Darren Chester (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0101

DARREN CHESTER (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

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

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JUDGES:	BEACH, KAYE and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2020
DATE OF JUDGMENT:	28 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 254
JUDGMENT APPEALED FROM:	[2018] VCC 1713 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Complainant biological daughter of applicant – Complainant has intellectual disability – Applicant charged with incest and indecent acts with child under 16 – Offences alleged between 1996 and 2002 when complainant aged between eight and 14 years –Applicant convicted of two charges of incest and one charge of indecent assault – Applicant acquitted on ten other charges – Whether verdicts of guilty unreasonable and could not be supported having regard to the evidence – Crown case reliant on evidence of complainant – Substantial inconsistencies in complainant’s evidence – Whether any rational basis for distinguishing between counts – Application for leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Stary Norton Halphen
For the Respondent	Ms A Ellis	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

The background of this matter is set out in the reasons for judgment of Emerton JA, which I have had the benefit of reading. The detail in her Honour’s reasons relieves me of the obligation of setting out much of the background to this proceeding, and I gratefully adopt her Honour’s summary of the evidence and the issues between the parties.

The applicant was tried in the County Court on 13 charges of sexual offending against his daughter between 1996 and 2002, when she was aged between eight and 14 years. The jury acquitted him of ten of the charges, but found him guilty on three charges (charges 5, 6 and 13).

The applicant’s sole ground of appeal against his convictions is that the guilty verdicts returned on charges 5, 6 and 13 were illogical and unreasonable having regard to the not guilty verdicts returned on the other ten charges.

Emerton JA would grant leave to appeal, allow the appeal in relation to charge 6, but dismiss the appeal in relation to charges 5 and 13. I agree with her Honour that leave to appeal should be granted. I also agree that the appeal should be dismissed in respect of charges 5 and 13. I disagree with her Honour, however, in relation to charge 6. For the reasons which follow, I would dismiss the appeal in relation to that charge as well.

The Crown case

The Crown case was heavily dependent upon the evidence of the complainant, who has an intellectual disability. Her evidence was recorded at a special hearing that took place in November 2017. In the special hearing, she adopted the contents of her VARE, which was recorded in June 2014. The recording of the VARE was played at the trial, as was the recording of the special hearing.

In summary, the complainant’s evidence was that her father regularly and frequently sexually assaulted her between the ages of eight and 14. She described the touching of her breasts and digital and penile penetrations of her vagina, the details of which are summarised by Emerton JA.

While the Crown case was heavily dependent upon the evidence of the complainant being accepted on critical matters as to sexual touching and sexual penetrations, there was relevant evidence called at trial which was supportive of the complainant’s allegations of offending against the applicant.

Specifically, the evidence of the complainant’s brother, A, that he walked into the complainant’s bedroom one day to find his father in the room with the complainant; the complainant ‘was laying there and there was a porn book next to her’; the complainant did not have any pants or any underwear on; and the applicant was facing towards her and then he ‘like pushed me back out of the room or I’ve gone back out of the room’, was supportive generally of the complainant’s evidence about the applicant.

Similarly, the evidence of the complainant’s mother (the applicant’s wife) that on one night she found him in the complainant’s bedroom without his clothes on (the clothes being on the floor of the bedroom) was supportive of the complainant’s evidence.

Additionally, some support for the complainant’s evidence can be found in the evidence of Ms Horsburgh who attended Naranga Special School with the complainant when they were both 13 or 14 years of age. Ms Horsburgh’s evidence was that she recalled a day when she was on a bus with the complainant and the complainant was ‘very down’. After initially not telling Ms Horsburgh what was wrong, Ms Horsburgh recalled that later in the day, in response to another request about what was wrong, the complainant said that ‘either [her] dad or [her] uncle raped [her]’. Ms Horsburgh could not remember whether the complainant said ‘my
dad’ or ‘my uncle’.[2] When asked whether the words ‘raped me’ were exact, Ms Horsburgh said:

Yeah. Might have been ‘touched me’. It was one or the other.[3]
[2]The complainant’s evidence of complaint to Ms Horsburgh was that she told Ms Horsburgh that it was her father who had been coming into her room ‘in the middle of the night’ and ‘putting his hands inside [her] vagina’. Although Ms Horsburgh denied that these were the words used by the applicant, there is no suggestion of any offending by any uncle of the complainant.
[3]See n2 above.

Analysis

The applicant submitted that the guilty verdicts on charges 5, 6 and 13 were ‘illogical and unreasonable’ because there was no rational explanation for the jury rejecting the complainant’s evidence in relation to the charges on which he was acquitted, but accepting her evidence in relation to the charges on which he was convicted. The inconsistency asserted by the applicant was also submitted to be a basis for concluding that the guilty verdicts were unsafe and unsatisfactory because they were unreasonable and could not be supported having regard to the evidence.

Whatever might be said about inconsistencies in the complainant’s evidence and differences between her evidence of complaint to witnesses called at the trial and the evidence of those witnesses (the details of which are identified in the reasons of Emerton JA), the one thing that the complainant was not shaken on was that the applicant had regularly and frequently engaged in inappropriate sexual touching and sexual penetrations of her. The jury were faced with the difficult task of working out what to make of this evidence, given as it was by a young woman with an intellectual disability, many years after the alleged offending.

In his charge to the jury, the trial judge correctly told the jury that it was up to them to decide how much and how little of the testimony of any witness they would believe or rely on. The jury were also told that they would take into account the ‘accepted intellectual difficulties’ possessed by ‘some of the people involved in the evidence’, a reference to at least the complainant. Additionally, the jury was correctly told that each charge had to be considered separately by reference to the evidence relating to that charge.

In MacKenzie v The Queen,[4] Gaudron, Gummow and Kirby JJ set out six general propositions in relation to inconsistent verdicts. It is sufficient to refer to their Honours’ third and fourth propositions:
[4](1996) 190 CLR 348; [1996] HCA 35 (‘MacKenzie’).

3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

4.Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdicts said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.[5]

[5]Ibid 366–7 (citations omitted).

In my view, the verdicts of the jury in this case can be reconciled. There were distinctive features about the offending alleged to constitute charges 5 and 6. With respect to charge 5, this involved offending alleged to have occurred while the complainant was travelling to Melbourne by car with her father. In relation to charge 6, a distinctive feature was her father climbing through her brother’s bedroom window where the applicant was sleeping. Similarly, the jury might have reasoned that charge 13 was distinctive because it was the last occasion upon which the applicant was alleged to have offended against the complainant.

While Emerton JA has identified differences in the complainant’s account with respect to charge 6, I am not persuaded that the differences identified by her Honour required the jury to entertain a reasonable doubt about the applicant’s guilt on that charge. In my view, it was open to the jury to conclude that such discrepancies or differences as were pointed out at trial did not cause them to doubt the credibility or reliability of the complainant’s core assertions.

As the High Court has emphasised, in our system of criminal justice in relation to allegations of serious crimes tried by jury, it is the jury that is the constitutional tribunal for determining issues of fact.[6] This Court must not substitute trial by an appeal court for trial by jury.[7] Having conducted my own independent assessment of all of the evidence, I am unable to conclude that it was not open to the jury to find the applicant guilty of charges 5, 6 and 13.
[6]R v Baden-Clay (2016) 258 CLR 308, 329 [65]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[7]Ibid 330 [66].

In my view, it was open to the jury to be satisfied on the whole of the evidence that in the period during which the complainant was aged eight to 14 years, the applicant committed the offences of incest and performing an indecent act with or in the presence of a child under 16 on multiple occasions. Equally, it was open to the jury, having regard to the complainant’s intellectual disability and her lack of accuracy in respect of some of the details of the offending and circumstances by reference to which particular events might be placed in time, to take a conservative view about which of the charges they were prepared to accept had been proved beyond reasonable doubt. If the jury approached their task in this manner, there was nothing inconsistent or illogical about convicting the applicant on charges 5, 6 and 13.

While it is true that in her VARE the complainant initially described charge 6 as one involving the rubbing of her breasts, but later in the VARE said that it involved the applicant putting his hands down her pants and digitally penetrating her, I do not accept that this difference in her description of the offending required the jury to have a doubt about its occurrence. What is plain from the VARE (and the complainant’s evidence generally) is that she was not a particularly good historian. It was within the province of the jury, however, to make allowances for her intellectual disability and the fact that she was recalling events that had happened years earlier. The jury may well have taken the view that there was a certain lack of order in the complainant’s recounting of events, which led to different aspects of the applicant’s alleged offending being described at different times or being given prominence at different points in the narrative.

As to the complainant’s differing descriptions of the events alleged to constitute charge 6 in her VARE, the jury may have thought these were reconciled by the complainant’s answers to the following questions in cross-examination:

The incident that you say took place in your brother’s bedroom, can you tell the court what happened there?---Um, he comes in the window I think it was.
Yes?---He climbs into my bed.
Yes?---And he put his hands on my tits I think at first, and then after that he puts his fingers in my vagina.
All right. You were laying down in bed at the time, is that right?---Yeah, that’s right.
He was laying down with you?---Yeah.
Are you sure about that?---Yeah.
All right. Did you end up staying in your brother’s bedroom that night?---Yeah. Ah, no, he carried me into my bedroom.
All right. What happened then?---He put me in bed and then he got into my bed and put his hands down my nickers and into my vagina.

So he did it in your brother’s bedroom, and then in your bedroom. Is that what you are telling the court?---Yep.
And you are sure about that?---Yeah.

Having reviewed the whole of the evidence, I am not persuaded that it was not open to the jury to accept this account given by the complainant of the events leading up to charge 6.

Conclusion

While the applicant’s ground of appeal is sufficiently arguable to justify a grant of leave to appeal, I would dismiss the appeal.

