Collins v R

Case •

[2020] NSWCCA 198

•

10 August 2020

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Collins v R [2020] NSWCCA 198
Hearing dates: 5 June 2020
Decision date: 10 August 2020
Before: Meagher JA at [1]; Wilson J at [93]; N Adams J at [94]
Decision:

(1) Grant leave to appeal on ground 1.

(2) Allow the appeal against conviction.

(3) Quash the convictions on counts 1, 2 and 6 and in lieu thereof enter verdicts of acquittal on those counts.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – multiple charges of sexual offences against same child complainant – where only direct evidence of offending was complainant’s complaint and testimony – where jury acquitted applicant of 3 counts and convicted of 3 counts – whether acquittals necessarily diminished the overall credibility of the complainant’s evidence such that remaining convictions could not reasonably be supported and accordingly were not “open” to the jury.

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5, 6

Crimes Act 1900 (NSW), ss 61M, 66C

Cases Cited:

AH v R [2019] NSWCCA 152

Cabot (a pseudonym) v R [2018] NSWCCA 265

Chen v DPP (2011) 83 NSWLR 224; [2011] NSWCCA 205

Gilbert v R (2000) 201 CLR 414; [2000] HCA 15

IMM v R (2016) 257 CLR 300; [2016] HCA 14

Jones v The Queen (1997) 191 CLR 439

Kurdi v R [2011] NSWCCA 179

Lane v R (2018) 265 CLR 196; [2018] HCA 28

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60

MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35

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

Nguyen v R [2017] NSWCCA 145

Norris v R [2007] NSWCCA 235

PA v R [2015] NSWCCA 18

Pell v R [2019] VSCA 186

Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463

R v ACK [2000] NSWCCA 180

R v Crisologo (1997) 99 A Crim R 178

R v J (No 2) [1998] 3 VR 602

R v Kirkman (1987) 44 SASR 591

R v KRL [2007] NSWCCA 354

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

Roos v R [2019] NSWCCA 67

TB v R [2019] NSWCCA 224

Xu v R [2019] NSWCCA 178

XY v R (2013) 84 NSWLR 363; [2013] NSWCCA 121

Youkhanis v R [2014] NSWCCA 220

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

Ganiji v R [2019] NSWCCA 208

Category:Principal judgment
Parties: Collins (Applicant)
Regina (Crown)
Representation:

Counsel:

A Francis (Applicant)
M Millward (Crown)

Solicitors:

Etb Legal (Applicant)
NSW Director of Public Prosecutions (Crown)
File Number(s): 2016/247479
Publication restriction:

A person shall not publish any matter which identifies the complainant or any matter which is likely to lead to the identification of the complainant: Crimes Act 1900 (NSW), s 578A.

The name of a person must not be published or broadcast in a way that connects the person with the proceedings: Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
26 October 2018
Before:
Hanley SC DCJ
File Number(s):
2016/247479

Judgment

  1. MEAGHER JA: The applicant was charged on an indictment containing 6 counts alleging sexual offending against his stepdaughter, who at the times alleged was 11 or 12 years old. Three of those offences (counts 3-5) were said to have taken place on the same day. The only direct evidence of the offending was the complainant’s complaint and testimony.

  2. After a trial in the District Court at Penrith before Judge Hanley SC and a jury, on 26 October 2018 the applicant was found guilty of counts 1, 2 and 6 and not guilty of counts 3, 4 and 5.

  3. The 6 counts were:

Count 1: Aggravated indecent assault committed between 1 March 2016 and 30 June 2016 at Stanhope Gardens contrary to Crimes Act 1900 (NSW), s 61M(2).

(The indecent act alleged was touching the complainant’s breast whilst she was lying on her stomach on a bench seat located in the television area of the lounge room).

Count 2: Aggravated sexual intercourse committed between 1 June 2016 and 12 August 2016 at Llandilo contrary to Crimes Act 1900 (NSW), s 66C(2).

(The penetration alleged was digital penetration of the complainant’s vagina in her bedroom whilst she was watching television at night).

Count 3: Aggravated indecent assault committed between 1 June 2016 and 12 August 2016 at Llandilo contrary to Crimes Act 1900 (NSW), s 61M(2).

(The indecent act alleged was touching the complainant’s breasts under her nightgown in the morning in her bedroom).

Count 4: Aggravated indecent assault committed between 1 June 2016 and 12 August 2016 at Landilo contrary to Crimes Act 1900 (NSW), s 61M(2).

(The indecent act alleged was touching the complainant’s vagina on the outside of her underpants in the afternoon or early evening in her bedroom)

Count 5: Aggravated sexual intercourse committed between 1 June 2016 and 12 August 2016 at Llandilo contrary to Crimes Act 1900 (NSW), s 66C(2).

(The penetration alleged was digital penetration of the complainant’s vagina in the afternoon or early evening in her bedroom)

Count 6: Aggravated indecent assault committed between 1 May 2016 and 12 August 2016 at Llandilo contrary to Crimes Act 1900 (NSW), s 61M(2).

(The indecent act alleged was touching the complainant’s vagina on the outside of her underpants whilst she was standing and the applicant was seated in the front lounge room).

  1. The applicant was subsequently sentenced to an aggregate sentence of six years imprisonment to commence on 26 September 2018 and expire on 25 October 2024, with a non-parole period of 3 years to expire on 25 October 2021. There is no appeal from that sentence.

  2. On 18 June 2019 the trial judge granted the applicant bail pending this appeal.

Grounds of appeal

  1. None of the grounds of appeal involves a question of law alone. Accordingly leave to appeal is required: Criminal Appeal Act 1912 (NSW), s 5(1). Those grounds are:

  1. The verdicts of the jury on counts 1, 2 and 6 are unreasonable and cannot be supported in light of the not guilty verdicts on counts 3, 4 and 5.

  2. The verdict of guilty is unreasonable in respect of count 1.

  3. The verdict of guilty is unreasonable in respect of count 2.

  4. The verdict of guilty is unreasonable in respect of count 6.

  5. The Markuleski direction was inadequate in the circumstances of this case by the failure to convey to the jury that they must take into account a reasonable doubt in relation to one or more of the counts in assessing the reliability and truthfulness of the complainant’s evidence generally and specifically in respect of other counts on the indictment.

  1. It is logical to commence with ground 1. If that ground is made out the applicant is entitled to verdicts of acquittal on counts 1, 2 and 6.

Principles regarding unreasonableness and inconsistent verdicts

  1. Criminal Appeal Act, s 6(1) relevantly provides that this Court shall allow an appeal against conviction if it is of the opinion that the verdict should be set aside on the ground that it is “unreasonable, or cannot be supported, having regard to the evidence”.

