things happened on different days?---No I didn’t.
[Y]ou told police that this penis – when [the applicant] puts his penis in your vagina happens on a day when you’ve gone to the pub for lunch. Do you remember saying that to police?---Yes.
And was that correct?---Yes.
You say you did not tell the police that that happened on different days?---Yes and if I did I was not meant to.
The applicant was cross-examined about a number of occasions on which she had contact with police about different matters, but on which occasions she made no complaint to police that the applicant had been sexually assaulting her. These occasions were on 29 January 2016, 16 May 2016, 22 August 2016 and 9 November 2016. She was also cross-examined about an occasion where she spoke to a welfare counsellor about a number of issues, but did not tell the welfare counsellor that the applicant was sexually assaulting her.
In re-examination, the complainant was asked why she continued to stay with the applicant after he had offended against her. She said, ‘Because I was scared’. She was also asked why she did not tell her mother what was going on. She said, ‘Because I was ashamed, and I’m scared that she was going to get mad’.

In re-examination, the complainant was also asked and answered the following questions:
So why do you allow [the applicant] to do these things to you at the time?---He got in my head.
Sorry we can’t - - -?---He got in my head.
Thank you?---He made me feel like I was worth something.
So why didn’t you tell your mum?---I was ashamed, I was scared. I didn’t want to hurt her.
And how about your friends, why didn’t you tell your friends?---Because they wouldn’t have liked me anymore.
As to her failure to tell the police what the applicant was doing to her, the applicant was asked in re-examination why, despite the number of times she had had contact with police, she did not tell them what was happening. She said, ‘Because I was scared that no one was gunna believe me’.
In the course of her evidence, the complainant was taken to a number of texts which were sent to her by the applicant. The texts were undated, but the applicant said that she thought they were texts from 2015 or 2016. The texts from the applicant to the complainant included the following:
Love you to[7]
…
All good, no need for sorry/Ya mother can’t fuck up what we have beautiful/ever.
…
We get five nights together beautiful/can’t wait to catch up again.
…
I love you/don’t forget it beautiful.
…
Wanna go u.
[7]This text was sent by the applicant in response to a text from the complainant, ‘Love ya bumhole’. The evidence was that ‘bumhole’ was a name by which the applicant and the complainant referred to each other. In context, ‘Love you to’ should be read as ‘Love you too’.
At some point, the complainant’s mother confronted the complainant about these text messages. The complainant told her mother, words to the effect, ‘they’re nothing, you got it wrong’.

The complainant’s mother (Ms Roman)

During the course of her evidence, the complainant’s mother, Ms Roman, said:
•She had a difficult relationship with the complainant, who repeatedly refused to live with her and asked to live with others including the applicant and her biological father.
•At times, she had concerns about whether the complainant was telling her the truth, and that the complainant would say things to provoke a response and start a fight.
•At one point, the complainant said that she wanted to live permanently with the applicant.
•The applicant allowed the complainant to stay with him from time to time to provide time out from the difficulties between the complainant and her mother.
•Ms Roman arranged to take the complainant to a GP to arrange contraception. At the time, no one suggested that the complainant was pregnant. If they had, Ms Roman would have arranged for her to have a pregnancy test.
•After they purchased the Morwell house, the applicant commenced to renovate it. Part of the renovation effectively involved removing the back half of the house. At that time it was a ‘pretty basic setup in the house’. When the Morwell house was being first renovated, there was no couch. There were no beds. There were a couple of mattresses and a couple of deck chairs. When the applicant went to the house, he took his swag to sleep in. There was no furniture in the house, except in the three or four months that the applicant, the complainant, her mother and brother lived there between April and August 2016.
•The complainant and the applicant never lived in the Morwell house alone. They would, however, stay there from time to time during the renovations.
•At one point Ms Roman saw the applicant sitting on a couch holding the complainant’s hand. Ms Roman said, ‘What the fuck is this about?’ The applicant responded, ‘Can’t we be friends?’ Ms Roman replied, ‘She’s your stepdaughter, you shouldn’t be holding your stepdaughter’s hand’.
•At another point, Ms Roman observed the applicant and the complainant outside the toilet of the home where they were then living. Ms Roman said that the applicant had his arms around the complainant and she was cuddling him back. This went on for about two minutes. Ms Roman said, ‘What the fuck’s going on here?’. Both the applicant and the complainant responded, ‘Nothing’.
•One night, around the middle of January to February of 2017, Ms Roman had a look at the complainant’s phone. She saw the text messages, and took photographs of them. She asked the complainant about the messages. The complainant said that there was nothing at all in them and that they were mistake. Ms Roman said that she took photos of all of the messages between the applicant and the complainant that she found on the phone.
•At some point in January 2018, Ms KT, who was a friend of Ms Roman, told her that something had happened with the complainant and that the complainant needed to tell her something. Ms Roman said that she ‘took [the complainant’s] complaint seriously’.