KAYE JA:

I have had the advantage of reading the reasons for judgment of Emerton JA. I agree with her Honour’s conclusion that the appeal against the applicant’s convictions on charges 5 and 13 should be dismissed. However, I do not agree that the appeal should be allowed in relation to charge 6. In my view, the application for leave to appeal should be granted, but the appeal should be dismissed.

In reaching those conclusions, I differ from the analysis undertaken by Emerton JA in two principal respects. First, I do not agree that the verdicts, on which the applicant was convicted, may not be logically reconcilable with the verdicts on which he was acquitted. Secondly, I disagree with her Honour’s conclusion that the conviction of the applicant on charge 6 was unreasonable or cannot be supported having regard to the evidence.

Emerton JA has helpfully outlined the principles which must be applied in determining whether the verdicts of the jury were inconsistent, and whether they were unreasonable. In essence, where it is contended that the verdicts of a jury are inconsistent, the fundamental test is one of logic and reasonableness. Thus, the

applicant must satisfy the Court that no reasonable jury, which had applied its mind to the facts of the case, could have arrived at the conclusion as to those verdicts.[8]

[8]MacKenzie (1996) 190 CLR 348, 366; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ); MFA v The Queen (2002) 213 CLR 606, 631; [2002] HCA 53 (McHugh, Gummow and Kirby JJ) (‘MFA’).

In considering that question, it must be kept in mind that, in a criminal trial, particular emphasis is placed on the burden of proof borne by the prosecution, so that an acquittal on one or more of the charges on the indictment does not necessarily imply that the jury has found the relevant witness’s evidence to be untruthful or unreliable. Further, as the authorities, to which Emerton JA has referred, have emphasised, in a case, such as the present case, the jury is ordinarily directed that it must give separate consideration to each charge. As noted in Tyrrell v The Queen,[9] that direction is ordinarily accompanied by a direction — as it was in this case — that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection or non-acceptance of a particular aspect of a witness’s evidence does not necessarily mean that the jury must accept or reject the totality of that witness’s evidence.
[9][2019] VSCA 52, [76] (Kaye, Niall and Weinberg JJA) (‘Tyrrell’).

In determining whether the jury’s verdicts, on charges 5, 6 and 13, were unreasonable and could not be supported having regard to the evidence, the Court must consider whether it was reasonably open to the jury, on the evidence, to be satisfied, beyond reasonable doubt, that the applicant was guilty of the offences in respect of which he was convicted. In determining that question, the Court must conduct its own independent assessment of the evidence that was before the jury. However, in doing so, it must be borne in mind that the jury was the body entrusted with the primary responsibility of determining the guilt or innocence of the applicant, and that the jury has had the benefit of having seen and heard the evidence of the witnesses.[10]
[10]M v The Queen (1994) 181 CLR 487, 492–3; [1994] HCA 63 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); SKA v The Queen (2011) 243 CLR 400, 406 [14], 409 [22]; [2011] HCA 13 (French CJ, Gummow and Kiefel JJ); R v Baden-Clay (2016) 258 CLR 308, 329 [65]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ); Pell v The Queen [2020] HCA 12, [38]–[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

In considering the question whether the guilty verdicts on charges 5, 6 and 13 were inconsistent or unreasonable, the appropriate starting point is the particular context in which the offences, that were alleged in the charges, occurred. In that respect, it is clear that the jury had a firm evidentiary basis upon which to accept the account given by the complainant that, during the period of the charges, the applicant had subjected her to sexual assaults and to other sexually inappropriate conduct on a substantial number of occasions.

The complainant’s evidence, as to the uncharged acts engaged in by the applicant, gained important support from the evidence of her mother and the evidence of her brother A. The complainant’s mother gave evidence that, on one occasion at 4:00 am, she found the applicant naked on top of the complainant’s bed, while the complainant was in the bed. The complainant’s brother A gave evidence that, on one occasion, he walked into the complainant’s bedroom and observed the complainant lying on the ground, without any pants on, perusing pornographic material while the applicant stood nearby. Those two pieces of evidence, and the complaint evidence of the complainant’s school friend Kimberley Horsburgh, gave strong support to the complainant’s account that, during the period in question, her relationship with the applicant was one in which he sexually abused her in the family home on multiple occasions.

In his charge, the judge gave the usual direction to the jury concerning the relevance of that evidence, and the use which the jury could make of it. The judge explained that the jury was entitled to take the evidence into account in assessing the credibility of the complainant, and as explaining why she might have submitted to the actions of the applicant. His Honour said that the evidence was also relevant to the applicant’s state of mind at the time, because it explained why he might have felt able to act in a particularly brazen manner. The judge told the jury:

These circumstances might explain, or make clear, that what the complainant says happened, did not just happen out of the blue as unexpected events, but were part of a course of conduct, if you like, where a whole lot of other things happened. It might reveal the intention or the motive which the accused may have had. It may give a hint about the very true nature of his conduct on these particular occasions.

In accordance with those directions, the jury was thus entitled to be satisfied that, during the period in question, the applicant had engaged in a course of conduct in which he regularly sexually assaulted the complainant on a number of occasions. The jury was also entitled to consider that the complainant’s evidence to that effect was reliable and truthful.

It was in that context that the jury was required to give separate consideration to the evidence that was relevant to each of the charges against the applicant. The jury was given the usual direction that, in considering its verdict on each charge, it was required to determine whether, based on the evidence that related to that charge, it was satisfied beyond reasonable doubt that the offence, alleged in the charge, had been committed by the applicant. As I shall discuss, it is clear from the verdicts on each of the individual charges, that the jury paid careful heed to that direction, and that it considered each of the charges separately, by reference to the evidence that was adduced in respect of the particular charge under consideration.

In considering whether the guilty verdicts on charges 5, 6 and 13 are inconsistent with the not guilty verdicts on the remaining ten charges, it is important to note that the facts and circumstances of the offences, that were alleged in each of the charges, were individually separate and distinct. It has not been submitted, on behalf of the applicant, that the jury’s verdict on a particular charge thereby necessitated, as a matter of logic, a like verdict on one or more of the charges on which the applicant was convicted. In that respect, the charges in this case are to be distinguished from the two charges in Tyrrell, in respect of which the verdicts were held to be inconsistent. In that case, the evidence in relation to charges 3 and 4, and the nature of the events described by the complainant in respect of each of those two charges, were relevantly identical. Accordingly, the guilty verdict returned by the jury on charge 3 could not be logically reconciled with, and thus was inconsistent with, its verdict acquitting the accused on charge 4.[11]
[11]Tyrrell [2019] VSCA 52, [84] (Kaye, Niall and Weinberg JJA).

In the present case, it was necessary for the jury to take into account, in assessing the complainant’s evidence, that she had an intellectual impairment. Accordingly, the jury was required to exercise a degree of caution in determining whether it was satisfied that the evidence given by the complainant was truthful and reliable in respect of the circumstances that were the subject of each of the charges. On the other hand, it was also appropriate for the jury to consider that the complainant’s evidence might be truthful and reliable, notwithstanding that, because of the passage of time, and because of the effect of her impairment, her memory as to certain details, such as the timing of events, might be erroneous.

Taking those considerations into account, I consider that it is understandable that the jury may have legitimately had more confidence in the reliability of the evidence given by the complainant in respect of the events that were the subject of charges 5, 6 and 13, than it had in her evidence that was the basis of the charges on which it acquitted the applicant.

The events, that were the subject of charge 5, took place away from the complainant’s home in Cranbourne, in the course of a motor vehicle journey to a picture theatre in Melbourne. The complainant was able to recall the make of the vehicle in which the incident occurred, and, with a degree of precision, the actual location at which the incident took place. Certainly, her memory as to the particular time at which the incident occurred was not reliable. The two ‘markers’ which she used to identify when the incident occurred — her brother’s arm injury, and the visit to see the boxing film — were mutually inconsistent. She was uncertain as to how old she was and when the incident occurred. However, otherwise her evidence as to the location, and as to what occurred in the incident, was cogent and coherent.

That incident was only one of two incidents which the complainant described as having occurred away from the family home. The complainant gave evidence that the other incident — that was the subject of charge 7 — took place in the late evening at the ‘factory’ premises of the family friend Kevin Bronson. However, her evidence was not supported by the evidence of Mr Bronson, who could not recall an occasion upon which the applicant and the complainant were present in the factory late at night. Mr Bronson’s evidence, to that effect, might have been sufficient to have raised a reasonable doubt in the mind of the jury as to whether that incident occurred.

Similarly, the jury might have felt more comfortable about accepting the evidence of the applicant concerning the offences that were alleged in charges 6 and 13, because each of them occurred in particular circumstances which would have been likely to be remembered by the complainant.

The circumstances in which charge 6 occurred, with the applicant entering the complainant’s bedroom through the window, were quite different to those recounted by her in respect of each of the other charges. They were quite distinct and unusual, and were such as might fairly be considered to have been imprinted on the complainant’s memory.

The incident, that was the subject of charge 13, constituted the last occasion on which, the complainant alleged, the applicant sexually assaulted her, or endeavoured to do so. That incident was the occasion on which the complainant felt sufficiently empowered to stand up to the applicant, and to put an end to his sexual offending against her. In that way, they were events, which the jury could well have been persuaded, would have remained accurately in the memory of the complainant. Although the jury only convicted the applicant on two other charges - charges 5 and 6 - it must be remembered that the offence, that was the subject of charge 13, took place in circumstances in which the complainant had been regularly subjected to sexual assaults by the applicant for a number of years. For that reason, it is understandable that the circumstances of the incident, that were the subject of charge 13, would have been well remembered by her.