  2. A verdict may be set aside on this ground where in relation to multiple counts charged on an indictment and involving the one complainant the jury returns a mix of guilty verdicts and acquittals which cannot stand together in the sense that the only inference to be drawn, in the light of the verdicts of not guilty and having regard to the facts and circumstances of the case, is that in arriving at that verdict the jury must not have performed its function of deciding the facts logically and reasonably: MacKenzie v R (1996) 190 CLR 348 at 366 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [33]-[36] (Gleeson CJ, Hayne and Callinan JJ) and [59], [86] (McHugh, Gummow and Kirby JJ). In Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 such an argument was upheld on the facts of that case. In the circumstances of R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 it was rejected.

  3. As observed by Simpson J (as her Honour then was) in R v TK at [97], central to the decision in Jones was that the accused, charged with three acts of sexual intercourse with a female child, was convicted of only two of them and acquitted of one in circumstances where there was no rational explanation on the examination of the evidence for that diversity, as the reasoning of Gaudron, McHugh and Gummow JJ at 453 shows:

The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. The jury may have acquitted because the unshaken evidence of the appellant's wife and daughter with respect to the absence of opportunity engendered a reasonable doubt about the appellant's guilt on the second count. They may possibly have acquitted because they were of the view that the complainant had fabricated the circumstances giving rise to the second count. Having regard to the convictions on the first and third counts, the latter alternative seems an unlikely explanation of the verdict on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. Having regard to the terms of the second count, we do not think that the complainant's confusion about whether the offence took place on a Thursday or a Saturday could explain the acquittal on that count. If that was the reason the jury rejected her evidence, they would also have acquitted the appellant on the first count.

It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.

  1. In MFA at [35], Gleeson CJ, Hayne and Callinan JJ described as “erroneous” the view that Jones was authority for the proposition that “where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility” (emphasis added). Rather, their Honours stressed that the “test established by s 6(1) of the Criminal Appeal Act is unreasonableness, not inconsistency” (at [36]), and in that context emphasized that “since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must be considered in the light of the facts and circumstances of the particular case” (at [34]). MFA makes clear that the conclusion that acquittal on some counts necessarily entailed a rejection of a complainant’s credibility in a way which must have affected the weight to be given to their evidence in respect of other counts does not apply or follow mechanically in particular categories of case, but must in each case be established by an independent examination of its particular facts and circumstances.

  2. In such a case, as Simpson J suggested in TK v R (McClelland CJ at CL and Latham J agreeing) at [128] and [130]:

[128] … The foundation for the test stated in MFA is not confined to ‘the whole of the evidence’ but incorporates ‘all of the facts and circumstances of the particular case’. That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. 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 … an appellate court, faced with adverse verdicts on multiple counts, must intervene to set aside the convictions, the Court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. … The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility.

  1. This approach has been followed in a number of cases, including TB v R [2019] NSWCCA 224 at [106] (White JA, Harrison and R A Hulme J agreeing); Xu v R [2019] NSWCCA 178 at [84] (N Adams J); AH v R [2019] NSWCCA 152 at [64] (Simpson AJA, Button and Lonergan JJ agreeing); Cabot (a pseudonym) v R [2018] NSWCCA 265 at [58] (Leeming JA, McCallum and Bellew JJ agreeing).

  2. Thus as Basten JA observed in Ganiji v R [2019] NSWCCA 208 at [12]-[13] (Button and Lonergan JJ agreeing):

… the argument based on inconsistent verdicts depended on satisfaction that the guilty verdict was “unreasonable, or cannot be supported, having regard to the evidence” (the first limb), or that there was otherwise “a miscarriage of justice” (the third limb), within the language of s 6(1) of the Criminal Appeal Act 1912 (NSW) …

The correct approach depends on discarding the term “inconsistent” with respect to the verdicts, as it assumes unreasonableness, or some unspecified error, on the part of the jury. Absent further analysis, a conviction on one or more counts on an indictment, accompanied by acquittal on one or more other counts, does not necessarily demonstrate “inconsistency” or any other error on the part of the jury. The critical circumstance said to raise possible error is that both counts depended upon the jury accepting the evidence of the complainant. In such cases, it is necessary to have careful regard to the surrounding circumstances in order to determine whether there is a rational basis upon which it was open to the jury to accept the complainant with respect to one aspect of her evidence, but not with respect to other aspects. (Emphasis added).

The evidence and circumstances of this case

Background

  1. For roughly six years until 14 August 2016, the applicant was in an intermittent relationship with the complainant’s mother. That relationship first commenced around 2010 when her marriage to the complainant’s father ended. Sometime in 2012, the applicant proposed to the complainant’s mother. They married in February 2013, and separated in August of that year.

  2. While they were married, the complainant and her mother lived with the applicant at a house in Minchinbury. After they separated, the applicant left Minchinbury and lived in a rented home at Stanhope Gardens and the complainant and her mother moved to Ropes Crossing. Over the next couple of years the complainant’s mother continued to have contact with the applicant. In around February or March 2016 there was “something of a reconciliation” between them. Thereafter the complainant and her mother would sometimes stay over on weekends at the Stanhope Gardens house.

  3. On 18 June 2016, the applicant and the complainant’s mother moved in to a house at Llandilo. They were joined by the complainant, her 18 year old half-sister and the applicant’s son. During the time they lived at Llandilo, each of the applicant and the complainant’s mother worked full time, the complainant’s sister worked at a Leagues Club and the complainant continued in her first year at high school.

Initial complaint

  1. A little under two months after moving into the Llandilo house, on the evening of Sunday 14 August 2016, the complainant’s mother was with the applicant, the complainant and the applicant’s son in the kitchen. She asked the applicant whether he could take the complainant to school on the following morning, as she had an early start at work. The complainant became visibly upset, left the kitchen and went into her bedroom. A couple of minutes later her mother followed her, finding her sitting on her bed, crying and talking on the phone. The complainant was talking to her father. Her mother took the phone and hung up without speaking to him.

  2. In his statement read to the jury, the complainant’s father, who became ill before the trial and did not give evidence, said that “when [he] answered the phone [the complainant] was crying. [The complainant] said that she was fighting with [the applicant]. The phone call was abruptly terminated on [the complainant’s] side.” That was consistent with the complainant’s account of the phone call insofar as she did not report complaining to her father of anything beyond an “argument” with the applicant.

  3. The complainant said that after her mother hung up the phone, she asked why the complainant did not want to go to school with the applicant. She responded:

I told her the argument, what happened. And then I’m just like, and then, um, she goes, So, and I think she said, So. And I’m just, like, Because he touches me. And then, yeah, she goes, she, and the was, I think she said she, um, He does what? And I’m just, like, He touches me inappropriately.

