Dean v The The Queen

[2022] NSWCCA 122

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dean v R [2022] NSWCCA 122

Hearing dates:

11 May 2022

Date of orders:

15 June 2022

Decision date:

15 June 2022

Before:

Macfarlan JA at [1];
Rothman J [46];
Dhanji J at [47]

Decision:

Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdict — logical and rational basis for distinction drawn by jury

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M(2), 66C(1)

Criminal Appeal Act 1912 (NSW), s 6(1)

Cases Cited:

BF v R [2019] NSWCCA 321

DS v R [2021] NSWCCA

Ganiji v R [2019] NSWCCA 208

Holloway v R [2017] NSWCCA 17

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MA v R [2022] NSWCCA 61

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

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

MG v R [2017] NSWCCA 14

Nguyen v R [2017] NSWCCA 145

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

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

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

Shiv v R [2021] NSWCCA 245

Vasilevski v R [2019] NSWCCA 277

Z (a pseudonym) v R [2022] NSWCCA 8

Category:

Principal judgment

Parties:

Nicholas Leighton Dean (Applicant)
Regina (Respondent)

Representation:

Counsel:
S Hall SC (Applicant)
C Curtis (Respondent)

Solicitors:
Director of Public Prosecutions (Respondent)

File Number(s):

2019/342632

Publication restriction:

Non-publication order in respect of the name of the complainant.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 May 2021

Before:

Buscombe DCJ

File Number(s):

2019/342632

Judgment

1. MACFARLAN JA: In May 2021 the applicant stood trial in the District Court before a judge and jury on five counts of sexual assault and indecent assault of a child who was the daughter of a friend of the applicant.

2. The charges and verdicts were as follows.

3. Count 1 charged that the applicant indecently assaulted the complainant by touching her clitoris when she was three or four years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The jury returned a directed verdict of not guilty after the trial judge concluded that there was insufficient evidence to prove that the alleged offence occurred within the date range particularised (1 January 2009 to 31 December 2009).

4. The remaining counts all related to acts alleged to have occurred in 2016 or 2017 in the course of an incident which took place at a house at Galston occupied by the applicant, his friend and, at times, the complainant who is the daughter of the applicant’s friend.

5. Count 2 alleged that the applicant had sexual intercourse with the complainant when she was 11 or 12 years of age (that is, between 1 March 2016 and 31 March 2017), contrary to s 66C(1) of the Crimes Act. The jury returned a verdict of guilty on this count.

6. Count 3 charged that the applicant indecently assaulted the complainant by sucking her nipples, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of guilty on this count.

7. Count 4 charged that the applicant indecently assaulted the complainant by using a vibrator on her clitoris, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of not guilty on this count.

8. Count 5 charged that the applicant indecently assaulted the complainant by forcing her to masturbate his penis with her hand, contrary to s 61M(2) of the Crimes Act. The jury returned a verdict of not guilty on this count.

9. The applicant appeals against his conviction on Counts 2 and 3 on the sole ground that the verdicts on those counts are unreasonable because the verdict of not guilty on Count 4 is inconsistent with them. The applicant does not contend that there is a like inconsistency in relation to the verdict of not guilty on Count 5, in light of the trial judge’s direction to the jury that it needed to be satisfied beyond reasonable doubt that the applicant placed the complainant’s hand on his penis. Arguably the complainant did not clearly say in her evidence that he did this.

10. For the reasons given below I have concluded that there is no inconsistency as alleged by the applicant, that the verdicts on Counts 2 and 3 are not therefore unreasonable and that the appeal should therefore be dismissed.

The complainant’s evidence at trial

11. The complainant gave her evidence in chief largely by way of the playing of a recording of an interview with police which took place on 24 September 2019, when she was 14. She completed her evidence in chief and was cross examined at a pre-recorded hearing conducted on 4 May 2021, when she was 16.

12. She told police at the interview that there was one “main incident” involving the applicant that occurred when she was living with her father in Galston and she was in Year 6 at school. This incident was the subject of Counts 2, 3, 4 and 5. The complainant first described it to police as follows:

“Um, and then he came into my room late at night. Um, and then he, he would like, we were lying down on my bed because he woke me up. I was asleep at the time. Um, then he woke me up and then um, woke me and then, sorry, um, and then he like, he like touched me down there and like also boobs. My 12-year-old boobs. Um, and then like, he um, he also made me like give him a hand job kind of thing. I don’t know if he finished, I don’t remember, but um, yep, he made me do that and that was it that night and then he like left and then I don’t remember what happened the next morning or whatever, anything like that. Um, but I was like so what. I wasn’t like drugged or anything like that.”

