Bridger v The The Queen

[2022] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Bridger v R [2022] NSWCCA 125

Hearing dates:

1 June 2022

Decision date:

15 June 2022

Before:

Adamson J at [1]; Bellew J at [75]; Lonergan J at [76]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant found guilty on one count, not guilty on five counts and jury unable to return verdict on one count — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW), ss 61H, 61HA, 61I, 61L

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

Black v The Queen (1993) 179 CLR 44; [1993] HCA 71

Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191

Fisher v R; R v Fisher [2021] NSWCCA 91

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Category:

Principal judgment

Parties:

Craig Bridger (Appellant)
Regina (Respondent)

Representation:

Counsel:
P Boulten SC / R Pettit (Appellant)
G Newton (Respondent)

Solicitors:
Everett Evans Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/142874

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

21 April 2021

Before:

Turnbull SC DCJ

File Number(s):

2019/142874

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 7 December 2020, Craig Bridger (the applicant) was convicted of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW).

The offence occurred at the applicant’s house, where he, Ms Bridger (the applicant’s wife), and KD (the complainant) had been socialising after KD was invited over after an unsatisfactory dating experience. KD and Ms Bridger had been close friends for a number of years and KD would often spend time at the Bridgers’ home.

The Crown case at trial was that later that night, the applicant came into the lounge room, where KD had gone to sleep on a sofa bed, and penetrated her vagina (count 1) and anus (count 2) with his fingers, inserted a cold object into her vagina (count 3), licked her vagina (count 4), put his fingers into her mouth (count 5), kissed her mouth (count 6), and kissed her breast (count 7).

KD’s evidence was that she did not consent to any of the conduct and that, throughout the conduct which comprised counts 1-7, she was lying motionless as she was scared and did not want to wake Ms Bridger. The applicant’s evidence was that he asked KD whether it was okay to which she responded, “Mm”. In relation to count 3, the applicant stated that after the conduct which constituted count 2, he left the room to get a frozen meal and a drink from the kitchen and that when he returned, he penetrated KD’s vagina with his fingers which were cold. He accepted that during the commission of the conduct constituting count 3, KD “flinched”.

The jury were unable to reach a verdict in relation to count 1, found the applicant not guilty in relation to counts 2, 4, 5, 6, and 7, and found the applicant guilty of count 3.

The applicant sought leave to appeal from his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on a single ground, that the jury’s verdict on count 3 was unreasonable because it was inconsistent with the jury’s verdicts on the remaining counts.

The Court held (Adamson J, Bellew and Lonergan JJ agreeing), granting leave to appeal against conviction but dismissing the appeal:

There was a rational basis for the differences in verdicts on the basis that for count 1, there was some disagreement between the jurors about the applicant’s state of mind as to KD’s consent; for counts 2, 4, 5, 6 and 7, the jury retained a reasonable doubt as to the applicant’s mental state as to KD’s consent; but for count 3, the jury was unanimous that the applicant was either reckless as to whether KD consented or had no reasonable grounds for believing KD consented given the different nature of the conduct constituting count 3 compared to the other counts: [62] (Adamson J); [75] (Bellew J); [76] (Lonergan J).

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, considered.

The trial judge’s direction as to the ability for the jury to return different verdicts in respect of different counts was not erroneous in light of the other directions given in the course of the summing up: [68] (Adamson J); [75] (Bellew J); [76] (Lonergan J).

Although not bound by the trial judge’s remarks on sentence, the Court regarded the remarks as consistent with the explanation for the differences in verdicts at which the Court had independently arrived: [72] (Adamson J); [75] (Bellew J); [76] (Lonergan J).

Judgment

1. ADAMSON J: On 7 December 2020, following a trial by jury, Craig Bridger (the applicant) was convicted of count 3 on the indictment (sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW)). The jury was unable to reach a verdict on count 1 and returned verdicts of not guilty in respect of the remaining counts, 2, 4, 5, 6 and 7.

2. All references to legislation in these reasons are, unless otherwise indicated, references to the Crimes Act.

3. On 21 April 2021, Turnbull SC DCJ imposed a sentence for count 3 of 15 months’ imprisonment commencing on 21 April 2021 and expiring on 20 July 2022, with a non-parole period of 8 months which expired on 20 December 2021. There is no application for leave to appeal against the sentence.

4. The notice of appeal was filed on 4 November 2021. The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the following ground:

“The jury’s verdict on Count 3 is unreasonable and cannot be supported having regard to all the evidence.”