It might be argued that, as with charges 5, 6 and 13, the circumstances that were the subject of charge 1 also had a particular ‘marker’, namely, they constituted the first episode of offending alleged by the complainant against the applicant. However, there were a number of aspects of the complainant’s account concerning that incident, which were relied on in final address by counsel for the applicant, and which might have appropriately caused the jury to have a reasonable doubt about the reliability of the complainant’s account of that incident. The complainant stated that the offending commenced in the kitchen, in circumstances in which she could see members of her family who were nearby in the lounge room. It might be considered unlikely that the applicant would have chosen that situation to commence his offending against the complainant. Further, at the time of the incident, the complainant was eight years of age. The jury might have considered it improbable that the applicant would have sought sexual gratification by fondling the region of the breasts of someone so young.

The complainant stated that the incident, that was the subject of charge 8 (on which the applicant was acquitted), commenced with the applicant pretending to comfort her. She said that the incident occurred when she was 13 years old, that is, some years after the offending had commenced. The jury might have considered that the evidence of the complainant, that she initially understood that the conduct of the applicant was intended to comfort her, was somewhat improbable, in circumstances in which he had been regularly taking advantage of any opportunity to subject her to sexual abuse for a number of years.

The complainant gave evidence that the incident, that was the subject of charges 11 and 12, commenced when she was asleep in her mother’s bed. She said that the applicant came into the room, took her from the bed and took her to her bedroom. The jury may have considered that it was improbable that the applicant would have resorted to such brazen conduct, given that for some time he had been able, on a number of occasions, to offend against the complainant without taking such risks.

Finally, it appears that the jury was not satisfied beyond reasonable doubt of the three incidents in which she stated that the applicant had masturbated himself in her presence, and that were the subject of charges 4, 9 and 10. Again, the jury may have considered there to be a degree of improbability about the description given by the complainant of each of those three incidents.

For those reasons, I do not consider that there was any necessary factual or logical inconsistency between the verdicts of guilt returned by the jury in respect of charges 5, 6 and 13, and the acquittal by the jury of the applicant on the remaining charges. Nor do I consider that the verdicts of the jury, on those charges, were unreasonable or unsafe.

As counsel for the applicant has submitted, there were aspects of the description given by the complainant of the incident, that was the subject of charge 6, which require consideration. However, on analysis they do not compel the conclusion that the evidence, given by the complainant, as to that incident, was so unreliable or inconsistent that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of that charge.

The complainant described the incident twice in the VARE interview. Her first description of it was at an early stage in the interview, when she was asked to tell the interviewer ‘everything as best as you can remember it’. In answer to that question, the complainant launched into a description of a number of incidents, which subsequently were the subject of some of the charges, in a lengthy passage which occupied some twelve pages of the transcript of the interview. It was in that context that the complainant described (among others) the incident that was the subject of charge 6, stating that the applicant had come in through the bedroom window, and that he had rubbed her breast. Her description of the incident was brief, and almost seamlessly she moved on to other matters. She did not purport, at that point, to give a full account of any of the incidents that she was describing.

Later in the interview, the complainant was asked specific questions about that incident. She again described how the applicant had entered the bedroom through the window. She said that he then put his hands down her pants and ‘fingered’ her with his hands. When the interviewer reminded her that she had earlier stated that the applicant had rubbed her breast, she then said that he had done that while they standing up, and that when he stopped rubbing them, he ‘… went for that – he went to do that’. It was open to the jury to consider that, in that part of her account, it was understandable that the complainant may not have initially mentioned the applicant touching her breast, since the act, which followed it, was more traumatic for her. Further, as is apparent from the lengthy answer that the complainant gave to the question asked of her early in the interview, the complainant was not particularly methodical or sequential in describing the events that she was relating. As I have noted, it is appropriate, in light of the complainant’s impairment, to consider that that aspect of her narrative did not necessarily undermine its truthfulness or its reliability.

Ultimately, it was essentially a matter for the jury to consider the issues, that I have discussed, that attended the complainant’s account of the incidents that formed the subject of the charges against the applicant. In particular, it was a matter for the jury to consider the weight that should be attached to the particular matters which I have discussed, a number of which were the subject of submissions made by counsel for the applicant to the jury in his final address. I do not consider that it was logically or factually inconsistent for the jury to have been satisfied beyond reasonable doubt the guilt of the applicant on charges 5, 6, and 13, in circumstances in which a jury was not so satisfied in relation to each of the other charges. Further, notwithstanding the matters that I have discussed relating to the complainant’s account of the incidents that were the subject of charges 5, 6 and 13, I am not persuaded that her evidence was such that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant on those charges.

For those reasons, I would grant the applicant leave to appeal, but dismiss the appeal.

EMERTON JA:

Introduction

The applicant pleaded not guilty before the County Court to 13 charges relating to the alleged sexual assault and rape of his biological daughter between March 1996 and December 2002 when she was between eight and 14 years old.

The complainant was born on 18 March 1988. She has two younger brothers, A and J. She has an intellectual disability, as does the younger of her two brothers, J. During the period of alleged offending, the complainant lived with the applicant, her mother and her two younger brothers at the family home in Cranbourne. At the relevant times, the applicant worked night shifts in a car manufacturing plant, initially in Dandenong and then in Laverton. He would return home very early in the morning after work. The applicant and the complainant’s mother separated in January 2003 and the applicant left the family home. The complainant was 14 at the time, and A and J were 12 and 10 respectively.

The complainant first reported the offending to police in 2014, when she was 26 years old.

On 12 July 2018, following a trial by jury before Judge Gucciardo, the applicant was found not guilty of ten charges and guilty of three charges. On 18 October 2018, the applicant was sentenced to a term of imprisonment of seven years and two months with a non-parole period of four years and six months.[12]

[12]In respect of charge 13, the applicant was sentenced as a serious sexual offender, pursuant to s 6F of the Sentencing Act 1991. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life. The judge also made a forensic sample order pursuant to s 464ZF of the Crimes Act 1958.

The charges, the verdicts returned and the sentences were as follows:

Charge

Offence

Verdict

Maximum

Sentence

Cumulation

Indictment: H10514987

1 Incest[13] Not guilty

2 Incest[14] Not guilty

3 Incest[15] Not guilty

4 Indecent act with child under 16[16] Not guilty

5 Incest[17] Guilty 25 years’ imprisonment 6 years’ imprisonment Base

6 Incest[18] Guilty 25 years’ imprisonment 6 years’ imprisonment 1 year

7 Incest[19] Not guilty

8 Incest[20] Not guilty

9 Indecent act with child under 16[21] Not guilty

10 Indecent act with child under 16[22] Not guilty

11 Incest[23] Not guilty

12 Incest[24] Not guilty

13 Indecent act with child under 16[25] Guilty 10 years’ imprisonment 1 years’ imprisonment 2 months

Total effective sentence: 7 years and 2 months’ imprisonment

Non-parole period: 4 years and 6 months’ imprisonment

Pre-sentence detention: 98 days
[13]Crimes Act 1958 s 44(1).
[14]Crimes Act 1958 s 44(1).
[15]Crimes Act 1958 s 44(1).
[16]Crimes Act 1958 s 47(1).
[17]Crimes Act 1958 s 44(1).
[18]Crimes Act 1958 s 44(1).
[19]Crimes Act 1958 s 44(1).
[20]Crimes Act 1958 s 44(1).
[21]Crimes Act 1958 s 47(1).
[22]Crimes Act 1958 s 47(1).
[23]Crimes Act 1958 s 44(1).
[24]Crimes Act 1958 s 44(1).
[25]Crimes Act 1958 s 47(1).

Charge	Offence	Verdict	Maximum	Sentence	Cumulation
Indictment: H10514987
1	Incest[13]	Not guilty
2	Incest[14]	Not guilty
3	Incest[15]	Not guilty
4	Indecent act with child under 16[16]	Not guilty
5	Incest[17]	Guilty	25 years’ imprisonment	6 years’ imprisonment	Base
6	Incest[18]	Guilty	25 years’ imprisonment	6 years’ imprisonment	1 year
7	Incest[19]	Not guilty
8	Incest[20]	Not guilty
9	Indecent act with child under 16[21]	Not guilty
10	Indecent act with child under 16[22]	Not guilty
11	Incest[23]	Not guilty
12	Incest[24]	Not guilty
13	Indecent act with child under 16[25]	Guilty	10 years’ imprisonment	1 years’ imprisonment	2 months
Total effective sentence:	7 years and 2 months’ imprisonment
Non-parole period:	4 years and 6 months’ imprisonment
Pre-sentence detention:	98 days

The applicant does not seek leave to appeal against the sentence imposed.

Ground of Appeal

The sole ground of appeal against conviction is that the guilty verdicts returned on charges 5, 6 and 13 were illogical and unreasonable having regard to the not guilty verdicts returned on charges 1, 2, 3, 4, 7, 8, 9, 10, 11 and 12.

The Evidence

The complainant’s evidence was recorded at a special hearing that took place on 1 November 2017. She adopted in that hearing the contents of her VARE, which was recorded on 26 June 2014. The recording of the VARE was played at the trial, as was the recording of the special hearing.

The complainant’s mother gave evidence at trial, as did her two brothers. The Crown adduced evidence from two teachers from the complainant’s former school, a former school friend and the complainant’s aunt, specifically as to complaint. A friend of the applicant, Kevin Bronson, gave evidence as the owner or occupier of premises in which an assault allegedly took place. The complainant’s uncle and his wife was also gave evidence about the children staying overnight with them on at least one occasion.

In her VARE, the complainant described being regularly and frequently sexually assaulted by her father between the ages of eight and 14. After describing the first time on which she was sexually assaulted (the subject-matter of charge 1), the complainant said:

That wasn't just the one time but, it happened more times than that. I think in that year and fuckin' all the years afterwards it at least happened – at least, I dunno, up to 50 times a year, it depends. If he was at work he'd come from work or – he used to this East – East Timor vigil in Melbourne and, yeah, he used to come home and he used to stink really bad, like BO and oil. And then he – there was – yeah, yeah, he used to stink like that, and he used to say, ‘This is how we make love and – and this is how we love each other,’ and just – yeah.