13. Later in the interview the following was said:

“Q159    O.K. So, you said that [the applicant] came into your bedroom - - -

A    A huh.

Q 160    - - - and that he touched you “down there”, were your word[s].

A    Yep.

Q161    I know it can be embarrassing, but I need you to explain to me what you mean by “down there”.

A    Oh yep, yep, yep. O.K. Um, he touched my vagina and clitoris.

Q162    And what did he touch them with?

A    Um, mainly his hands. Um, there was a couple of times where he did use a vibrator.

Q163    O.K.

A    Probably a couple, just like twice. One.

Q164    Or one. I just want you to concentrate on the one time at this stage.

A    Yep.

Q165    - - - just the one time.

A    Yep.” (Emphasis added.)

14. She then indicated that the complainant put his fingers inside her vagina.

15. Later in the interview, the following exchange occurred after the complainant referred to a visit with the applicant to a local shopping mall:

“Q349    O.K. Do you remember any other specific incident, in terms of - - -?

A    Um - - -

Q350    - - - any inappropriate touching or anything like that?

A    Can we have a break? I wrote it down on my phone.

Q351    Yeah, absolutely, yep, yep. All right. Just for the purpose of the camera, the time is 2.07pm and we’ll just have a short break. Is it, Sorry, before we go on that, before I stop the camera, is it on your phone?

A    Yep.

Q352    Do you just want to take your phone and - - -?

A    Yep.

Q353    - - - read it out to us?

A    O.K.

Q354    Sorry, for the purpose of the camera, we won’t take that break.

A    Ah, that was at, yep, yep. Oh wait, um, also just on that, he gave me two vibrators.

Q355    O.K. Gave you two vibrators. Can you tell me more about that?

A    And then, um, so they were like kind of as gifts. Because um, oh, it’s probably after, after the last incident, he gave me a vibrator. Um, to, yeah, um, and he was like, use this for your like, do that or something. I’m not sure. Um, because I remember after we moved out we moved into another place, um, with my dad. Just me and him. Um, and I remember like throwing them both out the window into like bushes.” (Emphasis added.)

16. The complainant then said that she was referring to a window at the “new address” which she later said was in St Johns Avenue, Gordon (A 399). The questioner then returned to the “main incident” to which [the complainant] had earlier referred and the following exchange occurred:

“Q367    … Now going back, right at that beginning, I might have got this wrong - - -

A    Yep.

Q368    - - - we were talking earlier about, the very first, sorry, the last incident, the first incident that we talked about today - - -

A    Yep.

Q369    - - - how he had put his fingers inside your vagina, but also at the time - - -

A    He might have also used a vibrator.

Q370    O.K.

A    Just adding on that.

Q371    At the same time or a different time as the last incident?

A    Like, like double work or you might like sequence?

Q372    In terms of was it a different night - - -

A    No, same night, same night.

Q373    O.K.

A    There was only one incident in that house. Um, and he probably used a vibrator.

Q374    O.K. O.K. Probably? O.K. Can you try and - - -

A    Probably, definitely.

Q375    Yep, can you tell me about the vibrator again, what happened there?

A    Ah, so I think it was like, he used the vibrator on me and then like, then he gave that one to me after.

Q376    O.K. Do you remember which one that was?

A    Um, short stubby pink one.

Q377    The pink one.

A    Yeah.

Q378    O.K. Again can you explain more - - -

A    On my, on my - - -

Q379    - - - of how it happened?

A    - - - on my clitoris area kind of thing. I think he brought it over from his … So - - -

Q380    O.K. So he brought it into the room with you - - -

A    Yeah.

Q381    - - - sorry, he brought it into the room with him?

A    Yep. Um, I’m, I’m pretty, it was brand new because I remember, I remember like him, when he gave it to me he said, um, this is a new one, this is for you. So yeah.” (Emphasis added.)