Ms KT

Ms KT gave evidence that she had known the complainant and the complainant’s mother for about four years. She said that she had developed a level of trust with the complainant. She described the complainant as being ‘really angry with her mother’.
Ms KT said that she had concerns about the complainant and asked her if she was okay. The complainant cried and became distraught. She hugged the complainant and let her cry. She asked what happened and who hurt her. The complainant responded, ‘My stepdad’. Ms KT asked, ‘Was it just like touching, you know flirting? … Or was it really, like full on, like in bad stuff?’. The complainant responded, ‘Yes, full on sex’.
Ms KT told the complainant that they had to tell her mother. She facilitated that conversation, but was not present for it.

The informant

The informant gave evidence that, as part of his investigation, he obtained a phone that the complainant’s mother believed was the one she took photographs of the text messages on. There was, however, no data on the phone. It had either been reset or wiped. The informant subsequently obtained some further photographs of messages from the complainant’s mother.
The informant gave evidence that there was no medical or forensic evidence that was relied upon by the prosecution. He also said that the applicant had no prior or subsequent criminal convictions for any sexually-related offending. Additionally, he said that the applicant had never been charged with any sexual offence in his life.

Defence evidence

The applicant

The applicant gave evidence that he was 49 years of age. He had been in a relationship with his current partner, Ms GS, for over three years. She has three children and eight grandchildren. The grandchildren (whose ages ranged from 12 months to 11 years) had stayed with him and Ms GS.
The applicant denied all of the sexual offending alleged by the complainant. He specifically denied getting her to touch his penis or putting his penis in her vagina. He also denied Ms Roman’s evidence that she saw him holding the applicant’s hand while they were sitting on a couch.
In his evidence-in-chief, the applicant described the various relationships between himself, Ms Roman and Ms Roman’s children (the complainant and her brother). He gave evidence that the complainant despised her mother and had self-harmed by carving the word, ‘You told me you loved me’ into her arm. He spoke to the complainant about this. She told him that this was directed at her mother. He gave evidence that the complainant and her mother fought, and that he tried to be a mediator between the two of them. He said his relationship with the complainant and her brother was good. The complainant and her brother used to call each other ‘bumhole’. Later, they stopped calling each other ‘bumhole’, and started calling the applicant ‘bumhole’. It was ‘just a joke’. At one point, the applicant referred the complainant to a person at the Salvation Army who conducted a course for children. He said he did this because ‘it was a very unstable place at home between [the complainant and her mother]’.
The applicant gave evidence that the Morwell house was purchased in May 2015. Thereafter, he renovated it for 18 months. While he was doing the renovations, the furniture in the house consisted of a couple of mattresses and a few deck chairs. He was asked where he slept when he was not doing the renovations. He said, ‘Mostly in my swag’.
The applicant said that when the complainant went with him to the Morwell house, they always slept in separate rooms: the complainant slept in the loungeroom; and the applicant slept in the main bedroom.
The complainant’s evidence that the applicant purchased condoms to use while having sex with her was put to the applicant. He said it was a lie — as was her evidence that he purchased a pregnancy test and made her take it in a hotel toilet.
In evidence-in-chief, the applicant was taken to the various text messages. He was asked why he texted the complainant, ‘Love you too’. He said, ‘Because I did’. He denied that he loved the complainant in a sexual way. He said he loved her ‘like a daughter’.