She said:

I lost count of how many times it happened, I did, in the end I ended up losing count because every third day or every second day I used to be up at night, fearing that he was kind of coming, and he did, in the middle of the night or something…

She also described her father putting ‘porno magazines all over [her] bed’, showing her pictures of genitalia and telling her that that was how people had sex or made love. She said she took the door handles off her bedroom door to protect herself from him, but he just kept banging on the window and wouldn’t stop. He fixed the door handles so he could come in whenever he wanted to and continued to do so.

As the sole ground of appeal alleges illogicality in the jury verdicts, it is necessary to set out in some detail the complainant’s evidence supporting each of the individual charges.

Charge 1

The complainant alleged that the offending started when she was eight years old. She said ‘… it started off with this hug… that night he came in my room, jumped in my bed. He put his hands down my pants and, yeah, he put his finger inside of me, and I told him to stop, it hurt.’

She gave an account of the events earlier in the night, including what she described as the applicant ‘groping’ her breasts in the kitchen for at least three to four minutes. The kitchen incident took place at around 8:00 pm, and the charged act at 10-11:00 pm. The complainant said that her mother and two brothers were at home in the lounge, but did not see anything as they were watching TV:

He came in and he climbed in my bed… put his hand down my underwear and then started…fingering me there, and it hurt...
I could hear [the TV] from the lounge room, and they used to have it up really loud at night … I remember the news report being on…
He kept going for about half an hour to an hour and then he gave up ‘cause … I was crying too much or something, so he turned to me and, ‘You’re whingeing like a baby, I’ve gotta get outta here before your mum comes and sees ya’ … he goes, ‘Don’t tell ya mum, yeah, or I’ll kill ya.’

When asked the exact words she recalled him using, she said, ‘He said he’s gunna kill me if I told anyone, mum or the police, anyone in the family, yeah.’ When asked if it was on the night of the first occasion that the applicant said those words, she said, ‘yeah, the first time, and it – it scared the hell out of me.’

Charges 2 and 3

These charges arose from a single incident commencing with the applicant seeking to punish the complainant. She alleged that the same incident involved two forms of penetration:

… [O]ne time he tried … to ground me for two weeks and … I said, ‘No, you’re not grounding me.’ He says, ‘No, watch me.’ … he dragged me to the room and he raped me there. And then he goes, ‘Now, you – you’ll learn to behave won’t ya?’

According to the complainant, the applicant first slapped her, and then:

he was on top of me and he goes, ‘Now you’re gunna behave, because I’m gunna teach you how to behave.’ … [H]e raped me. He ended up putting his hand down my pants first, fingered me…then he put his thing in – his dick in me, yeah, raped me, yeah. …
[H]e just kept going for about another 45 minutes or something like that, and then he decided to get off me when… he just came to his goal or whatever.

The complainant estimated that she was around 10 years old on this occasion by reference to her first participation in a Variety Club event.

Charge 4

The complainant alleged that the offending giving rise to Charge 4 occurred on a hot summer evening, when the applicant removed his jumper and pants, saying he was hot. He then ‘flashed himself’. The complainant alleged that shortly after removing his pants, the applicant ‘started playing with himself’.

When asked how old she was when this allegedly happened, she said, ‘about, say, 11… it was one summer, I remember that… my grandma died that year.’

Charge 5

The complainant described travelling to Melbourne by car with her father, and while they were in the car he put his hand on her knee.

I go ‘Don’t do it, you know, we can’t do it here.’ And he goes, ‘Oh, no-one’s gunna see,’ and, yeah, he did it in the car … a Gemini … I remember that car. …
He put his finger inside of me and started rubbing it together really quick. [He said] ‘It’s – yeah, It’s our little secret, don’t forget about it.’

When asked how old she was, she said, ‘I’d say around 11’ and when asked how she knew this, she said:

I dunno, I just remember the age I was then. Yeah, we went to see a movie one day, yeah, at Hoyts… I think I saw a movie that day, I think it was that boxing one…
Dad was heading [to Melbourne] to … go to the internet café as well … [to] talk to a so-called girlfriend that he had at the time.

When asked what else was happening at the time she was 11, she said that her younger brother had ‘burnt his arm… and he was having a skin graft or somethin’ … and that’s how I remember it. I sorta remember about [him] being, yeah, in a lot of pain and that.’

Charge 6

The complainant described a night when she was sleeping in her brother’s bedroom and the applicant climbed through the window. He jumped on the bed and touched her breasts, saying, ‘[d]oes this feel nice? Do you like it?’ She said she did not want him to do it and told him to stop. The complainant also alleged that the applicant climbed into the bed, put his hands down her pants and put his finger into her vagina. He said, ‘this is how people make love together’. She said she ended up leaving the room, trying to push him away from her. She went to her bedroom to get away from him.

When asked how old she was when this occurred, she said:

I’d say around – just after I just – just after Christmas of 2002, I think it was, I’m not sure when – how old I was then, yeah, around 13, 14. Not 14, no, it wasn’t. Oh, I was around about 12 years old, 11 years old then, 12, 11, somewhere around there.

When asked how she knew her age, she said, ‘School camps. I remember going on school camps that year’.

Charge 7

The complainant said that she was with the applicant at the farm of his friend, Kevin Bronson. She had fallen asleep and when she woke up the applicant was putting his hands down her pants. She said ‘No, not here. What if your friend comes out and he sees …?’ This occurred at around 11:00 pm while they were watching a movie and everybody else had gone to bed. She said, ‘No, not here’ and he said he could do it whenever he wanted. She told him she did not want him to.

The complainant said that she was 12 years old at the time, and when asked how she knew this, she said, ‘Oh, this is about a couple of months after my birthday, I remember that.’

Charge 8

The complainant said that when she was 13 years old, following a fight with her mother, she was outside crying. She thought that the applicant intended to comfort her but instead, ‘he went to put his hands down my pants again and [was] telling me, “Does this feel better? Do you feel better now?” … I said, “No, leave me alone”…’ However, ‘he stood there for another few more minutes and he kept going’ until she said ’No I can’t’ and ran off. She said:

He went to hug me but he reached down … with his hand. He put … it in my underwear and he fingered me out there … there was no-one around, it was dark… the show … Always Greener [was on] … it was in the middle … we were watching that.

Charge 9

The complainant alleged that the applicant came out into the backyard and pulled his pants down in front of her and started playing with himself. She asked him not to do that in front of her as it was really disturbing. He replied that he was going to keep going. The complainant said that she ran away from him because she ‘couldn’t stand looking at it’. She alleged that the applicant told her, ‘this is how men masturbate.’

The complainant recalled that the applicant was wearing ‘his work clothes, his overalls’, that ‘he took his clothes off’, and that she could see, ‘his chest, his penis, everything’. She described the applicant as having ‘no balls’ and said that she thought he had ‘got the snip-snip’.

She said that she believed that she was around 13 and a half years old at the time of this incident, by reference to a school camp in Ballarat.

Charge 10

The complainant alleged that the applicant was ‘on the floor and he was going up and down… rubbing… his dick on the carpet. I remember him going up and down like he was having sex… he used to be on the carpet … and … lie there and masturbate… ‘. She said that she ‘ended up running out of the room’ because she didn’t want to watch.

The complainant said that she last saw this occur a couple of weeks before the applicant left, and she was ‘14 and a bit’.

Charges 11 and 12

The complainant alleged that one night when she was in bed asleep in her mother’s room, the applicant came to get her and took her to her bedroom. She alleged that he:

puts his hand down my pants at first, asks me, ‘That felt good?’ And I said, ‘No, it hurts.’ And then he got on top of me and … he put his dick into me and … he goes, ‘Oh, keep going that way, keep humping like that, that’s how you do it.’

The complainant recalled that she told the applicant to get off her and said, ‘[n]o, I can’t, this is not right, get off me.’ She said that the applicant left the room naked and that she remembered that, because there was ‘spots all over his body’. She said that this was ‘the first time we did it and … it just hurt, I remember it hurting so much.’

The complainant recalled that she was 14 years old when this incident occurred. When asked how she knew she was 14 years old, she said, ‘Because it was just around my birthday… yeah, just a couple of days before or a couple of days after, I’m not sure, but… I remember it happened around then.’

Charge 13

The complainant described the applicant coming into her bedroom and said:

[He] tried to finger me again and so put his fingers in my vagina again… I ended up getting my hand and grabbing [his hand] before he could, stopping him just – just in the nick of time too.

The complainant said she told the applicant, ’enough’s enough,’ and that if he kept going she would tell everybody, and that she would go to the police if he did it one more time. She said that this was the ‘last time he ever did it’ and that he left the family home shortly afterwards. When asked how old she was when the incident occurred, the complainant said, ’14 and a bit, 14 and a half, just nearly 15… It was, like, a couple of weeks before my birthday.’

Evidence of complaint

The complainant gave evidence that when she was 16 years old, she told her mother that she was being abused. Her mother was the first person she told. The complainant said:

Oh, I told my mum and she was – oh, she wouldn’t believe me, she slapped me.

The complainant gave evidence that this conversation took place in the front yard of the Cranbourne house after school. She gave evidence of having told her mother that:

he came into my room and put his hand – he used to put his hands in me… [h]e used to touch me there, mum...

The complainant said that her mother responded:

[i]f you ever tell the police they’re not gunna believe ya. If you tell your aunties they’re never – they’re not gunna believe you either, they’re gunna call you a liar, they’re gunna slap ya.