17. In oral evidence in chief at the pre-recorded hearing, the complainant said:

“Q.    In relation to the first vibrator that you mentioned, that is the short stubby one, the pink one, do you remember when he gave that to you?

A.    He, he gave it after the incident, the Galston house incident.

Q.    All right, and how much longer after that incident at Galston?

A.    Before he left the room.”

18. In cross examination, the following exchange occurred:

“Q.    When you were talking about whether he used the vibrator or not did you tell the police probably definitely he used a vibrator?

A.    Yes.

Q.    Was that something that you’re a bit unsure about?

A.    No.

Q.    Did you use the word he might have used a vibrator because you were unsure?

A.    Yeah but I regained clarity like after I spoke a little bit about it that incident.” (Emphasis added.)

19. Also in cross examination, the complainant corrected the questioner when he referred to the “vibrator” being thrown out the window at Galston. She said that this occurred at Gordon, not Galston, after she and her father moved out of Galston.

Other evidence before the jury

20. Evidence of a complaint by the complainant in late 2018 was given by TM who was then aged 16. TM’s father started dating the complainant’s mother in 2018 and the complainant confided in TM later that year. The complaint was in the following terms:

“So she told me that she had been touched inappropriately when she was eight years old I believe and she had also told me that the man had given her vibrators and other inappropriate toys that she did not – that she later threw away.”

21. The complainant’s mother also gave evidence that in early 2019 the complainant told her that the applicant had “put his fingers inside her” and “[h]e put my hands on his things” referring to his genitals. No reference was made to a vibrator.

22. Earlier in her evidence, the complainant’s mother had said that in 2009 the complainant had asked her what a vibrator was and that she asked that because the applicant had referred to one when he was reading the complainant a bedside story. The complainant said that the applicant said that he “actually … has a vibrator” and the vibrator is “used to put down there”.

23. The complainant’s father also gave evidence of the complainant speaking to him in March or April of 2019 as follows:

“She told me briefly that there was digital penetration, there was masturbation, and that it took place in the bedroom at Galston, that [the applicant] wanted her to hold his dick. She also mentioned about a vibrator. She said that [the applicant] had given her a vibrator and when she was living at the unit at Gordon and she didn’t know what to do with it, so she held on to it for a week or two and then she threw it out the bedroom window. And she said it must have been a surprise for the gardeners as they came around and did their clipping of the hedges and stuff; at some point, they would have found it.”

24. In cross examination, he said that when the complainant referred to the vibrator being thrown away she was referring to having done that at the premises in Gordon and that they were premises in which she lived before they went to live with the applicant at Galston. The complainant’s father moved there in about March 2016 and moved out in about January or February 2017, when he moved into premises at Chatswood.

Relevant legal principles

Unreasonableness of verdicts generally

25. The unreasonable verdict ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by the appellate court in this context is “whether the court 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” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494–495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

26. In addressing an unreasonable verdict ground the appellate court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) although, as stated in M v The Queen (at 494):

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

Inconsistency of verdicts

27. In Nguyen v R [2017] NSWCCA 145 at [34]–[48] I reviewed relevant authorities concerning the principles applicable to an unreasonable verdict ground of appeal where the ground is sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (see MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151; MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17). I stated in Nguyen the following conclusions (at [48]):

“These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see [MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35]…), that is, if there is ‘a logical and reasonable basis for sustaining the differentiation that the jury drew’ (see [MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53]…). Such a basis may exist if the quality of the complainant’s evidence in a case involving sexual offences varied between counts (compare [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12]…). There are many reasons why this may occur. One is that in some respects a complainant may have resorted ‘to a degree of exaggeration in order to reinforce his or her account’ (see [R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290]…; [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151]…). Alternatively, the complainant’s account of events concerning a particular count may be implausible because of the nature of the events described (see [MG v R [2017] NSWCCA 14]…). Further, if parts of a complainant’s evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant’s evidence as compared to other parts (see MG…). Such considerations may lead the court to the conclusion that a jury’s differential verdicts are the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count (see [Holloway v R [2017] NSWCCA 17]…).”

See also BF v R [2019] NSWCCA 321 at [9] and [10].

28. Further elaboration of these principles is to be found in this Court’s judgment in Vasilevski v R [2019] NSWCCA 277 at [115] and [117] as follows:

“115. In [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151], Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, described the approach to be taken as follows. At [128] and [130], she said:

‘…In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis… [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility’ (emphasis in original).

