Mason v The Queen (No. 2)

[2015] NSWCCA 325

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Mason v R (No. 2) [2015] NSWCCA 325
Hearing dates:	24 November 2015
Decision date:	18 December 2015
Before:	Johnson J at [1] Button J at [64] Fagan J at [65]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against conviction – Applicant charged with a large number of sexual offences against four female complainants under 16 years, child pornography offences and an offence of perverting the course of justice – convicted by jury of 44 out of 52 counts – Applicant submits that verdict with respect to one count (Count 16) is unreasonable and cannot be supported by the evidence – Count 16 alleged offence of aggravated sexual intercourse without consent contrary to s.61J Crimes Act 1900 – suggested inconsistency with verdicts on certain other counts – verdict on Count 16 reasonably open to jury – verdict on Count 16 logical and reasonable – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 ML v R [2015] NSWCCA 27 Rasic v R [2009] NSWCCA 202 W v R [2014] NSWCCA 110
Texts Cited:	---
Category:	Principal judgment
Parties:	Wayne Paul Mason (Applicant) Regina (Respondent)
Representation:	Counsel: Mr TA Game SC; Mr D Barrow (Applicant) Ms T Smith (Respondent)   Solicitors: CA Williams Legal Pty Limited (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2010/266036
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: Sentence: 1 February 2013 Before: His Honour Judge Frearson SC File Number(s): 2010/266036

Judgment

1. JOHNSON J: The Applicant, Wayne Paul Mason, seeks leave to appeal against conviction with respect to one count of aggravated sexual intercourse without consent contrary to s.61J(1) Crimes Act 1900.

2. Between 6 August 2012 and 19 September 2012, the Applicant stood trial at the Sydney District Court before his Honour Judge Frearson SC and a jury on an indictment that contained 52 counts. The charges related to sexual offences alleged to have been committed against four different female complainants when they were each under 16 years of age, as well as charges of using a child for a pornographic purpose, disseminating child pornography and one count of perverting the course of justice. The Applicant was found guilty in respect of 44 of those counts. He was acquitted on seven counts and the jury could not agree on one count.

3. On 1 February 2013, the Applicant was sentenced to an aggregate term of imprisonment comprising a non-parole period of seven years and five months commencing on 24 July 2012 and expiring on 23 December 2019, with a balance of term of three years and six months commencing on 24 December 2019 and expiring on 23 June 2023.

The Ground of Appeal

4. The Applicant relies upon a single ground of appeal against conviction which contends that the verdict of the jury regarding Count 16 is inconsistent and cannot be supported by the evidence.

5. This ground does not involve a question of law alone and therefore the Applicant requires leave to appeal: s.5(1) Criminal Appeal Act 1912; Rasic v R [2009] NSWCCA 202 at [12].

6. The offence to which this conviction appeal relates (Count 16) attracted an indicative sentence of imprisonment for three years and six months.

7. In the event that the conviction appeal succeeded and a verdict of acquittal was entered upon Count 16, counsel for the Applicant submitted that the appropriate course for this Court to take was to utilise ss.52 and 59 Crimes (Sentencing Procedure) Act 1999 to consider whether it was appropriate to vary the aggregate sentence imposed by the sentencing Judge.

8. Apart from this consequential aspect if the conviction appeal succeeded, there is no challenge made to sentence.

Factual Background

9. Given the single ground of appeal relating to one count only, the factual background to this count may be expressed relatively briefly.

10. The Crown case at trial included the evidence of four complainants, each of whom alleged that the Applicant had committed sexual offences when each girl was under 16 years of age. The Crown case included a number of photographs of the girls, with some depicting the Applicant as well.

11. The complainant in Count 16, RS, met the Applicant through her church in 2001 when she was 14 years old. The Applicant was the leader of the Sunday School and also organised group activities for the children. In 2001, the Applicant was aged 31 years and he was also a serving police officer.

12. Counts 8 to 30 involved 23 alleged offences involving RS. Of these counts, the Applicant was convicted of 18 offences. The Applicant was acquitted on four counts (Counts 8, 18, 22 and 24) and the jury could not reach a verdict on a further count (Count 25).

