Hutchins v The King - [2025] SASCA 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HUTCHINS v THE KING
[2025] SASCA 111
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Hughes)
2 October 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
This is an appeal against conviction.

The appellant was charged with one count of indecent assault, contrary to s 56 of the Criminal LawConsolidation Act 1935 (SA) (‘the CLCA’) and three counts of unlawful sexual intercourse with a person under 12 years old, contrary to s 49(1) of the CLCA. He is the older cousin of the complainant and was aged between 20 to 25 years at the time of the alleged offending.
The appellant is alleged to have sexually abused the complainant on three separate occasions. The first occasion occurred between 11 October 1992 and 18 December 1993, at Renmark, when the complainant was around seven years old. The appellant allegedly caused the complainant to touch his penis (Count 1). The second occasion occurred between 30 January 1995 and 28 April 1998, at Paralowie, when the complainant was 10 years old. The appellant allegedly caused her to perform fellatio upon him (Count 2). The third occasion occurred again between 30 January 1995 and 28 April 1998, at Paralowie, when the complainant was 10 years old. The appellant allegedly performed an act of cunnilingus upon her (Count 3) and digitally penetrated her (Count 4).
Following a trial by jury, the appellant was acquitted of the first count and found guilty on the remaining counts. The central issue at trial was whether the prosecution had proved, beyond reasonable doubt, that the appellant committed the relevant sexual act.
The trial took place in August 2024, about 31 years after the alleged sexual incident the subject of the first count.
The appellant appeals his convictions on the sole ground that the verdicts of guilty are unreasonable or cannot be supported by the evidence. There are two limbs to this appeal ground. First, the appellant contends that the acquittal on the first count is explicable only on the basis that the jury found the complainant had no credibility as to that incident of sexual touching, and given the remaining counts relied on an acceptance of the complainant’s credibility, the guilty verdicts on the remaining counts are factually inconsistent and incapable of rational explanation on the evidence.
Secondly, and independently of the alleged factual inconsistency between the verdicts, the appellant contends the guilty verdicts on Counts 2, 3 and 4 are unreasonable and cannot be supported by the evidence.
Held per the Court, granting permission to appeal but dismissing the appeal:
1.There is a logical and reasonable explanation for the acquittal on the first count which does not involve a wholesale rejection of the complainant’s credibility as to the alleged sexual incident. It was therefore open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the latter counts. The verdicts are not otherwise unreasonable or not supported by the evidence.

Criminal Law Consolidation Act 1935 (SA) ss 49(1), 56; Evidence Act 1929 (SA) s 34M, referred to.
M v The Queen (1994) 181 CLR 487; Mackenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606, discussed.
R v Hunt [1968] 2 QB 433 at 438; R v Wilkinson [1970] Crim LR 176; R v Kirby (1972) 56 Cr App R 758; R v Kirkman (1987) 44 SASR 591; R v Hansen (2002) 84 SASR 54; R v H, GJ (2008) 102 SASR 82 ; TK v The Queen (2009) 74 NSWLR 299; R v Gbojeuh (2009) 103 SASR 545; R v Neocleous (2017) 270 A Crim R 262, considered.

HUTCHINS v THE KING
[2025] SASCA 111
Court of Appeal: – Criminal: Bleby and David JJA and Hughes AJA

THE COURT: The appellant was charged with one count of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) and three counts of unlawful sexual intercourse with a person under 12 years old, contrary to s 49(1) of the CLCA. He is the older cousin of the complainant and was aged between 20 to 25 years at the time of the alleged offending.
The appellant is alleged to have sexually abused the complainant on three separate occasions. The first occasion occurred between 11 October 1992 and 18 December 1993, at Renmark, when the complainant was around seven years old. The appellant allegedly caused the complainant to touch his penis (Count 1). The second occasion occurred between 30 January 1995 and 28 April 1998, at Paralowie, when the complainant was 10 years old. The appellant allegedly caused her to perform fellatio upon him (Count 2). The third occasion occurred between 30 January 1995 and 28 April 1998, at Paralowie, when the complainant was 10 years old. The appellant allegedly performed an act of cunnilingus upon her (Count 3) and digitally penetrated her (Count 4).
