Booth v The King

tSUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0233

GREGORY BOOTH	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, KENNEDY and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2024
DATE OF JUDGMENT:	18 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 318
JUDGMENT APPEALED FROM:	[2023] VCC 1814 (Judge Karapanagiotidis)

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CRIMINAL LAW – Appeal – Thirty-four charges of sexual offending over 10 incidents involving two complainants – Jury convicted applicant of ten charges – Whether verdicts of guilt inconsistent with acquittals where charged offences closely linked in time as part of same incident – Whether verdicts of guilt inconsistent with acquittals across different incidents – Whether acquittals meant that jury rejected complainant’s credibility – Verdicts of guilt explicable on basis that evidence supporting each charge differed in quality or was corroborated, particularly on issues of complainant’s age, consent and belief in consent.

CRIMINAL LAW – Appeal – Whether purported lies, inconsistencies and implausibilities in complainant’s evidence rendered verdicts unreasonable – Discrepancies attributable to passage of more than 30 years since offending – Complainant’s evidence not so improbable that it could not be accepted by a reasonable jury – Leave to appeal refused.

Abdel (a pseudonym) v The King [2024] VSCA 36; Brooks (a pseudonym) v The King [2024] VSCA 305; Frank (a pseudonym) v The King [2024] VSCA 37; Jones v The Queen (1997) 191 CLR 439; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Schliefert v The King [2024] VSCA 197; Sladek v The King [2024] VSCA 119; Sriranganathan v The King [2024] VSCA 257.

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Counsel
Applicant:		Mr T Kassimatis KC with Mr RJ de Kretser
Respondent:		Ms EH Ruddle KC with Ms BJ Goding
Solicitors
Applicant:	Tony Hargreaves & Partners
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KENNEDY JA
ORR JA:

The applicant, who is now 60 years old,[1] pleaded not guilty to 34 charges alleging sexual offending against two female complainants over the period between 1985 and 1995. The charges concerned 10 distinct incidents of alleged offending. They included a number of alternative charges.
[1]DPP v Booth [2023] VCC 1814, [43] (Judge Karapanagiotidis).
The complainant in relation to nine of those incidents was Ms Seraphina Cook,[2] who is now in her early 50s. It was alleged that Seraphina was 12 years old at the time of the first offending against her, 15 years old for the majority of the alleged offending, and between 21 and 22 years old at the time of the last alleged offending.
[2]A pseudonym.
The complainant in relation to the remaining incident was Ms Trudy Parker,[3] who is also in her early 50s. Trudy was 16 years old at the time of the alleged offending.
[3]A pseudonym.
Seraphina and Trudy were friends. Seraphina’s older brother, Billy Cook,[4] was the applicant’s best friend. Billy was in a relationship with Trudy’s older sister, Emily Hislop.[5] Throughout most of the period of the alleged offending, Trudy lived with Billy and Emily in a house on Falcon Drive in Melton. Seraphina lived with her parents in Melton. The applicant, who also lived in Melton, worked as a police officer.
[4]A pseudonym.
[5]A pseudonym.
The applicant was tried before a jury in the County Court over 25 days in May and June 2023. Seraphina and Trudy both gave evidence. Seraphina was cross-examined over the course of multiple days. The prosecution also called evidence from Billy Cook; from Emily Hislop; from Seraphina’s mother; from the applicant’s wife, who had been his girlfriend during the majority of the period of the alleged offending; from other people who were part of the social circle in which the applicant and Seraphina moved during this period; and from police witnesses. The prosecution tendered various documents, including Seraphina’s birth certificate, which established that she was born in July 1972. The tendered documents also included transcripts of two ‘pretext’ telephone calls Seraphina had made to the applicant in 2016, following her complaint to police.
The applicant did not give evidence. He tendered documents that included a transcript of a third telephone conversation that Seraphina had recorded — a conversation in 2017 between Seraphina and her brother Billy.
The applicant denied that three of the ten alleged incidents had taken place. He said the other incidents were consensual. Seraphina’s age at the time of a number of the incidents, and whether the applicant had an honest but mistaken belief as to her age, was also in issue.
At the close of the prosecution case, four charges concerning one of the incidents in which Seraphina was the complainant, each of which required proof of her age, were taken from the jury. Directed acquittals were entered on each of these charges.
In his closing address, senior counsel for the applicant described Seraphina as an ‘unmitigated liar who lied to you for about five days straight with every breath that she mustered. She was literally making it up as she went along’. Trudy, the applicant’s counsel told the jury, ‘isn’t much better’.
Following a comprehensive charge by the judge to the jury, which the applicant’s counsel described in this Court as ‘flawless’, the jury deliberated for nine days. The jury found the applicant guilty of 10 charges. The 10 charges were three charges of indecent assault, five charges of rape, one charge of attempted rape and one charge of sexual penetration of a person aged 10 to 16 years. They concerned five of the nine incidents in which Seraphina was the complainant, and the single incident in which Trudy was the complainant.
In October 2023, the applicant was sentenced to a total effective sentence of 6 years and 4 months’ imprisonment, with a non-parole period of 3 years and 6 months.
The applicant seeks leave to appeal his conviction on three proposed grounds.[6] By the first ground, he contends that the guilty verdicts on certain charges are inconsistent and irreconcilable with the verdicts on other specified charges. By the second ground, he contends that the guilty verdicts in relation to the incidents in which Seraphina was the complainant are unreasonable and cannot be supported by the evidence. By the third ground, he contends that the guilty verdicts on the charges in which Seraphina was the complainant give rise to a substantial miscarriage of justice in relation to the verdict of guilty on the charge in which Trudy was the complainant.
[6]The application for leave to appeal was filed out of time, on 15 December 2023. An order granting the applicant an extension of time was made on 22 May 2024.
For the following reasons, we would refuse leave to appeal on all grounds.

The evidence of the complainants about the alleged incidents

We commence with an overview of the evidence of Seraphina and Trudy in relation to the 10 incidents of alleged sexual offending, and the charges laid in relation to each of those incidents. As will be seen, the applicant denied that incidents one, five and six had occurred. His position on each of the other incidents was that Seraphina and Trudy had consented, which they each denied.

Incident one: Billy’s 21^st birthday party

The first incident was alleged to have occurred in May 1985, when Seraphina was 12 years old. Seraphina was at her home, where her older brother Billy’s 21^st birthday party was taking place. The applicant was at the party. He was 20 years old and Seraphina was 12 years old.
Seraphina said she went to the rear patio of the house to take some rubbish out. She turned around and the applicant was there. His hands were ‘all over [her] like an octopus’. He was ‘quite full-on, or forceful’. He groped her breasts, over and under her clothing. This conduct was the subject of charge 1 (indecent assault). The applicant then forced his hand down the front of Seraphina’s underpants and grabbed at her vagina. Seraphina tried to stop him, and to pull his hand out from inside her underwear. This conduct was the subject of charge 2 (indecent assault).
Seraphina said she then broke away from the applicant and went inside the house and into her bedroom. The applicant followed her into her bedroom and assaulted her again by groping her breasts and vagina over her clothing. She tried to push him away but he was ‘all over’ her. This conduct was not the subject of any charge. Seraphina said that while the applicant was grabbing at her, she noticed the applicant’s then girlfriend, ‘Odette’ come into the bathroom opposite her bedroom. The two locked eyes in the bathroom mirror. Odette then yelled out ‘he’s not here’ and left the bathroom. When shown footage of a police officer walking through the rooms that were Seraphina’s bedroom and bathroom at the time of the alleged offending, Seraphina said that Odette was facing the door into the hallway, or on an angle (rather than facing the mirror).
The applicant denied that this incident occurred. Seraphina was cross-examined extensively about her account of the incident, particularly the account she had given in her statements to police, at the committal hearing and in her evidence in chief, about the direction Odette was facing in the bathroom when the two ‘locked eyes’. The applicant’s counsel tendered the footage of the police officer walking through the rooms, which was said to demonstrate that it was not possible for a person in the bedroom to see the mirror in the bathroom.
The applicant was found guilty of charges 1 and 2.

Incident two: Minns Road incident

The second incident was said to have occurred some years later, when Seraphina was 15 years old. Seraphina said she was approached by the applicant in his car while she was walking to her brother’s house on Falcon Drive. The applicant offered her a lift in his ute, which she accepted. He then drove her to Minns Road, a dirt road surrounded by crops, where he stopped the car. She said he then grabbed her hand and placed it on his penis, over his pants. This conduct is the subject of charge 3 (indecent assault).
Seraphina said that the applicant then removed his penis from his pants and pushed Seraphina’s head and mouth towards it. He forced her mouth over his penis. Seraphina gagged and tried to pull away. The applicant stopped ‘after a little while’. This conduct is the subject of charge 4 (rape) and charge 5, an alternative charge of sexual penetration with a person aged 10 to 16 years.
The applicant then told Seraphina to ‘get [her] pants off’. She did not do that straight away. He told her to get her ‘fucking pants off’, which she did. The applicant then turned her around and inserted his penis into her vagina. The penetration lasted for several minutes. Seraphina lay there during the penetration. She did not move or make a sound. This conduct was the subject of charge 6 (rape) and charge 7, an alternative charge of sexual penetration with a person aged 10 to 16 years.
Seraphina said this was the first ‘vivid memory’ she had of the applicant having sex with her. She said she knew that the applicant was a police officer.
The applicant did not deny this incident. His case was that Seraphina was an enthusiastic participant in the sexual acts and was in fact 16 years old. His alternative position was that he believed she was 16 years old.
Seraphina said that she believed she was 15, if not younger, when the incident occurred. She said she was naïve and had not yet become rebellious or commenced drinking. She said the incident took place before she went on a family trip to Bali. Travel documents tendered by the prosecution established that the family left for a two week trip to Bali in October 1987, about 10 weeks after Seraphina turned 15.
The applicant was found guilty of charges 3 and 4 (the indecent assault and rape by oral penetration). He was acquitted of charge 6 (the alleged subsequent rape by penile penetration) and found guilty of charge 7 (the alternative charge of sexual penetration with a person aged 10 to 16 years).

Incident three: Dog in the car incident

The third incident, together with all the remaining incidents of alleged offending except for the ninth incident, was said to have also occurred when Seraphina was 15 years old.
Seraphina said that the applicant again picked her up in his ute and drove her to a back road. She was not ‘100 per cent sure’ where she was when the applicant picked her up, or how he had got her into the ute. He had a dog with him in the ute. They drove to a remote road, which may have been Minns Road. The applicant pulled over and put the dog in the back of the ute at some point. He told Seraphina to ‘get [her] fucking seatbelt off’, which she did. He pulled her over to his penis and told her to suck it. After a little while he told her to get her pants off. Seraphina then said ‘No — no he didn’t, sorry. He — no. He … wanted to fuck me’. The applicant groped her breasts. She could not recall if this was under or over her top. She did not think she did anything in response. She said she was mostly ‘just too scared, or not able to speak up’. The groping of Seraphina’s breasts was the subject of charge 8 (indecent assault).
Seraphina said that the applicant pulled her pants and underpants down and penetrated her vagina with his penis. She could not remember if she said anything or made any sound. At some point when the applicant was over her she used her hands to ‘try and put space between [them]’. She could not really remember how the applicant had finished and didn’t know if he ejaculated. She could not recall if she was crying. This conduct was the subject of charge 9 (rape), and charge 10, an alternative charge of sexual penetration with a person aged 10 to 16 years.
Seraphina said she believed she put her pants back on afterwards, put her seatbelt on and waited. She could not remember any conversation. She could not recall if he put the dog back in the car, or where he dropped her off.
She said she ‘would have been around the 15 year mark’ at this time of this incident. She said that that she ‘fe[lt]’ it had happened ‘before Bali’ and was in the ‘early days’ before Billy and his girlfriend Emily had their son. Other evidence established that their son was born at the end of 1988, some five months after Seraphina turned 16.
The applicant did not deny this incident. His case was that Seraphina had willingly accompanied him and willingly engaged in sex with him.
The applicant was acquitted of all three charges in relation to this incident.