13. The Applicant was convicted by the jury of the following offences involving RS:

1. in 2001, aggravated indecent assault (when RS was 15 years old) contrary to s.61M(1) Crimes Act 1900 (Count 9);

2. in 2001, sexual intercourse with a person aged between 10 and 16 years (RS was 15 years old) in circumstances of aggravation, RS being under the authority of the Applicant, contrary to s.66C(2) Crimes Act 1900 (Counts 10, 11, 12 and 13);

3. on 30 November 2001, sexual intercourse with a person aged between 10 and 16 years (RS was 15 years old) in circumstances of aggravation, RS being under the authority of the Applicant, contrary to s.66C(2) Crimes Act 1900 (Counts 14 and 15);

4. on 30 November 2001, sexual intercourse without consent with a person aged between 10 and 16 years (RS was 15 years old) contrary to s.61J(1) Crimes Act 1900 (Count 16);

5. in 2001 and 2002, sexual intercourse with a person aged between 10 and 16 years (RS was 15 years old) in circumstances of aggravation, RS being under the authority of the Applicant, contrary to s.66C(2) Crimes Act 1900 (Counts 17, 19, 20, 21, 23 and 26);

6. between 30 November 2002 and 31 January 2003, inducing RS to withdraw her complaint to the New South Wales Police Service of sexual contact between herself and the Applicant, intending thereby to pervert the course of justice, contrary to s.319 Crimes Act 1900 (Count 27);

7. between 2001 and 2003, using RS, a child aged between 14 years and 18 years (RS was 15 or 16 years old), for pornographic purposes, contrary to s.91G(1) Crimes Act 1900 (Counts 28, 29 and 30).

14. Apart from offences involving RS, the Applicant was convicted by the jury of the following offences:

1. sexual offences against CD committed in 1996 and 1997, when CD was 14 or 15 years old (Counts 1 and 2);

2. sexual offences against KS committed between dates in 2000 and 2002, when KS was aged 13, 14 or 15 years old (Counts 4 and 5);

3. disseminating child pornography in 2010 (Counts 6 and 7);

4. sexual offences against AF committed in 2002, when AF was 14 or 15 years old (Counts 31-36, 38-42);

5. using AF for pornographic purposes on dates between 2002 and 2005, when AF was aged 15, 16 or 17 years (Counts 44-48);

6. disseminating child pornography in 2009 and 2010 (Counts 49-52).

15. The Applicant did not give evidence at the trial. It was the defence case that the Applicant did not have sexual relations with any of the complainants when they were under 16 years of age, and that it could not be proved beyond reasonable doubt that the complainants were under 16 years of age in some of the relevant photographs.

16. In his remarks on sentence dated 1 February 2013, the sentencing Judge referred to the verdicts on counts involving RS in the following way (ROS10-11; AB233-234):

“Turning to [RS]. [RS] is the subject of the counts 9 to 17, 19 to 21, 23 and 26 to 30. She was born on [XX] September 1986 and the verdicts again, as I have already indicated, do demonstrate overwhelming acceptance of her as a witness of truth. I am satisfied beyond reasonable doubt that she gave an honest account in her evidence and was reliable and accurate with regards to the matters that resulted in the guilty verdicts. There was considerable support for the complainant, that included the photograph in exhibit 1, the photographs in exhibit 1, the sexually explicit photographs. It also includes photograph 196, the one that is captioned, ‘These 2 girls tasted my cum at 15’. There is also a diary entry referred to at transcript 913 which refers to the offender pining over a fifteen year old girl called [RS].

The jury did acquit on a number of counts, 8, 18, 22, 24 and they could not agree on 25. Re 8, it is not immediately obvious how they arrived at that result, perhaps the consensual passionate kissing in private may not have, in their view, offended the community's standards of decency, who knows. Regarding count 18, the jury might have been concerned about allegedly oral sex taking place in a park so close to her home. They had been instructed that they had to be satisfied of particular incidents to found particular counts. Re 22, the complainant said she was interrupted by her mother, but the mother did not refer to the incident in her statement to police or in evidence in chief, although she did in cross-examination. Re count 24, [MC’s] evidence about being present at Stanwell Tops when the complainant was wearing particular swimwear may have created some concerns. In the interview with police the offender denied any sexual activity with this complainant at all. He told his psychiatrist that she fabricated allegations against him.”