Following a trial by jury, the appellant was acquitted of the first count and found guilty of the remaining counts. The central issue at trial was whether the prosecution had proved, beyond reasonable doubt, that the appellant committed the relevant sexual act.
The trial took place in August 2024, about 30 years after the first alleged sexual incident.
The appellant appeals his conviction on the sole ground that the verdicts of guilty are unreasonable or cannot be supported by the evidence. More particularly, the appellant contends that the acquittal on the first count is inconsistent with the guilty verdicts on the other counts. The appellant submits that the prosecution case, in respect of all charges, relied on the jury’s acceptance of the complainant as a credible witness and thus, the verdicts are factually inconsistent and incapable of rational explanation on the evidence. In addition, the appellant submits that independently of the alleged inconsistency between verdicts, the guilty verdicts on the latter counts are unreasonable and cannot be supported by the evidence.
This appeal ground requires a consideration of the principles applicable to inconsistent verdicts.
For the reasons which follow, we grant permission to appeal but dismiss the appeal.
The evidence at trial
In order to explain the basis upon which the appellant contends that the verdicts on the latter counts were inconsistent with the acquittal on the first count, and are unreasonable, it is necessary to refer in more detail to the evidence adduced during the course of the trial.
In relation to the first count, the complainant gave evidence that the first occasion of sexual touching occurred at a sleepover at her aunt’s house in Renmark when she was about seven years old. The complainant said that this was not the first time she had stayed overnight at her aunt’s house. She could not remember why she and her family were there that night, but thought it was for a ‘normal get‑together’.
The complainant said that she and her cousins were sleeping on the floor in the lounge room in sleeping bags, and there were about eight or 10 children in the lounge room. She believed the appellant slept in his own bedroom that night and the adults were in the shed, which was a four to five minutes’ walk away from the lounge area.
The complainant gave evidence that she was sleeping between her older sister and the internal doorway that led to the rest of the house. She said that her youngest sister had not been born at the time.
The complainant said all the children in the lounge room were asleep by around 9:00pm that night. She woke up during the night because she heard footsteps coming down the hallway. When asked whether anyone else in the lounge room had woken up, the complainant said she looked around and everyone was still asleep. She said that it was dark in the lounge room with some light coming in through the windows. From her position on the floor in the sleeping bag, the complainant recalled looking towards the hallway and seeing a shadow coming towards her. She said that she knew it was the appellant because she saw his clear‑framed glasses on his nose.
The complainant gave evidence that after the appellant approached the complainant’s sleeping bag, he placed one hand over her mouth and used his other hand to pull her out of her sleeping bag, pull his pants down and place her hand on his penis. She said that she did not make a noise and was ‘still half asleep’. She said she was forced to stroke the appellant’s penis with her hand for about five minutes.
The complainant said that she did not disclose the offending to anyone at the time as she felt confused.
There was evidence that the other children and adults at the property were contacted by police but only the complainant’s mother and sister provided a statement or gave evidence at the trial.
The complainant’s mother gave evidence that they had only slept over at the Renmark property once, being New Years Eve 1992, and when the complainant’s younger sister was a baby. Her evidence tended to undermine the complainant as to the date and timing of the sleepover, location of adults, and the presence of a baby in the house.
The complainant’s sister gave evidence that she had visited the house at Renmark ‘at least a couple of times’ when she was primary school age. She said she knew she attended the house once for a party, but she could not remember if she had stayed over that night. She also could not remember who attended the party or how many children were there.
With respect to Count 2, the complainant gave evidence that a few years later, when she was 10 years old, she stayed at her aunt’s house in Paralowie. On this occasion, she was there for a sleepover, as she wanted to spend time with her aunt. She said that her aunt lived in a three-bedroom home. Her aunt and uncle slept in the main bedroom at the front of the house, the appellant slept in a bedroom at the rear of the house, and she slept in another bedroom. She was asked whether there was an elderly and handicapped female relative living at her aunt’s home but she could not recall her being there on this occasion, or indeed, at all.
The complainant said that during her stay, the appellant asked her if she wanted to come and play Nintendo in his bedroom, and she agreed. The complainant said it was daytime, and her aunt and uncle were both in the lounge room at the front of the house. The complainant sat down next to the appellant at the end of his bed and played video games. Next, the appellant pulled down his pants exposing his penis. He told her to lick his penis, and when she refused, he pushed her head down and forced her to lick the top and sides of his penis. She said his penis went hard and ‘there was like stuff coming out’.