The applicant was asked what he meant by his text to the complainant, ‘All good, no need for sorry/ya mother can’t fuck up what we have beautiful/ever’. He responded, ‘That she always had an option to speak to me if she ever needed to’. In relation to the texts the applicant sent saying that he was going to call, and asking the complainant to go somewhere she could talk, the applicant said that he sent those texts so that the complainant’s mother ‘didn’t get upset’.
In relation to the text ‘Wanna go u’, the applicant was asked and answered the following questions:
All right. Does the phrase ‘want to go you’ mean anything to you?---Um, to me that means ‘Look, have a go, you mug. You know, I wanna have a go’.
All right. And was there something that you wanted to have a go at [the complainant] over during the course of your relationship?---Yep, there was, yeah.
And what was that?---Um, the young girl that I actually work with on the farm that I was 2IC-ing at the time um, knew [the complainant]. Her best friend’s daughter actually went to school with [the complainant] and that was the young girl that [the complainant] had a restraining order taken out against.
[The complainant] - - - ?---Sorry, the other way around.
All right. So just so the jury’s clear, who was said to be in the wrong?---[The complainant].
Okay. And that was something that you discussed with [the complainant]?---Yeah.
And were you happy about her behaviour?---Not at all.
All right. And that did you tell her about her behaviour?---Well, it wasn’t acceptable because she had turned into what she was um, getting caused all the grief from.
In cross-examination, the applicant denied all of the complainant’s allegations of sexual offending against her. He agreed that his evidence was that the complainant’s allegations of sexual offending were lies. While there is no ground of appeal complaining about the prosecutor putting to the applicant that his evidence was that prosecution witnesses had lied (probably because, in evidence-in-chief, the applicant had already said the complainant and her mother had lied in their evidence), for completeness, we would reiterate in the strongest terms that it is impermissible to ask witnesses (and in particular an accused who gives evidence) in cross-examination whether another witness is telling lies, or whether their evidence is that another witness has lied.[8]
[8]R v Buckley (2004) 10 VR 215, 218 [9]-[10] (Nettle JA, Winneke P and Charles JA agreeing); Charles v The Queen [2022] VSCA 166, [35]-[39] (Emerton P, Kyrou and T Forrest JJA).
It was put to the applicant that he groomed the complainant so as to keep having a sexual relationship with her. He denied this proposition.
The applicant was cross-examined about the text messages. It was put to the applicant that the text, ‘wanna go u’ meant that the applicant wanted to have sex with the complainant. The applicant denied that suggestion. In relation to the text that talked about having five nights together, the applicant was asked and answered the following questions:
You talk about having five nights together. Well, surely night-time with a child, they would [be] in bed asleep. Would you agree with that?---No.
No. Wouldn’t you be talking about spending days together, if it wasn’t something of a sexual nature?---Ah, it’s a bit hard when I’m at work. I only have evenings to spend.
Well, normally, on a dairy farm, you’re finishing late afternoon?---No, I was starting at 3 in the morning. I was 2IC on the farm; I was always first in, and last to leave. Also had responsibilities with carving and irrigation.
What I want to suggest is the reason you’re talking about nights is because that was an intention in terms of still maintaining a sexual relationship with her?
---No.
At the end of the cross-examination, the applicant again said that the complainant’s allegations that he put her hand on his penis, and that he had sex with her, were lies. There was no re-examination.

Ms GS

Ms GS gave evidence that she was the applicant’s partner and they had been together for over three years. She described the applicant as being extremely honest, and said he was trusted with children. She said she did not have any concern about him spending time with her grandchildren, whose ages ranged from 11 down to 10 months. She said she had no concerns about leaving any of her children or grandchildren unsupervised in the applicant’s company.