Incident four: Purse incident

Seraphina said the fourth incident occurred after she had started drinking. It was night time and she and some friends (including Trudy) were standing in a car park near a pizza place on High Street. They had been drinking and Seraphina was quite tipsy. Seraphina said that the applicant pulled up in his ute and started talking to them. She was leaning on the window ledge of the applicant’s car and holding her purse in front of her. The applicant grabbed her purse. She asked for it back but he refused. He told her to get in the car. She refused. She opened the passenger door and sat on the edge of the seat. When she reached over to grab her purse, the applicant accelerated and pulled her into the car. He told her to ‘stop fucking around’. He drove to Minns Road, where they pulled over.
Seraphina said that the applicant pulled his penis from his pants and told her to ‘suck it’. He pushed her head on to his penis with his hand. She tried to pull back but the applicant forced her mouth on to his penis. She did not say anything or make any noises. This conduct is the subject of charge 11 (rape), and charge 12, an alternative charge of sexual penetration with a person aged 10 to 16 years. The applicant reached into her underpants and tried to put a finger into her anus. She moved and wiggled, trying to stop him from touching her anus. This conduct is the subject of charge 13 (indecent assault).
Seraphina said that the applicant then told her that he wanted to ‘fuck [her]’ and to get her pants off. She tried to pull her pants back but before she could do so, he started groping at her vagina. He put his finger, or fingers, inside her vagina and rammed them in and out. It was really rough. This conduct is the subject of charge 14 (indecent assault). The applicant then removed his finger or fingers and put his penis inside her vagina. She has no memory of making any physical movement. This conduct is the subject of charge 15 (rape) and charge 16, an alternative charge of sexual penetration with a person aged 10 to 16 years. Afterwards she put her pants back on and he dropped her back to where he had picked her up. The other girls were no longer there.
Seraphina said she was 15 at the time of this incident, which occurred before Bali.
Trudy also gave evidence about an occasion when she saw Seraphina get into the applicant’s car when they were all outside the local pizza shop on High Street. Trudy said that the applicant had pulled up in his white ute. He was standing next to the car and holding Seraphina’s purse. Seraphina was asking for it back. Seraphina then got in the car and they drove away.
The applicant did not deny the sexual acts that were the subject of this incident. His case was that Seraphina had willingly accompanied him and willingly engaged in sex with him.
The applicant was acquitted of all six charges in relation to this incident.

Incident five: Kitchen incident

The fifth incident was said to have occurred at Seraphina’s brother’s house on Falcon Drive. Seraphina was in the kitchen. Somebody else was also at the house, but she couldn’t recall who. She said that the applicant then walked into the kitchen behind her, pushed her ‘flat down’ on the kitchen bench, pulled her pants and underwear down and inserted his penis inside her vagina. She then heard footsteps coming. The applicant quickly pulled his penis out and ‘fixed himself up … like nothing had happened’. She also pulled her pants up and continued like nothing had happened. This conduct is the subject of charge 17 (rape) and charge 18, an alternative charge of sexual penetration with a person aged 10 to 16 years.
Seraphina said that this incident occurred around the same time as the sixth incident, to which we will shortly turn. She said ‘I’m believing — I’m feeling like it’s around 15. I can’t be 100 per cent positive at the moment, I’m sorry’. She could not recall whether it occurred before or after the sixth incident. It could have been in the same season. It was warmer weather.
The applicant denied this incident. He was acquitted on both charges in relation to this incident.

Incident six: Backyard incident

The sixth incident also occurred at Seraphina’s brother’s home on Falcon Drive. It was a hot night in summer and a group of people had gathered at the house, including the applicant, Seraphina, Trudy, Emily Hislop, Aston Mazzone and Nicholas Haffington.[7] Seraphina said that some of the group, including she and the applicant, were drinking in the backyard. Seraphina’s brother and his girlfriend were in bed. The applicant walked towards her and she kept stepping backwards. They ended up ‘halfway down the backyard’. The applicant put his hand on the fence that ran down the side of the house and told Seraphina that he wanted her to ‘suck his penis’. He took his penis out of his pants and pushed her head towards it. She was saying ‘no’. His penis was in her mouth for a few minutes. She didn’t hear anyone in the backyard once his penis was in her mouth. This conduct is the subject of charge 19 (rape), and charge 20, an alternative charge of sexual penetration with a person aged 10 to 16 years.
[7]The last two names are also pseudonyms.
Seraphina said the applicant then let her head go and she stood up. She walked away and he walked with her. She fell over and he fell on top of her. She does not recall anyone else being outside at this time. The applicant put his hand on her chest or stomach, pulled her pants and underwear down and laid on top of her. She was wriggling and moving and trying to keep her clothes on. She could not move her legs, which he separated, and he then inserted his penis into her vagina. She cried and tried to get out from under him. She told him to stop, and said that she didn’t want to. She was embarrassed. When the applicant had had enough, he got up, fixed himself up and walked off. Seraphina recalled the grass being long and that she didn’t know what she was lying on. She got up and fixed herself. She didn’t recall what happened next. She didn’t recall anyone saying anything to her. This conduct is the subject of charge 21 (rape), and charge 22, an alternative charge of sexual penetration with a person aged 10 to 16 years.

Seraphina said she believed she was 15 at the time of this incident. Her brother’s son had not been born. It would have happened after Bali. She accepted that she had told police in her statement that the incident occurred in summertime between the end of 1987 and the start of 1988 (at which time she would have been 15).
Trudy also gave evidence about this incident. She said there was a night at Falcon Drive when Aston Mazzone came into the kitchen area and said that the applicant and Seraphina were having sex in the backyard. She went into the laundry with Aston Mazzone and Nicholas Haffington, and looked out the back door. She saw two people lying on top of each other. It was dark, and there was ‘limited visibility’, but they appeared to be having sex. She, Aston and Nicholas all had a laugh about it. Trudy said what she saw did not make her think that Seraphina was being raped.
The applicant denied this incident. He was acquitted of charges 19 and 20 (in relation to the oral penetration) and convicted of charge 21 (in relation to the penile penetration).

Incident seven: Waves pool incident

The seventh incident occurred when Seraphina was walking home from her brother’s house on Falcon Drive one night. She said it was dark and she was crossing through a reserve along a pathway that went through a group of trees. It was near the Melton Swimming Pool, now called Melton Waves. The applicant jumped out from behind a tree and ‘scared the absolute crap out of [Seraphina]’. He started groping her, or groping at her and trying to kiss her. This conduct is the subject of charge 23 (indecent assault of a person under 16). The applicant tried to pull Seraphina’s pants down. He got her down on the ground, with her back in the dirt. He was on top of her and put his hand on her stomach. He pulled her pants down, sat on her chest and put his penis in her mouth. She felt like she couldn’t breathe. She was naked from the waist down. She was scared. This conduct is the subject of charge 24 (rape) and charge 25, a charge of sexual penetration with a person aged 10 to 16 years.
Seraphina said that the applicant then moved back down her body. He put his penis inside her vagina. He then lifted up Seraphina’s leg and put his thumb in her anus. It hurt a lot. She was wiggling and trying to move. She was crying. She felt ‘disgusting’. The applicant took his thumb out of her backside and kept having sex with her. His hands were under the back of her shoulders and he was pulling hard on her shoulders. Her shoulders were hurting. He was ‘going pretty hard’. When he finished, he got up and ‘fixed himself up’. He left her on the ground and walked away. The penile penetration is the subject of charge 26 (rape), and charge 27, an alternative charge of sexual penetration with a person aged 10 to 16 years. The digital penetration is the subject of charge 28 (indecent assault of a person under 16).
Seraphina said ‘I might’ve been 16 by now. I’m not sure’. When pressed, she said she was ‘not as naïve’ and that she ‘might’ve had a birthday’. She did not believe it was close to the incident that occurred in the backyard of her brother’s house. She remembered telling Trudy about the incident in the days after, including that the applicant had put his thumb in her anus. After that, the applicant’s nickname between Trudy and Seraphina was something like ‘choccy thumb’.
The applicant’s case was that he had not jumped out from behind a tree. Instead, he and Seraphina had been walking outdoors and had decided to have sex.
Charges 23, 25, 27 and 28 were taken from the jury at the close of the prosecution case. The jury found the applicant guilty on charges 24 (the rape by penile penetration of Seraphina’s mouth) and 26 (the rape by penile penetration of Seraphina’s vagina).

Incident eight: Police car incident

The eighth incident occurred while Seraphina was home alone. She saw a marked police car in the driveway. The applicant then walked into the house. Her parents left the doors unlocked. He told her to ‘come on’ and ‘stop mucking around’. He told her to go with him to her bedroom, which she did. She knew at that point that some form of sexual activity would take place. She did what he told her to do, because ‘he had authority, he had power’. In Seraphina’s bedroom, the applicant took his pants off and laid his gun and holster at the end of her bed. He told her to get her pants off and get on the bed. He inserted his finger into her vagina. This conduct was the subject of charge 29 (indecent assault).
Seraphina said the applicant inserted his penis into her vagina. She did not do anything at his point — she just lay there. This conduct was the subject of charge 30 (rape). He then told her to position herself on her hands and knees on the bed and he attempted to penetrate her anus with his penis. She was moving and kept wriggling. She said she was ‘squeezing my bum cheeks together … sort of trying to tuck my bum under a bit’ and otherwise ‘trying to stop him from going near my butt hole’. The applicant continued to push against her with his penis and it was hurting. It was disgusting to her. This conduct was the subject of charge 31 (attempted rape). While she was still on all fours, the applicant again inserted his penis into her vagina. This conduct was the subject of charge 32 (rape). After the applicant left, Seraphina went back into her bedroom, straightened her bed, and cried.
Seraphina said that she was 15 or 16 when this incident occurred. It was ‘around that era’. It was hard to know because the applicant came to the house more than once.
The applicant’s case was that he had attended Seraphina’s home by pre-arrangement and that she had willingly participated in an episode of consensual sex. He denied attempting to penetrate her anus. The applicant was acquitted of charges 29, 30 and 32 and found guilty of charge 31 (the attempted rape by penile penetration of Seraphina’s anus).

Incident nine: Toolern Street incident

The final alleged incident involving Seraphina occurred some five years later, when Seraphina was 21 or 22 years old. Seraphina said she had moved out of home and was living in an apartment in Toolern Street with her partner. She was visiting her parents’ house when the applicant turned up. Her brother was also there. At some point, Seraphina said she was going to head off soon. Shortly after that, the applicant left to get ice for the esky. Seraphina stayed there for about half an hour longer, because she was concerned that the applicant would be waiting somewhere for her.
As Seraphina drove away from her parents’ house, she saw the applicant’s ute parked on the side of the road. She kept going and drove to her apartment. Before she could get inside and lock the door, the applicant was standing behind her. She knew what was going to happen. She knew that the applicant was going to make her have sex with him. She went inside and he came in behind her and shut the door. She walked to her bedroom, took her clothes off and lay on the bed ‘like a starfish’. She said ‘I don’t wanna do this but I know you’re gonna’ and ‘I’m not gonna move an inch. It’s not what I want’. The applicant then put his penis inside her vagina. She didn’t move or respond to him at all. After a minute he got angry and got up and left. This conduct is the subject of charge 33 (rape).
The applicant’s case was that he and Seraphina had left her parents’ home by agreement, travelled in tandem to her apartment, and engaged in consensual sex. The applicant was acquitted of charge 33.