17. Relevant to the present appeal, the sentencing Judge made findings with respect to Counts 14, 15 and 16, all of which occurred on the same day (30 November 2001) (ROS14-15; AB237-238):

“In relation to counts 14, 15 and 16, counts 14 and 15 are sexual intercourse with a child ten to sixteen under authority contrary to s 66C(2) with a ten year maximum. Count 16 is sexual intercourse without consent with a person under sixteen, knowing the person was not consenting. That is an offence contrary to 61J(1) with a maximum sentence of twenty years imprisonment. This was the occasion of the Greenacre Baptist presentation, it was in November 2001. The offender attended, he picked her up from her house, it was at the Bankstown Town Hall. He was to drive her home, they drove to a vacant block near Fairfax at Chullora, he folded down the back seat, he got a blanket and pillows and climbed over the back seat. What happened was that fellatio and cunnilingus were performed and she was fifteen. She said he had his penis on top of my vagina rubbing it against me, not inside but using the saliva he had created down there as lubrication. He said, ‘Okay, I'm just swimming, I won't go any further’. Then he put his penis inside her and began to penetrate. He said to her, ‘Now we are one.’ They had previously spoken about her not wanting to have sex, which was part of her beliefs she said.

She had informed him in the past, ‘I don't want to have sex, you know, penile vaginal with anyone until I'm married.’ The next day he sent her a letter apologising and said, ‘it will not happen again.’ The penile/vaginal was count 16 and the other counts are 14 and 15. The conduct in relation to count 16 presents as being moderate, it is certainly not at the upper end, it is towards the lower end of the type of conduct that could constitute this offence, non-consensual conduct. I appreciate the age is an actual element of the offence; nevertheless, it is an extremely serious offence. I am satisfied beyond reasonable doubt he well knew at that point she was not consenting and this was an escalation of a systematic seduction of an underage complainant.”

18. Some further detail is required concerning the evidence of RS, in particular with respect to Counts 14, 15 and 16

Events Leading Up to Count 16

19. As mentioned earlier, RS gave evidence that she had met the Applicant through her church in 2001, when she was 14 years old and the Applicant was 31 years old. RS was aware that the Applicant was a serving police officer. What follows is based largely upon the evidence of RS at the trial and is drawn mainly from the Crown summary.

20. RS explained that, from very early on, the Applicant had bestowed attention on her and made her feel special. She explained that she had not had that sort of attention from anyone before.

21. The Applicant initiated email contact with RS. Initially, the emails were innocuous but they became more flirtatious. The Applicant and RS also commenced to communicate by text message. The Applicant did drawings of RS which he gave to her, as well as a ring. He wrote to her about having feelings for her, even though she was so much younger than him.

22. Soon after RS’s 15th birthday (in September 2001) during a group sleep over at the church hall, the Applicant slept on a lounge with RS. When she woke, he was over the top of her and kissed her. He told her she would get into trouble if she told anyone about it. Later she told a friend. The Applicant told her to say it was a dream and she did so.

23. In October-November 2001, the Applicant suggested driving RS to Stanwell Tops which they did. He put a blanket on the grass and passionately kissed her and then he drove her home. She was 15 at the time (Count 9).

24. According to RS, the Applicant made it quite clear to her from the beginning that she was not to tell anyone about them. He told her that she would get into trouble. Later, he explained this in terms of their relationship being just “too early for its time” and that people would not understand because of his job as a police officer and their age difference. RS explained that she liked the way the Applicant made her feel so she was happy to go along with it.

25. Soon after the Stanwell Tops offence (Count 9), they made arrangements to see each other at RS’s home after the Applicant had finished a late shift at work. He was in his police uniform. He came through the back gate and the back door which RS had left open. He laid down with RS on her bed and starting kissing her. He told her that he wanted her to suck his penis and she did so. Then he said he wanted to lick her vagina which he did afterwards saying “I’ve been waiting so long to taste you” (Counts 10 and 11). The Applicant tried to persuade RS to have penile vaginal intercourse, however she said that she was not ready to do so.