5. In substance, the applicant submitted that the verdict of guilty on count 3 was inconsistent with the hung jury on count 1 and the verdicts of not guilty for the remaining counts and that, accordingly, his conviction on count 3 ought be quashed as unreasonable.

6. The indictment, dated 25 February 2020, charged the applicant with four offences under s 61I of the Crimes Act and three offences under s 61L of the Crimes Act, each of which was said to have been committed on 27 October 2018. A brief description of each count and the verdict (or lack of verdict) is set out in the following table:

Count	Provision	Description	Particulars	Result
1	61I	Sexual intercourse with KD without her consent and knowing that she had not consented to the sexual intercourse.	Digital-vaginal penetration	Unable to reach verdict.
2	61I	Sexual intercourse with KD without her consent and knowing that she had not consented to the sexual intercourse.	Digital-anal penetration	Not guilty
3	61I	Sexual intercourse with KD without her consent and knowing that she had not consented to the sexual intercourse.	Cold object vaginal penetration	Guilty
4	61I	Sexual intercourse with KD without her consent and knowing that she had not consented to the sexual intercourse.	Cunnilingus	Not guilty
5	61L	Assault KD and at the time of the assault commit an act of indecency on KD	Fingers in mouth	Not guilty
6	61L	Assault KD and at the time of the assault commit an act of indecency on KD	Kiss on mouth	Not guilty
7	61L	Assault KD and at the time of the assault commit an act of indecency on KD	Kiss on breasts	Not guilty

7. For the reasons which follow, I am not persuaded that the applicant has demonstrated any inconsistency between the verdict for count 3 and the other results (which include the jury’s inability to reach a verdict on count 1).

Relevant statutory provisions

8. As at 27 October 2018, s 61H(1) defined “sexual intercourse” as meaning:

“(a)     sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i)     any part of the body of another person, or

(ii)     any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b)     sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c)     cunnilingus, or

(d)     the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).”

9. Section 61HA, as at 27 October 2018, provided:

“61HA   Consent in relation to sexual assault offences

(1)    Offences to which section applies This section applies for the purposes of the offences, or attempts to commit the offences, under sections 61I, 61J and 61JA.

(2)    Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.

(3)    Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a)     the person knows that the other person does not consent to the sexual intercourse, or

(b)     the person is reckless as to whether the other person consents to the sexual intercourse, or

(c)     the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d)     including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but

(e)     not including any self-induced intoxication of the person.

(4)    Negation of consent A person does not consent to sexual intercourse:

(a)     if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or

(b)     if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or

…

…

(6)     The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a)  if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or

…

(7)     A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.

(8)     This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.”

[Emphasis in original.]

The trial

The Crown case

KD’s evidence

10. The Crown case was based substantially on KD’s evidence which was to the following effect.

11. Jo Bridger, KD’s best friend for over 20 years, was married to the applicant. KD’s first husband had committed suicide over 17 years before the trial and Ms Bridger had supported her after that event. Ms Bridger was a bridesmaid for KD when she married again and KD was Ms Bridger’s bridesmaid when she married the applicant. In August 2017, when KD separated from her second husband, KD packed the car and took her children to Ms Bridger’s home, a relatively remote farm outside of Trundle in Central-Western NSW, where Ms Bridger lived with the applicant and their children. KD and her children regarded Ms Bridger’s home as a safe place.

12. KD, who had begun dating again, had an unsatisfactory dating experience on 27 October 2018, which she discussed with Ms Bridger. The applicant invited KD to come and stay that evening. When KD arrived, she, Ms Bridger and the applicant drank alcohol. Ms Bridger was the first to go to bed, leaving the applicant and KD, who were both intoxicated, in the kitchen. Subsequently, KD decided to go to bed. She closed the double doors between the kitchen and the lounge room and went to bed on the sofa bed, as she had done when staying overnight on previous occasions. Before retiring, she changed into her pyjamas and got under the sheets.

13. A few minutes later, the applicant came in, uninvited, and rubbed KD’s arms and legs and then penetrated her vagina with his fingers (count 1). He also put his finger in her anus (count 2). He left the room briefly and, when he returned, he penetrated her vagina with something cold (count 3).

14. She said, of count 3:

“I know he got up and walked out of the bedroom. I believe he did that several times. It felt like he came and went a few times and every time I’d try and cover myself up and pretend like I was asleep. One of those times, he did go to the kitchen and come back in and again, tried to penetrate me - well, did penetrate me in my vagina, but this time, it was with something frozen. Something I can only describe as coming from the freezer. It was really cold.”