The complainant’s mother denied having ever being told, before the police were involved, about any allegation of incest. She said, ‘I didn’t know anything about [the applicant] sexually abusing [the complainant]’. When the prosecutor specifically put to her, ‘What I’m asking … is about when she was a teenager. Can you remember her telling you about what he was doing? Coming into her room, putting his hand down her pants?’, the complainant’s mother answered, ‘I actually – nothing like that.’ The prosecutor also asked, ‘Wasn’t there an occasion where she did tell you these things, and you got angry and told her no one would believe her?’ The complainant’s mother answered, ‘No. I hadn’t said to her, nobody would believe her.’

While the complainant’s mother denied being told by the complainant that the applicant was sexually abusing the complainant and denied telling the complainant’s youngest brother that the applicant had been touching the complainant (see below), she gave evidence about a night when the applicant had come home from work at around 4:00 am and she had found him naked in the complainant’s bedroom. The complainant was in bed and the applicant was near the top of the bed. His clothes were on the floor. She told the applicant to get out of the complainant’s bedroom.

The complainant gave evidence that she told the elder of her two brothers, A, about the offending. She said, ‘I remember telling him when he was 16 that he — what my father did.’ She said she was with A and his friend Daniel in Daniel’s backyard. They were drinking Jim Beam and she told Daniel what happened. When asked in cross-examination to clarify whether she had told A and Daniel what the applicant had done, the complainant said:

[n]o, not exactly. No so I just said he – I didn’t say exactly what he did but I just said he’s hurt me… All I said is, ‘Yeah, he’s hurt me so many times that I just can’t remember how many.’

In his evidence, A said he could not remember this occasion.

However, A gave evidence of walking into the complainant’s bedroom when he was between 10 and 12 years old and seeing the complainant lying on her back on the floor without pants or underwear, with an open ‘porn book’ next to her, and the applicant standing in the room. The applicant was standing in between the complainant and the door facing towards the complainant. When A came in, the applicant pushed him back out of the room and ‘like made some excuse’.

A also recalled from the time he was at least 15 years old having conversations with the complainant about her relationship with the applicant. A lot of the time she was worked up and he would be trying to calm her down. A said the complainant would never go into full details but it was ‘pretty well along the lines of it wasn’t good’. He subsequently said that the complainant had told him that the applicant had ‘touched her or what not’. These conversations apparently took place when he was ‘at least 15 or older’.

In his VARE, the complainant’s youngest brother, J, gave evidence that he was told about something happening by both his mother and his sister. At trial, J gave evidence that the complainant told him something had happened when he was nine years old. When he was about 13, he overheard his mother talking to a friend of the applicant, Mr Kevin Bronson, about the complainant alleging the applicant had touched her ‘or something’ and he later asked his mother what was going on. His mother told him that the complainant might have been touched in spots she didn’t like.

The complainant gave evidence that she told a teacher at her school, Marnebek School (also known as Cranbourne Special School), Annette Burbridge, that she was being abused. Ms Burbidge gave evidence that she had no recollection of the complainant reporting any abuse to her. She said that had she received such a report she would have reported it to directly to the principal, and the relevant authorities.

Katherine Weston, the complainant’s leading teacher at Marnebek School, also gave evidence that she had no recollection of receiving such a report. The only record held by the school in relation to the complainant was a complaint about her brother, A, physically assaulting her. That complaint was referred to Child Protection Services.

The complainant gave evidence that she told her school friend, Kimberly Horsburgh, that her father had been sexually abusing her:

I told her that my dad’s been comin’ into my room in the middle of the night and, um, putting his hands inside of my vagina.

Ms Horsburgh gave evidence that she remembered an occasion when the complainant was upset and she asked the complainant what was wrong. The complainant told her that either her dad or her uncle touched her. The complainant told her not to tell anyone.

The complainant gave evidence that she told her aunt, Elwyn Cameron, that the applicant had sexually assaulted her when she was a child. Ms Cameron made a statement that was read into evidence by agreement. She stated that on 4 June 2014, the complainant had sent her Facebook messages in which, among other things, the complainant said that the applicant used to come into her room at night and that he was the reason she could not trust men. Ms Cameron also detailed another conversation via Facebook messenger on 6 June 2014 in which the complainant stated that it had started when she was 10 and didn’t stop until the applicant left when she was 15, that he had touched her, that it hurt, and that she kept saying no but he kept going, three or four times a week.

The complainant gave also evidence that, on the night she told A and Daniel about the offending, she told Daniel’s mother, Alison Falzon, in detail, what the applicant had done to her. Ms Falzon had since died.

Other evidence

Kevin Bronson gave evidence that he was a youth worker who ran a charity called ‘Bronson’s Free Bikes for Kids’. In Cranbourne, the charity operated out of the Pickling Shed, which was one big room of about 6,000 squares filled with bikes. There were about 10 mattresses against the wall for people doing shifts. People would work on the bikes ‘24/7’. He knew the applicant, who would sometimes attend with members of his family, including the complainant. The applicant would also visit with his family when the charity moved to different premises in Clyde.

Mr Bronson could not recall any occasion on which the complainant’s mother told him about the applicant ‘bugging his daughter’. The complainant’s mother also said that she did not recall any such occasion.

Pre-recorded evidence of the complainant’s uncle and his wife was played to the jury.[26] The complainant’s uncle recalled seeing the complainant in a t-shirt and underpants and he noticed blood stains ‘in her knickers’. This would have been a little bit before 2000. He thought he asked his wife to attend to it. His wife, a registered nurse, gave evidence that she had no memory of this.
[26]They were overseas at the time of the trial.

Applicant’s submissions

In his written case, the applicant submitted that this appeal raises similar considerations to those that led to a judgment of acquittal in Wade (a pseudonym) v The Queen,[27] where this Court considered the return of not guilty verdicts on four charges and a guilty verdict on one charge involving the sexual assault of a young girl by her older cousin. The Court in Wade, having considered the evidence, was left with ‘significant unresolved doubts’ about whether the events said to constitute the charge on which the accused was found guilty actually occurred, observing that ‘there was nothing distinctive about the complainant’s evidence in support of charge 2 which provided a rational reason for the jury to accept that evidence and reject the evidence in support of charges 1 and 3-5’.[28]
[27][2018] VSCA 304 (‘Wade’).
[28]Ibid [119] (Kyrou and T Forrest JJA and Taylor AJA).

The applicant submits that there must also be unresolved doubts about whether the events said to constitute the charges in this case actually occurred because there was nothing distinctive about the complainant’s evidence in support of charges 5, 6 and 13 which provided a rational reason for the jury to accept that evidence but reject the complainant’s evidence supporting charges 2, 3, 4, 7, 8, 9, 10, 11 and 12. The complainant’s evidence in relation to charges 5, 6 and 13 was not of a quality that made it more reliable than the evidence that informed the charges on which verdicts of not guilty were returned.

To explain the ‘blended argument’ informing the structure of the applicant’s case, counsel for the applicant referred the Court to Tyrrell,[29] in which the applicant, T, argued that the jury’s verdicts of acquittal on three of the five charges that he faced were logically inconsistent with his conviction on the other two. The inconsistency was relied on, first, as a discrete basis for impugning the convictions on the two charges, and, more generally, as a basis for contending that, in all the circumstances, the jury’s verdicts of guilty were unsafe and unsatisfactory because they were unreasonable and could not be supported having regard to the evidence.[30]
[29][2019] VSCA 52.
[30]Ibid [42] (Kaye, Niall and Weinberg JJA).

The applicant submits that he faced 13 charges of varying strengths, specificity and detail and that there is no rational explanation for the jury accepting the evidence in relation to three of the charges and not accepting the evidence in relation to the other 10. In particular, the applicant submits the evidence in relation to the proven charges was not more specific than some of the other evidence, and points to the specificity of evidence given by the complainant in relation to a number of the charges that were not proved:

(a) The allegation that informed charge 1 was said to have been the first time that the applicant offended against the complainant. She gave evidence about a television program playing in the lead-up to the offending. She also gave evidence about a specific conversation, alleging that the applicant had threatened to kill her if she disclosed the offending;

(b) In relation to charges 2 and 3, the complainant’s evidence was that she was grounded on that day, leading to a disagreement with the applicant that resulted in her being dragged to the bedroom and sexually penetrated. She gave evidence about a conversation with the applicant and a distinct time marker;

(c) In relation to charge 7, the complainant gave evidence of an occasion at a specific location away from the Cranbourne home, with a narrative that included watching a movie and having had a conversation with the applicant;

(d) In relation to charge 8, the complainant gave evidence of an argument with her mother that preceded the alleged offending, as well as a television program that was said to have been playing at the time.

Likewise, so the applicant submits, the linking of the alleged offending to a point in time or a time period[31] is no more specific for the proven charges than the non-proven charges. To the contrary. The complainant’s evidence as to when the alleged conduct that informed charges 5, 6 and 13 was committed was less clear than the evidence that informed some of the other charges:
[31]In relation to charge 1, the complainant placed the alleged assault in time by reference to an old school friend leaving. In relation to charges 2 and 3, it was a Variety Club event. In relation to charge 4, it was the death of her grandmother. In relation to charge 7, it was her birthday. In relation to charge 8, she could remember that she was 13. The events in charge 9 were linked in time to a school camp in Ballarat. The events in charge 10 allegedly occurred a couple of weeks before the applicant left the house. In relation to charges 11 and 12, it was her birthday.