Incident ten: Bucks party incident

The tenth incident concerned allegations made by Trudy. Trudy said she attended the applicant’s bucks party with Seraphina. Trudy was drunk. She left the party and went with the applicant in his car to Minns Road, where they had consensual sex. They had previously had consensual sex on two other occasions. The morning after the bucks party, Trudy was in her bed asleep. She heard noises and got up. The applicant and Billy were having a conversation and joking about the applicant having taken tiles off the roof and climbed into the house through the manhole. She went back to bed. The applicant then came into her room. She pretended to be asleep. The applicant then undressed, hopped in the bed and forced himself on top of her. She tried to push him away and told him ‘no’ multiple times. He pulled her underwear down and pushed her legs up and pinned her so that she couldn’t move. She was naked. He put his penis in her vagina and had sex with her until he ejaculated. He then hopped off her, got dressed and left the room. This conduct is the subject of charge 34 (rape).
Trudy said that although she had had sex with the applicant the night before, she had been drunk when that occurred. In the morning, she was ‘clearer of mind’, realised he was getting married, and didn’t want him to touch her.
The applicant’s case was that the sex with Trudy was consensual. The applicant was found guilty of charge 34.

Complaint evidence

Seraphina’s evidence

Seraphina said that just before, or around the time, she turned 16, she had a conversation with her brother Billy at his house. Billy called her into the kitchen. He was angry with her. He told her to stop having sex with the applicant. Seraphina was upset and angry. She explained ‘that it wasn’t [her]’. She told her brother that he needed to tell the applicant to stop having sex with her and ‘to stay the fuck away from [her]’.
Seraphina said that Trudy also knew ‘bits and pieces’ about what was happening with the applicant. When Seraphina was at the ‘later end’ of being 15, she told Trudy that the applicant wouldn’t leave her alone, that he wanted to have sex with her all the time, that he was forceful and that he was sleazy. Seraphina recalled Trudy telling her a day or so after the applicant’s bucks party that the applicant had unwanted sex with Trudy in her bedroom. She and Trudy went their different ways after Seraphina got married in 2001.
Seraphina said that when she was around 23, she had a conversation with her sister about what had happened with the applicant. She had just had a bad break up. She went to her sister’s and in the course of talking to her about the break up, she told her sister that the applicant had made her do things when she was younger. She said he would have sex with her. She told her sister that the applicant had been to their mum and dad’s house, and he’d find her when she was out with her friends. Seraphina’s sister told her that she needed to tell their mum, and that she would come with her. They went to their mum’s. Their brother Billy was there. Seraphina told her mum that the applicant had had sex with her, that he always seemed to find her, and that it wasn’t wanted. Seraphina’s mum said ‘maybe we need to, um, sweep it under the carpet’. Seraphina’s mum referred to the applicant trying to kill himself or harm himself when he was younger. She told Seraphina that she just needed to stay away from him.

Trudy’s evidence

Trudy said she told Seraphina what had happened to her following the bucks night a couple of years later, after Seraphina told her about what the applicant had done to her. She said she didn’t recall telling anyone else.
Trudy said that Seraphina told her about the ‘Choccy Thumb incident’. It was the late 80s. They were at a party. Seraphina was visibly shaken. She told Trudy that earlier that day she was walking near the Waves pool and was assaulted by somebody who jumped out of the bushes. She said that during the assault a thumb was put into her backside. She said it was rough. She didn’t tell Trudy who had assaulted her until sometime later, when she said it had been the applicant.
Trudy said that Seraphina also spoke to her about being taken by the applicant in his car to a location near the Minns Road water tower, where they had sex. This was a short time after it had happened, but she could not recall when that was. Trudy also spoke to her about having sex with the applicant after he picked her up from outside the pizza shop on High Street, a day or two after it happened.
Trudy said there was on occasion between 1990 and 1992 when she and Seraphina were in the kitchen at Seraphina’s parents’ house. Seraphina told her that the applicant had sexually assaulted her for the first time when she quite young — perhaps around 13 or 14. It had happened at a party at her house, which Trudy thought may have been Seraphina’s brother’s engagement party. Seraphina told her that the applicant was in her bedroom with her, and that his then partner Odette saw them in the room together. Odette may have been in the bathroom and seen into the bedroom through a mirror. Odette turned around and said ‘No, he’s not here’ and walked out.
Trudy said that Seraphina had also told her about other incidents with the applicant. Seraphina told her that when she saw the applicant, he would force himself on her, and she was not a willing participant. Seraphina told her that the applicant kept following her, and turning up at her parents’ house uninvited. He pulled her over in her car. He would put his gun on the end of her bed when he was having sex with her. He would turn up at her parents’ house in a police car, sometimes in uniform. At least once when this happened, Seraphina tried to hide and pretend no one was home.

Events leading up to police reports

Seraphina’s evidence

Seraphina said that in April 2016, she was working as a support officer at the Magistrates’ Court of Victoria. By this time she had three children, including a teenage daughter. She received a message on Facebook from a woman she knew was in a relationship with the applicant. The woman told her that the applicant had found Seraphina’s teenage daughter’s purse on the train. Seraphina felt sick. It brought back a memory of the applicant taking her purse. The items in the purse included her daughter’s learner’s permit, which listed their address. Seraphina gave the woman her phone number.
Seraphina received a text message from the applicant, asking where she was. He came to her workplace later that day. He gave her the purse in the foyer of the building. He wanted to have a chat and so she took him into a private room. They had a ‘general conversation’ and then he said ‘So did I use to stalk you, did I?’ and ‘Did I rape you, did I?’. Seraphina then named different places where he had ‘done things’ to her. He said ‘I’m really sorry. I’m so sorry about that’. He then said ‘But rape?’. Seraphina told him he was ‘so forceful’. The applicant asked whether it was her on the night of his bucks night. She told him that was her friend, Trudy. The applicant told her he was ‘sorry for fucking with [her] head all these years’. As he got up to leave the room, he poked her in the side of the ribs and said ‘Just think. We could have had a quickie’. At that point, Seraphina ‘knew he was going to start again’.
After the applicant left, Seraphina was upset. She rang a work colleague and told her what had happened. Later that day, she received a text message from the applicant, which said ‘Hey, I got a bit of an itch. Do you want to scratch it some time’. The two exchanged further text messages, including text messages from Seraphina which said ‘I thought you would be disappointed in me. For some fucked up reason I wanted you today’ and ‘Maybe I have an itch that needs a scratch lol’. Seraphina said that she sent these messages because she knew the applicant was ‘going to keep going’ and he now had her daughter’s information, so she was ‘putting [herself] in the way’. They agreed to meet at a train station that afternoon.
When Seraphina got to the train station in her car, the applicant got into the car with a beer in his hand. They spoke about times they had had sex in the past. The applicant said that he could see how she could have thought that an incident that happened at Harkness Road[8] was rape, because he was quite forceful. At some point during the conversation, Seraphina looked over and the applicant had his penis out. He grabbed her arm and put it on his penis. He moved her hand up and down. She didn’t move. He reached over into her top and started sucking on her breast. He then bit her breast really hard. She threw her arms into the air and said she had to go. He asked if they could meet again, and she agreed. She did not meet up with him again. However they did continue to exchange text messages for a period. They also spoke on the phone. In cross-examination, Seraphina referred to a telephone call she made to the applicant from the private room at work. She said that she told the applicant to stay away from her children. She said that if he ever came near her house or touched a hair on her kids, she would stab him beyond recognition.
[8]Seraphina gave evidence that the applicant would take her to a street named Harkness Road to engage in sexual activity, but these occasions were not the subject of any charge.
Seraphina said that later that year — on 17 October 2016 — she made contact with Trudy via Facebook. At this time, she was questioning whether to go to police. Trudy knew ‘about things when I was younger with [the applicant]’ and would know how Seraphina was feeling with the applicant having tried to come back into her life. Seraphina was questioning whether to go to the police. She and Trudy met and had a coffee on 23 October 2016. Seraphina told her about her contact with the applicant and spoke ‘about going forward to the police’. Trudy encouraged her to do that. Trudy said she would check with her husband because she felt that it was also time for her to ‘come forward and say what she needed to’. Seraphina told Trudy that they should not discuss the details of what had happened to them. She said this because she knew from her work at the Magistrates’ Court that it was important not to ‘cloud’ anyone’s memory. After this, Seraphina met up with Trudy one more time, to see how she was going.
Seraphina made a statement to police on 24 October 2016. On 3 November 2016, she recorded a telephone conversation with the applicant, using a recording device provided by the police (the ‘first pretext call’). She recorded a second telephone conversation with the applicant on 21 December 2016 (the ‘second pretext call’).
Although the police told Seraphina that she could continue to catch up with Trudy if they didn’t talk about anything to do with the case, she chose not to. She wanted to make sure that her evidence wasn’t tainted and that there was no contamination between her evidence and Trudy’s evidence.

Trudy’s evidence

Trudy said that Seraphina contacted her on Facebook on 17 October 2016. They had not spoken for over 15 years. Seraphina told her that she needed to speak to her about something that had come up from the past. Trudy had a gut feeling that it had something to do with the applicant. The two met up on 23 October 2016. Seraphina told Trudy that the applicant had found her daughter’s purse on the train, and that the applicant had been in contact with her for the last several months. Seraphina was scared that the applicant would try and do to her daughter what he had done to her. They discussed what had happened in Seraphina’s car at the train station. Seraphina said that she was deciding whether to come forward and make a statement. She asked Trudy if she would do the same. Trudy’s immediate reaction was that she would do so, to protect Seraphina’s teenage daughter. She met Seraphina on two further occasions. The first was a few weeks later, and the second was near Australia Day. On each of those occasions they talked about family and work.
Trudy made four statements to the police — on 28 October 2016, 21 March 2017, 31 May 2017 and 25 March 2022.

Pretext calls

The first pretext call went for approximately 15 minutes. Seraphina asked the applicant questions about the conversation they had in the car at the train station earlier that year, when the applicant told her that the one she ‘could have classed as rape’ was at Harkness Road. She said she couldn’t recall that one. She asked if it was the first time. The applicant said ‘No, shit, no, no’.