15. She also said:

“[the applicant] inserted my vagina with some object which I believe was frozen, only because it was so very cold. It just - I - I don’t know what the object was, but it was long and extremely cold and he used that to put in my vagina and thrust…He was pushing it in and pulling it out and pushing it in…I don’t recall him speaking at that stage…[I was laying] as still as I could. Laying as still as I could. I just wanted it to be over.”

16. KD could not say how long this went on for but she said that the applicant was clothed and “on the bed at that stage - down the end of the bed. At the bottom of me in - in any case, yes.”

17. Following the conduct which comprised count 3, KD said that the applicant licked her vagina once (count 4). She said:

“I was just so still. I was just so - I was very scared, just wanted to lay still, like I just wanted to be as still as possible, like I was asleep, like just couldn’t move. I couldn’t have moved. I was so petrified and I was so worried about [Ms Bridger] and [the Bridgers’ daughter], yep.”

18. He then put his fingers in her mouth (count 5), kissed her mouth (count 6) and kissed her breast (count 7). Throughout the conduct which comprised counts 1-7, KD lay motionless, having decided to “play dead” as she was scared and did not want to wake Ms Bridger.

19. After count 7, KD pushed the applicant’s head away and told him to stop.

20. The applicant said, “what, you don’t want it anymore?”. KD, who was crying, answered, “I never did”. The applicant left the room. When KD realised that he was not coming back, she got out of bed and started packing her things to get ready to leave. KD said she was “[d]evastated. I was really upset and I just wanted to get out and go.” She said that:

“[I am] not sure if I put my bra back on. I can’t remember but I did still have a top on. I did put my pyjama bottoms back on, some shoes, and any belongings that I had I made sure they were in my bag. My car keys and my wallet were now back with my things and I decided that I was going to leave, I was going to get out of there.”

21. When KD left the lounge room, the applicant was sitting on one of the sofas just off the kitchen. He asked her to sit down next to him but she was very upset and said that she wanted to go.

Complaint evidence

22. As soon as KD got out of the farm gates onto the dirt road, she rang a close friend, ND, and told her what happened. KD continued to drive home. When she arrived at 1am, ND was waiting for her at her place. ND advised her to call the police but KD just wanted to go to sleep. ND’s evidence corroborated that of KD.

23. The day after the incident, KD rang another close friend, CM. She visited CM’s house. KD cried uncontrollably and told CM what the applicant had done to her. Ultimately, KD had to leave CM’s place to pick up her children.

24. KD also told EH, a colleague at the school where she worked. EH said that KD was very upset and crying and unsure about what to do.

The report to police and the police investigation

25. On 6 January 2019, KD reported the matter to police. After investigating the matter, the police arrested the applicant at his home on 7 May 2019. He participated in a recorded interview. In the interview, he said that he had known KD, who was a friend of his wife, for about 16 years but denied that they were close friends. He agreed that KD was at his house on 26 (sic, 27) October 2018 and they were drinking. He denied ever having sexual intercourse with KD or being sexually attracted to her. He agreed that he had told police he had made a handwritten statement about the matter which the police had seized as part of the investigation.

26. He said that he had received text messages from KD and an anonymous person that he thought were from KD’s ex-husband, which came after those messages from KD. He said that KD had not spoken to his wife, but had told both sides of his family about what had happened, which was how he knew police had become involved. He said that KD had let his in-laws know by text message a few months ago.

27. He wrote the handwritten statement a couple of weeks after his wife started receiving messages. He obtained legal advice to write down what had happened while it was clear and fresh. He said that he had not received any phone calls from KD and had deleted her as a contact. He had not sent anything to her. He told police that there was nothing on his phone that might assist their investigation.

The defence case

The applicant’s evidence

The applicant’s evidence in chief

28. The applicant’s evidence of the counts was as follows. The applicant said that, after his wife had gone to bed, and he realised KD was no longer in the kitchen, he went to the lounge room because of “issues with [his] marriage” and his reduced inhibitions due to the alcohol. He planned to just give KD a little massage. He had never been unfaithful to his wife in the past. The applicant said that KD was “laying on her front” on the left hand-side of the bed. He sat on the bed, at about KD’s waist area, facing the head of the bed. KD’s head was facing away from him. He started to rub KD’s shoulders with two hands outside of her clothing. He moved his hands lower, lifted her shirt up and rubbed her back.

29. He then unclipped KD’s bra with both hands and asked, “Is this okay?”. KD responded, “Mm”. The applicant said that he understood this to mean that what he was doing was okay. The applicant then moved his hands down her lower back towards the top of her pyjama pants.