…

117. Finally, a verdict of acquittal on one or more counts involving the same complainant does not mandate a conclusion that the jury regarded the complainant as untruthful generally. As explained in MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [34]:

‘…In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. 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. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others…’”.

See also DS v R [2021] NSWCCA 52 at [23]–[24]; Z (a pseudonym) v R [2022] NSWCCA 8 at [25]–[26] and MA v R [2022] NSWCCA 61 at [44]–[45].

29. In Ganiji v R [2019] NSWCCA 208, in which one ground of appeal was that the verdicts were unreasonable by reason of their inconsistency, Basten JA (with the concurrence of Button and Longergan JJ) said the following in relation to the evidence of complaints at [8]–[9]:

“When viewed in retrospect, the events of a single evening may appear to be structured around two particular allegations, as formulated in the counts on an indictment. That may well not be how they were perceived by either party to the events at the time they occurred. Frequently, a complainant will have spoken of the events in different terms and different degrees of detail and emphasis over a period of time. As will be explained below, that happened in the present case. No doubt in assessing the credibility of aspects of her evidence, a jury will have regard to the consistency of her accounts and their conformity with known and uncontested circumstances. Thus, and again merely by way of example, the jury may be convinced that a particular serious assault took place, as described by the complainant, but have doubts about other aspects of her account, particularly if they only surfaced in later statements as further detail was elicited by persons taking her statements.

Nor is ‘credibility’ necessarily a single discrete finding made with respect to a witness, with equal levels of conviction or uncertainty in relation to all aspects of her evidence. The jury is not directed to ask themselves whether they believe her or not; it is asked to determine whether they accept her statements in evidence as to the elements of each offence to be true beyond reasonable doubt.”

Consideration of the appeal

30. The applicant first submitted that there is inconsistency between the verdict of not guilty on Count 4 and the verdicts of guilty on Counts 2 and 3 because there was no logical, rational basis for the jury distinguishing between the counts having regard to the firm evidence given by the complainant in relation to each of them. He submitted that the acquittal must therefore have reflected the jury’s rejection of the complainant’s evidence on Count 4 and that that rejection should logically and reasonably also have applied to her evidence as to Counts 2 and 3, leading to verdicts of not guilty on those counts also.

31. He submitted that there was no uncertainty in the complainant’s evidence concerning Count 4 in light of the “definitive nature of the responses [the complainant] made in the original interview and when she was cross-examined”. He relied in this respect on the decision in Shiv v R [2021] NSWCCA 245 in which there were a number of counts relating to one incident. In that case, Leeming JA (with the concurrence of Hamill and Lonergan JJ) concluded that the complainant’s evidence in support of both the relevant count on which there was a guilty verdict and that on which there was a not guilty verdict was “unequivocal” resulting in the absence of a rational basis for the jury to distinguish between the counts. The guilty verdict was accordingly unreasonable.

32. In the present case there were however a number of features of the complainant’s evidence concerning the Count 4 act which could reasonably have led the jury to distinguish that evidence from her evidence concerning Counts 2 and 3. In these circumstances it was open to the jury not to be satisfied beyond reasonable doubt of the applicant’s guilt of the Count 4 offence but nevertheless to be so satisfied in respect of the Count 2 and 3 offences.

33. First, in her first description of what occurred on the relevant occasion, the complainant did not refer at all to the applicant’s use of a vibrator (see [12] above).

34. Secondly, when the complainant later mentioned the use of a vibrator she said that “there was a couple of times where he did use a vibrator”, leaving a doubt as to whether the applicant did that on the occasion referred to in [12] above which was the subject of the charges in Counts 2, 3 and 4 (see [13] above). She then narrowed her reference to use down to one use but again did not make it clear that that one use was on the subject occasion. As well, the change from use “a couple of times” to “just the one time” may have suggested to the jury that she was not sure of the true position.

35. Thirdly, the complainant’s next reference to a vibrator came after the police asked her whether she remembered any other specific incident (see [15] above). She said in response that she “wrote it down on [her] phone” and then said “he gave me two vibrators” without saying whether that was noted on her phone and whether he had used them. She then said that the applicant gave her a vibrator “probably after, after the last incident” [sic] without clearly identifying that incident and again without saying whether the vibrator was in fact used. Moreover, her evidence in this context used the word “probably”, which arguably indicated a degree of uncertainty on her part.