Seraphina said that she remembered ‘the other ones we spoke about’. The following exchange then occurred:
Seraphina: I think I spoke about the ute at Minns Road. Anyway - - -
Applicant: Yeah, yeah.
Seraphina: And we had sex there but I couldn’t remember — it’s been playing on my mind. I just - - -
Applicant: Mm.
Seraphina: I want to put it to rest, you know.
Applicant: Yeah.
Seraphina: I just want to — and I — and for the life of me, I’m thinking, ‘What the hell happened at Minns Road that I can’t remember?’
Applicant: Well …
Seraphina: It’s just — I mean, I remember the waves pool — I can’t forget that, you stuck your thumb up my arse — but not — not that one. I just — anyway, it was playing on my mind and I - - -
Applicant: Yeah, mm …
Seraphina: You know, I know you drank a lot and I know a lot of times you were up for it and stuff but I just — I thought it — I always thought it was Minns Road.
Applicant: Fuck, I can’t remember. It’s that long ago.
Seraphina: Yeah.
Applicant: But, no, there was a time definitely at bloody High Street and Harkness Road.
Seraphina told the applicant that after he found her daughter’s purse, and had their address, she had been scared that he would go near her daughter. They then had the following exchange:
Applicant: No, fuckin’ hell, fuckin’ hell, I’m not one of those, for fuck’s sake. I’m not a sex predator. Fuckin’ basically I bloody — you know, like you, fuckin’ if I — I’m just — I’m just so — I’m forward, fucking, you know, bloody have a drink of whatever and, ‘Hey, you want a root or what?’ and bloody if someone says yes, they do; if they don’t, they don’t. That’s me.
…
Seraphina: I know, but I mean, I recall the times it was a bit more forceful than that.
Applicant: Oh, it probably was … when I’d been drinking and that, yeah … I — I — I wouldn’t doubt that, yeah.
Towards the end of the call, Seraphina told the applicant that the fact he had told her he was sorry made her feel a whole lot better. The following exchange then occurred:
Applicant: … even then, I suppose, bloody you were — you know, I’m not — not passing any blame or anything like that, definitely not, but you were pretty experimental and all that, bloody wanting to see what things were all about and all that … You know, but that could be wrong, you were probably fuckin’ vulnerable too, I suppose, at that stage of your life and, yeah, not realising what fuckin’ — yeah, I probably - - -
Seraphina: Oh, fuck, I didn’t even have a clue.
Applicant: Yeah.
Seraphina: I remember gagging.
Applicant: Mm.
Seraphina: I remember that on Minns Road, I was gagging. But that’s — you know, I was only young, 15 or something, I dunno, back then.
Applicant: Yeah, mm.
…
Seraphina: ‘Cause you were forceful and, you know, a lot of the times, you had alcohol on your breath and, you know, just different things and I was only young and - - -
Applicant: Yeah.
The second pretext call also went for about 15 minutes. Seraphina referred to her brother’s 21^st and said that he was with ‘Odette — no Anette, I think … I always got ‘em mixed up’. She said that she thought the applicant’s parents were at the party, and he said they probably would have been. They then had the following exchange:
Seraphina: I know they were looking for you to leave. That’s when you were in my room and I remember — remember I said to you I thought — I can’t remember if it was Odette or Annette — I think it’s Annette — saw you through the bathroom, the mirror, at mum’s but never said nothing, just said, ‘He’s not here,’ and turned around and walked away.
Applicant: Oh, shit.
Seraphina: I wondered if you ever got in trouble for it.
Applicant: No.
Seraphina: Nuh?
Applicant: Nuh?
Seraphina: Not a word?
Applicant: No.
Seraphina: Jeez, you’ve been lucky.
Applicant: You’re not wrong.
Later, Seraphina said she’d been thinking that she was only 12 at her brother’s 21^st, to which the applicant said ‘Yeah’. She said she was ‘like, 15 the other times up at Minns Road and Harkness Road, to which the applicant said ‘Mm’.
There was also the following discussion about what had happened at the Waves pool:
Seraphina: … We spoke about that anyway, that was your thumb. I don’t even — probably the only thing playing on my mind was — I don’t know where I was coming from. I don’t know if I left [Billy’s] that day. I was walking past the waves pool when you jumped out.
Applicant: …
Seraphina: But, like, I — I could never figure out how you knew where I was, like - - -
Applicant: No.
Seraphina: I just never - - -
Applicant: Just chance.
Seraphina: Just never knew.
Applicant: Mm.
Seraphina: You always seemed to find me.
Applicant: Yeah, only by chance though.
Seraphina referred to seeing the applicant at her mum and dad’s a long time later, when he had come back to her unit. She said ‘remember you followed me from mum and dad’s’, to which the applicant said ‘yeah’.

Call between Seraphina and her brother

The applicant’s counsel tendered a partial transcript of a phone call between Seraphina and her brother on 28 March 2017, which Seraphina had recorded and provided to police. The conversation went for 43 minutes. At the start of the call, Billy asked Seraphina, ‘[a]m I allowed to talk to you or is the phone bugged?’. Seraphina said he could talk to her. Billy told her that he had just had a policeman come around, asking whether he could remember Seraphina hooking up with the applicant. He said that he told the police that he had no idea what was going on. He told Seraphina that he had no memory of confronting her about it, because he didn’t know about it. Later in the call, they discussed the applicant finding Seraphina’s daughter’s purse. At another point in the call, Seraphina said that she was not allowed to talk to anyone, to which Billy responded ‘[y]ou’re not allowed to talk to me either’.
Seraphina was cross-examined extensively about the circumstances in which she made this call. She said she was returning a missed call from her brother. The police had not asked her to make or record the call. She was pretty upset with her brother at the time and it was the last time she spoke to him. She recorded the conversation on her phone.
When she was asked whether she had recorded her conversation with any other person involved with the proceeding, Seraphina said that her phone recorded every phone call that came through. The applicant’s counsel said she was ‘just making it up as [she went] along’. She said she had a recording app that she had put on her phone in case the applicant called her. She had not turned her mind to the fact that she was recording the conversation.
When asked why she called her brother back, Seraphina said that he would have wanted to know why the police were at his door. The applicant’s counsel suggested again that she was ‘just making this stuff up as [she went] along’. When asked why she was talking to her brother when he was a witness, and she knew she shouldn’t be talking to witnesses about the case, Seraphina said ‘[i]t’s a bit hard when it’s your brother’.

Other witnesses

The applicant’s wife

The applicant’s wife, Annette, gave evidence that she first met the applicant when she was 18 years old, in around September 1983. At that stage he had a girlfriend called Odette. The applicant graduated from the police academy in around June 1984. They started going out in late 1984. After that time, Annette did not attend any function at which Odette was present.
Annette said Billy Cook was the applicant’s best friend. His sister was Seraphina. Seraphina was a lot younger than Billy. She could tell this from Seraphina’s appearance.
Annette said that she recalled attending Billy’s 21^st birthday party at his parents’ place. She had no recollection of the applicant interacting with Seraphina at the party.
Annette said that she and the applicant got married on 16 April 1988. The applicant had a bucks night about a week before the wedding. She confirmed that the applicant owned a white ute. She identified a photo of a rescue dog that she and the applicant got in 1988. She said that the dog was a house dog and the applicant did not drive around with the dog in his ute.
Annette said that by 1996, the applicant had told her that he had sex with Seraphina, but he had not given her any specifics. She said she continued to support her husband.

Emily Hislop

Emily Hislop said that she moved into Falcon Drive with her mother and her sister Trudy in 1985. In 1987, when Emily was 19, Emily’s mother moved out with her partner. Emily’s boyfriend Billy Cook moved in. Emily met the applicant and Seraphina through Billy. Seraphina would have been 15 years old at this time. The applicant would sometimes come to Falcon Drive in his police car and in his police uniform. Seraphina was also a regular visitor, spending most weekends there.
Emily recalled the applicant telling her that there’d been sexual interactions between him and Seraphina. She recalled a conversation that took place at some point when she was aged between 19 and 22, when she was in the relationship with Billy. The applicant said he had been visiting Seraphina and he nearly got caught when one of her parents came home. He said he just had to make out that he was there catching up for a cup of tea. Emily did not recall having any conversations with Billy about any sexual interactions between Seraphina and the applicant.
Emily recalled the applicant having a bucks party. She did not attend. She was aware that the applicant had sex with her sister Trudy on the bucks night, but could not recall how she came to know that.
Emily said that on 27 December 1988, she and Billy had a son. Their relationship ended in March 1990.

Billy Cook

Seraphina’s brother, Billy Cook, said that he had never seen any untoward contact between the applicant and Seraphina. Billy said that his 21^st birthday party was in 1985. He did not see any incident involving Seraphina and the applicant at the party. At some stage when Seraphina was around 17, he thought the applicant and Seraphina were flirting with each other.
Billy said he had gone to the applicant’s bucks party, at the applicant’s parents’ house, and did not see the applicant with either Seraphina or Trudy. Seraphina never told him that she and the applicant had sex. He had not confronted Seraphina about having sex with the applicant. He did not know Seraphina and the applicant had had sex until a police officer came to his house in 2017 to take a statement from him. Before that, he had only heard rumours that Seraphina and the applicant had hooked up.

Aston Mazzone

Aston Mazzone said that in the 1980s he was part of a group of friends that included the applicant, Billy Cook and Nicholas Haffington. He also knew Seraphina and Trudy. Trudy, Emily and Billy lived at Falcon Drive. There were parties at Falcon Drive. The applicant was there every couple of weeks or so. He heard the applicant say that he’d been to Seraphina’s and that he had had sex with her. Seraphina and Trudy were both at the bucks night early in the night.
Aston Mazzone was not asked in evidence about the backyard incident.

Nicholas Haffington

Nicholas Haffington said that he had met both the applicant and Seraphina through Billy Cook in about 1987. The applicant had a white ute. Nicholas Haffington met Trudy in about 1988. He did not go to Billy’s 21^st birthday party or to the applicant’s bucks party. He did not ever see any sexual interaction between the applicant and Seraphina at Falcon Drive in the late 1980s. He heard on the rumour mill, or from the applicant, that the applicant had had sex with Seraphina and Trudy.

Marcia Brown[9]

[9]A pseudonym.

Marcia Brown said she met Trudy’s family in the mid-1980s, when the family was living at Falcon Drive. She recalled going to Falcon Drive the day after the applicant’s bucks party. Billy, Emily and Trudy were there. Billy was talking about how the applicant had taken the tiles off the roof of the house and broken in, and then hopped into bed with Trudy and had sex with her. Trudy then told Marcia that she’d woken up with the applicant trying to force her legs open. She said she had tried to push him away but he physically forced her to have sex with him.
Marcia recalled a conversation at Falcon Drive in early 1987, when Billy said to her ‘If there’s a police car in the driveway at Mum’s, don’t worry, it’ll just be [the applicant] visiting — having sex with [Seraphina]’. She said there were numerous occasions when Emily was trying to talk to Billy and tell him that he needed to step in and put a stop to it, as Seraphina’s brother, but Billy wasn’t interested. These conversations would have probably occurred from mid-1987, and were before the bucks party and before Emily had her son.

Lisa Jones[10]

[10]A pseudonym.

Lisa Jones said that she moved into the house next door to Seraphina’s family in December 1988. She met Seraphina’s family soon after. She met the applicant through Seraphina. At some stage Seraphina told her that the applicant was a policeman. She recalled the applicant visiting Seraphina’s house on one occasion in police uniform in a police vehicle.

Seraphina’s mother

Seraphina’s mother said that there was an occasion when Seraphina had told her on the phone that the applicant was ‘basically stalking’ her and that she couldn’t cope anymore. Seraphina did not give her any further details. The conversation occurred around 10 years ago.
Seraphina’s mother said that there was another conversation around six or seven years ago, in which Seraphina had told her that the applicant abused her when she was young. Seraphina did not give any details of the abuse. There was another occasion where Seraphina told her that the applicant had found Seraphina’s daughter’s purse on the train and had contacted Seraphina. In this conversation, Seraphina told her mother that the applicant had been inappropriate with her from when she was about 13 or 14 years old and would not leave her alone. Seraphina told her mother that some of it would happen at Trudy’s house.
When Seraphina’s mother asked Seraphina why she had not said anything to her around the time, Seraphina said that she had done so, but Seraphina’s mother did not recall that. She could also not recall any meeting at her house at which Seraphina, her son Billy and her other daughter were all present, when Seraphina said that the applicant had been abusing and raping her.

Bobbie Ness

Bobbie Ness was a retired police officer. She had been a Detective Senior Constable with the Box Hill Sexual Offences and Child Abuse Investigation Team. On 6 October 2016, she went to the Melbourne Magistrates’ Court to speak with Seraphina. She had known Seraphina for several years. Seraphina disclosed that she had been sexually abused by a serving member of Victoria Police when she was very young. Seraphina said she was afraid of him. She said that he was a friend of her brother. Seraphina told her the applicant’s name and said she would make a statement.
Bobbie Ness took formal statements from Seraphina on 24 October 2016, 3 November2016 and 29 December 2016.