30. By this time he had been in the lounge room for between three and five minutes. KD was still lying on her stomach. He did not detect any resistance when he used his hands on each hip to move her pants down to below her knees. Her pyjama pants ended up around her left leg.

31. He started rubbing KD’s vagina and put his fingers in her vagina for a short time. He then left the lounge room and went into the kitchen, got a frozen meal out of the freezer and some ice for a drink and returned to the lounge room. When he returned to the lounge room, KD was lying on her back. He could not recall whether the covers were over KD or not.

32. The applicant returned to the left side of the bed and continued to rub KD’s vagina. He said:

“I did put my fingers in her vagina and I pushed her shirt and bra up a bit and started rubbing her breast.”

33. The applicant denied ever putting an object in KD’s vagina other than one or more fingers. He put a hand on one breast. He denied kissing KD’s breasts, licking her vagina, kissing her on the mouth or putting his fingers in her mouth or putting one or more fingers in her anus. The applicant could not recall KD pushing his head away from her breasts, but nevertheless he did stop because guilt about his marriage got the better of him and he stood up from the bed. The applicant said that KD had never told him to stop or done anything to indicate she was not a willing participant, until she had said words to the effect, “Stop, it’s not right”. He may have said something like, “What, you don’t want it anymore?”

34. The applicant agreed that KD became upset at this point. He was in the kitchen area when KD came out of the lounge room and went out the door. She was upset and crying. He did not recall speaking to her but said that they may have spoken. He followed her out to the car to talk to her. He was concerned that she should not drive because they had been drinking. He felt guilty and thought she may also have felt guilty. KD said that she “can’t face [Ms Bridger] in the morning”. The applicant said, “We could do that together”. KD responded, “No. Tell [Ms Bridger] … my daughter needs me and I won’t say anything about this”.

33. After KD left, the applicant went to bed. About two hours later he woke his wife and told her that KD had gone home because her daughter needed her. The applicant asked her to text KD to make sure she had arrived home. The next contact between KD and Ms Bridger was about two weeks later by message.

34. The applicant said he wrote a handwritten note, setting out what happened, and signed and dated it. He asked his wife to sign it because “we were the only ones who knew what had happened”. He said that he had originally written it for his wife.

The cross-examination of the applicant

37. The cross-examination about the conduct the subject of the counts was as follows. The applicant agreed that KD had not invited him into the lounge room and that when he appeared at the loungeroom doors, KD said nothing to encourage him to come into the room, nor come to the bed. Nor had she encouraged him to touch her. He agreed that he just started touching her. He denied he started by rubbing her arm. He started rubbing her shoulders, without any encouragement from her. He said that he did not go into the lounge room intending to touch KD sexually and maintained that he went in there to give KD a massage.

38. He maintained that he had asked her, “Is this okay?” before unclipping her bra and that she had said “Mm”. He accepted that KD was still when he “wriggled” her underwear and pyjama pants down.

39. After leaving the room at this point, he returned a short time later. He said that KD was lying on her back. He agreed that he put his fingers inside her vagina and that KD said nothing but denied that he thrust his fingers. He denied that he had put his fingers in her anus. He said that he left and returned once more and, on his return, he inserted his fingers (which were cold from the fridge) into her vagina. The following exchange occurred:

“Q. When you were putting something cold in her vagina, she said nothing to you, did she?

A. No.

Q. She lay still.

A. She did flinch a little.”

40. As he had done in his evidence in chief, the applicant denied that he licked her vagina, put his fingers in her mouth, kissed her on the mouth, kissed her breasts or that she had pushed his head away from her breasts. He agreed that KD had said “Stop, it’s not right” after he had stopped. He agreed that he said something like, “What, you don’t want it anymore” but did not recall her response.

41. The applicant agreed that KD had never reciprocated his conduct, or become actively involved in what was going on, or kissed him or caressed him.

42. The Crown challenged the applicant’s account of the conduct which corresponded with count 3 in the following exchange:

“Q. You say that you went from massaging [KD]’s back to putting your fingers in her vagina. Is that what you say?

A. Yes.

Q. Midway through this, you decide that you’re hungry?

A. Yes.

Q. At what point did you decide that you were hungry?

A. Don’t know. Don’t recall.

Q. Was it when you were caressing her back?

A. Don’t know.

Q. Was it when you had your fingers in her vagina?

A. Don’t know.

Q. You thought to yourself - while you were involved in what you say is consensual sexual conduct, you thought to yourself, “Gee, I’d like a microwave meal”. Is that right?