Her mother responded saying “I’m going to call the police”. The complainant’s reaction was:

at the time I didn’t realise that it was this serious. And then, um, I’m just, like, Don’t [call the police] ‘cause I didn’t realise how serious it was.

  1. The complainant’s mother also gave evidence that when she asked her daughter “what was going on” she responded “he [the applicant] touches me inappropriately”. When she asked where, the complainant responded “on my boobs”.

  2. After this initial complaint, the complainant reported that her mother and the applicant had an argument in which the applicant said “you don’t really think I did this”. Her mother’s evidence included that the applicant asked her what she was going to do, saying that she had two options; either she could “go to the police” or he “would go to the police himself”.

  3. The complainant’s mother then drove with the complainant to the Leagues Club, where her sister was working. They met the sister in the car park and she was asked to speak to the complainant “on their own”. Her sister gave evidence of a conversation, during which the complainant “said that [the applicant] put his hand up her shirt and down her pants”. Although she could not remember asking the complainant when that had happened, her sister gave evidence that “[the complainant had] said that it happened the day that I walked in and when she was screaming”. The three of them then went to Penrith Police Station.

Interviews with the police

  1. The police conducted four interviews of the complainant. The first occurred at the police station and was not recorded. The remaining three were electronically recorded. On the evening of 14 August 2016 Constable Keith Haynes conducted the first interview in the presence of the complainant’s mother and sister. On 16 August 2016 there was another interview conducted by DSC Emma Greig with the complainant alone. Eight months later on 21 April 2017 the third interview was conducted by DSC Greig, again with the complainant alone. A further year and a half later a fourth interview was conducted by DSC Greig in the presence of Det Lisa Hoggard. That interview, on 11 October 2018, took place just under two weeks before the trial.

  2. At the commencement of the Crown case, the interviews conducted by DSC Greig were played to the jury and transcripts of each of were made available to them. They, together with her explanations of some diagrams and photos, constituted the complainant’s evidence in chief. Constable Haynes’ evidence at the trial included that on 21 August 2016, seven days after the complainant and her mother and sister presented at Penrith Police Station, he made a written statement recording his recollection of the events of that evening. He read that statement into evidence.

Constable Haynes’ evidence

  1. On 14 August 2014, the complainant’s sister came to the front counter and asked to speak to someone about her “12 year old sister being inappropriately touched”. Constable Haynes spoke with her mother who described the events of the evening and said “I think there have been several occasions, the last time being last week sometime”. Constable Haynes recommended waiting for a female officer to become available, but after about 15 minutes her mother indicated that she thought “[the complainant] would be okay to speak with you [Constable Haynes]”.

  2. Constable Haynes’ statement continues (the references to M and S are to the complainant’s mother and sister):

I then took the three into a soft interview room and spoke to all three. At this stage [the complainant] was still appearing upset as she was crying. I then obtained as much details about the incident as I could, however the details were very vague due to the emotional state of [the complainant] being unable to answer all questions. I said ‘Hi [complainant]. My name is Keith. Your mum has told me that [the applicant] has done things that made you feel uncomfortable. Can you tell me what has happened?’ She said ‘Yeah, he touched me down there.’ I said ‘When did this happen?’ She said ‘Um, I’m not too sure. He’s been doing it since we were at Stanhope.’

I then obtained through [either M or S, the reference is not clear] that this was around February 2016 date [sic]. I said ‘And what exactly does he do?’ She said ‘Whenever he stays up studying late at night mum goes to bed; he’ll come into my room and start.’ I said ‘What does he start?’ She said ‘Um, it changes.’ I said ‘What does he do most often?’ She said ‘Well he will be up studying. When mum went to bed he comes in and sits on my bed beside me. He puts his hand down there.’ I said ‘Does he put inside your pants?’ She said ‘Um, yep.’ I said ‘What about your underpants?’ She said ‘Yep’.

I said ‘Okay, now what does he do with his hand?’ She said ‘Um, just hold it there or moves it around a bit.’ I said ‘Does he do anything else?’ She said ‘I don’t think so; I don’t know. Sometimes, he touches my boobs.’ I said ‘Does he reach under your shirt?’ She said ‘Yeah, he goes under and feels around a bit.’ I said ‘How often has this been happening?’ She said ‘Every weekend we would go to visit him at Stanhope.’ I said ‘And it was the same thing most times that he would do?’ She said ‘Yeah.’ I said ‘Now since he’s been living with you at Llandilo, how often has this been happening or does this happen?’ She said ‘I don’t really know. Maybe three or four times a week.’

I said ‘When was the last time this happened?’ She said ‘Um, I think when [S] came in.’ I then inquired with [S] who state [sic] that this would’ve been on Thursday 11 of August, 2016. I said ‘What happened on this day?’ She said ‘I was sick at home; he was there. He came into my room then kept pulling my pants down but I didn’t want him to.’ I said ‘What did he do then?’ She said ‘He touched me down there for a bit, then went in my shirt to touch my boobs. I could hear [S] outside the room so I screamed then she came in. He told [S] we were play fighting then left.’

‘So this was the last time anything like this happened?’ She said ‘Yeah’.

  1. Constable Haynes’ evidence was not challenged in cross examination. Two matters should be emphasised. First, the complainant referred to uncharged acts of a sexual nature, starting at Stanhope Gardens in February 2016 on the weekends that the complainant and her mother stayed over, and continuing whilst they were living at Landilo “three or four times a week”. In relation to that “context” evidence the jury was directed that the evidence was before it “only to answer questions you might otherwise ask or may arise in your mind about the particular allegations of the charges in the indictment”. The trial judge emphasised that it could not be substituted for evidence of the specific allegations contained in the charges and that the jury must not reason that because the accused may have done something wrong to the complainant on some other occasion he must have done so on the occasions charged; and that the context evidence could not be used as establishing a tendency or on the basis that the accused was likely to have committed the offences charged because the complainant had made other allegations against him. Secondly, the complainant described the “last time” anything happened as being when she was “sick at home” when her sister “came in” after she had “screamed”. That occasion was said by her sister to be on Thursday 11 August 2016. Constable Haynes did not recall any disagreement from the complainant as to that being the correct date.

  2. In her evidence the complainant’s sister did not remember that in this interview she had identified that specific date or made reference to “last Thursday”, and her mother gave no evidence concerning this interview. However the interim AVO which was served on the applicant when he was charged on 17 August 2016 contained a reference to the date 11 August 2016.