Applicant’s submissions

In contending that the applicant’s convictions on charges 1 and 2 were unreasonable, or could not be supported having regard to the evidence (proposed ground 1),[9] the applicant relied upon a number of matters. These included:
[9]See s 276(1)(a) of the Criminal Procedure Act.
(1)First, the applicant submitted that it was of considerable significance that, absent these allegations, he was a man of good character. He had no prior or subsequent convictions for sexual offending. He had never been charged with a sexual offence. His partner, knowing of the present charges and allegations, had no concerns about leaving him unsupervised with any of her grandchildren.
(2)Second, the applicant’s denials of the complainant’s allegations were cogent and persuasive. He was not successfully impeached in respect of any of them when cross-examined by the prosecutor.
(3)Third, there was no forensic or other evidence supportive of the Crown case beyond the evidence given by the complainant.
(4)Fourth, there were significant discrepancies and inconsistencies in the complainant’s various accounts of the alleged offending. These included whether the events of charge 1 and the first occasion of charge 2 offending occurred on the same day, or on consecutive days; and whether the complainant was sitting on a couch shortly before the charge 1 offending occurred.
(5)Fifth, while the complainant gave an account of the first occasion on which she alleged the applicant penetrated her vagina with his penis, she was unable to describe any other specific occasion — other than to say that it happened ‘basically most days’.
(6)Sixth, important parts of the complainant’s evidence were implausible. This included her evidence that the applicant asked her if she was sexually active. It was submitted that if the applicant was sexually assaulting the complainant then it made no sense for him to ask her if she was sexually active.
(7)Seventh, there were significant contradictions between the evidence of the complainant and the evidence of her mother. The prime example of this concerned the alleged conversation between the applicant and the complainant (which the complainant’s mother walked in on) about whether the complainant was pregnant, and whether or not the complainant later underwent a pregnancy test (in a hotel toilet, or at all).
(8)Eighth, there was a ‘repeated failure’ by the complainant to complain to people with a ‘positive duty’ to protect her. These people included the various police with whom the applicant had contact on four occasions in 2016, the student welfare counsellor with whom the complainant had a discussion, the person at the Salvation Army who the complainant saw for counselling, and the GP to whom the complainant was taken by her mother for birth control.
(9)Ninth, when her mother expressed concern about the nature of the text messages between the applicant and the complainant which she had found on the complainant’s phone, the complainant said that there was nothing in them.
(10)Tenth, the complainant repeatedly chose to stay with the applicant rather than her mother (including the occasions on which the applicant and the complainant stayed alone at the Morwell house).
(11)Eleventh, the complaints made by the complainant were not spontaneous. They were the result of the complainant being asked leading questions by Ms KT.
(12)Twelfth, in acquitting the applicant of charge 3, the jury must have had a doubt about the credibility of the complainant in relation to that charge. This doubt should have carried over to charges 1 and 2 ‘in light of all of the other problems with the complainant’s evidence’.
Relying upon the various discrepancies, inadequacies and implausibilities which he contended that he had identified, the applicant submitted that there was ‘a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof’.[10]
[10]M v The Queen (1994) 181 CLR 487, 494 (‘M’); Pell v The Queen (2020) 268 CLR 123, 137 [9] (‘Pell’).
While the applicant relied upon his acquittal on charge 3 in support of his argument under proposed ground 1 that the jury’s verdicts on charges 1 and 2 were unreasonable or could not be supported by the evidence, he also relied on his acquittal on charge 3 to support his contention, under proposed ground 2, that the convictions on charges 1 and 2 were unsafe and unsatisfactory as they were inconsistent with the acquittal on charge 3. Specifically, the applicant submitted that there was no relevant distinction between the nature of the act alleged in charge 3 and the offending alleged in charges 1 and 2, and no real difference in the quality of the evidence led by the prosecution to support charges 1 and 2 when compared with the evidence led to support charge 3, which could justify the different verdicts.
As the applicant’s argument on proposed ground 2 also forms part of his argument on proposed ground 1, it is convenient to commence our analysis with proposed ground 2.

Proposed ground 2: inconsistent verdicts

Inconsistent verdicts: principles

The principles relating to inconsistent verdicts are well settled. They are set out and discussed in the High Court’s decisions of MacKenzie v The Queen[11] and MFA v The Queen.[12] The principles were conveniently summarised by this Court in Woods v The Queen[13] as follows:
[11](1996) 190 CLR 348 (‘MacKenzie’).
[12](2002) 213 CLR 606 (‘MFA’).
[13][2019] VSCA 259 (Maxwell P, Kaye and Niall JJA) (‘Woods’).
Where the inconsistency is said to be based on jury verdicts on different counts, the test is essentially one of logic and reasonableness. The applicant must demonstrate that no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the conclusion reflected in the verdicts.
In determining that question, it must be borne in mind that, where the accused is indicted on a number of separate charges, the jury is ordinarily directed that it must give separate consideration to each charge. In this State, that direction is regularly accompanied by a specific direction that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection, or non-acceptance, of a particular aspect of a witness’ evidence, does not necessarily mean that the jury must accept or reject the whole of that witness’ evidence. Directions to that effect were given to the jury in the present case.
Further, in considering whether the jury’s verdicts are inconsistent in the sense described above, it is necessary to keep in mind that, in a criminal trial, particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal on a charge on the indictment does not necessitate the conclusion that the jury found the relevant witness’ evidence, on that charge, to be unsatisfactory, unreliable or untruthful. In MFA, Gleeson CJ, Hayne and Callinan JJ stated:
A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. ... factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
In addition, it has been recognised that, in a case in which an accused faces a number of charges, a jury may take a merciful view of the facts on a count or some particular counts. As observed by Gleeson CJ, Hayne and Callinan JJ in MFA, ‘it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only’.
In MFA, and in MacKenzie, the High Court approved the following observations by King CJ in R v Kirkman to the same effect:
Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.
As a corollary of those considerations, an appellant who relies on inconsistency of verdicts as a ground of appeal, or as an aspect of a ground of appeal, bears a high onus of persuasion. In essence, taking into account the matters to which we have referred, in order to make out the ground of inconsistency, the appellant must demonstrate that the different verdicts returned by the jury represent ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[14]