36. Fourthly, later again in the police interview, the complainant volunteered that “[h]e might have also used a vibrator” and that “he probably used a vibrator” (see [16] above). Both references contained an element of uncertainty. When asked by the police about her use of the word “probably” she said “[p]robably, definitely”, elevating her level of assuredness but in a way that the jury might have reasonably found unconvincing. Further, she reverted to the less certain expression “I think” in saying “so I think it was like, he used the vibrator on me and then like, and then he gave that one to me after” (see [16] above). In her oral evidence in chief at the pre-recorded hearing the applicant referred again to the vibrator but did not say, at least explicitly, that the applicant had used it on her (see [17] above).

37. Fifthly, in cross examination the complainant denied that she was unsure whether the applicant used a vibrator (see [18] above) but it was reasonably open to the jury to regard her apparent earlier uncertainty as detracting from the quality of this evidence concerning Count 4.

38. In contrast to the evidence given by the complainant concerning Count 4, her evidence concerning the Counts 2 and 3 acts was, throughout, firm and unqualified.

39. Importantly also, her evidence, as ultimately given, that the applicant “definitely” used a vibrator did not receive any support from the evidence of complaints made by her to TM, her mother or her father. TM and the father recalled the complainant referring to a gift from the applicant of a vibrator and to the complainant throwing it away, but not to any use of it by the applicant on her (see [20] and [23] above). The mother did not recall any reference to a vibrator except in a conversation with the complainant some years earlier, in 2009 (see [21] and [22] above).

40. The applicant submitted that inconsistency between the verdicts also arose because there was conflict between the evidence of the complainant and that of her father on the timing of when the complainant received the vibrator and disposed of it, and by acquitting on Count 4 the jury indicated that it was “not satisfied beyond reasonable doubt of the evidence of the complainant in circumstances where there was evidence inconsistent with hers”.

41. The conflict was said to be between the father’s evidence, that after leaving the Galston property he went to live at Chatswood, and the complainant’s evidence that she threw the vibrators out of a window at the premises at Gordon to which she said she went after leaving Galston. It was however reasonably open to the jury to take the view that the complainant was innocently mistaken as to the suburb in which she lived after moving out of Galston, particularly, as Gordon was the suburb in which she lived before she moved to Galston. Alternatively, the conclusion would have to be drawn that the vibrators were given to her and thrown away at the premises where she lived prior to living at Galston (that is, at Gordon) but if that were so it would indicate that the use of the vibrator did not occur at Galston which was the charge made in Count 4. On this basis, the jury would have had an additional reason not to be satisfied beyond reasonable doubt that the applicant was guilty of the Count 4 offence. In reality neither possibility assists the applicant’s case on appeal as both identify an additional reason why the jury may have reached a different verdict on Count 4 to that it reached on Counts 2 and 3.

Conclusion and orders

42. For these reasons, the jury’s verdict of not guilty on Count 4 cannot be seen as attributable to doubt about the credibility and reliability of the complainant or her evidence generally. Rather, it is reasonably and rationally explicable as attributable to the difference in the quality of the evidence that the complainant gave concerning Count 4 on the one hand and Counts 2 and 3 on the other hand. As Basten JA instanced in Ganiji (see [29] above), a jury might “be convinced that a particular serious assault took place, as described by the complainant, but have doubts about other aspects of her account, particularly if they only surfaced in later statements as further detail was elicited by persons taking her statements.”

43. To the same effect is the statement from MFA quoted in Vasilevski (see [28] above) referring to 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”.

44. Rather than the difference in verdicts suggesting that the jury failed to act rationally, it suggests, in light of the circumstances to which I have referred above, that the jury gave conscientious attention to its duty to consider each count separately. This is a duty about which the trial judge instructed the jury in his Honour’s summing up by giving them a Markuleski direction (R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290) to this effect.

45. For these reasons, I propose that the appeal be dismissed.

46. ROTHMAN J: I agree with Macfarlan JA.

47. DHANJI J: I agree with Macfarlan JA.

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Decision last updated: 15 June 2022