Detective Sergeant Stephen Phelan

Detective Sergeant Phelan was the original informant. He arranged for Seraphina to make the first pretext call to the applicant on 3 November 2016. He obtained photos taken at Billy Cook’s 21^st birthday party and travel documents recording that Seraphina travelled to Bali on 4 October 1987 and returned to Australia on 17 October 1987. He confirmed that a white ute was registered to the applicant between 15 August 1987 and 11 June 2009. He also confirmed that the applicant had no prior criminal convictions, other than a subsequent drink driving matter.

John McIllree

John McIllree was a retired Detective Sergeant and the subsequent informant. He arranged for Seraphina to make the second pretext call to the applicant on 21 December 2016. He obtained a copy of Seraphina’s birth certificate, the applicant and his wife’s marriage certificate and the floor plan of Seraphina’s family home. On 5 June 2017, he received from Seraphina a recording of a phone call between Seraphina and her brother.
In cross-examination, John McIllree said that he had contacted Seraphina on 27 March 2017, and told her that he would be seeing her brother the following day to take a statement. He said he did this because he was concerned that Seraphina’s brother would contact her after he’d made the statement. He knew that they did not get along. The following day he took a statement from Seraphina’s brother. He had no note of receiving any call from Seraphina the day after that occurred.

Judge’s charge

The judge’s charge to the jury was clear and comprehensive. It included statements to the following effect:
(a)Seraphina and Trudy are critical witnesses and their credibility and reliability are central issues in the trial. The prosecution submits they were doing their best to remember things and that they are honest and reliable witnesses, whereas the defence submit that you should have serious concerns or doubts about their evidence.
(b)You may believe all, some or none of a witness’s evidence. It is also for you to decide what weight should be attached to any particular evidence, that is, the extent to which the evidence helps you to determine the relevant issues.
(c)You may have expected the prosecution to call Seraphina’s sister and Odette to give evidence. They chose not to do so and have not explained why they did not do so. If you conclude that the prosecution did not have a satisfactory reason for not calling these witnesses, you may conclude that their evidence would not have helped the prosecution.
(d)Both the prosecution and the defence are entitled to have each charge considered separately. Each charge must be considered separately in light of the evidence which applies to it. You must ask yourself in relation to each charge whether the evidence relating to that charge has satisfied you beyond reasonable doubt that the applicant is guilty of that particular charge.
The judge carefully summarised the elements of each charge, the evidence in relation to each charge and the issues for determination in relation to each charge.
The judge noted that on the charges where lack of consent was an element of the offence, the prosecution was required to prove beyond reasonable doubt that the applicant was aware that the complainant was not consenting, or might not be consenting, to the alleged sexual conduct. The judge told the jury that if the applicant believed on reasonable grounds that the complainant was consenting, this may give rise to a reasonable doubt on this element.
The judge noted that on some of the charges where Seraphina was the complainant, the prosecution was also required to prove beyond reasonable doubt that Seraphina was under the age of 16 at the time. The judge told the jury that if the applicant believed on reasonable grounds that Seraphina was 16 or older, consent would be available as a defence. The judge summarised the evidence in relation to Seraphina’s age at the time of each of the incidents.
The judge summarised five ways in which the defence submitted that the evidence given by Seraphina and Trudy was different to what they had previously said or not said. She also identified various aspects of the evidence of Seraphina and Trudy that were said to be implausible.

Proposed ground 1: Are certain verdicts inconsistent?

By proposed ground 1, the applicant contends that a substantial miscarriage of justice has occurred because:
(a)the guilty verdicts on charges 3 and 4 are inconsistent and irreconcilable with the not guilty verdict on charge 6 and the guilty verdict on charge 7;
(b)the guilty verdict on charge 7 is inconsistent with the not guilty verdict on charge 10;
(c)the guilty verdict on charge 21 is inconsistent with the not guilty verdict on charge 19; and
(d)the guilty verdict on charge 31 is inconsistent and irreconcilable with the not guilty verdicts on charges 29, 30 and 32.

The verdicts to which the various limbs of this proposed ground are directed are a subset of the verdicts on the charges concerning the alleged offending against Seraphina.

Inconsistent verdicts: principles

When considering a complaint of inconsistent verdicts, the test is one of logic and reasonableness. The applicant must satisfy the court that no reasonable jury applying their minds properly to the facts could have given the verdicts they did.[11]
[11]MacKenzie v The Queen (1996) 190 CLR 348, 366, 368 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 350–1); [1996] HCA 35 (‘Mackenzie’).
As the applicant accepted, this test is not easily satisfied. If there is a proper way by which purportedly inconsistent verdicts may be reconciled, resulting in a conclusion that the jury properly performed their function, that conclusion will generally be accepted.[12]
[12]MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 350–1); [1996] HCA 35.
One way to reconcile purportedly inconsistent verdicts is on the basis that they were simply the result of ordinary directions that the jury must consider each charge separately, be satisfied of guilt beyond reasonable doubt, and that they may accept a witness’s evidence in whole or in part. Indeed, an acquittal on a particular charge does not necessarily mean that the jury found the relevant witness’s evidence to be untruthful. A jury might believe that a witness is likely to be telling the truth, but still require something more before reaching a conclusion of guilt beyond reasonable doubt. Or a jury might consider a witness to be more reliable, or specific, about some parts of their evidence than others.[13]
[13]MFA v The Queen (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ); [2002] HCA 53; Abdel (a pseudonym) v The King [2024] VSCA 36, [58] (Boyce, Whelan and T Forrest JJA) (‘Abdel’); Frank (a pseudonym) v The King [2024] VSCA 37, [21] (Boyce, Whelan and T Forrest JJA); Sladek v The King [2024] VSCA 119, [46]–[48] (Emerton ACJ, Priest and Kaye JJA) (‘Sladek’); Brooks (a pseudonym) v The King [2024] VSCA 305, [91]–[93] (McLeish, Boyce and Kaye JJA).
Another way to reconcile purportedly inconsistent verdicts is on the basis that the jury took a ‘merciful’ view of the facts. A jury may consider that, although a number of charges have been proved beyond reasonable doubt, justice is sufficiently met by convicting on less than the full number of charges. This is a legitimate approach for a jury to take, even if it may not appear strictly logical to an appellate court.[14]
[14]MacKenzie (1996) 190 CLR 348, 367–8 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 350–1); [1996] HCA 35; Abdel [2024] VSCA 36, [58] (Boyce, Whelan and T Forrest JJA); Sladek [2024] VSCA 119, [49] (Emerton ACJ, Priest and Kaye JJA).
Nevertheless, cases will remain where the verdicts affront logic and common sense, and strongly suggest that the jury failed properly to perform their duty. The verdicts may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between offences, or a lack of clarity in the directions given to them. An appellate court must intervene in such a case. That said, there are no hard and fast rules for when appellate intervention is required, which will depend on the facts of the case.[15]

Submissions on approach to be taken to the impugned verdicts

[15]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ agreeing at 350–1); [1996] HCA 35; Schliefert v The King [2024] VSCA 197, [38] (Priest, Taylor and Boyce JJA); Sriranganathan v The King [2024] VSCA 257, [33]–[34] (Niall and Taylor JJA, Priest JA agreeing at [1]).

The applicant commenced his submissions by emphasising that the jury had deliberated for nine days. He submitted that in assessing whether the verdicts returned at the end of those nine days are inconsistent, this Court should pay particular regard to the ‘forensic parameters’ during the trial. The key forensic parameter was that the focus at the trial was the complainant’s credibility. The applicant’s counsel invited the jury to assess Seraphina’s credibility on each charge, having regard to doubts they might have about her credibility on other charges. The judge had also told the jury that their assessment of Seraphina’s credibility was the central issue.
The applicant submitted that although the possibility that he had an honest but mistaken belief as to Seraphina’s age was a live issue on certain charges (involving sexual penetration of a child), the only real issue on the charges of rape was whether Seraphina had consented.
Ultimately, the jury entered not guilty verdicts on all charges in relation to incident three (the dog in the car incident), incident four (the purse incident), incident five (the kitchen incident) and incident nine (the Toolern Street incident). The applicant submitted that in circumstances where Seraphina’s account of being raped in each of those incidents left no room for any belief on the part of the applicant that she had been consenting, these verdicts must be seen as a wholesale rejection of Seraphina’s credibility.
The respondent accepted that the applicant’s case at trial was ‘unambiguously predicated’ on the basis that Seraphina was an ‘unmitigated liar’ and that her credibility was such that the jury could not possibly accept any of her evidence beyond reasonable doubt. However, the respondent submitted that the verdicts of not guilty on some of the charges did not mean that the jury regarded Seraphina to be a person of damaged credibility. It was open to the jury to conclude that Seraphina was an honest and reliable witness and yet acquit the applicant on some of the charges. The verdicts reflected the jury’s careful consideration of each of the charges, the totality of the evidence and what was actually in issue on each of the charges. This was not a case of merciful or compromise verdicts.
In addition to these submissions about the approach to be taken to proposed ground 1, the parties addressed each of the particular verdicts impugned by the four separate limbs of the proposed ground. We will refer to those submissions as part of our consideration of each of those limbs.