A. I don’t recall like that.

Q. You hop up, you don’t say anything and you go to the kitchen, correct?

A. Correct.

Q. You get a meal out of the freezer, prepare a drink--

HIS HONOUR: Just break it up step by step. You got a meal out of the freezer. Is that right or not?

WITNESS: Yes.

CROWN PROSECUTOR

Q. You prepared a drink. Is that right?

A. Yes.

Q. Then straight back in to fingers in [KD]’s vagina again?

A. Yes.

Q. Nothing said between the kitchen and putting your finger in [KD]’s vagina?

A. No.

Q. I suggest to you that that’s simply incredible?

A. Beg your pardon?

Q. I suggest to you that’s simply incredible? That’s a lie?

A. No.”

The Crown address

43. The Crown went to the jury on the bases that the applicant was reckless as to whether KD consented or that he had no reasonable grounds for believing that she was consenting to the conduct.

The summing up

44. The trial judge directed the jury as to the elements of sexual intercourse without consent (counts 1-4) and indecent assault (counts 5-7) and directed the jury that the prosecutor had to prove each element beyond reasonable doubt. In substance, his Honour directed the jury as follows.

45. The elements of sexual intercourse without consent were:

1. the applicant had sexual intercourse with KD;

2. KD did not consent to the sexual intercourse; and

3. the applicant either:

1. knew that KD did not consent to the sexual intercourse; or

2. had no reasonable grounds for believing that KD consented to the sexual intercourse; or

3. was reckless as to whether or not KD consented to the sexual intercourse.

46. The elements of indecent assault were:

1. the applicant assaulted KD;

2. at the time of the assault, the applicant committed an act of indecency on or in the presence of KD;

3. the assault was committed without KD’s consent; and

4. the applicant either:

1. knew that KD was not consenting; or

2. was reckless as to whether KD was consenting or not.

47. In the course of the summing up, his Honour directed the jury that they could return different verdicts in respect of different counts. His Honour then said:

“What does all that mean? What that means is this: if the issue is, as it seems to be, ultimately, the core issue here is his state of mind and if his state of mind is or may have been based on reasonable grounds that she was consenting, then that is relevant to all seven counts. When comparing the different versions, if you accept that he had the relevant belief or may have had the belief, you would acquit.

But on the acts themselves, given that he accepts three of them did occur, but does not accept that the other ones occurred, you may - and you are entitled to - bring in different verdicts, perhaps for that reason or for whatever other reason. Do you follow what I am trying to address here? It is not an all or nothing and, because the issue is state of mind, it relates to all of them, but there remains to be a competition between certain acts having been accepted and certain acts have been not accepted.

It is not a competition of versions, though. You do not just go and think, ‘I prefer this one and not the other one.’ You have got to go back to the Crown case, consider it in its entirety in order to be satisfied beyond a reasonable doubt in relation to each individual count. I am going to go to the elements document. It is difficult in an intellectual way, but, at the end of the day, in a practical way, it might well be as simple as this: you either believe her beyond a reasonable doubt or you do not and you reject the accused's account in its entirety as not being true, or likely true, and in those circumstances you form the view that the Crown has proved its case beyond a reasonable doubt.

If, on the other hand, you are unable to reject his account or you think it might be true, or is true, then he is entitled to an acquittal because consent is right across the board. But then, when you get down to the acts themselves, you may feel that for other reasons certain acts are supported, certain acts are not supported, and then you have got an obligation to give that full vent because of the individual verdicts.”

[Emphasis added to indicate the portion relied on by the applicant in support of his ground.]

The progress of the trial

48. The trial commenced on Friday 27 November 2020. It continued on Monday 30 November 2020, 1 December 2020 and 2 December 2020. The Crown case closed on 2 December 2020. The defence case commenced on 2 December 2020. The applicant gave evidence. He also adduced character evidence from two witnesses. The defence case concluded on 3 December 2020, at which time the Crown and the defence addressed the jury. His Honour commenced the summing up at about 2.30pm on 3 December 2020. At 10.43am on Friday 4 December 2020, the jury began its deliberations.

49. On Monday 7 December 2020, the jury sent a note to inform his Honour that they had been unable to agree on a number of the counts. His Honour then proceeded to give a direction in accordance with Black (named after Black v The Queen (1993) 179 CLR 44; [1993] HCA 71). Subsequently, his Honour was informed, by jury note, that the jurors had been able to reach unanimous verdicts on all counts apart from count 1. At 2.49pm on 7 December 2020, the trial judge gave a majority verdict direction in relation to count 1. The jury was sent out to consider its verdict at 2.53pm. Later that afternoon, the jury returned the verdicts on counts 2-7 set out above, and informed his Honour that they had been unable to return even a majority verdict on count 1.