26. The Applicant took her shopping and brought her new clothes which made her feel very special. RS wore these clothes on a school excursion to the Sydney Tower and afterwards she stayed in the city and met with the Applicant. She was able to do this because the Applicant forged a permission note from her mother saying that she could. She stayed that night at the Applicant’s house and the next day she did not go to school. She described them “playing” with each other, by which she meant she sucked his penis and he licked her vagina. The complainant was still 15 years old at this time (Counts 12 and 13).

27. RS said that around the time they started having oral sex, she discussed with the Applicant that due to their shared religious beliefs, she did not want to have penile vaginal sex with anyone until she was married (T83; AB1042).

Counts 14, 15 and 16

28. In late November 2001, about six weeks after her 15th birthday, RS described the Applicant picking her up after a school presentation night. He was to drive her home, but suggested first that they go and “play” for a bit. He drove to a vacant lot in Chullora and he folded down the back seat and got out a blanket and a pillow. They laid down in the back and, after kissing and removing their clothes, she put his penis in her mouth and then he performed oral sex on her (Counts 14 and 15).

29. After that, he was lying over the top of her and had his penis on top of her vagina, rubbing it against her (but not inside her). He was “just using the saliva he had created down there as lubrication” and the Applicant said to her “It’s OK, I’m just swimming, I won’t go any further” (T83; AB1042). But then the Applicant put his penis inside her vagina and began to penetrate her. The Applicant said to her “Now we are one” (T83; AB1042). It was this first act of penile vaginal intercourse that constituted Count 16, the conviction which gives rise to the present ground of appeal.

30. On the way home afterwards, RS was very quiet and did not say anything to the Applicant.

The Applicant Apologises

31. The next day, the Applicant sent RS a letter apologising and saying that it would not happen again (T84; AB1043).

Events After Count 16

32. Soon after that, RS said that the Applicant took her shopping in the city and he bought her a wallet and t-shirt. She described things as being “back to being more friends” (T84; AB1043).

33. The Applicant then started to explain to her that “If you’re in a relationship with someone you need to make the other person happy” and that “If you don’t have sex with someone then the relationship goes nowhere” (T85; AB1044). RS said that, at that time, she did not want the Applicant to leave her, but that she believed they were “boyfriend and girlfriend” and that she wanted this to continue. She felt that if she “didn’t do as he wished that he would leave and like break up with me” (T85; AB1044).

34. RS said that, as a result of this conversation, their sexual relationship started to include penile vaginal intercourse in addition to fellatio and cunnilingus. These types of sexual acts continued to occur for about another nine or 10 months, before she finally broke up with the Applicant in about October 2002, because she had suspicions that the Applicant was having a relationship with another young girl, AF (see Counts 31 to 48). The Applicant was convicted of sexual offences with AF (then 14 years old) which were committed in the first half of 2002 (Counts 31-36, 38-42).

35. RS referred to an item described as the “Book of Shadows” which was a “letter book we had together”, containing letters and drawings which were communications between the Applicant and her (T100; AB1059). After she and the Applicant broke up, he asked for the “Book of Shadows” to be given back to him, as he “said it was too dangerous for me [RS] to have in my possession” and she gave it back to him (T124; AB1083). The Applicant asked for the letter of apology (see [31] above) back from RS after they broke up, and she gave it back to him at the same time as the “Book of Shadows” (T170-171; AB1129-1130).

Complaints by RS

36. About a month after breaking up with the Applicant, in November or early December 2002, RS told a friend, VZ, that the Applicant had “raped her and sexually abused her” (T886; AB1845).

37. Steven Chard was senior pastor at the church attended by the Applicant and RS. He was called as a witness in the defence case at trial. He gave evidence of having a conversation with RS in December 2002, in which she said that she wished to make a complaint about the Applicant. In response to a question from Mr Chard as to whether the Applicant had had sex with her, RS said “Twice, when I was 14 and when I was 15”. Mr Chard asked “Was it with your permission?” and RS replied “One of them wasn’t” (T1105; AB2064).