(a) In relation to charge 5, the complainant said that she was around 11 years old, and that she ‘just remember[ed]’ her age. She said that she watched a movie (most likely ‘Ali’) that was released on 21 February 2002. She referred to A having treatment for a burn that he had suffered. When asked whether anything was happening in her life around the time of the alleged conduct, she said, ‘not really except – nah I can’t remember. Um, I remember my grandma dying at some point… just after December’. However, her grandmother’s death was the time marker for the allegations that informed charge 4, which was said to have occurred when she was 11 years old – and at least two years before the release of the film ‘Ali’;

(b) In relation to charge 6, the complainant first referred to Christmas, then school camps, and at different points nominated her age as 11, 12, 13 and 14;

(c) In relation to charge 13, the complainant first said she was ‘14 and a bit’, then ’14 and a half’, then ‘just nearly 15’ by reference to her birthday.

The applicant argued that, having regard to the fact that the complainant said she was assaulted by the applicant more than 50 times a year, and most of the allegations were of digital penetration, the digital penetration alleged in charges 5, 6 and 13 does not stand out from the others, unlike the events underlying charges 2 and 3, in respect of which the complainant gave a vivid, harrowing account of being dragged by her hair and subjected to penile and digital rape. According to the applicant’s counsel, an account as vivid and distinct as that would be one that might cause a jury to say, 'That one stands out. It's different from the rest and I accept that account.' However, the jury did not accept that account.

Further, so the applicant submits, charge 1 related to the first event that the complainant could identify and anchor in time and place: she and her father were in the kitchen, the TV was on, they were watching the news, there were people in the lounge room. The complainant gave evidence of certain conversations that occurred and described herself and her father moving from the kitchen to the bedroom. The jury did not accept that account either, despite its specificity.

The applicant submits that charges 5, 6 and 13 were not the three alleged incidents that stood out if specificity was the important criterion for deciding whether the complainant was to be believed. Other allegations were more specific, had more compelling, vivid descriptions and were tied to more specific events.

The applicant submits that the complainant’s evidence was generally unreliable. For example, charges 3 and 12 both alleged penile penetration, offending that was allegedly committed some four years apart. Yet, in her VARE, the complainant identified an occasion that she said was both the first and last time the applicant penetrated her with his penis:

There was one particular summer… he got on top of me that summer actually, it’s the first time he ever did it… And then he said, ‘Keep going like that, keep humping me like that, that’s how we do it’ … I ended up kicking him and – yeah, I ended up kicking him off me. He never tried that one again, but he kept on putting his hand in my fucking knickers and all that all the time.

This evidence appeared to relate to charge 12, which was alleged to have occurred when the complainant was 13 to 14 years old because the complainant later said, ‘I was 14, just turned 14 when that happened. It’s the first time we did it and – yeah, and it just hurt, I remember it hurting so much.’ Despite that very clear evidence — ‘it’s the first time he ever did it’ — she also gave evidence alleging penile penetration when she was 10 years old.

The applicant further submits that to the extent that the complainant gave evidence of the complaints she had made to others, her version of events was internally inconsistent and, in most instances, was not supported by the persons to whom she said she made the complaints.

The applicant submits that evidence alleging the repeated use of certain phrases by the applicant was not distinctive and did not explain the verdicts. The complainant gave evidence that ‘he used the same – like, being specific all the time, “This is how we – this is how we make love, this is how we love each other, families love each other this way, this is the way it’s always meant to be.”’ According to the applicant, that evidence could not properly have been regarded as a distinctive feature of any individual charge. In her VARE, the complainant said those phrases were uttered during the alleged events that informed charge 6. However, in cross-examination in relation to charge 1, she initially said that she could not say whether the applicant said anything to her, but then said that she was sure that the applicant said on that occasion, ‘this is how we make love and this is how we love each other.’

Respondent’s submissions

The respondent submits that the decision in Wade can be distinguished and that the guilty verdicts in this case are reconcilable and logically consistent with the acquittals on the other counts. In Wade, the offender was found guilty of only one charge out of six. Here, the applicant faced an indictment with 13 charges and was found guilty on three separate charges. In Wade, the complainant changed her evidence at trial in relation to one of the charges and she was found to have performed poorly in cross-examination, where key inconsistencies were exposed. Her evidence overall was generalised and directed to a pattern of behaviour, and there was a strong impression that she had conflated events. Here, there were distinctive features of the charges on which the applicant was convicted which meant the convictions on the three charges were reasonable and logical.

The respondent submits that the complainant in this case gave evidence that the abuse had occurred repeatedly and over a long period of time and the jury may have had a reasonable doubt about the complainant’s ability to recall specific incidents without markers/distinctive features that would allow certain assaults to stand out in her mind. However, with each charge that attracted a guilty verdict, there were distinctive features that allowed the jury to confidently conclude that the complainant had a specific recollection of the offending. According to the respondent:

(a) Charge 5 can be differentiated from others as it occurred in a specific location, in contrast to other allegations made by the complainant. The jury may therefore have been satisfied that the complainant had a clear recollection of this incident. There were specific markers which allowed the complainant to recall this matter with precision, including being in a car with the applicant and driving to Melbourne; the applicant pulling over near the railway crossing in Toorak; and the applicant inserting his finger in her vagina while in the car;

(b) In relation to charge 6, the distinctive feature of the offending was the applicant climbing into her brother’s bedroom through the window and placing his fingers in her vagina;

(c) The events that gave rise to charge 13 were the last occasion on which the applicant offended against the complainant and would stand out in her memory for that reason. In addition, the complainant was older at that time and was able to recall that she told the applicant, ‘enough’s enough’ and that she would tell everybody and go to the police.

In each case, so the respondent says, there were distinctive features that the jury could rely on in accepting the complainant’s account beyond reasonable doubt. The verdicts were supported by the evidence and were not unreasonable. The cumulative effect of the evidence and the totality of the circumstances allowed the jury to return a guilty verdict on the charges. The jury was able to be satisfied beyond reasonable doubt on some charges, yet entertain a reasonable doubt on others without finding the complainant was not a credible or reliable witness.

According to the respondent, this was a case where the advantage experienced by the jury, in seeing and hearing the evidence, was significant. The jury was best placed to assess what evidence it would or would not accept after considering the issues at trial. In this context, the respondent referred to the following passage from R v Baden-Clay:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[32]

[32](2016) 334 ALR 234, 246 [65]; [2016] HCA 35 (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted).

In this case, the respondent submits, the evidence did not oblige the jury to come to a different conclusion.[33]
[33]Referring to Badem (a pseudonym) v R [2016] VSCA 200, [40]–[47] (Warren CJ, Weinberg and Priest JJA).

Analysis

The ground of appeal is based on s 276(1)(a) of the Criminal Procedure Act2009, which requires that the Court allow an appeal if it is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb is the test formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[34] The question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.[35]
[34](1994) 181 CLR 487; [1994] HCA 43.
[35]Ibid 493 (Mason CJ, Deane, Dawson and Toohey JJ).

The applicant’s case that the guilty verdicts were ‘illogical and unreasonable’ is based on there being no rational explanation for the jury rejecting the complainant’s evidence in relation to some of the charges but accepting her evidence in relation to others, in circumstances where the complainant’s evidence was generally unreliable and inconsistent with the evidence given by the complaint witnesses.

The principles that govern factual inconsistency as a ground of appeal are reasonably well-settled. They were explained by the High Court in MacKenzie[36] and MFA,[37] and recently applied by this Court in Tyrrell.[38]
[36](1996) 190 CLR 348, 366-8; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ).
[37](2002) 213 CLR 606; [2002] HCA 53.
[38][2019] VSCA 52.

In MacKenzie, the High Court described the test for factual inconsistency as one of ‘logic and reasonableness’.[39] In this context, this Court in Tyrrell emphasised that

it is important to bear in mind that, as in the present case, the jury is ordinarily directed that it must give separate consideration to each charge. That direction is regularly accompanied in this State ― and it was in this case ― by a specific direction that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection, or non-acceptance, of a particular aspect of a witness’s evidence does not necessarily mean that the jury must accept or reject the whole of that witness’s evidence.[40]

[39]MacKenzie (1996) 190 CLR 348, 366; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ).

[40]Tyrrell [2019] VSCA 52, [75] (Kaye, Niall and Weinberg JA) (citations omitted).

And further:

In considering whether a jury’s verdicts are inconsistent, it must be borne in mind that, in a criminal trial, particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal on a charge on the indictment does not necessarily mean that the jury found the relevant witness’s evidence, on that charge, to be unsatisfactory or untruthful.[41]

[41]Ibid [76].

The Court concluded, in relation to the impact of verdicts of not guilty on the credibility and reliability of the complainant

that the acquittal by a jury of an accused person on one charge does not necessarily reflect a view that the jury considered the complainant to be untruthful or unreliable.[42]

[42]Ibid [77] (citations omitted).

The rationale for this proposition was explained by the High Court in MFA:

A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. … factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.[43]

[43]MFA (2002) 213 CLR 606, 617 [34]; [2002] HCA 53 (Gleeson CJ, Hayne and Callinan JJ)

In Avery v The Queen,[44] this Court also made the point that verdicts of not guilty do not necessarily reflect the jury’s view that the complainant is untruthful or unreliable:

A verdict of not guilty or a disagreement by the jury may reflect no more than a cautious approach to the discharge of its heavy responsibility. That caution might be attributed to the absence of supporting evidence or detail in the complainant’s account, some level of uncertainty, a faulty recollection, a contrast in different parts of the account that suggest that parts of it are more reliable than others, or to the jury thinking that although a number of offences had been alleged, justice was met by convicting the applicant on some only.[45]

[44][2014] VSCA 86 (‘Avery’).

[45]Ibid [6] (Warren CJ and Redlich JA)

Further, it is important to bear in mind that an applicant who relies on inconsistencies as a ground of appeal, or as an aspect of a ground of appeal, bears a heavy onus of persuasion.[46] As the High Court said in MacKenzie:

[T]he respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.[47]

[46]Tyrrell [2019] VSCA 52, [79] (Kaye, Niall and Weinberg JA).