Proposed ground 2: analysis

[14]Ibid [75]-[80] (citations omitted).

Consistently with what this Court said in Woods,[15] the jury in this case was directed that it was required to consider each charge separately in the light only of the evidence that applied to that charge; and, that in assessing the evidence, it was up to the jury to decide how much or how little of the testimony of any witness it would believe or rely on. Thus, the jury were correctly told that parts of a witness’s evidence could be accepted or, on the other hand, rejected; and different verdicts might be returned in respect of each charge.
[15][2019] VSCA 259, [76]. See [70] above.
Contrary to the applicant’s submissions, there was no inconsistency between the jury’s acquittal of him on charge 3 and its conviction of him on charges 1 and 2. It was open to the jury to regard the evidence the complainant gave on charge 3 as being of a different quality from the evidence she gave on charges 1 and 2, sufficient to justify the different verdicts which were delivered. Specifically, the complainant’s evidence in respect of charge 3 commenced with the words, ‘I don’t really remember but …’. Moreover, the complainant’s evidence about being required to suck the applicant’s penis was unclear as to whether this occurred on only one occasion (as charged), or on multiple occasions.
When one compares the whole of the evidence on charges 1 and 2 with the whole of the evidence on charge 3, one can see a rational basis for the jury convicting the applicant on charges 1 and 2, but acquitting him on charge 3. Borrowing from what was said by Gleeson CJ, Hayne and Callinan JJ in MFA,[16] the jury’s verdict of not guilty on charge 3 does not necessarily imply that the complainant has been disbelieved, or that there was a want of confidence in her evidence. The verdict may simply reflect a cautious approach by the jury to the discharge of its heavy responsibility. In the present case, the jury simply may not have been prepared to convict on an account given by the complainant which commenced, ‘I don’t really remember’. Equally, the jury may have concluded that justice was ‘sufficiently met’ by convicting the applicant on charges 1 and 2, rather than all three charges.[17]
[16](2002) 213 CLR 606, 617 [34].
[17]R v Kirkman (1987) 44 SASR 591, 593, as approved in MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ) and MFA (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ), 630-31 [85] (McHugh, Gummow and Kirby JJ).
Proposed ground 2 is not reasonably arguable. Leave to appeal in respect of it should be refused.

Proposed ground 1: verdicts unreasonable or unable to be supported having regard to the evidence

Relevant principles

Proposed ground 1 is based upon s 276(1)(a) of the Criminal Procedure Act 2009, which provides that the Court must allow an appeal if it is satisfied that a verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’. The governing principles relevant to this proposed ground of appeal have been set out and discussed by the High Court in a number of cases, including M,[18] R v Baden-Clay,[19] Fennell v The Queen,[20] Pell[21] and Dansie v The Queen.[22] In considering whether a verdict of a jury is unreasonable or cannot be supported having regard to the evidence, this Court is required to ask itself whether it thinks, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[23] As this Court said in Palliyaguruge v The Queen,[24] in determining that question, this Court must:
(a)give full weight to the principle that the jury is the body entrusted with the responsibility of determining the guilt or innocence of the accused, and has the advantage of having observed the witnesses, and of having aspects of the evidence explained to it in a visual form;
(b)undertake an independent assessment of the whole of the evidence, as to its sufficiency and its quality;
(c)assume, in a case of this type, that the complainant’s evidence was assessed by the jury to be credible and reliable, but nonetheless examine the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’ the jury, acting rationally, ought nonetheless have entertained a reasonable doubt.[25]

Proposed ground 1: analysis

[18](1994) 181 CLR 487.