The relevant principles

50. This Court has held that the same principles which apply where a jury is unable to reach a verdict are, in substance, analogous to the principles which apply where it is alleged that there is an inconsistency between verdicts: Daaboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 (Daaboul) at [248] (Bathurst CJ, Bell P and Hamill J agreeing), followed in Fisher v R; R v Fisher [2021] NSWCCA 91 (Brereton JA, Fullerton J and myself). This is because a jury’s inability to reach a verdict on one count may be irreconcilable with its verdicts, whether of guilty or not guilty, on other counts.

51. The focus of the appellate court, when the verdicts are alleged to be unreasonable on the ground of inconsistency, is upon any explanation for the acquittal. The relevant test was stated authoritatively in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 where Simpson J (McClellan CJ at CL and Latham J agreeing) said:

“[128]   … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. …

…

[130]   Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.”

52. That a jury reaches a different verdict in respect of different counts, and, as in the present case, returns a verdict of guilty in respect of one count, is unable to agree on another count, and returns verdicts of not guilty on further counts does not lead to any assumption of inconsistency. Where a jury is unable to agree on a verdict of guilty on a charge of a sexual offence, it ought not be assumed that the jury did not find the complainant credible, particularly where a guilty verdict has been returned on another count: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] (Gleeson CJ, Hayne and Callinan JJ).

53. The elements of the charges under s 61I (counts 1-4) and s 61L (counts 5-7) are, as his Honour directed, set out above.

The applicant’s submissions

54. Mr Boulten SC, who appeared with Mr Pettit for the applicant, contended that there was a significant inconsistency between the conviction on count 3 and the acquittals on counts 2, 4, 5, 6 and 7. He also submitted that the hung jury on count 1 posed a difficulty for the Crown. Mr Boulten postulated the following two possible explanations for the verdicts each of which he submitted, on proper analysis, were insufficient to reconcile the different verdicts:

1. the “object explanation”, in which the jury:

1. accepted KD’s evidence;

2. rejected the applicant’s version, especially concerning the cold object in count 3; and

3. acquitted him (for counts 2, 4, 5, 6, and 7) and were hung (on count 1) on the basis that the Crown could not exclude as a reasonable hypothesis that he believed that KD consented;

or

2. the “admissions explanation”, in which the jury:

1. had doubts about KD’s version but could not reject the applicant’s version; and

2. acquitted him (for counts 2, 4, 5, 6, and 7) and were hung (on count 1) on the basis that the Crown could not exclude as a reasonable hypothesis that he believed that KD consented.

55. Mr Boulten submitted that the applicant made three relevant admissions: first, he admitted the conduct in count 1 (insertion of finger into KD’s vagina); second, he admitted that KD flinched when he put his cold fingers into her vagina (partial admission of the conduct in count 3, but he denied that he inserted a cold object into her vagina); and he admitted to touching KD’s breast at about that time.

The alleged insufficiency of the object explanation

56. Mr Boulten submitted that the object explanation was insufficient to explain the divergent verdicts because it assumes that each act occurred in the way described by KD, who did not consent to any of the acts and that there was a possibility that the applicant’s state of mind was consistent with innocence for all acts other than count 3, for which an object rather than a part of the applicant’s body came into contact with KD’s body. He submitted that the objects explanation rested on the premise that the insertion of an object into a woman’s vagina would, ordinarily, require some form of explicit consent.

57. However, Mr Boulten submitted that the object explanation could not accommodate a hung jury with respect to count 1. He submitted that the conduct in count 1 (digital vaginal penetration) was, on its face, less confronting than, say, the conduct in count 2 (digital anal penetration) and thus there was no reason for some jurors to consider that the applicant’s mental state was inconsistent with innocence for count 1 and not for count 2.

The alleged insufficiency of the admissions explanation

58. Mr Boulten submitted that the admissions explanation was based on the premise that the jury had doubts about KD’s credibility but resolved them when the applicant’s admissions removed the doubt. Thus, he submitted that it was of significance that the applicant had admitted to the conduct in count 1 and, partially, admitted to the conduct in count 3 (he admitted to putting his cold fingers into KD’s vagina but not a cold object). Mr Boulten submitted that the admissions explanation could not account for the selective acceptance of the complainant’s evidence about count 3, when the jury were divided as to count 1.