DSC Greig’s interviews

  1. Two days later, the complainant was first interviewed by DSC Greig. During that interview the complainant gave detailed accounts of the four occasions which comprised the charged conduct.

  2. The couch incident: When asked to describe “the very, very first time that something happened” the complainant recounted that in February 2016, at Stanhope Gardens the following incident occurred. After dinner one evening when her sister was at work, the rest of the family were watching TV in the dining/living room. The complainant was lying on an L-shaped black leather seat which provided seating along one side and end of a rectangular dining table. The longer end of that seat faced slightly to the right of the TV. There was a narrow gap between the lounge’s back support and seat base. The complainant was lying on the long part of the seat on her stomach with her head at the end of the lounge nearest to the television. The applicant was seated in a chair which faced the television. That chair was beside the back of the bench seat, so that the complainant was lying to the applicant’s right.

  3. As they watched the television, the complainant said that the applicant “would slide” his right hand, face down, through the gap between the back support and seat on which the complainant was lying, twist it around and touch her “boobs”. She was wearing a pyjama shirt and pyjama pants. He pulled her shirt down and put his hand underneath her clothing. She said that he “would have” his hand on her boobs “until someone would make a movement or start walking”.

  4. This incident became the subject of count 1. The complainant identified it as having happened in February because she had just started in year 7, although she said that “you might want to check with [my mother] that it was February though”; that presumably intended as a reference to when school started in that year.

  5. The applicant gave evidence at the trial. He denied touching the complainant by putting his hand through the bench seat, maintaining that it was impossible to do that sitting in the chair where he was described as sitting and watching the TV. That asserted impossibility (based in part on the relative positions of the narrow gap – 6.5 cm – and his right shoulder and elbow when sitting in the chair) is relied on in the argument in support of ground of appeal 2.

  6. The iPad incident: After recounting that incident the complainant was asked “what was the next time?” The complainant seemed to indicate that further incidents happened at Stanhope Gardens, but when questioning continued she said “and then he, yeah, I can’t, I don’t know the date” and didn’t offer any further description.

  7. When asked to describe “the next time that you can clearly remember” the complainant recounted the following incident. At the Llandilo house, one evening on a weekend, the complainant was in bed watching TV. The applicant entered her room and sat on the corner of her bed. As the complainant was lying on the bed, the applicant grabbed her left leg and pulled her closer to him. He then pulled her pyjama pants down “a little bit” and looked at the area around the complainant’s vagina. The complainant was wearing underwear. He then put his hand down her underwear and started touching “the inside” of the complainant’s vagina. The complainant recounts that this incident ended when “mum came into the bedroom and starts yelling at him, to ask why he was in my room”.

  8. This incident became the subject of count 2. In the first interview with DSC Greig the complainant did not give any account of the time of the year that it occurred. Her mother gave evidence that around four weeks after moving into Llandilo (ie mid July 2016) she woke up one evening and found that the applicant was not in bed with her, where he would ordinarily sleep. She got out of bed and went looking for him. She walked into the complainant’s room to turn off her TV “but as I’ve walked in the door [the applicant]’s backed out, banged into me”. In response to her mother’s immediate question “what the fuck are you doing in my daughter’s room?” the applicant replied that he was “resetting her iPad, Everything’s okay.” Her mother said she then “walked in to make sure [the complainant] was okay and turn her TV off”, and that when she saw that I looked at her, she’s rolled over onto her side facing out the window”

  9. The applicant did not deny there was an occasion that he was in the complainant’s bedroom one evening when her mother walked in. He said that it was a “school night” and no later than 8pm. He agreed that the incident happened “mid-July to late July”. He said that the complainant was in bed, under the covers, with her iPad and showing him a school presentation that she had done. He said that when her mother found him in there, she said “get out of [the complainant]’s bedroom” to which he responded “I don’t know what the problem is you know she was showing me her iPad”.

  10. The sick day incidents: After dealing with the iPad incident in the first interview DSC Greig asked the complainant “Can you remember another time?” to which the complainant responded:

Yeah, it was during the day time and I was at home because I was feeling sick, like I was going to vomit. And mum was already off at work because he had to, [the applicant] had to take me to school. And I was getting dressed, and I felt like I was going to vomit. And then, um, he called Mum. Mum and said that I could stay at home. So I got back into bed. And then, like, I got out of my full uniform, got back into bed in pyjamas. And then, um, he will come sit on the side of my bed… and then I was wearing a nightie at the time. And then he would put, and then he will start rubbing my stomach, then he will start pulling the top part down… Then he’ll start touching my boobs.

  1. The applicant was said to have continued touching the applicant for either five or ten minutes, and then to have left for work. This incident became the subject of count 3.

  2. The complainant said that her sister was at home at this time, and that sometime later in the morning her sister went with a friend to the shops, before she returned an hour or so later. She said that the applicant got home “probably at 4:00 or 3:00” that afternoon. She was then sitting on her bed on her phone dealing with text messages from friends “asking why didn’t I come to school” and recounted:

… [the applicant] came in. And then, um, he, like, um, we were pushing each other around, then he pushed me on my bed. And then, um, I was still on my phone, ‘cause I was laughing, ‘cause we were playing around. And then he starts touching me.

  1. The complainant was wearing tracksuit pants, which the applicant pulled down. He then looked “a bit” at her vagina and then touched it on top of her underwear, which became the subject of count 4. He then put his hand “through the underwear”, which became the subject of count 5. In the second interview conducted with DSC Greig the complainant provided more detail about this incident, describing the applicant as having put his finger inside the opening of her vagina when he put his hand under her underwear. It was at this point, that the complainant screamed. The applicant moved his hand away and then “started laughing around”. The complainant’s sister “came running in” and asked what they were doing. The complainant’s evidence was that the applicant replied that they were “just pushing each other around” or “just playing around, we were wrestling with each other”.

  2. The complainant’s sister’s evidence was that one day she was in her room at Llandilo “on the way to the fridge” when she heard the complainant scream out “stop”. She went into the complainant’s room to investigate and saw her lying on her bed in tracksuit pants and a top with the applicant there as well. She described the complainant as “screaming and she kicked her leg out”, and as “crying and distraught”. When she asked what was going on the applicant responded “nothing” and she then left the room. The complainant’s sister did not recall whether she had been at work on the day this occurred. She did not give evidence that this event occurred on a day when the complainant had not gone to school because she was sick.