Proposed ground 1(a): verdicts on incident two

By proposed ground 1(a), the applicant contends that the verdicts in relation to incident two (the Minns Road incident), are inconsistent. The jury found the applicant guilty of charge 3 (indecent assault by putting Seraphina’s hand on his penis), guilty of charge 4 (rape by putting his penis in her mouth),[16] not guilty of charge 6 (rape by putting his penis in her vagina) and guilty of charge 7 (the alternative charge of sexual penetration of a child).
[16]Which meant it was unnecessary for the jury to return a verdict on the alternative charge of sexually penetrating Seraphina in this manner when she was under 16 years of age (charge 5).
The applicant submitted that these verdicts cannot be reconciled because they involve splitting the assessment of Seraphina’s credibility between acts that are separated in time by mere seconds. They were said to bespeak compromise. Given that the applicant’s belief in Seraphina’s consent was not a matter ‘on which the parties joined issue in any practical sense’, the verdicts cannot be explained on that basis.
In oral submissions, the applicant’s counsel emphasised that the context for incident two was that, on the jury’s verdicts, the applicant had molested Seraphina as a 12 year old three years earlier (incident one). Incident two then commenced with the applicant effectively kidnapping Seraphina and taking her to a remote location. At that remote location, on the jury’s verdicts, the applicant had overborne Seraphina’s will and raped her by putting his penis in her mouth. Against that backdrop, it ‘transcended the rational or reasonable’ for the jury to acquit the applicant of raping her by putting his penis in her vagina a short time later. It suggested that the jury thought Seraphina suddenly began to consent following the oral rape, or that the applicant suddenly had a genuine and reasonable belief in consent. Both possibilities were illogical or unreasonable.
In response, the respondent submitted that the verdicts on incident two reflect the different way in which each of the charged acts came to pass, and the different way Seraphina responded to those acts. The verdict on charge 7 means that the jury were satisfied that Seraphina was under 16 at the time of this incident and that the applicant did not believe on reasonable grounds that she was 16 or older. The not guilty verdict on charge 6 does not reflect a rejection of Seraphina’s account, nor a diminishing of her credibility. Instead, it demonstrates that the jury took a proper and cautious approach to the requirement that they be satisfied beyond reasonable doubt of each of the elements of the offences, and a strict adherence to the separate consideration direction.
Having considered these submissions, we are not satisfied that no reasonable jury, applying their minds properly to the facts, could have given the verdicts that the jury returned for incident two. Those verdicts are explicable on the basis that the applicant had admitted to all of the sexual activities involved in this incident; the jury were satisfied that Seraphina was under the age of 16 and that the applicant did not reasonably believe that she was 16 or older; and the jury were not satisfied beyond reasonable doubt that Seraphina did not consent, or that the applicant did not have a reasonable belief in her consent, to one of the sexual activities, namely the applicant putting his penis in her vagina.
(a)In relation to charge 3 (indecent assault), the disputed element of the offence was that Seraphina was under 16 years old. Lack of consent was not an element of this offence. Nor was it disputed that the applicant had put Seraphina’s hand on his penis, that he had done so intentionally, and that this was indecent. It is implicit in the jury’s verdict of guilt on charge 7 (a charge of sexual penetration of a child under 16) that the jury were satisfied that Seraphina was under 16 at the time of the Minns Road incident and that the applicant did not reasonably believe otherwise. The guilty verdict on charge 3 is therefore uncontroversial.
(b)In relation to charge 4 (rape by oral penetration), given the applicant’s admission that he put his penis in Seraphina’s mouth, the key issue was consent. There was evidence that Seraphina had actively resisted this conduct. Seraphina said that the applicant had pushed her head and mouth towards his penis. He had forced her mouth over his penis, causing her to gag and try to pull away. In the first pretext call, Seraphina told the applicant that she remembered gagging on Minns Road, to which he said ‘yeah, mm’. This evidence supported the absence of consent and any reasonable belief in consent, and therefore the guilty verdict on charge 4.
(c)Charges 6 and 7 concerned the allegation that the applicant had penetrated Seraphina’s vagina with his penis. This was said to constitute either rape, which required proof that the (admitted) sexual conduct was non-consensual; or sexual penetration of a child, which did not require proof of a lack of consent. It can be inferred from the jury’s findings of not guilty on the rape charge and guilty on the charge of sexual penetration of a child, that the jury was not satisfied beyond reasonable doubt that Seraphina did not consent to this sexual act and/or that the applicant did not reasonably believe her to be consenting. There is a logical and reasonable basis for this. The evidence of Seraphina’s resistance to the vaginal penetration was less clear than in relation to the oral penetration. She gave evidence that after the applicant told her to get her pants off, she removed them. When the applicant inserted his penis into her vagina, she lay there and did not move or make a sound. The evidence concerning lack of consent was therefore of a different quality to the equivalent evidence in relation to the oral penetration.
We reject the applicant’s submission that these verdicts cannot be reconciled because they involve splitting the assessment of a complainant’s credibility between acts that are separated in time by mere seconds. For the reasons we have given, it is far from clear that the verdicts say anything about Seraphina’s credibility. We also reject the applicant’s submission that the verdicts cannot be explained by the jury’s position on the applicant’s belief in Seraphina’s consent, because that was not an issue ‘on which the parties joined issue in any practical sense’. Whether or not the applicant’s counsel chose to focus on this issue in addressing the jury, the judge made clear in her charge that in order to convict on charge 6, the jury needed to be satisfied beyond reasonable doubt that the applicant was aware that Seraphina was not consenting or might not be consenting.
Finally, we reject the applicant’s submission that the context of the offending (either the immediate context or the broader context provided by the backdrop of incident one) rendered the jury’s acquittal on charge 6 irrational or unreasonable. Irrespective of that context, Seraphina’s evidence was that she responded differently to the vaginal penetration than she did to the oral penetration. The context did not render the verdicts ones that no reasonable jury, applying their minds properly to the facts, could have given.
We are satisfied that there is a logical and reasonable basis for the verdicts in relation to incident two. We therefore reject proposed ground 1(a).

Proposed ground 1(b): verdicts on incidents two and three

By proposed ground 1(b), the applicant moves from a contention that the verdicts on incident two are internally inconsistent, to an allegation that they are inconsistent with the verdicts on a separate incident, namely incident three (the dog in the car incident).
The applicant submitted that the guilty verdict on charge 7 (sexual penetration of a child during incident two) and the not guilty verdict on charge 10 (sexual penetration of a child during incident three) were inconsistent and irreconcilable. The verdict on charge 7 means that the jury were satisfied that the applicant was not yet 16 years old at the time of incident two, or that the applicant honestly believed she was 16 at this time. As for charge 10, given that the relevant acts were admitted by the applicant, and non-consent was not an element of the offence, the verdict on charge 10 means that the jury had a reasonable doubt that at the time of this incident Seraphina was not yet 16, or that the applicant honestly believed she was 16. Although incident three occurred after incident two, the quality of Seraphina’s evidence about her age was the same, in that she said both incidents occurred before she went on the family holiday to Bali. It was therefore not open to the jury to find the applicant guilty of charge 7 in light of their verdict on charge 10.
In response, the respondent submitted that the quality of Seraphina’s evidence as to her age at the time of incident three was of a different quality to her evidence in relation to incident two. In light of that evidence, it was open to the jury to hold a reasonable doubt about Seraphina’s age at the time of incident three, but not hold that same doubt in respect of incident two. The verdict of not guilty on charge 10 was therefore not inconsistent with the verdict of guilty on charge 7.
We consider that the different verdicts on charges 7 and 10 are explicable on the basis of the different quality of Seraphina’s evidence about her age at the time of incidents two and three.
The charge period for both charges was the same — each was alleged to have occurred during the year when Seraphina was 15 years old.
Seraphina’s evidence about her age at the time of the Minns Road incident was that she believed she was 15, if not younger. She recalled being naïve at the time of the incident, and that she had not yet become rebellious or started drinking. She recalled that the incident occurred before the trip to Bali. Other evidence established that she departed for Bali on 4 October 1987, and that she turned 16 on 21 July 1988.
Seraphina’s evidence about her age at the time of the dog in the car incident was more equivocal. She said she ‘would have been around the 15 year mark’ and that it had happened ‘before Bali, um, I’d say it’s like early days, is what I’d call it’. When pressed, she said that she ‘fe[lt]’ it was before she went to Bali. She said it was before Billy and Emily had their son. Other evidence established that Billy and Emily’s son was born in December 1988, more than four months after Seraphina turned 16.
Given this evidence, it was open to the jury to have had a reasonable doubt about whether Seraphina was under the age of 16 at the time of incident three, but not at the time of incident two.
We are therefore satisfied that there is a logical and reasonable basis for the verdicts on charges 7 and 10. We reject proposed ground 1(b).

Proposed ground 1(c): incident six

By proposed ground 1(c), the applicant contends that two of the verdicts in relation to incident six (the backyard incident) are inconsistent and irreconcilable, namely the verdict of not guilty on the charge of rape by putting his penis in Seraphina’s mouth (charge 19) and the verdict of guilty on the charge of rape by putting his penis in her vagina (charge 21).
The applicant submitted that although he denied the entirety of this incident, by their finding of guilt on charge 21, the jury must have rejected that denial. The jury nonetheless acquitted him of the two charges relating to the alleged oral penetration (charge 19 and charge 20, a charge of sexual penetration of a child). The applicant submitted that by those verdicts, the jury either rejected Seraphina’s account of oral penetration, or were not satisfied that the penetration was accompanied by mens rea or that it occurred in circumstances where the applicant did not have a reasonable belief that Seraphina was at least 16. The jury’s finding of guilt on charge 21 suggested that it was the former — namely, that the jury rejected Seraphina’s account of oral penetration.
The applicant submitted that the verdict of guilty on charge 21 must imply that the jury were prepared to accept that there was vaginal penetration because Seraphina’s account of this aspect of the incident was corroborated by Trudy’s evidence of seeing the two of them have sex in the backyard that night. The jury must also have been satisfied that the applicant knowingly penetrated Seraphina and that she withheld her consent.
However, the applicant submitted, Trudy’s evidence corroborated only the act of penetration. It did not corroborate Seraphina’s lack of consent. To the contrary, Trudy appeared to suggest that Seraphina was consenting. The applicant submitted that it was inconsistent for the jury to reject Seraphina’s account of oral penetration, yet to accept her evidence that she was not consenting to the vaginal penetration, which occurred only ‘seconds or minutes’ later. Indeed, the quality of the evidence regarding Seraphina’s lack of consent was stronger in relation to the oral penetration than the vaginal penetration, because it was not at odds with Trudy’s evidence.
In response, the respondent submitted that because the applicant’s case was that this incident did not occur, the first question for the jury to answer was whether they could be satisfied beyond reasonable doubt that any of the charged acts in fact occurred. Trudy’s evidence corroborated that sex had occurred, but Trudy had not witnessed the oral penetration. Further, and contrary to the applicant’s submission, Seraphina’s evidence of lack of consent was more cogent in relation to the alleged vaginal penetration than it was in relation to the alleged oral penetration. As she had done with the sexual activities comprising incident two, Seraphina had responded differently to the acts of oral and vaginal penetration. The verdict of guilt in relation to the rape charge concerning the vaginal penetration and the verdict of not guilty in relation to the rape charge concerning the oral penetration logically reflected the evidence presented at trial.

We consider the different verdicts on the two rape charges in incident six are explicable on the basis that there was corroboration for the act of vaginal penetration (but not the oral penetration) and/or that there was more compelling evidence of a lack of consent in relation to the act of vaginal penetration. As to the latter, while it is true that Seraphina gave evidence that she said ‘no’ during both acts of penetration, she also gave evidence of physically resisting the act of vaginal penetration. She said that she was wriggling and moving and trying to keep her clothes on. She was crying and trying to get out from under the applicant.
We are not persuaded that Trudy’s evidence necessarily rendered Seraphina’s evidence of lack of consent weaker on the vaginal rape charge. Trudy’s evidence was that it was dark, and that she was watching from a distance. She could not hear anything. Although she agreed to the proposition that ‘What you saw didn’t make you think [Seraphina] was getting raped’, her evidence was not to the effect that the sex was consensual. Rather, it was that from her view of ‘limited visibility’, she could see two people lying on top of one another, who appeared to be having sex. But in the dark and from a distance, she could not even see who they were. In these circumstances, it was well open to the jury to find that the more compelling evidence of non-consent that Seraphina gave on the vaginal rape charge was not weakened by Trudy’s limited account.
In our view, the applicant’s submission that the acquittal on charges 19 and 20 entailed a ‘rejection’ by the jury of Seraphina’s account of oral penetration, is premised on a fallacy. The acquittal means no more than that the jury were not satisfied, beyond reasonable doubt, of one or more elements of those offences. The jury might not have rejected Seraphina’s evidence. They might have simply required more compelling evidence. Once this is understood, and in light of our consideration of the evidence supporting the charges, there is no inconsistency between the jury’s acquittal on the charges concerning the alleged oral penetration and their finding that Seraphina did not consent to the vaginal penetration.
In these circumstances, we are satisfied that there is a logical and reasonable basis for the different verdicts on charges 19 and 21. We therefore reject proposed ground 1(c).

Proposed ground 1(d): incident eight

By proposed ground 1(d), the applicant contends that the verdicts in relation to incident eight (the police car incident) are inconsistent and irreconcilable. The jury found the applicant guilty of charge 31 (attempted rape by attempting to put his penis in her anus) but not guilty of charges 29 (indecent assault by putting his fingers in her vagina), 30 (rape by putting his penis in her vagina) and 32 (a second charge of rape by putting his penis in her vagina). The applicant submitted that the verdicts were inconsistent because the acts that founded the four charges occupied minutes and were separated by seconds. The different verdicts therefore ‘defied credulity’. They could not be explained by reference to Seraphina’s actions during the episode and the applicant’s corresponding and shifting states of mind. This would ignore the ‘immediate and broader context’ in which the allegations were made.
In response, the respondent submitted that because the applicant did not deny the vaginal penetrations, but did deny the attempted anal penetration, the jury had a different starting point for the two types of charges within the incident — consent in relation the vaginal penetrations, and whether the act even occurred in relation to the attempted anal penetration. There was evidence of compliance on Seraphina’s part in relation to the vaginal penetrations, and evidence of resistance in relation to the attempted anal penetration, which was also a type of penetration that might readily be seen as different in nature. The verdicts were therefore not dependent on either the applicant or Seraphina having any ‘shifting’ state of mind, but on Seraphina’s different conduct, which informed the jury’s determination of the applicant’s state of mind.
We consider that the verdicts in relation to incident eight are explicable on the basis of the different quality of the evidence about lack of consent in relation to the alleged vaginal penetrations and the alleged attempted anal penetration. While Seraphina described the various physical acts alleged to constitute incident eight in some detail, she only gave evidence about saying no and resisting the applicant in relation to the attempted anal penetration. She said that when the applicant tried to penetrate her anus with his penis she responded by ‘squeezing my bum cheeks together … sort of trying to tuck my bum under a bit’ and otherwise ‘trying to stop him from going near my butt hole’. She said that what was happening was disgusting to her. This evidence was reinforced by the evidence Seraphina gave of her feelings of disgust and degradation at being anally penetrated during the Waves pool incident.
In these circumstances, we are satisfied that there is a logical and reasonable basis for the verdicts in relation to incident eight. We therefore reject proposed ground 1(d).