59. Further, Mr Boulten submitted that the jury may have been confused by the direction (emphasised in the passage extracted above). He submitted that, in substance, the jury had been directed to acquit if they were unable to reject the applicant’s account and that, accordingly, the admissions explanation could not be reconciled with the verdicts.

Consideration

Whether there is a rational basis for the differences in verdicts

60. It was accepted that this Court’s task is to determine whether the verdicts, and to a lesser extent, non-verdicts (where the jury was hung) can be reconciled on a rational basis. If a rational basis can be articulated, the ground of appeal must fail, as there is no other basis on which the verdict of guilty of count 3 is alleged to be unreasonable. If no rational basis can be articulated, the applicant is entitled to have his conviction on count 3 quashed: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [204] (Wood CJ at CL).

61. I do not accept that the object or the admissions explanations postulated on behalf of the applicant are the only two possible explanations. There are difficulties with both of them, including for the reasons advanced by Mr Boulten.

62. I am satisfied that the verdicts, and non-verdict (for count 1) are explicable on the following basis, which largely accords with what was put on behalf of the Crown:

1. the jury accepted KD’s evidence beyond reasonable doubt and was, on the basis of her evidence, satisfied that elements (1) and (2) of each of counts 1-4 and elements (1), (2) and (3) of each of counts 5-7 had been made out;

2. KD’s credibility and the complaint evidence had no bearing on element (3) for s 61I or element (4) for s 61L, which pertained to the applicant’s mental state. As disagreement as to whether element (3) could be established beyond reasonable doubt was the obvious, if not the only, basis on which the failure to agree on count 1 could have been arrived at, notwithstanding the verdicts on the other counts, KD’s evidence does not bear on the question of inconsistency;

3. in respect of count 1, there was a disagreement about the applicant’s mental state (element (3) in count 1), it being the first in time;

4. in respect of count 3, the jury was unanimous that the applicant was reckless as to whether KD consented or had no reasonable grounds for believing that she consented to the insertion of a cold object in her vagina, when it was a qualitatively different act and she had communicated (albeit unwittingly) to the applicant her aversion by flinching; and

5. in respect of the remaining counts, the jury retained a reasonable doubt as to the applicant’s mental state as to KD’s consent, since for these acts, there was no sign of resistance or aversion, in contrast to count 3, and for each there had been at least one previous act of a sexual nature to which KD had not demonstrably objected.

63. As referred to above, count 1 was the first in time of the counts. It can be inferred from the hung jury in respect of that count that at least two members of the jury retained a reasonable doubt about whether the applicant knew that KD did not consent to the sexual intercourse; or had no reasonable grounds for believing that KD consented to the sexual intercourse; or was reckless as to whether or not KD consented to the sexual intercourse. It can further be inferred that at least two, were satisfied beyond reasonable doubt of one of these three alternatives.

64. In respect of count 2, the jury may have been concerned about the possibility that the applicant believed that KD was consenting because she had failed to object, not only to the conduct the subject of count 1, but also to the conduct the subject of count 2, which immediately followed the conduct of count 1. The jury may have been concerned about the possibility that the applicant genuinely believed, on reasonable grounds, that KD, by not objecting to sexual intercourse, was consenting to it. The same reasoning can explain the acquittal to count 4. It also applies to counts 5, 6 and 7, which amounted to assaults only if the applicant knew that the complainant was not consenting to the particular physical contact or had no reasonable grounds for believing that KD consented to it; or was reckless as to whether or not KD consented to it.

65. In order to convict the applicant of count 3, the jury must have accepted KD’s account of the circumstances of that count as honest and credible. That is, the jury must have been satisfied that the complainant had not in fact consented to a cold object being inserted into her vagina. In respect of count 3, the jury, by its verdict, indicated that it was satisfied that the applicant either knew that KD was not consenting to the conduct, or had no reasonable grounds for believing that KD consented to it or was reckless as to whether or not KD consented to it. The jury must also have rejected the applicant’s account on the basis that it was untrue.

66. The count 3 conduct was qualitatively different to the conduct which comprised the other counts because it involved a “cold object” being inserted into KD’s vagina and is to be distinguished from the other counts which involved the applicant’s fingers or mouth. The applicant’s evidence, which amounted to an admission, was that KD “flinched” when the cold object touched her. This conduct is different to KD’s conduct during the other counts. In relation to the other counts, she remained, on her evidence, inert and pretended to be asleep. Her flinching at the time of count 3 was an active act of objection, which was absent for the other counts. It was open to the jury to consider this to be a distinguishing feature of count 3, which warranted a different verdict because it communicated to the applicant that KD did not consent to the intercourse.