  3. The applicant denied that any of these events occurred. He gave evidence of an occasion when the complainant’s sister came into the complainant’s bedroom and there was an exchange between him and her in the complainant’s presence. He said that immediately prior to the sister coming into the room he and the complainant had been playing a game which involved pressing each other down on the collarbones, and that at one point the complainant had shouted out “stop” after which the sister came in. When she asked what was going on he responded “we’re just poking” - “we’re just mucking around with each other”, to which her sister responded “you know you two will get in trouble if mum sees you keep doing this.” In her evidence the sister denied making such a comment. The applicant maintained that this occasion did not happen on 1 or 11 August 2016, and was not challenged on that evidence.

  4. The biscuit incident: After describing these incidents in the first interview with DSC Greig the complainant was asked whether she remembered “another time” something happened. At first she said “not really”. She then proceeded to describe an incident at Llandilo on a weekend. The applicant was studying in the lounge room, sitting in a reclining chair, the complainant was sitting “on a row of couches” watching TV. The applicant had chocolate biscuits with him and “told” the complainant to “come closer to him”. She stood up and walked over to him and then he put his hand down her pants and rubbed her vagina on top of her underpants.

  5. The applicant denied that this event occurred. His evidence was that there was an occasion at Llandilo where he was sitting on the lounge chair studying and he had a drink and a small packet of about six biscuits. The applicant said that the complainant was persistently asking for a biscuit and when he got up to go to the toilet he said that she could have one. When he returned, all the biscuits were gone, which irritated him. He called her a “pig” and asked her to go away.

  6. In DSC Greig’s second interview in April 2017 the questioning focussed on the sick day incidents. In that series of questions and answers which pressed the complainant to describe what happened the answers given included: “like I can’t really remember”, “I think I might be talking about something else”, “I can’t remember though, cause it was like, a while ago”, “like, I do remember but I don’t remember all of it”; and in response to a question “what do you remember?”:

Like I remember it looked like the morning, I was like I was getting ready for school but then I felt like I was gunna throw up, and like, I told him, and then he called Mum to ask her if I can have a day off, she said, Sure, and then I was like, when I went back to bed, and then like, he came in, and then like, he started touching like, my stomach and of all that and then like, he would move around and all of that. And then I probably got dressed like you said and then he, then he would like do it again and I would like, probably be in bed again, like that’s how like it always goes, like that’s how it normally started.

Timing of the sick day incidents

  1. Towards the end of her first interview with DSC Greig, the complainant said that she thought the biscuit incident had happened “after” the sick day incidents which had happened “before” the iPad incident, suggesting that the biscuit incident was the last of the four episodes of charged offending. In her third interview with DSC Greig, in response to questions pressing her to clarify the order in which the four episodes had occurred, the complainant said that definitely the Stanhope Garden incident happened first, and then the sick day incidents, the biscuit incident and iPad incident in that order.

  2. The evidence as to when the “iPad incident” may have occurred included the complainant’s mother’s evidence that the incident in which she found the applicant in her daughter’s room happened in about mid-July 2016. The applicant’s evidence also was that such an incident occurred in “mid-July to late July”.

  3. The complainant’s account as to the order of the events was not challenged in cross examination. She was however asked whether she had previously told Constable Haynes that the “last time” something happened was when she was sick and home from school. She did not remember being asked or answering that question.

  4. Although the three sick day incidents were charged on the indictment as having occurred between 1 June 2016 and 12 August 2016, the complainant’s initial account to Constable Haynes was that the offences charged by counts 4 and 5 occurred at the Llandilo house and on one occasion on a day when she was “sick” and at home rather than school. That calendar day was identified by her sister because she was said to have come into the complainant’s room after she had screamed. In her first interview with DSC Greig two days later the complainant maintained that on this “sick” day there were three incidents, including counts 4 and 5 described to Constable Haynes and said to have involved her sister. However in that interview she described three sick day incidents as having occurred on an otherwise unspecified date earlier than 11 August 2016 and before the iPad incident involving her mother.

The evidence regarding 11 August 2016

  1. The complainant’s mother’s evidence was that she left the Llandilo house on this day at 8:20 am and arrived home at 5:20 pm. CCTV footage from the applicant’s workplace showed that he arrived at work at 7:06 am and left at 5:32 pm. That footage meant, as the Crown conceded, that the events described by the complainant as involving the applicant on the “sick day” could not have occurred on 11 August 2016.

  2. The complainant’s sister gave evidence that based on her employment records she did not work on 11 August 2016.

The evidence regarding 1 August 2016

  1. The complainant’s mother’s work vehicle logs showed her leaving Llandilo on 1 August 2016 at around 6:39 am and returning around 6:51 pm, confirming that she was absent for the entirety of the period during which the “sick day” events described by the complainant were said to have occurred.

  2. The complainant’s sister gave evidence based on her work timesheets that on 1 August she started work at 8 am and finished at 3:30 pm. She estimated that it took half an hour in the morning and, depending on traffic, anywhere between “half an hour and 45 minutes” in the evening, to drive between the house at Llandilo and her workplace. It follows that she could not have been home in the morning of 1 August 2016 after about 7:30 am.

  1. The applicant did not become aware that 1 August was a specific date in issue in relation to counts 3, 4 and 5 until the complainant’s “school records came to light”. When precisely that refers to is unclear – the applicant described it as “nearly two years after the fact”. In any event, the applicant’s work supervisor gave evidence that CCTV footage such as the applicant had been able to obtain earlier in respect of 11 August 2016 was typically only kept for a month or so. Thus the applicant was unable to secure any such CCTV footage of this day. That circumstance was the subject of a ‘Longman’ direction in relation to an asserted forensic disadvantage that the applicant was placed under as a consequence of the Crown’s delay in advising that in addition to 11 August the complainant was sick and away from school on 1 August 2016 (a direction named after the decision in Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60, which involved a delay of more than 20 years between the happening of the alleged events and their prosecution)

  2. To attempt to demonstrate the applicant’s location at the critical times on that day, records for his work and personal phones were produced. Those records relevantly display a timestamp for a particular communication and the location of the cell tower which registered it. The approximate location of the telephone’s possessor at various times can thus be inferred. There was evidence from DSC Greig that mostly phones will use the nearest available tower; but that sometimes they skip if that tower is at capacity and they find another tower nearby with capacity. Exhibit 6 was a map showing that Llandilo and Marsden Park are adjacent suburbs. Thus an entry recording the location as Marsden Park was potentially consistent with the phone being located in Llandilo.