Proposed ground 1: conclusion

We are not satisfied that no reasonable jury, applying their minds properly to the facts, could have given the verdicts the applicant seeks to impugn under the various limbs of proposed ground 1. To the contrary, we are satisfied that those verdicts are logical and reasonable. Proposed ground 1 fails.

Proposed ground 2: Are the guilty verdicts on charges 1 to 4, 7, 21, 24, 26 and 31 unreasonable or unable to be supported having regard to the evidence?

By proposed ground 2, the applicant contends that a substantial miscarriage of justice has occurred because each of the verdicts of guilt on the charges for which Seraphina was the complainant is unreasonable or cannot be supported by the evidence.

Submissions

The central plank of the applicant’s argument in support of proposed ground 2 is that Seraphina was a witness without credibility. The applicant submitted that Seraphina ‘lied almost without restraint’. Her lies were ‘as elaborate as they were effortless’. She was ‘scheming and manipulative’ and had sought to contaminate the evidence of other witnesses, including her brother, who she had surreptitiously recorded. Her evidence was internally inconsistent in material respects and contradicted by other witnesses ‘again and again’. It contained multiple ‘built-in lies’.
Relying on a passage in the judgment of Weinberg JA in Pell v The Queen,[17] in which his Honour discussed the High Court’s decision in Jones v The Queen,[18] the applicant contended that it was implicit in the not guilty verdicts — especially those corresponding to the entirety of the charges for incidents three, four, five and nine — that the jury rejected outright Seraphina’s detailed accounts of what had taken place on those occasions. Those verdicts could not sensibly be interpreted as only a failure on the jury’s part to have been satisfied of the truth of those accounts beyond reasonable doubt. If that was the case, it would be difficult to see how the jury could have accepted Seraphina’s account of events that ‘bookended or followed those incidents, and which depended wholly or almost wholly on an acceptance beyond reasonable doubt of her word’.
[17][2019] VSCA 186, [612] (‘Pell (CA)’). The applicant also relied on Mathieson v The Queen [2021] VSCA 102, [51]–[55] (Priest, Kyrou and T Forrest JJA), quoting Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640, 694 (Gibbs J).
[18](1997) 191 CLR 439; [1997] HCA 12 (‘Jones’).
In oral submissions, the applicant’s counsel submitted that the jury’s verdicts across the indictment should be understood on the basis that the jury were not prepared to act on Seraphina’s word ‘when it was unsupported or there wasn’t some piece of evidence which might have enhanced her credibility’. For example:
(a)the jury had found the applicant guilty of the indecent assaults comprising the first incident in circumstances where Seraphina had asked the applicant in the second pretext call whether he ‘got in trouble for it’, and he said he had not;
(b)the jury had found the applicant guilty of the oral rape in incident two in circumstances where Seraphina had spoken during the first pretext call of ‘gagging’ and of the applicant being ‘forceful’ during the Minns Road incident, to which the applicant had not said anything to the contrary;
(c)the jury had found the applicant not guilty of all charges in relation to incident three (the dog in the car incident), incident four (the purse incident), incident five (the kitchen incident) and incident nine (the Toolern Street incident) in circumstances where it was ‘more or less her word and nothing else’ for each of these incidents;
(d)the jury had found the applicant guilty of the vaginal rape in the backyard incident (but not the oral rape) in circumstances where the act of vaginal penetration (but not the oral penetration) was corroborated by Trudy; and
(e)the jury had found the applicant guilty of rape in the Waves pool incident in circumstances where: Seraphina had discussed this incident with the applicant in the second pretext call, during which the applicant said it was ‘just chance’ that he had found her that time; and Trudy had given evidence that Seraphina complained about the ‘choccy thumb’ aspect of the incident.
The applicant submitted that although the jury must have concluded that Seraphina’s evidence was credible and reliable in respect of the charges on which they returned a guilty verdict, their rejection of the applicant’s evidence on so many of the charges meant that the guilty verdicts invited appellate scrutiny. On the whole of the record, and on all the guilty verdicts, it was not open to the jury to accept Seraphina’s evidence as true and reliable. Instead, the jury ought to have entertained a reasonable doubt across all the charges. The applicant emphasised that in assessing this submission, this Court is bound by the directions given to the jury.
In response, the respondent submitted that it was not the case that in order to acquit the applicant on the charges in relation to incidents three, four, five and nine, the jury must have rejected Seraphina’s evidence outright. It was ‘deeply simplistic’ to suggest that the only way an acquittal on these charges could have come about was that the jury determined that Seraphina was wholly without credibility and reliability. The only thing that could be drawn from the jury’s verdict, which included multiple findings of guilt, was that they did not accept the applicant’s position that Seraphina was ‘a liar without stopping’.
The respondent emphasised that the standard of ‘beyond reasonable doubt’ is a high bar, particularly in ‘word on word’ cases such as the present. The applicant’s acquittal on some of the charges proved no more than that the jury were not satisfied of each and every element of those offences beyond reasonable doubt. It reflected the directions the judge gave to the jury that they were entitled to believe all, some or none of a witness’s evidence, and that they were to give separate consideration to each charge.
The respondent submitted that the jury’s verdicts across the indictment could be understood on the basis that the quality of the evidence in relation to each incident was variable. And even if the verdicts could be understood in a different way — as the applicant suggested, on the basis that the jury were not prepared to act on Seraphina’s word when it was unsupported or there was no piece of evidence that might enhance her credibility — this did not assist the applicant. It simply demonstrated another reasonable and logical basis for the verdicts.

Consideration

We commence our consideration of proposed ground 2 with the applicant’s submission that the guilty verdicts on the charges on which Seraphina was the complaint are unreasonable and cannot be supported by the evidence because Seraphina was an unmitigated liar.
Seraphina gave evidence in chief for the best part of two days of the trial. She was then subjected to a detailed, searching and difficult cross-examination which spanned four further days. It was made plain to her during the course of that cross-examination that the applicant’s position was that she was a liar who had sought to contaminate the evidence of other witnesses, and who was not to be believed on any critical fact. Indeed, it was repeatedly put to her that she was making it up as she ‘went along’. Some of the questions asked of her in cross-examination had an overtly sarcastic tone. A number of them were argumentative and, from time to time, the cross-examiner responded to an answer given by Seraphina with a comment that was of no assistance to anyone.[19]
[19]As to the inappropriateness of certain types of questions and comments during the course of cross-examination, see Libke v The Queen (2007) 230 CLR 559, 598–604 [119]–[132] (Heydon J); [2007] HCA 30.
It is clear from the jury’s finding that the applicant was guilty of nine of the charges for which Seraphina was the complainant, spanning five separate incidents, that the jury rejected the applicant’s invitation to treat Seraphina as an ‘unmitigated liar who lied to you for about five days straight with every breath that she mustered’. They reached this position despite the applicant’s counsel drawing to their attention what he asserted to be internal inconsistencies in Seraphina’s evidence; various implausibilities in her evidence; and differences between her evidence and the evidence of other witnesses. Having examined the matters to which the applicant’s counsel directed the jury’s attention, we consider that it was open to the jury to reject the applicant’s characterisation of Seraphina’s credibility.
The critical internal inconsistencies in Seraphina’s evidence on which the applicant relied were:
(a)whether, during the commission of the uncharged act which formed part of incident one, Seraphina locked eyes with Odette through the bathroom mirror or directly;
(b)an inconsistency between Seraphina’s police statements and her evidence about which incidents she discussed with the applicant in the private room at her workplace in April 2016;
(c)Seraphina’s evidence that, at some time in 2016 before the pretext calls with the applicant, she threatened to stab him and told him to stay away from her and her children, when there was no mention of this in any of her police statements; and
(d)Seraphina’s evidence that Trudy had told her after the bucks party about what the applicant had done to Trudy, when there was no mention of this in any of her police statements.
As to implausibilities, while the applicant’s counsel submitted to the jury that much of Seraphina’s evidence was implausible, it was her dealings with the applicant during the period from April to December 2016 that were said to be entirely inconsistent with her allegations against him.
As to inconsistencies between Seraphina’s evidence and the evidence of other witnesses, the applicant’s counsel emphasised what he submitted were critical differences between the accounts of Seraphina on the one hand, and the accounts of her mother and brother on the other hand, particularly in relation to Seraphina’s evidence that she had complained to them about the applicant.
In oral submissions in this Court, the applicant’s counsel focused on what he described as the more egregious of Seraphina’s lies in relation to the telephone conversation she recorded with her brother. They included the following:
(a)In cross-examination, Seraphina’s evidence was that she knew from her work and from what the police told her that she was not supposed to talk to witnesses about the facts of the case. She initially said she had acted in accordance with this. However she later conceded that she had discussed the facts of the case in the recorded phone call with her brother. Her evidence was that ‘it’s a bit hard when it’s your brother’.
(b)Seraphina’s evidence was that she made the phone call to her brother because she had missed a call from him and was calling him back. This did not accord with the transcript of the call, which indicated that after her brother had answered the phone he asked whether they were supposed to be talking.
(c)Seraphina’s evidence was that the police had not told her that her brother was to make a statement on the day she called him. However John McIllree gave evidence that he had called her the day prior to the call and told her that he was taking a statement from her brother the following day.
(d)Seraphina’s evidence was that she rang the police the day after the phone call with her brother and told them they might want to get the recording from her. However John McIllree gave evidence that he had no notes of being contacted by Seraphina that day and his evidence was that he did not receive the recording of the call until some months later.
(e)Seraphina’s evidence was that it was not her intention to talk to her brother about the case in the phone call. However that must have been her sole purpose.
(f)Seraphina’s evidence was that her brother told her in the call that she was going to put the applicant in jail, make him lose his family and his job and that it was all her fault. This was inconsistent with the transcript of the recording.
Each of these matters, and the other matters relied upon by the applicant as demonstrating that it was not open for the jury to rely on any of Seraphina’s evidence to convict him, was the subject of detailed examination at trial, both in Seraphina’s cross-examination and in the applicant’s counsel’s submissions to the jury.
Plainly, there were discrepancies in Seraphina’s evidence. However, the jury may well have considered that any discrepancies were no more than the product of her being questioned about events that had occurred more than 30 years ago.
The same may be said about differences between Seraphina’s evidence and the evidence of other witnesses. The witnesses did not all speak with one voice on many issues. Indeed, given the time that had elapsed between the events about which they gave evidence and the trial, it would have been surprising if they had. Again, we see nothing in the record of the trial that required the jury to disbelieve Seraphina on critical matters because contradictory evidence was given by another witness or witnesses.
In relation to the asserted implausibility of Seraphina’s allegations given her interactions with the applicant in 2016, this matter was also fully ventilated at trial. Seraphina was cross-examined extensively on this topic. Having examined her evidence, we are unable to say that her responses and explanations were so improbable as to be unable to be accepted by the jury.
For completeness, we note that this was not (and was not submitted to be) a case involving compounding improbabilities of the kind referred to in Pell (CA)[20] or the appeal from that decision to the High Court.[21]
[20][2019] VSCA 186, [1060], [1062] (Weinberg JA).
[21]Pell v The Queen (2020) 268 CLR 123, 150 [56]–[58] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
We turn to the submission that the applicant advanced at the hearing of this application, namely that the verdicts should be understood as demonstrating that the jury had such doubts about Seraphina’s credibility that they only found the applicant guilty of charges where her evidence was supported by some other piece of evidence.
We accept the respondent’s submission that even if the jury verdicts can be understood in this way, that would not render them unreasonable or unsupported by the evidence. To the contrary, it would demonstrate a rational and reasonable basis for the verdicts.