[19](2016) 258 CLR 308 (‘Baden-Clay’).

[20][2019] 93 ALJR 1219; [2019] HCA 37 (‘Fennell’).

[21](2020) 268 CLR 123.

[22][2022] HCA 25 (‘Dansie’).

[23]M (1994) 181 CLR 487, 493; Dansie [2022] HCA 25, [8]-[9].

[24][2022] VSCA 159 (‘Palliyaguruge’).

[25]Ibid [65] (citations omitted).

In his submissions in this Court, the applicant identified a number of differences in the accounts given by the complainant in her VAREs and in the special hearing. Some of these differences are more significant than others. Two examples suffice. At the more significant end of the spectrum, in the first VARE the complainant said the first time the applicant sexually penetrated her was the day after he made her touch his penis; whereas, in cross-examination she said that these events happened on the same day. At the other end of the spectrum, the jury might well have regarded an asserted difference between the complainant’s statement in her first VARE that, after the applicant tried to kiss her prior to charge 1, she wondered whether that was how a normal father treated a daughter, and the complainant’s subsequent evidence in cross-examination that she knew at the time of the events of charge 2 that it was wrong for the applicant to put his penis in her vagina or touch or kiss her in a sexual way, as not amounting to any inconsistency at all.
In relation to differences identified between the complainant’s evidence in her VAREs and the evidence she gave in cross-examination, it is well-recognised that people describing sexual offending may not describe a sexual offence in the same way on each occasion they are asked questions about it. That proposition finds recognition in s 54D(2) of the Jury Directions Act 2015, which requires the judge, in the circumstances described in s 54D(1), to direct the jury (as Her Honour did in this case) that:
Experience shows that … people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and ... it is common for there to be differences in accounts of a sexual offence; and … both truthful and untruthful accounts of a sexual offence may contain differences; and … it is up to the jury to decide … whether or not any differences in the complainant’s account are important in assessing the complainant’s credibility and reliability; and … whether the jury believes all, some or none of the complainant’s evidence.
Obviously enough, not every discrepancy, inadequacy or implausibility in a complainant’s account, or a prosecution case more generally, will necessitate a conclusion that a guilty verdict based on such evidence must be set aside as unreasonable or unable to be supported having regard to the evidence called at trial. The issue will always be whether, on the whole of the evidence (including all of the imperfections in, and relating to, that evidence), it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The fact that the applicant was otherwise a man of good character, who had never been so much as charged with a sexual offence and who gave evidence denying each of the allegations made against him, is a matter of some significance. Equally, there is force in a number of the applicant’s contentions about the inadequacy of, and discrepancies in, the complainant’s evidence. While each of the various points raised by the applicant might be capable of being answered on an individual basis, the task of this Court is, as we have said, to look at the evidence as a whole and to determine whether, in all of the circumstances, it was open to the jury to find the applicant guilty on charges 1 and 2.
That said, we should note that there is little (if anything) in the applicant’s contentions that the guilty verdicts are unreasonable or cannot be supported because of the complainant’s failure to make some earlier complaint about the applicant’s conduct. Experience shows that people may react differently to sexual offences and that, while some people may complain immediately to the first person they see, others may not complain for some time (or ever) and others may delay in making a complaint; and there may be good reasons for a person’s failure to complain or delay in complaining. Section 52 of the Jury Directions Act required the judge to direct the jury in these terms — as her Honour rightly did in this case.
The complainant’s evidence that she was sitting on a couch shortly prior to the events constituting charge 1 is of particular concern. Plainly, there was no couch at the Morwell house during the time it was being renovated by the applicant. The question arises as to whether the complainant’s recollection of the existence of a couch, which was arguably peripheral to the circumstances of the actual offending, is suggestive that the complainant simply misremembered the presence of a couch, or whether (if there was a couch in the Morwell house at the time) the offending must have happened after the renovations had concluded (sometime in 2016) – and not when the complainant said that charge 1 occurred. Equally of concern are the different versions given by the complainant as to whether the events constituting charge 1, and those constituting the first occasion of charge 2 offending, occurred on the same or consecutive days. The same may also be said of the complainant’s evidence about the pregnancy test, and of her mother’s denial of the occurrence of any such episode as described by the complainant.