  3. It is accepted by the Crown that those records for 1 August showed that the applicant left the Llandilo house somewhere between 7:04 am and 7:19 am; and that he returned to the house sometime after 4:37 pm, but in any event by 4:55 pm. It would follow, accepting the accuracy of these times and assuming that the applicant went to and remained at his place of work during the whole of that day, that the CCTV footage would have showed that he arrived at work at some time after 7:04 am and left at some time before 4:55pm. However some of those times were contested in final address, and accordingly left to be decided by the jury. The Crown case was that the records showed the applicant to have been away from the Llandilo house between 7.11am at the earliest, and 4:55 pm at the latest. However on the defence case it was said that the records showed that the applicant was away from the house between 7:04am and 6:22pm. Thus there remained the possibility that had the applicant been able to secure the CCTV footage for 1 August 2016 some of these uncertainties might have been resolved in his favour.

The Crown case at trial

  1. The Crown case left to the jury was that counts 3, 4 and 5, as described by the complainant, happened on 1 August 2016 or not at all. So much may have been foreseen from the beginning of the trial. Although no specific date for that offending was identified in the Crown’s opening to the jury, defence counsel said at the outset:

Counts 3, 4 and 5 are said to have occurred on a day when the complainant was sick and stayed home from school not long before the report was made to the police, and I anticipate the evidence will focus on one of two possibilities. The school records will not be in dispute. Identifying that day looking at school records will come down to either 11 August 2016 or 1 August 2016…

  1. Consistent with that expectation, over the course of the trial the Crown “tied its colours to the mast” in respect of counts 3, 4 and 5. In closing address the Crown’s position was:

There’s evidence as to the absence of [the] complainant from school and it’s 1 August 2016 and 11 August [2016]. I’m not going to suggest to you that in light of the video footage, in particular, of the accused’s car being there from very early on on the morning of the 11th, that it was the 11th, it could only have been on the prosecution case 1 August that this happened.

  1. Thus the Crown’s case was not put on the basis that there remained a theoretical possibility on the complainant’s account that some or all of the offences charged by counts 3, 4 and 5 might have occurred on a sick-day taken between 18 June (the date of the move to Llandilo) and mid to late July 2016 (the evidence of the mother and the applicant as to when the iPad incident occurred). The Crown is bound in this appeal by the way the charge of those counts was left to the jury: Chen v DPP (2011) 83 NSWLR 224; [2011] NSWCCA 205 at [36] (Basten JA). From the jury’s perspective the “sick day” incidents happened on 1 August 2016 or not at all.

The defence case at trial

  1. In his short opening address the applicant’s counsel emphasized that his client denied the allegations, saying that they “simply did not happen”. He explained that there was an alibi defence in relation to counts 3, 4 and 5. He also foreshadowed that it would be contended that the complainant had a motive to lie about the applicant’s conduct, namely to rid herself and her mother of the applicant’s presence. The complainant’s desire to do so was said to arise because of their on and off relationship involving disagreements which resulted in the complainant and her mother “moving back and forth to different residences, sometimes changing schools, certainly changing neighbourhoods.”

  2. In his closing address defence counsel submitted that having accepted the objective evidence with respect to counts 3, 4 and 5 (and in particular the work and phone records) the jury would conclude that “1 August doesn’t work” so that they would have a reasonable doubt as to whether the applicant was guilty of those three counts which in turn “would have a terminal impact on the credibility” of the complainant more generally. It was also submitted that the complainant had a motive to lie, particular reference being made to her statement in cross examination that “well like we never really liked [the applicant], so”.

Reconciling the verdicts

  1. The Crown offered two explanations for the applicant’s acquittal on counts 3, 4 and 5 which were submitted not necessarily to involve the jury having a reasonable doubt as to the complainant’s general truthfulness and reliability, the latter referring to her ability accurately to discern and relay the truth (see IMM v R (2016) 257 CLR 300; [2016] HCA 14 at [144] (Nettle and Gordon JJ). In this context, the word “credibility” is commonly used to describe the overall consideration of “whether the witness is to be believed”: XY v R (2013) 84 NSWLR 363; [2013] NSWCCA 121 at [49] (Basten JA). The jury’s assessment of a complainant’s credibility must ultimately be directed to their evidence as to the elements of each charged offence. In making that assessment it is open to the jury to be convinced as to some aspects of that evidence, whilst having doubts or uncertainties as to others.

  2. Whilst it is ultimately for the applicant to persuade the Court that it was not open to the jury acting rationally to be satisfied as to his guilt on counts 1, 2 and 6, having acquitted him on counts 3, 4 and 5 (MFA at [36], [86]), it is convenient first to consider the Crown’s suggested explanations for the differential verdicts. The first concerns the jury’s obedience to the Longman direction.

  3. That direction (as to which there is no criticism in the appeal, either as to its justification or content) included the following:

The inability to [obtain evidence proving that he was not at the Llandilo house at the time of the alleged offence] because the accused learned about [the allegation that the offences occurred on 1 August] at a later stage would have impacted upon his counsel’s ability to cross-examine the complainant. You should take into account the delay resulted in the accused having lost the opportunity to bring forward that evidence in relation to those specific allegations [counts 3, 4 and 5]. Because the accused is being put in this situation of significant disadvantage he is being prejudiced in the conduct of his defence. As a result I must warn you that before you can convict the accused in relation to those counts in particular, that relate to those dates, the 1st or the 11th of August 2016, you must give the prosecution case the most careful scrutiny.

  1. It is suggested that in obeying this direction the jury gave the applicant the “benefit of the doubt” in relation to counts 3, 4 and 5. This suggested explanation begs the question whether that “doubt” was as to the general truthfulness and reliability of the complainant’s account or some other doubt which on some rational basis the jury could have entertained in relation to those counts, but not in relation to the remaining counts. If that doubt went to the complainant’s credibility generally it would follow that the jury considered that there was at least a reasonable possibility that the applicant would have been able to produce some evidence confirming such a doubt. Accordingly the question remains whether there was a rational basis on which the jury could entertain a reasonable doubt as to the applicant’s guilt in relation to the counts of which he was acquitted which did not give rise to an equivalent doubt in relation to the remaining counts.

  2. Even on the Crown’s case the initial statements made by the complainant to the police as to when the most recent offending had occurred were not correct. The “sick” day offending had not occurred three days earlier on a day when the complainant was not at school. Rather it was said to have occurred almost two weeks earlier. In relation to this aspect of the complainant’s evidence a question for the jury was whether the fact that she may have been “distressed” at the time of this first interview sufficiently explained why she had given a wrong account as to the timing of events initially reported as having occurred only a few days earlier.

  3. Accepting that the “sick” day incidents could only have occurred on 1 August 2016, the complainant’s version of those events was contradicted in two respects by the objective evidence. First, her sister was not at home after 7:30 am on that day. Accordingly the complainant’s account of her sister going to the shops with a friend, and later returning, could not have happened. Secondly, the applicant’s phone records showed, on the Crown case, that he arrived home at 4:55 pm at the earliest. The complainant’s evidence was that the applicant was home probably at 4:00 pm or at 3:00 pm, which allowed a significant period in which the offences charged by counts 4 and 5 could have occurred before her mother arrived home from work.