The appellant told her that if she told anybody what had taken place that he would strangle her and kill her.
In relation to Counts 3 and 4, the complainant gave evidence that about a month later she went back to stay at her aunt’s house. On this occasion, the complainant was playing in the dining area with toys when the appellant asked her to come to his bedroom and play video games. She said that it was daytime and that her aunt and uncle were in the lounge room. The complainant gave evidence that she and the appellant were playing video games in his bedroom when the appellant pushed her onto the bed and pulled her pants down. She was lying flat on her back on the bed when the appellant began licking her vagina and placed his fingers inside her vagina. She said this occurred for about 10 minutes. The appellant stopped when her aunt called out his name. Then, the appellant got up, opened his bedroom door, and she pulled her pants up.
The complainant said that the appellant told her that he would strangle her if she said anything. She described being worried about what the appellant was going to do to her if she disclosed the offending.
In relation to the alleged offending at the Paralowie house, the complainant’s mother gave evidence that the complainant stayed there about once a month when she was aged 10 years. There were also housing records confirming the complainant’s aunt lived at the home in Paralowie at the relevant time. The complainant’s mother also agreed in evidence that she believed an elderly and handicapped female relative lived at the home during this time, although she could not recall seeing her at the home. Nor could she recall the layout of the Paralowie home or the sleeping arrangements.
The complainant first disclosed the offending to her mother by text message in November 2019. A copy of the text message was tendered at trial and reads as follows:[1]
There is something I need to say and it’s about what happened to me when I was younger I can’t remember how old I was but [the appellant] forced my hand to touch him it’s always in the back of mind and I try to forget it but just keeps coming back to me I remember once he woke me up and dragged me across the floor telling me to lick it all I remember was a house with a pool out the back and it was empty and there was heaps of us sleeping in sleeping bags I really don’t ever want to think about but I hate that I have to live with it for the rest of my life.
[1] Trial Exhibit P6.
The content of the text message was adduced as evidence of an initial complaint.[2] The complainant explained that she was prompted to tell her mother about the offending, as she had observed the appellant playing cricket in the presence of her children. When asked which occasion she was referring to in the text message, she said she was stressed and ‘was trying to get what everything happened to me in one conversation’.
[2] Evidence Act 1929 (SA) s 34M.
The complainant reported the allegations to police in, or around, January 2020.
The appellant participated in a record of interview and denied the offending on 7 October 2021.[3]
[3] Trial Exhibit P7.
The appellant was arrested and charged with the four sexual offences in September 2023.
As mentioned earlier, the trial took place in August 2024, over 30 years after the alleged offending.
The defence case
The appellant did not give or call any evidence at trial.
Defence counsel submitted that the complainant could not be accepted as a credible or reliable witness. Defence counsel emphasised inconsistencies between the complainant’s evidence and her mother’s evidence, particularly in relation to the first count. As to the evidence of the initial complaint, defence counsel submitted that the text message was inconsistent with her evidence regarding the allegations, particularly in relation to the first count at Renmark.
Defence counsel relied on the appellant’s denials in his record of interview and stressed the significant forensic disadvantage to the appellant caused by the 30-year delay in the allegations proceeding to trial.
It was defence counsel’s ultimate submission that the jury could not be satisfied beyond reasonable doubt of the alleged offending.
The summing up
Relevantly to this appeal, the trial Judge gave a ‘separate consideration direction’ to the jury in the following terms:
Members of the jury, I direct that you must consider each count separately. You may find the accused guilty of all counts. You may find him not guilty of all counts. You may find him guilty of one or more and not guilty of one or more. I say that just to reinforce my direction that you must consider each count separately.
If you find him guilty of one count you must not reason that it therefore follows that he must be guilty [of] all counts. The occasions must be considered separately. I need to direct you that you must not use the evidence of one occasion to reason simplistically that merely because the accused may have engaged in that conduct, on that occasion, that he is the sort of person who is more likely to commit a crime on any other occasion. In other words, you cannot reason simply that because he may have committed one offence, that is enough to prove the other offences.