While there were discrepancies and inconsistencies in the complainant’s evidence, we are not persuaded that any part of her account was inherently implausible. As to the applicant’s specific example of implausible evidence given by the complainant, we do not accept the submission that it was implausible for the applicant to have asked the complainant whether she was sexually active in circumstances where he was allegedly sexually offending against her. In context, the jury may well have considered the question allegedly asked by the applicant to be no more than an inquiry by him as to whether the complainant was sexually active with boys her own age (or perhaps other males).
Plainly, there were differences between the complainant’s evidence and her mother’s evidence. Acceptance by the jury of any part of the complainant’s mother’s evidence which was inconsistent with, or contrary to, the complainant’s evidence, had the capacity to weaken the prosecution case. A question, however, arises as to what part or parts of the complainant’s mother’s evidence the jury may have accepted or rejected — particularly in circumstances where the complainant’s mother clearly had other issues of her own during the period of the alleged offending and more generally. Additionally, when assessing the whole of the evidence, one cannot overlook those parts of the complainant’s mother’s evidence which the jury might reasonably have thought provided some support for the Crown case — for example, her evidence of seeing the applicant sitting on a couch, holding the complainant’s hand.
In any trial where the acceptance of the central parts of a complainant’s evidence is essential to the success of the prosecution case, discrepancies or inconsistencies in the complainant’s evidence raises the question of whether the jury was bound to have a reasonable doubt about the accused’s guilt. Reading merely the transcript of the complainant’s evidence in this case (both VAREs and the special hearing), in the context of the evidence given by the other witnesses at trial, discloses the possibility that the jury ought to have entertained a reasonable doubt about the applicant’s guilt on charges 1 and 2. Absent the text messages between the complainant and the applicant, the question might then become whether any potential doubt experienced by this Court is capable of being resolved by the jury’s advantage in seeing and hearing the evidence.[26]
[26]M (1994) 181 CLR 487, 493; Pell (2020) 268 CLR 123, 145 [38].
That said, the text messages (being part of the whole of the evidence) cannot be ignored in the analysis of whether the applicant’s convictions were unreasonable or cannot be supported having regard to the evidence. In our view, the most critical of the texts are those containing the ‘Wanna go u’ text as follows:
Applicant:                Lol [laugh out loud]
Complainant:           Haha what ya up to
Applicant:                U [you]
Lmao [laughing my arse off]
And another rum
Complainant:           Lol go you
Applicant:                Wanna go u
Lol
Complainant:           Lol
The applicant submitted that the texts tendered at trial lacked context, both as to time and date and the possibility of other texts which might put the tendered texts in context. He submitted that great care needed to be taken before it could be concluded that any of his texts provided relevant support for the Crown case. So much may be accepted. Indeed, the trial judge rightly gave a forensic disadvantage direction to the jury in the course of her charge.[27] That said, however, and notwithstanding the matters raised by the applicant in relation to the texts, it was open to the jury to conclude that, in texting ‘Wanna go u’, the applicant was expressing a desire to have sexual contact with the complainant. Equally, it was open to the jury to reject the applicant’s evidence that ‘Want to go you’ meant, ‘Look, have a go, you mug. You know, I wanna have a go’ as being incoherent — if not dissembling by him.
[27]See ss 38 and 39 of the Jury Directions Act.
The applicant’s texts tendered at trial professed his love for the complainant, asked her to go somewhere where he could talk with her in private, referred to the complainant’s mother as being unable to ‘fuck up what we have beautiful’, used the word ‘fuck’ in another context and referred to the applicant and the complainant having ‘five nights together beautiful’. In our view, and notwithstanding the applicant’s evidence and the evidence of his good character, it was open to the jury to conclude that the texts sent by the applicant to the complainant were sent in the context of a sexual relationship of some kind between them.
But for the texts between the applicant and the complainant, we may have experienced some doubt as to the applicant’s guilt on charges 1 and 2. In all the circumstances, however, we think that any such doubt is capable of being resolved by the jury’s advantage in seeing and hearing the witnesses — and in particular, the complainant, her mother and the applicant. In any event, a consideration of the whole of the evidence (including the texts) leads to the conclusion that it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt on charges 1 and 2.
Proposed ground 1, while sufficiently arguable to justify a grant of leave to appeal, must be rejected.

Conclusion

Leave to appeal will be granted, but the appeal will be dismissed.
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[2023] VSCA 52

16 March 2023