63. Further, while the jury might have been prepared to contemplate that the applicant believed that KD was consenting to his fingers being inserted into her anus (count 2), the jury might have regarded it as objectively improbable that the applicant could have believed, on reasonable grounds, that KD was consenting to the insertion of a cold object into her vagina without any consultation as to how she regarded the prospect and in light of her flinching when it touched her. The jury might have been satisfied that, even if the applicant actually believed KD was consenting, there were no reasonable grounds for his belief.

Whether the trial judge’s direction in the summing up affects the rationale for the verdicts

68. I do not consider that the direction given by the trial judge highlighted in the passage extracted above could reasonably be regarded as diminishing the other directions given in the course of the summing up, including that the jury could accept part of a witness’s evidence and reject other parts. The summing up was sufficient to indicate to the jury that they could accept the applicant’s admissions (including that KD flinched when she was touched with the cold object) and reject other evidence given by him (that he had asked KD whether what he was doing was “OK” at the outset or that he inserted his fingers into her vagina and not a cold object).

The trial judge’s remarks on sentence

69. Mr Boulten accepted that it was open to this Court to have regard to the trial judge’s findings, as expressed in the remarks on sentence, as to the resolution of any inconsistency, although this Court would not be bound by the trial judge’s view. In the remarks on sentence, Turnbull SC DCJ said that “the focus of the defence was the accused state of mind and whether the Crown could prove that he had the relevant mens rea.”

70. In relation to count 1, his Honour considered that the jury must have rejected the applicant’s evidence that he asked KD whether it was ok when he started to massage her back and unclipped her bra. His Honour said:

“[I]t seems clear that the jury had a concern which precluded a unanimous or majority verdict in relation to the first admitted act of intercourse, as opposed to entering a verdict.”

[Emphasis added.]

71. When addressing count 3, his Honour said:

“The situation then is that the jury were faced with trenchant denials from the offender but also trenchant assertions, in my view, from the complainant. She claimed that it was an object and he had only, moments before, been at the fridge removing items. It seems clear that the jury was satisfied beyond a reasonable doubt because the offender’s account and the complainant’s account seem to be closely aligned that she could not, did not, was not asked to, and had not agreed to be penetrated by an object. There was no discussion at all as to that conduct. One would have thought as a matter of common sense that such a step might well have been expected if it was a step involving the insertion of an object, and that at least some kind of overt consent would have been garnered.

When focusing on the jury verdict of guilt in relation to this count it seems to me that they would conclude that there was insertion of an object which is long and extremely cold, and they have accepted that the complainant’s account of thrusting it in and out, and that was the act that was done recklessly, or recklessly as to her consent. I consider the jury in relation to that act did not accept it was his fingers, but as I have indicated it was an object, and he accepts that at that point in time he touched and penetrated her vagina after being at the fridge and the jury must have concluded that he had no reasonable grounds to believe that she was consenting.

I am not prepared to conclude that the verdicts in totality, and in particular in relation to this count, reflect a jury view that the complainant was not both truthful and in many respects reliable. In my view the verdicts are capable of reflecting the way in which the case at trial was conducted, where the actual focus was on the offender’s state of mind - whether he knew that she was consenting, whether he was reckless as to whether or not she was consenting, whether there were reasonable grounds for forming a view that she was consenting. What can distinguish as the single count ultimately then is the use of an object.

I find that an object was used, and that sits comfortably with the jury conclusion. But at the end of the day the Crown went on the base or it went in part to the jury in relation to three aspects of recklessness, and it seems to me that what has happened here is he has engaged in a course of conduct where he did not turn his mind to whether or not she was agreeing to that act, and he went ahead with it anyway. I must say, the Court is of the view that in all circumstances he did not have any reasonable grounds to believe she was consenting.

Now in relation to the use of an object, I do not have to conclude specifically what it was, just that it was as described by the complainant.”

[Emphasis added.]

72. I regard the sentencing judge’s explanation for the various verdicts as consistent with the Crown’s submissions in this Court and the view, set out above.

Conclusion

73. As there was a rational basis for the jury’s inability to reach a unanimous, or majority, verdict on count 1; the jury’s verdicts of not guilty with respect to counts 2, 4, 5, 6 and 7; and its verdict of guilty with respect to count 3, the applicant has not made out his sole ground of appeal.

Proposed orders

74. For the reasons given above, I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

75. BELLEW J: I have had the advantage of reading the judgment of Adamson J in draft. I agree with the orders proposed for the reasons her Honour has stated.

76. LONERGAN J: I agree with Adamson J.

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Decision last updated: 15 June 2022