The trial Judge also gave the jury directions, in orthodox terms, as to the burden and onus of proof, and that it was open to accept parts of a witness’s evidence but reject other parts.
The jury were also given a significant forensic disadvantage direction in the following terms:
I now turn to what is described as a forensic disadvantage. That relates to the period of time that has occurred between the alleged offending and the matter now proceeding to trial. As you know, the period of time is now around 31 years. That delay has resulted in a significant disadvantage to the accused. By that I mean there are difficulties for the accused in challenging the allegations because of that passage of time. Due to that passage of time witnesses do not have good memories of details which has impeded the ability of the defence to challenge witnesses on matters of detail or expose where a witness has been inconsistent or wrong. For example, the passage of time results in a disadvantage to the accused in not being able to fully explore with [the complainant] in cross-examination the finer details of the offending that she alleges.
Had earlier investigations into the allegations been made, forensic evidence may have become available. Details of who was present in the premises at the relevant times may have been able to be established. Furthermore, the accused’s mother, who [the complainant] said was present at the Renmark and Paralowie premises at the relevant times, has passed away, as had [the elderly relative] who [the complainant’s mother] said was living at Paralowie around the time that [the complainant] was visiting the home.
We cannot know what evidence the accused might have been able to call and you must not speculate about what this evidence would have shown, but you must take these disadvantages into account when you are scrutinising the evidence from the prosecution witnesses.
Before the trial Court, and in this Court, the appellant made no complaint about the legal directions. Nor did the appellant make any complaint concerning the conduct of the trial. His sole ground of appeal is that the guilty verdicts on Counts 2, 3 and 4 are unreasonable and cannot be supported by the evidence.
Unreasonable verdicts – the applicable principles
There are, in effect, two limbs to the appellant’s unreasonable verdict complaint. First, the appellant contends that the acquittal on the first count is explicable only on the basis that the jury found the complainant had no credibility as to that incident of sexual touching, and given the remaining counts relied on an acceptance of the complainant’s credibility as to the subsequent alleged sexual acts, the guilty verdicts on the remaining counts are factually inconsistent and incapable of rational explanation on the evidence. Secondly, and independently of the alleged factual inconsistency between the verdicts, the appellant contends the guilty verdicts on Counts 2, 3 and 4 are unreasonable and cannot be supported by the evidence.
In circumstances where it is argued that the verdict of a jury is unreasonable or cannot be supported by the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. Their Honours said:[4]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, 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. 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.
(citations omitted)
[4] (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ).

In the present case, where the main circumstance said to result in unreasonable verdicts is the inconsistency between verdicts, the issue becomes whether the guilty verdicts were open to the jury having regard to the whole of the record including the fact that the jury acquitted the appellant on one or more of the counts on the Information.[5]
[5] TK v The Queen (2009) 74 NSWLR 299 at [135] (Simpson J).
It is not suggested that there is any legal or technical inconsistency between the verdicts. Rather, the appellant asserts that there is a factual inconsistency between the verdicts; namely, the jury concluded that the complainant had no credibility in respect of her evidence on the first count and, given the remaining counts relied entirely on her evidence, the guilty verdicts on those counts give rise to a factual inconsistency.
In Mackenzie v The Queen (‘Mackenzie’)[6] and MFA v The Queen (‘MFA’),[7] the High Court considered the circumstances in which an appellate court will intervene by reason of a factual inconsistency between verdicts.
[6] Mackenzie v The Queen (1996) 190 CLR 348.
[7] MFA v The Queen (2002) 213 CLR 606.
In Mackenzie, the High Court enunciated the applicable principles to an unreasonable verdict ground when it is contended that the verdicts are inconsistent. In MFA, the whole court approved the approach articulated in Mackenzie. Relevantly, this approach includes the following general propositions. First, the obligation to establish inconsistency rests upon the person making the submission.[8] Secondly, where there is a suggestion of factual inconsistency between jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.[9] Thirdly, given the respect for the function which the law assigns to juries, the appellate courts have shown a 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.[10] Fourthly, there are various considerations that might provide a rational explanation for verdicts which may appear inconsistent. Those considerations may include matters such as a jury’s adherence to the separate consideration direction and instruction that the evidence of a witness may be accepted in whole, or in part, and the high standard of proof in criminal cases.[11] Fifthly, in trials involving sexual offences, an acquittal in respect of one or more counts on an information does not necessarily mean that the jury has disbelieved the complainant in relation to the relevant allegations but may simply reflect a cautious approach to a heavy responsibility.[12] As Gleeson CJ, Hayne and Callinan JJ explained in MFA:[13]
…In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of the jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of the 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 a 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…
[8] Mackenzie v The Queen (1996) 190 CLR 348 at 368 (Gaudron, Gummow and Kirby JJ). See also R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758.