[47](1996) 190 CLR 348, 367; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ) (citations omitted).

In Avery, Weinberg JA also stressed the high bar to overturning jury verdicts on the ground of inconsistency or illogicality:

The principles expounded by the High Court in MacKenzie and MFA, and applied in numerous decisions of this Court, make clear that if there is a rational explanation for the different verdicts arrived at by a jury, it will not lightly be inferred that the jurors have forsworn their oaths, and impermissibly compromised.[48]

[48]Avery [2014] VSCA 86, [114] (citations omitted).

Like the present case, Tyrrell concerned allegations of sexual assault by an adult in a position of authority against a minor on numerous occasions over a number of years many years ago. T, a Christian Brother, was charged with six counts of buggery and eight charges of indecent assault upon a boy who was aged between 10 and 12 at the time. The offending that was the subject of charges 1 to 7 was alleged to have occurred in 1965, and the offending that was the subject of charges 8 to 14 was alleged to have occurred in 1966. T was convicted of four charges of buggery and six of indecent assault and found not guilty of two charges of buggery and two charges of indecent assault. On appeal, T submitted that the jury’s verdicts of acquittal on charges 4, 11 and 13 were logically inconsistent with his conviction on charges 3 and 12.

The Court found that it was not readily apparent how the jury’s verdict of guilty on charge 3 could be reconciled with the acquittal of the applicant on charge 4.[49] The evidence given by the complainant in respect of each of those two incidents was similar and the difference between the complainant’s version of events in respect of charges 3 and 4 respectively was not substantial. The Court held that, as a matter of logic and reasonableness, a jury could not differentiate sufficiently between the evidence that was adduced by the complainant in respect of charges 3 and 4 so as to be satisfied beyond reasonable doubt of the guilt of the applicant on charge 3, when it had failed to reach that level of satisfaction in respect of the evidence given by the complainant in support of charge 4.[50] However, the jury’s verdict on charge 12 convicting the applicant could be reconciled with the verdicts acquitting the applicant on each of charges 11 and 13, based on the quality of the evidence given by the complainant in support of charge 12.[51]
[49]Tyrrell [2019] VSCA 52, [81] (Kaye, Niall and Weinberg JJA).
[50]Ibid [83]–[84].
[51]Ibid [85]–[88].

The Court then considered the reasonableness of the verdicts having regard to the evidence as a whole, identifying a number of fundamental inconsistencies between the account that the complainant gave to the police and the evidence that he gave at the trial.[52] In addition, there were serious discrepancies between his version of the events and the facts that were conclusively established by the evidence.[53] The Court also found that there were a number of aspects of the complainant’s evidence which, on an objective view, were improbable.[54] It set aside the guilty verdicts.
[52]Ibid [104]–[118].
[53]Ibid [119].
[54]Ibid [123]–[143].

Counsel for the applicant confirmed that the illogicality asserted in this case is not the narrow inconsistency identified in Tyrrell, where the charges were very similar in fact and in time, and where there was so little distinguishing them that a finding on one necessarily led to a finding on another. Here, the applicant’s complaint about the verdicts of guilty on charges 5, 6 and 13 is said to be based on a ‘broader’ illogicality or unreasonableness.

In this regard, the applicant relies on Connolly (a pseudonym) v The Queen,[55] which concerned a series of charges for sexual offending by the complainant’s step-father. The Crown case rested solely on the evidence of the complainant, FJ. The step-father was convicted on some charges, but not on others, the charges on which he was acquitted being the more serious charges. Having reviewed the evidence, this Court concluded that the only acceptable explanation for the acquittals was that the jury was not prepared to accept FJ as a credible and reliable witness with respect to the more serious offending. FJ’s credibility and reliability were sufficient to satisfy the jury beyond reasonable doubt of the relatively minor offending embraced by some of the charges, yet insufficient to satisfy the jury as to the more serious offending.[56] The Court considered that there was no logical or reasonable explanation to support this divergent approach to the complainant’s credibility and reliability and ordered a judgment of acquittal be entered in respect of each charges.[57]
[55][2019] VSCA 125.
[56]Ibid [84] (Priest, Beach and Kyrou JJA).
[57]Ibid [97]–[98].

The applicant submits that Avery demonstrates the kinds of features that might distinguish certain charges from others. The accused faced 16 charges of sexual penetration of a child under 16, and one charge of committing an indecent act with the same girl. He was found guilty on three charges of sexual penetration of a child under 16, not guilty on five charges of sexual penetration of a child under 16, and the jury could not agree in relation to any of the nine remaining charges. The Court found an explanation for the different verdicts in the complainant’s specific recollection of the circumstances giving rise to the three charges on which the accused was convicted and the support given by the evidence of the complainant’s mother in relation to those events.[58] Weinberg JA said:

The complainant’s specific recollection of the circumstances giving rise to the offences the subject of Charges 10, 11 and 12, stands in stark contrast with her uncertainty, and the vagueness of her evidence, in relation to a number of the remaining charges.[59]

[58]Avery [2014] VSCA 86, [7] (Warren CJ and Redlich JA), [115] (Weinberg JA).

[59]Ibid [96] (Weinberg JA).

To similar effect, his Honour said:

There is nothing to suggest that those verdicts are an ‘affront to logic and common sense’. Indeed, they are perfectly understandable, given both the firmness with which the complainant adhered to her account of the offences in question, and the support that account received from her mother.[60]

[60]Ibid [115].

The rational explanation for the different verdicts in Avery was the quality of the complainant’s evidence in relation to the charges of which the accused was convicted and the support for that evidence given by her mother.

It is the applicant's submission that in this case, unlike in Avery, there was no supporting evidence distinguishing some of the charges and the complainant’s evidence was uniformly characterised by uncertainty and vagueness.

It is correct that, unlike in Avery, there was no evidence directly supporting the complainant’s evidence of the assault in the car in Melbourne, the assault when the complainant was sleeping in her brother’s bedroom, or the final assault, when the complainant told the applicant that enough was enough. There was, however, evidence that was consistent with the account given more generally by the complainant about her father’s inappropriate behaviour towards her. A gave evidence of finding the applicant in the complainant’s bedroom while she was naked from the waist down with an open pornographic magazine beside her; the complainant’s mother gave evidence of finding the applicant naked in the complainant’s bedroom in the middle of the night. This evidence was not led as tendency evidence, but left to the jury as circumstantial evidence that could add to the credibility of the complainant. I accept that A’s evidence, in particular, added credibility in two respects: it supported the complainant’s evidence that her father would routinely enter her room; and it supported her evidence that he showed her pornography. The evidence of the complainant’s mother also lent weight to the complainant’s evidence about her father coming into her room at night and to her evidence of him exposing himself to her.

However, this does not explain why the jury accepted the complainant’s evidence in relation to charges 5, 6 and 13 and was persuaded by that evidence to the criminal standard, but was not persuaded to that standard by what the complainant said about the other alleged incidents of sexual abuse by her father.

The question remains as to whether, as the respondent submits, the evidence supporting charges 5, 6 and 13 contained distinctive elements or markers that might explain why the jury was persuaded by that evidence, but not by the complainant’s evidence in relation to the remaining charges.

The complainant’s evidence in relation to charge 5 was that she and the applicant were driving to somewhere in Melbourne. As he drove, he placed his hand on the complainant’s knee. She said, ‘Don’t do it. You can’t do it here.’ The applicant said no one was going to see. The applicant then pulled the vehicle over to the side of the road, near a railway crossing in Toorak, and digitally penetrated her. He then said, ‘It’s our little secret. Don’t forget about it.’

The complainant gave evidence she thought she saw a movie in Melbourne that day, a boxing one that ‘went for ages’. Will Smith was in it. She believed that she was about 11 at the time, and estimated the year — when asked by the informant to do so — by reference to A hurting his leg or burning his arm. The complainant also said that the applicant was heading to Melbourne to go to an internet café to talk to a ‘so-called girlfriend’ that he had at the time.

When the complainant was cross-examined about this allegation, it became apparent that there were significant problems with the timing that she attributed to the incident: the evidence established that the Will Smith film ‘Ali’ was released in Australia in 2002 when the complainant was 13 or 14, but her brother A had his arm operated on (a skin graft) when A was four years old and the complainant was six years old.

Having regard to the allegations that were not proven, the distinctive feature of this episode is that it took place away from home and in the applicant’s car on the side of a road. The complainant was concerned that other people might see. The complainant recalled some detail as to where the car was parked when the assault took place — she mentioned Toorak and a railway crossing, and also tram tracks. However, the form of the assault and the words used by the applicant were not distinctive. Furthermore, her evidence concerning the timing of the incident proved to be unreliable.

In relation to charge 6, the complainant gave evidence that the applicant came in through the bedroom window, climbed into her bed and assaulted her. In the VARE, the complainant described this incident twice. On the first occasion, she did not mention that the bedroom was her brother’s bedroom. She said the applicant jumped into ‘my bed’ and started rubbing her breasts, asking if it felt nice. She told him she did not want him to do it, to go away and to please stop. However, the applicant ‘kept going for a while longer, about another half hour or so’ and then either got tired or decided to leave her alone, because she ‘wouldn’t stop fighting it’.

Later in the VARE, when the complainant was asked to detail the allegation, the complainant was asked which window she was talking about. She said it was her little brother’s window because she was sleeping in his room at the time. Her brothers were at a friend’s house. She said the applicant climbed in her bed, put his hands down her pants and ‘fingered’ her by putting his hands in her vagina.

When she was reminded by the interviewing officer that she had previously said the applicant rubbed her breasts, the complainant gave a non-responsive answer, referring to the applicant saying ‘this is how people make love together’. She was asked exactly what the applicant did when the applicant was rubbing her breasts and she said he did it with his chest and that they were standing up. She ended up pushing the applicant away and going into her bedroom.