In any event, it appears to us that there is another, more likely, explanation for the jury’s verdicts. That is that, over the course of nine days’ deliberation, the jury carefully analysed the entirety of the evidence and reached their verdicts based on the varying quality of the evidence across the various incidents. The jury likely regarded the quality of the evidence as adequate to satisfy them of each element beyond reasonable doubt on some charges, but not on others.
It is true that there will be cases where the underlying facts show that a jury’s conviction on one charge is inconsistent with its acquittal on another. Jones[22] was such a case. In that case, the accused was charged with three acts of sexual intercourse with a young girl. On the complainant’s evidence, the acts of intercourse took place when no-one else was present, save for the complainant and the accused. The jury acquitted on the second count, but convicted on each of the first and third counts. The High Court, by majority (Kirby J dissenting), held that the convictions should be set aside as ‘unsafe and unsatisfactory’. As Weinberg JA said in Pell (CA), ‘[t]hat finding was, of course, based upon the apparent inconsistency between the jury’s finding on the second count, and its findings on the first and third counts’. However, as his Honour also observed, ‘[i]mportantly, the complainant’s evidence was said to be of similar quality on all counts’.[23]
[22](1997) 191 CLR 439; [1997] HCA 12.
[23]Pell (CA) [2019] VSCA 186, [608].
The present case is different from Jones. Having examined the evidence in this case, we are not persuaded that it could be described as being ‘of similar quality on all counts’. While Seraphina gave evidence in support of each charge on which she was the complainant, she did so with varying degrees of certainty, and there were different circumstances surrounding the various incidents. It is probable that, rather than the not guilty verdicts involving any positive rejection of her evidence, those verdicts merely reflect that the jury was not satisfied beyond reasonable doubt of one or more of the elements of the alleged offending — most likely whether the prosecution had established (particularly in respect of the alleged rapes for which the applicant was acquitted) that the applicant was aware that Seraphina was not consenting or aware that she might not be consenting.
In relation to incident one (the 21^st birthday party incident), Seraphina gave clear evidence about the conduct comprising each of the charged acts. There was nothing inherently improbable about that evidence. Her age at the time of her brother’s party was not in dispute. The charges were of indecent assault of a person under the age of 16, so it was not necessary for the Crown to prove any lack of consent. We see nothing unreasonable in the verdicts of guilt on these charges.
In contrast, the quality of the evidence in relation to the three incidents said to have occurred in the applicant’s car (incidents two, three and four), was variable. We have dealt with incident two (the Minns Road incident) and incident three (the dog in the car incident) in some detail already. It will be recalled that incident two involved an indecent assault, an oral penetration, and a vaginal penetration. It was the first of three incidents which Seraphina described as being ‘very similar’. She said that it was ‘the first vivid memory I have of him having sex with me’. The jury may well have considered that Seraphina’s evidence relating to incident two disclosed a certainty as to the physical acts which comprised it, her age at the time of the acts, and her lack of consent to at least the oral penetration (indicated by her gagging and trying to pull away from the applicant’s penis). We see nothing unreasonable in the jury’s acceptance beyond reasonable doubt of the indecent assault constituted by the applicant putting Seraphina’s hand on his penis (charge 3), the rape constituted by the applicant’s oral penetration of Seraphina (charge 4) and the sexual penetration of a child constituted by the applicant’s vaginal penetration of Seraphina (charge 7).
It will be recalled that incident three comprised a charge of indecent assault and a charge of rape (with an alternative charge of sexual penetration of a child). Unlike her evidence about incident two, in which she described her memory as ‘vivid’, Seraphina’s evidence about incident three was couched in less certain terms. In her evidence, she said that she was not 100 per cent sure where the applicant picked her up from, and could not remember various details, including whether she was touched under or over her top, or whether she was crying. At one point in her evidence, she said that the applicant told her to get her pants off, before saying, ‘No — no he didn’t, sorry’.
Seraphina was not cross-examined on the basis that the sexual acts in incident three did not occur. The cross-examination centred on whether she consented. Notwithstanding that there appears to have been no dispute between the parties that the alleged sexual acts occurred, Seraphina’s lack of precision or certainty in describing the circumstances of incident three generally may well have led the jury to be unable to be satisfied beyond reasonable doubt that she conducted herself during that incident in a way that caused the applicant to be aware that she was not consenting, or might not be consenting. In her evidence-in-chief, Seraphina did not say that she did or said anything indicating any lack of consent on her part. Indeed, when asked about what happened when the applicant touched her breasts, she said ‘I don’t think I did anything’.
The same points may be made with respect to incident four (the purse incident), which consisted of two charges of rape (with their alternatives) and two charges of indecent assault. Seraphina gave no evidence of vividly remembering anything in relation to incident four. Indeed, her evidence was that she had been drinking and did not remember various matters — she described herself as being ‘quite tipsy’. Again, Seraphina gave little if any evidence which might have established beyond reasonable doubt that the applicant was aware that she was not, or might not be, consenting.
While there may have been no dispute between the parties as to sexual activity occurring between the applicant and Seraphina during incident four, it seems to us that there is a real possibility that the jury concluded that Seraphina’s lack of recollection as to the specific circumstances of the incident prevented them from concluding beyond reasonable doubt that the applicant was aware that Seraphina was not, or might not be, consenting.
Similarly with incident five, the evidence given by Seraphina on the alleged rape (and its alternative), which was said to have occurred in the kitchen at Falcon Drive, lacked any real details from which the jury might have been able to infer any lack of consent on her part. Seraphina’s evidence about this incident was brief and she was unclear when it had occurred. The jury might have accepted Seraphina’s evidence of sexual penetration by the applicant. However, as with incident three, her lack of certainty about aspects of this incident, as well as the brevity of her account, may have resulted in the jury being unable to be satisfied beyond reasonable doubt that she conducted herself in a way that caused the applicant to be aware that she was not consenting, or might not be consenting. In that regard, the jury may also have been influenced by Seraphina’s evidence that, after hearing footsteps coming, sexual intercourse was immediately terminated and Seraphina ‘quickly pulled [her] pants up and … continued … like nothing had happened’.
In contrast to the evidence to which we have just referred in relation to incidents three, four and five, Seraphina’s evidence in relation to the vaginal rape charge that formed part of incident six (the backyard incident) was that she told the applicant, ‘I didn’t want to … I told him to stop’, but that the applicant put his hand on her chest or stomach and pulled her pants and underwear down, separated her legs and inserted his penis. She said that she cried and tried to get out from under the applicant. Unlike the evidence relevant to the issues of consent and belief in consent in incidents three, four and five, the jury may well have regarded the evidence of Seraphina’s lack of consent in relation to charge 21 (the vaginal rape charged as part of incident six, in respect of which the jury returned a guilty verdict) as being of a different quality.
Similarly, the jury may well have concluded that the quality of Seraphina’s evidence when describing the circumstances of incident seven (the Waves pool incident), when the applicant ‘jumped out from behind [a] tree and scared the absolute crap out of [Seraphina]’, well supported a conclusion that the applicant was aware she did not consent to the penetrations which she alleged occurred on this occasion. The jury may also have paid particular attention to Seraphina’s description of the applicant sitting on her chest, leaning over her and putting his penis in her mouth, and her evidence that she was wiggling and that ‘I know I was crying’, as being a sufficient basis for concluding that the applicant was aware that she was not consenting to these penetrations.
Incident eight (the police car incident) involved a charge of indecent assault, two rape charges and a charge of attempted rape. The attempted rape charge concerned an attempted anal penetration of Seraphina. While Seraphina described the various physical acts alleged to constitute incident eight in some detail, she did not give any evidence about saying no or otherwise resisting him — that is, except in relation to the attempted rape charge where she said that she responded by ‘squeezing my bum cheeks together … sort of trying to tuck my bum under a bit’ and otherwise ‘trying to stop him from going near my butt hole’. She said that the applicant’s attempt to anally penetrate her was disgusting to her, just as she said she had felt disgust when the applicant anally penetrated her with his thumb during the Waves pool incident. Having regard to this evidence, the jury may well have concluded that while there was insufficient evidence to find beyond reasonable doubt that the applicant was aware that Seraphina was not consenting in respect of charges 29, 30 and 32, there was sufficient evidence of a physical nature which satisfied them that Seraphina was not consenting to the attempted anal penetration.
Finally, we see nothing unreasonable about the jury’s acquittal of the applicant on the single charge of rape which constituted incident nine. Seraphina was 21 or 22 years old at the time of this incident, which occurred at her apartment. Seraphina gave no evidence of attempting to prevent the applicant from following her into her apartment, even though she ‘already knew what was gonna happen’. She described walking to her bedroom, taking her clothes off and lying on her bed ‘like a starfish’. Although she said that she then told the applicant she did not want him ‘to do this’, her evidence about the broader circumstances of this incident, including the lack of any physical resistance, and indeed, her physical submission, may again have caused the jury to have a reasonable doubt about whether the applicant was aware that she was not, or might not be, consenting.

Proposed ground 2: conclusion

In our view, it was open to the jury to accept the relevant parts of Seraphina’s evidence which gave rise to the guilty verdicts. The evidence did not require the jury to have a reasonable doubt about any of those charges. Contrary to the applicant’s submissions, there is no basis for concluding that it was not open to the jury to accept that Seraphina was an honest witness, whose evidence was both credible and reliable.
Further, any apparent inconsistency between the guilty verdicts and the not guilty verdicts is capable of explanation by an examination of Seraphina’s evidence in relation to each of the incidents comprising the 33 charges for which she was the complainant. Specifically, the quality of the evidence on the issue of consent, and the applicant’s belief in consent, was open to be viewed by the jury as being different between the charges giving rise to the guilty verdicts and the charges giving rise to the not guilty verdicts. Rather than the existence of guilty and not guilty verdicts in this case indicating some inexplicable inconsistency and/or compromise by the jury, we consider that the different verdicts on the different charges are explicable. It is likely that the jury, in compliance with the exemplary directions given to them by the trial judge, carefully examined the evidence of and surrounding each charge; and then considered where necessary whether that evidence established beyond reasonable doubt a lack of consent on the part of Seraphina and an awareness on the part of the applicant that Seraphina was not, or might not, have been consenting.
Proposed ground 2 must be rejected.

Proposed ground 3: Do the guilty verdicts on charges 1 to 4, 7, 21, 24, 26 and 31 give rise to a substantial miscarriage of justice on charge 34?

By proposed ground 3, the applicant contends that if the jury were prepared to return guilty verdicts which are unreasonable, or inconsistent with other verdicts, on the charges for which Seraphina was the complainant, then the verdict of guilt on charge 34 (on which Trudy was the complainant) has also given rise to a substantial miscarriage of justice.
Proposed ground 3 is predicated on the success of proposed ground 1 or 2. Given neither of those grounds has succeeded, proposed ground 3 must also fail.

Conclusion

We will refuse leave to appeal on all grounds.
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[2024] VSCA 318

18 December 2024