[9] Mackenzie v The Queen (1996) 190 CLR 348 at 366 (Gaudron, Gummow and Kirby JJ).
[10] Mackenzie v The Queen (1996) 190 CLR 348 at 367 (Gaudron, Gummow and Kirby JJ). See also R v Wilkinson [1970] Crim LR 176.
[11] Mackenzie v The Queen (1996) 190 CLR 348 at 367 (Gaudron, Gummow and Kirby JJ); MFA v The Queen (2002) 213 CLR 606 at [34] (Gleeson CJ, Hayne and Callinan JJ).
[12] MFA v The Queen (2002) 213 CLR 606 at [34] (Gleeson CJ, Hayne and Callinan JJ).
[13] MFA v The Queen (2002) 213 CLR 606 at [34] (Gleeson CJ, Hayne and Callinan JJ).
In R v H, GJ, Kourakis J (as he then was) considered the question of inconsistent verdicts in circumstances where the charged offending was based on different occasions, and/or involved different forms of sexual offending. His Honour stated:[14]
…it is very difficult to establish that it was not open to the jury to rationally reach different conclusions about the degree to which they were persuaded of the commission of the particular offending alleged, having regard to the context the pre-existing relationship between the accused and the complainant, the circumstances of the particular occasion and the particular sexual conduct alleged.
[14] R v H, GJ (2008) 102 SASR 82 at [33].
A differentiation in verdicts may also reflect an approach by the jury which has ameliorated strict justice for considerations of fairness. The High Court in both Mackenzie and MFA approved the remarks of King CJ in R v Kirkman.[15] In that case, King CJ said:[16]
…I mentioned earlier, however, that there was a qualification to the proposition that if there were no other issue in this case but consent, the verdicts would necessarily be inconsistent with one another. The qualification I have in mind is that juries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, 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. Sometimes juries apply in favour of an accused 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. Appellate courts therefore 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. A jury may be quite reasonable in arriving at the verdict of guilty. That verdict may be amply supported by the evidence. They may decide for reasons of their own, unrelated to the strict logic of the situation, that they are unwilling to arrive at a verdict of guilty on another count in the information…
[15] (1987) 44 SASR 591.
[16] R v Kirkman (1987) 44 SASR 591 at 593 (King CJ).
Bearing in mind those considerations, it is always necessary to be cautious before setting aside a verdict which is adequately supported by the evidence simply because it might be difficult to reconcile with other verdicts reached by the same jury with respect to other charges.[17] Nevertheless, as the High Court recognised in Mackenzie, there will remain cases where this Court’s intervention is necessary to prevent a possible injustice.[18]
[17] R v Gbojeuh (2009) 103 SASR 545 at [36]–[37] (Kourakis J); R v Hansen (2002) 84 SASR 54 at [16] (Perry J); R v Neocleous (2017) 270 A Crim R 262 at [147]–[148] (Doyle J with whom Peek J agreed).
[18] Mackenzie v The Queen (1996) 190 CLR 348 at 368 (Gaudron, Gummow and Kirby JJ).
The dispositive question that remains is whether having regard to the whole of the evidence and record (including the fact that the jury acquitted the appellant on one or other counts on the Information), it was open to the jury to be satisfied that the appellant was guilty of the offences.
Consideration
In the present case, the appellant submits that the acquittal on the first count is only explicable on the basis that the jury found the complainant had no credibility in relation to the sexual touching the subject of that count. That being so, the appellant argues that her credibility was undermined to such an extent that the convictions on the other counts are factually inconsistent and cannot be sustained.
In support of this contention the appellant emphasises the inconsistencies between the complainant’s evidence and the evidence of her mother. They are as follows.