The complainant was then reminded that she had said that the applicant ‘fingered’ her and was asked whether both things happened at that time. She said both things happened but not at the same time: ‘after he stopped rubbing with his tits he went for that — he went to do that.’

In cross-examination at the special hearing, the complainant initially gave evidence only as to the ‘fingering’. She said:

He gets in – he gets in my bed, he puts – he puts his hands down my knickers and he puts his hand into my vagina.

When the events in charge 6 were taken up again later in the cross-examination, the complainant said:

And he put his hands on my tits I think first, and then after that he puts his finger in my vagina.

The complainant confirmed that she was lying down on the bed at the time and the applicant was lying down with her, not standing as she had said in her VARE. At this point, the complainant introduced some entirely new elements into the narrative. She said the applicant then carried her into her own bedroom, put her into her own bed and got into bed with her. He then put his hands down her knickers and into her vagina.

Apart from the distinctive feature of the applicant climbing in through the bedroom window, the complainant’s description of the events giving rise to charge 6 is particularly uncertain, as she gave different accounts of what her father did and where and how he did it. In the VARE, the complainant initially described the assault as only involving breast rubbing. When later taken to the detail of the event in question, she referred only to digital penetration and omitted to mention the breast rubbing. When prompted, she gave an account of breast rubbing that was not consistent with her earlier account, because she said it occurred while she and the applicant were standing up. At the special hearing, the complainant initially reverted to alleging digital penetration only but later said that breast rubbing had also occurred, only this time when she and the applicant were lying down. The complainant’s evidence at the special hearing raised an entirely new allegation of digital penetration, which allegedly occurred when the applicant put the complainant back into her own bed and got into bed with her.

In my view, charge 6 was particularly poorly supported by the complainant’s evidence. Its distinctive feature was the memory that the applicant climbed in through J’s bedroom window. What he is alleged to have done once he was in the bedroom is entirely unclear having regard to the different accounts given by the complainant, including within the VARE itself.

The evidence relating to charge 13 is of brief compass. The complainant was in her bedroom. The applicant entered and immediately placed his hands down her pants. The complainant thought that the applicant was going to try to insert his finger into her vagina, so she grabbed his hand before he could put it in her underwear. She told him that if he kept going, she would tell her mother and report him to the police. Enough was enough. The applicant then left the bedroom. He also left the household permanently a couple of weeks later.

The distinguishing feature of this episode is that it was the last occasion on which the applicant attempted to sexually abuse the complainant and she stood up to him. The assault itself, an attempted digital penetration, was the same as many of the other assaults alleged, except that it was cut short. The complainant’s evidence supporting charge 13 contained almost no detail other than the words she spoke to the applicant.

The complainant gave evidence that she was sexually assaulted by the applicant several times a week for six years and that the assaults that were specifically alleged formed part of a course of conduct. In convicting the applicant of charges 5, 6 and 13, the jury accepted the complainant’s evidence that her father sexually assaulted her by penetrating her vagina with his fingers on at least two occasions and by attempting to do so on a third occasion. However, the jury was not persuaded to the requisite standard that the applicant penetrated the complainant with his fingers on the other occasions that were specifically alleged (charges 1, 2, 7, 8, 11) or that he introduced his penis into her vagina (charges 3 and 12), or that he masturbated in her presence (charges 4, 9 and 10).

It might be thought that, having regard to the evidence as a whole, in acquitting the applicant of some charges and convicting him of others, the jury generally accepted the complainant’s evidence that she was subjected to sexual abuse by the applicant on many occasions. However, being cautious and recognising that the complainant has an intellectual disability that might cause her narration of events to be disjointed or confused, the jury decided only to convict on the charges where the evidence was most certain.

However, that was not what happened. On charge 6, in particular, the complainant’s evidence was not at all certain and, indeed, considerably less certain than her evidence supporting some of the charges of which the applicant was acquitted. The complainant’s evidence on charge 6 was simply not capable of being accepted, in my view. Her recall of the unusual mode of entry into the bedroom could not make up for the fact that the complainant was unclear and inconsistent in her accounts of what occurred once the applicant was inside the bedroom.

I am not persuaded by the proposition that it was logical for the jury to accept the complainant’s evidence of the final episode (charge 13) merely because it would have stuck in her memory as the last time her father tried to sexually abuse her. This smacks of ‘bootstraps’ logic, premised on the other allegations being true, which is not what the jury found. It does not depend on the quality of the complainant’s evidence, but simply on the assertion that this was the last time that as series of events (otherwise largely unproven) occurred.

This leaves charge 5, the distinctive feature of which is that it occurred elsewhere than in the family home, which was the location for all of the other alleged episodes of sexual abuse bar one. Charge 7 also involved an allegation that the applicant put his fingers in the complainant’s vagina while they were away from home and other people might have been nearby. The complainant gave a relatively clear and detailed description of the circumstances in which she was digitally penetrated by her father while they were watching television at night in Kevin Bronson’s bike workshop. She described being hurt by his fingernails. Her description of the premises accorded with the evidence of Mr Bronson. Mr Bronson gave evidence that the applicant attended the bike workshop with his children and that the workshop operated ‘24/7’. I see no clear explanation for the jury accepting that the events underlying charge 5 took place, but rejecting the complainant’s evidence of what occurred in the bike workshop.

Furthermore, as the applicant submitted, there is no obvious explanation for the jury accepting the evidence supporting charge 5 on the ground that it is distinctive, but not the more graphic (and troubling) account of penile rape that founded charge 3.

The fact that there was other evidence that might be accepted as corroborating the complainant’s evidence that her father regularly came into her room at night and that he showed her pornography, does not provide a basis for differentiating between the complainant’s accounts of the episodes of sexual abuse. It makes her evidence generally more credible, but it does not explain the distinctions that the jury saw fit to draw about evidence supporting the different charges. In particular, it does not explain why the jury accepted the vague and contradictory evidence supporting charge 6, which, for the reasons I have given, I consider to be fundamentally unreliable.

Although the jury had the benefit of seeing and hearing from the witnesses, the complainant’s evidence was recorded and played to the jury. Her VARE was an exhibit in the trial and available to be viewed by the members of this Court. My viewing of the VARE has not altered my opinion that the quality of the complainant’s evidence was fairly uniform and my conclusion that there was little if anything distinctive about her evidence in relation to charges 5, 6 and 13.

I am mindful, however, that appellate courts should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. In MacKenzie, the High Court quoted with approval a passage from R v Kirkman[61] in the Supreme Court of South Australia in which King CJ recognised that juries cannot always be expected to act in accordance with strictly logical considerations. His Honour stressed that courts must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges.[62] He explained:

Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries.[63]

[61](1987) 44 SASR 591 (‘Kirkman’).

[62]MacKenzie (1996) 190 CLR 348, 366; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ) citing Kirkman (1987) 44 SASR 591, 593 (King CJ).

[63]Kirkman (1987) 44 SASR 591, 593 (King CJ).

In my view, charge 6 was not adequately supported by the complainant’s evidence. There was no logic whatsoever in the selection of this charge for a verdict of guilty and it cannot be allowed to stand. The evidence supporting charges 5 and 13 does not suffer from the same fundamental defects as the evidence supporting charge 6, although the complainant’s evidence as to when the assault founding charge 5 occurred is extremely vague, her reference points being some eight years apart.[64] The evidence in relation to charge 13 was consistent but scant. I have identified no good reason for convicting the applicant on these charges but not on others. However, while these verdicts may suffer from illogicality in my eyes, they may nonetheless be acceptable, as King CJ said in Kirkman, as part and parcel of the system of administration of justice by juries.
[64]This means that the complainant may have been eight years old or she may have been 14 at the time of the car episode, which is a marked difference

In this case, the jury will have struggled to make proper allowance for the complainant’s intellectual disability when assessing the cogency of her evidence. While the complainant’s evidence of the complaints that she made to others was generally not supported by the persons to whom she said she made the complaints,[65] there was evidence supporting her allegations that her father routinely came into her room in the dead of night and that he showed her pornography. While the jury could not use this as tendency evidence, it supported the complainant’s evidence more generally.
[65]The complainant’s school friend Kim Horsburgh said the complainant complained about her father or her uncle touching her. Her aunt, Ms Cameron, confirmed that the complainant had complained to her just before the formal complaint was made to the police in June 2014.

Ultimately, I am not persuaded that the verdicts on counts 5 and 13 are an unacceptable affront to logic and common sense or that they strongly suggest a compromise of the performance of the jury's duty.[66] In reaching this conclusion, I have kept in mind the observations of King CJ in Kirkman about the latitude to be given to juries and, further, that the cogency of the complainant’s evidence fell to be assessed by the jury having regard to her intellectual disability.
[66]Woods v The Queen [2019] VSCA 259, [79] (Maxwell P, Kaye and Niall JJA).

Ultimately, the test of when the Court must set aside a jury verdict on the grounds of unreasonableness was expressed as follows in M:

[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[67]

[67]M (1994) 181 CLR 487, 493; [1994] HCA 43 (Mason CJ, Deane, Dawson and Toohey JJ) (citations omitted).

The applicant must satisfy the Court that no reasonable jury which had applied its mind properly to the facts of the case could have arrived at the impugned verdicts. I am not so satisfied in relation to the verdicts on charges 5 and 13. However, I am so satisfied in relation to the verdict on charge 6.

Disposition

In my view, the applicant should be granted leave to appeal against his convictions, the appeal should be allowed in relation to charge 6, and the conviction and sentence of the applicant on charge 6 of the indictment quashed. In lieu thereof, there should be judgment and a verdict of acquittal entered. The appeal against the convictions on charges 5 and 13 should be dismissed.

- - -

[2020] VSCA 254

28 September 2020