38. It is not necessary to recount the circumstances surrounding the offences after Count 16 for the purpose of determining the ground of appeal.

Submissions of the Applicant

39. Mr Game SC, for the Applicant, pointed to the fact that Count 16 required the Crown to prove an absence of consent by RS, and that the Applicant knew that RS was not consenting to the act of penile vaginal intercourse. He noted that this was an important point of distinction between Count 16 and other counts of which the Applicant had been found guilty.

40. Mr Game SC submitted orally that the ground of appeal should be approached as an unreasonable verdict ground and not an inconsistent verdict ground (T20, 24 November 2015). He submitted, however, that the Court could have regard to the acquittals on counts involving RS in determining the unreasonable verdict ground.

39. The written submissions for the Applicant pointed to the counts concerning RS which had resulted in acquittals, and noted the sentencing Judge’s comments with respect to these counts (see [16] above). It was submitted that the evidence available to sustain Count 16 appeared to be no different to the evidence available regarding Counts 22, 24 and 25, with acquittals resulting on Counts 22 and 24 and the jury unable to agree on a verdict on Count 25.

40. The following submissions were made for the Applicant by reference to the evidence adduced in support of Count 16:

1. it stood alone as the one instance of alleged non-consensual intercourse between the Applicant and RS;

2. it can be contrasted with the abundance of evidence that supported the Crown case that the Applicant had engaged in consensual activity with RS, and the three other complainants who gave evidence in the trial;

3. consensual activity was ongoing between the Applicant and RS, on the Crown case, for a considerable period after the alleged offence;

4. there was no complaint for more than 12 months;

5. there was an almost immediate retraction made by RS - the retraction was repeated a number of times, and included a formal interview and retraction statement with police on 7 January 2003;

6. RS subsequently had consensual intercourse with the Applicant in 2005 when she was 18 years old;

7. there was no further complaint until police approached her in 2010.

43. It was submitted for the Applicant that the verdict of guilty on Count 16 was unreasonable and that it could not be supported by the evidence, with the acquittals on other counts concerning RS fortifying this conclusion.

Submissions for the Crown

44. The Crown submitted that the verdict of guilty on Count 16 was reasonably open to the jury so that the Court should reject the Applicant’s ground of appeal.

45. The Crown responded to each of the specific submissions made for the Applicant with respect to Count 16 (see [42] above):

1. the Crown submitted that whilst it is true that Count 16 stood as the one instance of alleged non-consensual intercourse between the Applicant and RS, she had explained clearly why this was the case and how this one non-consensual occasion came about - it was because the relevant act happened at a time when she had made it clear to the Applicant that she did not want to engage in penile vaginal intercourse until she was married - despite the Applicant’s assurance that he would not go further, he did so, apologising for it the next day - the Crown submitted (as noted by the sentencing Judge at [17] above) that the presence of this one non-consensual act could readily be viewed as consistent with a deliberate “escalation of a systematic seduction of an underage complainant”;

2. the Crown submitted that the absence of supporting evidence did not render the evidence in respect of Count 16 unreliable, nor did it necessitate a conclusion that the jury should have entertained a reasonable doubt - given the isolated nature of the act, it was submitted that the absence of supporting evidence was not remarkable;

3. the Crown submitted that any question as to how and why consensual sexual activity (including penile vaginal intercourse) continued after the non-consensual event in Count 16 was clearly explained by RS - when considered from the point of view of a 15-year old girl in her circumstances, it was submitted that the explanation is credible and compelling - she was besotted with this older man, who was connected with the church and who was also a police officer - she enjoyed all the attention he bestowed upon her - she explained that she did not want the relationship to end - as a result, she accepted the explanation the Applicant gave her (that “If you’re in a relationship with someone you need to make the other person happy”, and that “If you don’t have sex with someone then the relationship goes nowhere” – see [33] above) in order not to lose him;