First, the complainant gave evidence that her family visited her aunt’s property at Renmark and stayed overnight on numerous occasions. She gave evidence that the sexual touching the subject of the first count occurred on a ‘normal’ weekend and specifically, that it was not Christmas or New Year’s Eve or a birthday. By contrast, the complainant’s mother gave evidence that they visited and stayed over at the home of the complainant’s aunt in Renmark on only one occasion, being New Year’s Eve 1992.
Secondly, the complainant gave evidence that her youngest sister had not been born at the time of the alleged incident. However, her mother gave evidence that on the one occasion that they slept over on New Year’s Eve 1992, the complainant’s youngest sister was six to eight weeks old having been born in November 1992.
Thirdly, the complainant gave evidence that the alleged offence at the Renmark property occurred in the lounge room where she was sleeping with approximately eight to 10 of her cousins and that all the children were in bed and asleep by 9:00pm. Her mother gave evidence that the children did not go to sleep until 1:00am.
Fourthly, the complainant gave evidence that the adults were in the shed, a four to five minutes’ walk away from the lounge area. However, her mother said that she had never been in the shed and that a New Year’s Eve function was held in the lounge room (that being the room where the complainant claimed that the offending had occurred.)
The appellant also relies on the fact there was no independent support for the complainant’s evidence as well as the purported inconsistency between her evidence and the terms of her initial complaint as set out in the text message. In addition, the appellant emphasises the purported implausibility of her account which he submits further undermines her credibility on the first count.
It is to be accepted that there were material inconsistencies between the complainant’s evidence and that of her mother in relation to the first count. They were the subject of counsels’ submissions at the trial, and directions by the trial Judge. It is also true that the initial complaint was to some extent inconsistent with her evidence. However, we do not consider that the verdict of not guilty on the first count necessarily means the jury found that she was an untruthful witness or wholly rejected her evidence as not credible. There are a number of rational explanations for the differentiation in the verdicts which are consistent with the jury having found the complainant to be a generally credible witness on all counts.
First, on the prosecution case, the sexual touching the subject of the first count occurred when the complainant was very young, aged only seven years old and in the presence of others. It is conceivable that the jury found the complainant was generally an honest witness but given those circumstances, the jury may have afforded the appellant the benefit of a doubt on this charge. The alleged offending also occurred in a darkened room with limited lighting, and in those circumstances, along with the young age of the complainant, the jury may have entertained a doubt as to the identity of the offender. Those issues concerning the presence of other children in the same room, and in relation to the identity of the offender, did not arise in relation to the latter counts at the aunt’s house in Paralowie.
Secondly, the trial Judge explicitly instructed the jury that it was open to them to reach different verdicts on different counts. The acquittal on the first count and the guilty verdicts on the remaining counts may be the result of the jury simply following those directions.
Thirdly, it is also conceivable that the jury did not necessarily accept the evidence of the complainant’s mother as to the events the subject of the first count. Many years had elapsed between the alleged commission of the first count and the trial. This had the capacity to adversely affect her memory, particularly as until about 2019, it appears the topic was not raised with her and the events would have taken on little significance to her. For that reason, the jury may well have rejected aspects of her evidence where it conflicted with the complainant’s evidence but nonetheless returned a not guilty verdict. Bearing in mind the complainant’s very young age at the time, and the abovementioned issue of identity, as well as the high onus of proof (about which they were directed), the jury may well have accepted the complainant was generally a truthful and credible witness but properly afforded the appellant the benefit of the doubt on the first count.
Fourthly, the complainant’s evidence in respect of the latter counts on which the jury returned guilty verdicts was appreciably more cogent. The complainant was older at the time of this offending. She gave a more detailed account of each alleged sexual incident which involved more serious sexual acts of fellatio, digital penetration, and cunnilingus. She also recounted that the appellant threatened to harm her should she disclose the offending. This provided some explanation for her reluctance to complain to anyone at the time. There was also objective support for the complainant’s evidence that she stayed overnight at her aunt’s home at the relevant time. Moreover, the jury had the advantage of seeing the complainant give her evidence over several hours.
Having regard to all those matters, we consider there is a logical and reasonable explanation for the acquittal on the first count which does not involve a wholesale rejection of the complainant’s credibility as to the alleged sexual incident. Rather, it is conceivable that the jury gave the appellant the benefit of the doubt in relation to the first count because of features of the evidence which were not present in relation to the latter counts. For those reasons, we do not consider there is any factual inconsistency between the acquittal on the first count and the guilty verdicts on the latter counts.