  4. Furthermore the phone records raised significant questions as to whether the offending described, and especially that in the morning, could have occurred. The two periods in which the alleged offending occurred were described by reference to the times when the applicant was at home and the complainant’s mother was not. In the morning that was a period of about 25 minutes on the defence case (6:39 am to 7:04 am) and in the evening a period of 30 minutes on the defence case (6:22 pm to 6:51 pm), and almost two hours on the Crown case (4:55 pm to 6:51 pm). If the complainant’s evidence as to when she “normally” got ready for school (about 6:55 or 7:00 am) was accepted, the period in the morning in which the offending could have occurred was as short as four minutes on the defence case. With respect to the complainant’s description of that offending, after the mother had left the house at about 6:39 am the complainant had to get up, put her school uniform on, realise that she was sick, speak to the applicant who then telephoned her mother, put her pyjamas back on and then return to bed. The complainant’s evidence was that the applicant then came into the bed room and was there for between five and ten minutes, during which the offence alleged in count 3 was committed, before he left for work at about 7:04 am.

  5. Defence counsel’s submission to the jury as to whether these events could have happened was that there was “on one view, a very narrow window, I suppose, but it depends” and that “if it happened at all in the morning, it happens” when the complainant’s sister was still in the house. A similar submission was made in relation to the offending in the afternoon or evening. The short period in which the offending could have occurred was emphasized, as also was the fact that it was said to have occurred at a time after the complainant’s sister would have arrived home from work.

  6. With respect to these counts, the trial judge directed the jury:

The Crown must remove or eliminate any reasonable possibility the accused was somewhere else according to the alibi evidence at the relevant time and also persuade you on the evidence on what the Crown relies, beyond reasonable doubt, that the accused was at the scene of the crime at the relevant time.

  1. The jury’s verdict of acquittal indicates that they were not satisfied that taking account of this objective evidence the offending described by the complainant could have occurred on the only remaining “sick” day, 1 August 2016. The question remains whether that conclusion could be put aside when determining whether to accept the complainant’s evidence in relation to the remaining three charges.

  2. If the jury’s doubt related to the complainant’s truthfulness as a witness there is no reason discernible from the facts or circumstances as to why that doubt would not equally have applied to the other offences of which the applicant was charged. Although, in relation to count 2, the evidence established that there was an opportunity for the incident charged to have occurred, the complainant’s evidence was in no sense corroborated by that of her mother which was equally consistent with the applicant’s version of the relevant events.

  3. Sometimes it will be open to a jury to entertain a doubt as to the truthfulness of a complainant’s evidence in some respects, but not others. In particular, a jury may do so where they conclude that a complainant, concerned that he or she may not be believed, has exaggerated or embellished their evidence of particular events: TK v R at [7] (McClellan CJ at CL) citing Wood CJ at CL in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 (see [235]) see also R v ACK [2000] NSWCCA 180 at [53] (James J, Spigelman CJ and Ireland J agreeing). Mixed verdicts on that basis may be readily understandable.

  4. It is not easy to see how a doubt as to the truthfulness of the complainant’s evidence as to the “sick” day incidents could be explained away as due to exaggeration or embellishment with respect to those counts only. Those incidents comprised the first episode of sexual assault which the complainant recounted, initially in the car park of the Leagues Club to her sister, and immediately after to Constable Haynes. As recounted to DSC Greig two days later it was also the most serious episode of offending. If the jury entertained a doubt as to the truthfulness of the complainant’s evidence in relation to these three counts, that doubt diminished her overall credibility.

  5. However, accepting that the jury convicted the applicant on the remaining three counts notwithstanding that there was no evidence which corroborated the complainant’s account it is unlikely that the reasonable doubt which the jury had as to counts 1, 2 and 6 related to the complainant’s truthfulness rather than to the overall reliability of her evidence (see Jones at 453).

  6. This raises the more difficult question as to whether, if, as is most likely, the doubt principally related to the reliability of the complainant’s evidence, there was no rational basis available for the jury to conclude that it did not equally apply to her evidence on the remaining three counts.

  7. This question also bears upon the second possible explanation suggested by the Crown – that the jury were entitled to adopt a “cautious approach to the discharge of a heavy responsibility” in the light of the evidence that existed in relation to counts 3, 4 and 5. This language picks up what was said by Gleeson CJ, Hayne and Callinan JJ in MFA at [34]:

A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his evidence than about others.

  1. For the purpose of attempting to reconcile the differential verdicts, the date on which the alleged offending occurred cannot be treated as a mere “matter of detail” which did not equivalently arise in relation to the charges of which the applicant was convicted. Because of how it was derived, the remaining date was a matter of substance, with the consequence that if the charged offending did not occur on 1 August 2016 it could not consistently with the complainant’s evidence have occurred at all: Markuleski at [93]; R v KRL [2007] NSWCCA 354 at [50] (Bell J, Mason P and Barr J agreeing). The two dates on which the Crown alleged that the offending could have occurred were identified as an interpolation from the complainant’s account that the offending occurred at Llandilo and on a day when she was at home sick rather than at school.

  2. Each of these characteristics was part of the complainant’s initial complaint. As detailed in DSC Greig’s first interview the fact of the conduct happening on a “sick” day was then intertwined with other aspects of the complainant’s account, and was impossible to disentangle from her version of those events as a whole. Specifically, the applicant’s conduct in “rubbing” the complainant’s stomach as a precursor to the alleged indecent assault charged as count 3 was explained by the fact that she was feeling ill; the complainant’s sister was also at home, and not at work, during a day when the complainant was not at school; and immediately before the events charged as counts 4 and 5 when the applicant arrived home in the afternoon the complainant was sitting on her bed dealing with text messages from friends “asking why didn’t I come to school”, and was still on her phone when she and the applicant were playing around before he started “touching” her.