4. the Crown submitted that delayed complaint is not an unusual feature in these kinds of matters, given that RS continued having a relationship with the Applicant - she explained her reasons for not disclosing the offending during the course of the relationship - this included the Applicant telling her that she would get into trouble, and later developed into how their relationship was just “too early for its time” and people would not understand because of his job as a police officer and because of their age difference - RS explained that she liked the way the Applicant made her feel so she went along with this - the Crown submitted that it was significant that, when RS did finally make a disclosure, it was reasonably proximate to the relationship having ended in October 2002, with the disclosure occurring in November 2002 or early December 2002;

5. the Crown submitted that the Applicant’s reliance upon the purported retraction had to be seen in the context of the jury’s verdict on Count 27, which related to the Applicant inducing RS to withdraw her complaint with the intention of perverting the course of justice - the guilty verdict involved acceptance by the jury that the Applicant had applied pressure to RS to effect a retraction of her allegations - this was a precursor to RS’s formal interview and retraction statement with police;

6. the Crown submitted that RS had explained why the later incident of intercourse in 2005 had occurred - she said “I just kind of wanted a bit of payback to show him that I’m like doing better without him now, and just to kind of hurt him, in a way to use him as I felt that he had used me for a period of time when I was younger” (T160; AB1119) - the existence of this much later consensual intercourse did not render the evidence of the first act of non-consensual intercourse unreliable;

7. the Crown submitted that the absence of further complaint, until police approached RS in 2010, was a feature which existed in respect of all of the counts involving her, including those for which the jury returned guilty verdicts, which are not subject to any challenge on appeal.

46. To the extent that the Applicant sought to rely upon acquittals on a number of the counts, the Crown submitted that it had not been argued that the acquittals necessitated a conclusion that the credibility of RS had been undermined, in respect of all of the counts on the indictment where there were guilty verdicts. Rather, it was only the conviction on Count 16 which is under challenge, with acquittals upon several counts being relied upon by the Applicant in an indirect way. The Crown submitted that, to the extent that inconsistent verdicts were part of the Applicant’s submission, the verdict of guilty on Count 16 was both logical and reasonable.

47. The Crown noted that there was either an absence of evidence or some evidence in the defence case, which bore upon the acquittals on Counts 22 and 24. The sentencing Judge referred to these differentiating aspects in the remarks on sentence (see [16] above).

48. Further, there were some features affecting Count 25 (where the jury could not agree) which did not affect the evidence in support of Count 16.

49. The Crown submitted that the ground of appeal should be rejected.

Decision

50. The well-known principles to be applied, when determining a ground of appeal which asserts that a verdict is unreasonable or cannot be supported by the evidence, were summarised by Bathurst CJ (Hoeben CJ at CL and Bellew J agreeing) in W v R [2014] NSWCCA 110 at [150]-[152]:

“150   The principles on which this ground is to be determined were reaffirmed by the majority of the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 in the following terms:

‘[11]    It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:

'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.'

[12]    This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.'

[13]    The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:

'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'

Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.’

(Citations omitted).

151   It is not enough for the verdict to be unreasonable that a review of the evidence shows only that it was possible for the jury (or in this case the trial judge) to reach a different conclusion. That was made clear by Hayne J in Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559. In a passage with which Gleeson CJ and Heydon J agreed, his Honour made the following remarks:

‘[113]    It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But 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. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.’

(Emphasis in the original, citations omitted).

152   However, it is not sufficient that there was evidence on which a jury could convict. So much is made clear in the passage from M v The Queen [1994] HCA 63; (1994) 181 CLR 487, cited in SKA v The Queen supra at [13]. If, after giving full weight to the primacy of the jury, the court is left in reasonable doubts as to the verdicts, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving a doubt, the court can conclude there was no miscarriage of justice (see also MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [26] and [55]-[56])”.

51. It is important in this case, that the jury had an opportunity to see and hear the witnesses, including RS, give evidence at trial.

52. To the extent that the Applicant relies, in support of the challenge to conviction on Count 16, upon acquittals on some counts involving RS, it should be kept in mind that the test is one of logic and reasonableness: MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 366.