As to the second limb of this ground of appeal, the appellant contends that even accepting the verdicts were not factually inconsistent, the guilty verdicts on the latter counts were unreasonable and cannot be supported by the evidence. The appellant relies on three considerations which he submits, separately and in combination, demonstrate that the guilty verdicts on Counts 2, 3 and 4 are unreasonable or cannot be supported, by the evidence.
First, the appellant emphasises the differences between the complainant’s evidence and the evidence of her mother as to the latter counts. They are as follows. First, the complainant gave evidence that she stayed at the Paralowie address with her aunt on a regular basis. Yet, her mother gave evidence that it only happened occasionally. Secondly, the complainant gave evidence that her aunt and uncle lived in a three-bedroom house and when she stayed overnight, her aunt and uncle slept in a bedroom at the front of the house; she always slept in a second bedroom; and the appellant slept in the bedroom at the rear of the house. The complainant denied that an elderly and handicapped relative lived at the home on any of the occasions when the alleged offending occurred. However, her mother gave evidence that throughout the relevant period, an elderly and handicapped relative lived at the home. The appellant submits that the only available bedroom for the complainant to sleep in (according to her mother’s evidence) was the bedroom occupied by the relative.
Secondly, the appellant submits that the complainant’s evidence is inherently implausible because her aunt and uncle were present in the house; and on the second occasion, her aunt came into the room immediately after the sexual offending occurred. The appellant submits, as he did at trial, that this level of brazenness is unlikely given the risk of detection.
Thirdly, the appellant relies on the significant forensic disadvantage he suffered by reason of a delay of about 30 years between the alleged offending and the trial. More specifically, both the complainant’s aunt and the elderly relative had died before the commencement of the trial. There was also no independent support for the complainant’s evidence of the latter counts.
Contrary to the appellant’s contentions and upon our independent review and assessment of the whole of the evidence and record, including the not guilty verdict on the first count, we consider it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the latter counts.
As mentioned earlier, the complainant was aged only 10 years at the time of the alleged offending the subject of the latter counts, but she was a mature woman by the time she gave evidence. She provided cogent evidence as to the circumstances surrounding the latter two occasions of sexual offending which was compelling in its detail. She also spoke of the threats made by the appellant towards her which, in combination with her age, may explain why she agreed to play video games with the appellant in his bedroom on the second occasion (Counts 3 and 4). It also may explain her reluctance to disclose the offending until she was older. Her evidence as to the circumstances which prompted her to make her initial complaint was also convincing.
In addition, there was independent support from the complainant’s mother (and records) of the fact that her aunt lived at the relevant address in Paralowie, and evidence from the complainant’s mother that she stayed overnight at the home on more than one occasion when she was aged 10 years old. Whether she stayed there regularly, or only occasionally, is not a material or significant inconsistency given the elapse of time.
As to the presence of an elderly and handicapped relative living in the house at the relevant time, the complainant said that she had no recollection of seeing her at the house. The complainant’s mother, while saying that she recalled a relative living there at the relevant time, never saw her at the house and could not say in which bedroom the relative slept nor where the complainant would sleep in the house. Moreover, the complainant alleged that the offending occurred during the daytime in the appellant’s bedroom. Bearing in mind the vagueness of the evidence of the complainant’s mother on this topic, and that close to 30 years had elapsed since the alleged incidents took place, it was open to the jury to accept that while an elderly relative may have lived at the house around this time, she was not present or living there at the time of the latter counts. This potential inconsistency is not of great moment.

While the alleged offending was certainly brazen and risky, we do not consider that necessarily renders it implausible. It may well be that the appellant became emboldened to commit the latter offences because the complainant did not disclose the earlier sexual touching, and in relation to the last occasion (Counts 3 and 4) by reason of his threats to her combined with her young age. The offending was also committed behind closed doors when it was only the appellant and the complainant in his bedroom.
For those reasons, we are satisfied upon an independent assessment of the whole of the evidence and record that it was open to the jury to find the appellant guilty of the latter counts.
Orders
1. We grant permission to appeal but dismiss the appeal.