  3. Thus this is not a case where any uncertainty of the complainant as to the date of the offending provided an explanation for the applicant’s acquittals on counts 3, 4 and 5 and conviction on counts 1, 2 and 6 (cf R v J (No 2) [1998] 3 VR 602 at 628 (Winneke P and Charles JA); PA v R [2015] NSWCCA 18 at [53] (Hoeben CJ at CL). The jury could not have reasoned that the events charged by counts 3, 4 and 5 may have occurred but on a different day or days, thereby leaving the complainant’s credibility intact. Nor could the jury have reasoned that although those events had not occurred, the context evidence made it likely that similar events to those described had occurred but on another occasion or other occasions, leaving the complainant’s evidence to be explained as due to confused, faulty or reconstructed recollection, without in all cases necessarily diminishing her overall credibility. To have so reasoned would have involved the jury using the context evidence other than for the specific purpose of placing the complainant’s evidence of the charged conduct in the context of the alleged offending. That evidence could not be used to make the complainant’s account more reliable than it was in the absence of that evidence, and that observation applies equally to her account of the charges of which the applicant was convicted: Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463 at [119] (Howie J).

  1. Furthermore, nothing in the complainant’s evidence gave any ground for thinking that the quality – in terms of reliability – of her evidence was greater in respect of counts 1, 2 and 6 than it was in respect of counts 3, 4 and 5: see Jones v R at 455; and Pell v R [2019] VSCA 186 at [608] (Weinberg JA). Poor recollection or delay does not provide a rational basis for reconciling a reasonable doubt as to the reliability of the complainant’s evidence on the most recent alleged offending, with the acceptance of the reliability of her evidence in relation to charges of earlier offending. There was no evidence that the complainant remembered some of the charged episodes more clearly than the others. All of the offending was said to have occurred within a fairly narrow window. Counts 2, 3, 4, 5 and 6 were all said to have occurred within two months of the initial complaint and the first interview with DSC Greig. The applicant was convicted of count 1, the most distant in time, said to have occurred 6 months prior to complaint.

  2. This was not a case where there was some “extra element” or “other ingredient” of the offences in respect of which the applicant was acquitted that the Crown may have failed to establish, which could explain the different verdicts. See R v KRL at [55], where acquittals were explained by a failure to prove “penetration” in respect of the acquitted charges, which was not an element of the indecent assault offence on which the appellant was found guilty; similarly Nguyen v R [2017] NSWCCA 145 at [49] (Macfarlan JA) and [53] (Adamson J); Roos v R [2019] NSWCCA 67 at [66] (Gleeson JA, Davies and Harrison JJ agreeing); and also Youkhanis v R [2014] NSWCCA 220 at [79], [96]-[97] (Garling J, Gleeson JA and Fullerton J agreeing), where the acquitted charge of robbery required an additional element to the alternative charge of stealing of which the appellant was convicted.

  3. Nor did any of the other evidence adduced at trial support or corroborate the complainant’s evidence in respect of the other charges to a greater degree, so as to provide a rational basis for the jury to differentiate between them: see Youkhanis at [96]; Kurdi v R [2011] NSWCCA 179 at [100]-[112] (Bathurst CJ, Hall and Harrison JJ agreeing); Norris v R [2007] NSWCCA 235 at [50] (Howie J) and [245] (Hall J). The applicant did not deny that there was an opportunity for each of the episodes to have occurred, and there was no corroborating evidence of any of the offending. To the extent that the complainant’s mother’s evidence and her sister’s evidence supported the opportunity for counts 2, 4 and 5 to have occurred, neither account went beyond what the applicant admitted, consistent with his denials of the offending conduct.

  4. Finally, the Crown submits that the verdicts can readily be differentiated on the basis that the applicant was acquitted of charges in respect of which he called a positive case: see Markuleski at [235(c)] (Wood CJ at CL). That submission arguably passes over the fact that those were the only counts in respect of which it was possible for the applicant to adduce evidence to establish that he had no opportunity to commit the offences, because no other offences could be similarly narrowed to particular dates. That left the state of affairs that when the complainant’s evidence “could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standards of proof”: Jones at 455 (emphasis added).

  5. In my view nothing in the facts or circumstances of this case reveals a rational explanation for the applicant’s acquittals on counts 3, 4 and 5 other than doubts about the complainant’s credibility, which applied equally to the remaining counts. Nor can those acquittals be logically reconciled with the convictions on some basis unrelated to the credibility of the complainant’s evidence. Accordingly the guilty verdicts on counts 1, 2 and 6 could not reasonably be supported by that evidence alone.

Permissible unreasonable verdicts

  1. It is necessary to deal with one final question in disposing of this ground of appeal. That question arises from a line of authorities concerning verdicts which although “not logically justifiable in the eyes of a judge” nonetheless do not warrant intervention by an appellate court: R v Kirkman (1987) 44 SASR 591 at 593 (King CJ, Olsson and O’Loughlin JJ agreeing).

  2. Examples of such verdicts include “merciful” or “compassionate” verdicts where it may be inferred that the jury regarded justice as sufficiently done by convicting the accused of a smaller number of offences in lieu of the multiplicity charged (see R v Kirkman endorsed in MFA at [34]; or verdicts which are explicable as the product of compromise between a divided jury (see TK v R at [133], citing R v Crisologo (1997) 99 A Crim R 178).

  3. Not only are such verdicts in a strict legal sense unreasonable, but they require this Court to depart from the presumption that juries follow directions: see Markuleski at [228] (Wood CJ at CL); and as to that presumption see Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J), [31] (McHugh J); Lane v R (2018) 265 CLR 196; [2018] HCA 28 at [42] (Kiefel CJ, Bell, Keane and Edelman JJ). Nonetheless there are decisions of the High Court which recognise that those verdicts ought not be interfered with by an appellate court: see MacKenzie at 367-368; MFA at [34]. The permissibility of such verdicts has been described as an application of the (no doubt relevant) principle that an appellate court should respect the constitutional role of the jury (Markuleski at [76]). Here, the difficulties posed by this anomalous category of unreasonable verdicts may be conveniently sidestepped because the circumstances do not indicate that either mode of reasoning described above would reasonably explain the jury’s verdicts in this case.

Conclusion

  1. As the jury’s guilty verdicts on counts 1, 2 and 6 could not reasonably be supported by the complainant’s evidence, this is a case where appellate intervention is required to prevent a miscarriage of justice. Those convictions should be quashed and verdicts of acquittal entered on counts 1, 2 and 6, on the footing that doing so carries forward the logic of the other acquittal verdicts: Mackenzie at 368.

  2. This conclusion makes it unnecessary to consider the remaining grounds of appeal. The orders I propose are:

  1. Grant leave to appeal on ground 1.

  2. Allow the appeal against conviction.

  3. Quash the convictions on counts 1, 2 and 6 and in lieu thereof enter verdicts of acquittal on those counts.

  1. WILSON J: For the reasons given by Meagher JA, I agree with the orders he proposes.

  2. N ADAMS J: I have had the significant advantage of reading the judgment of Meagher JA in draft. I agree with the orders proposed by his Honour for the reasons provided.

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Decision last updated: 10 August 2020

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