53. The principles to be applied, where an unreasonable ground is sought to be supported by a claim of inconsistent verdicts, were mentioned by Hoeben CJ at CL (Davies J and myself agreeing) in ML v R [2015] NSWCCA 27 at [46]-[48]:

“46   The principles applicable when considering ‘apparent’ inconsistent jury verdicts were comprehensively analysed in MFA v The Queen [2002] HCA 53; 213 CLR 606. Those principles have not been qualified in later cases. The plurality (Gleeson CJ, Hayne and Callinan JJ) recognised the advantage of a jury over an appellate court in relation to certain evidence:

‘23   The case was one in which the jury's assessment of the three principal witnesses, the complainant, MA, and the appellant was vital. The alleged offences arose out of sexual activities between the appellant and boys of a much younger age. The activities were not brought to notice as a result of any complaint by the boys. When first approached by the police, they denied the activities. In court, they sought to explain this by fear and shame. Furthermore, in evaluating the effect of the evidence of MA, the jury were entitled to take account of his age at the time of the alleged events, and the possibility of some confusion on his part. None of this relieved the Court of Criminal Appeal of its responsibility in scrutinising the evidence, and making its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court would properly have been conscious of the fact that there were aspects of the case that would not be reflected adequately in the written record.’

47   The plurality also stressed the importance to be accorded to a jury verdict:

‘34   Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. 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. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. …’

‘48   More recently, observations to similar effect were made by Simpson J (with whom McClellan CJ at CL and Latham J agreed) in R v TK [2009] NSWCCA 151; 74 NSWLR 299 at [135]:

‘135     … But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open ‘upon the whole of the evidence’. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).

136       In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations …’.”

54. To my mind, the Crown responses (at [45] above) to the particular submissions advanced for the Applicant, are highly persuasive. There were features of the evidence, surrounding Count 16, which provided a solid foundation for a conclusion that RS was not consenting to penile vaginal intercourse and that the Applicant knew that she was not consenting at the time of the act.

55. RS gave evidence of a conversation with the Applicant concerning her wish that sexual activity not proceed to penile vaginal intercourse. Her position had been made clear to the Applicant and he understood it at the time of the events giving rise to Count 16. The Applicant told RS that he was just “swimming” externally on top of her genital area, and that he would not “go any further”. Despite this assurance, he inserted his penis in her vagina and engaged in penile vaginal intercourse, with the Applicant saying to RS “Now we are one”. The Applicant apologised to RS for this, including a written apology the next day. It was her evidence that this letter had been returned to the Applicant, at his request, at the end of their relationship.

56. Other features of the evidence supported a conclusion that the act involved in Count 16 was non-consensual. There was complaint by RS to VZ of rape and sexual abuse (see [36] above). Further, there was complaint by RS to Mr Chard in December 2002 that she had had sex twice with the Applicant and “one of them” was not with her permission (see [37] above).

57. This Court is entitled (as was the jury) to have regard to the Applicant’s course of manipulative conduct towards RS over an extended period of time. The Crown’s response to the Applicant’s submissions referred to aspects of this. It included the Applicant’s justification for the continuation of penile vaginal intercourse after the initial non-consensual act, a course of manipulation of RS which succeeded. All of this occurred at a time when the Applicant was twice the age of the teenager, RS.

58. The Applicant’s submissions by reference to the retraction by RS of the allegations is also to be viewed in light of the manipulation of RS by the Applicant. Other features of this manipulation included the Applicant’s use of his status as a police officer and as a church worker, presenting as a person whom RS held in high regard.

54. The acquittal of the Applicant on some counts concerning RS is explicable. The verdicts suggest that the jury worked their way through the various counts, reaching verdicts which accorded with the evidence and the directions of the trial Judge.

55. I am satisfied that a sound and clear foundation exists for the verdict of guilty on Count 16. The verdict on Count 16 is both logical and reasonable.

56. Applying the relevant principles where a claim is made of an unreasonable verdict, I am well satisfied that the verdict of guilty on Count 16 was reasonably open to the jury in this case. I am left with no reasonable doubt of the Applicant’s guilt on Count 16.

57. I would reject this ground of appeal.

Conclusion

63. For the above reasons, I propose that leave to appeal be granted, but that the appeal be dismissed.

64. BUTTON J: I agree with Johnson J.

65. FAGAN J: I agree with Johnson J.

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Decision last updated: 18 December 2015