Michael Leigh Crofts v The Queen

[2018] VSCA 197

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0225

MICHAEL LEIGH CROFTS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, HARGRAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2018
DATE OF JUDGMENT:	9 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 197
JUDGMENT APPEALED FROM:	DPP v Crofts (Unreported, County Court of Victoria, Judge Mullaly, 7 September 2017 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Verdict of guilty on charge of attempted anal rape – No verdict reached on vaginal rape charge – Where acts occurred in close temporal proximity – Inconsistent verdicts – Whether jury’s decisions are reasonably reconcilable – Pillay v The Queen (2014) 43 VR 327 applied – Application for leave granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Fitzpatrick	Slate and King Lawyers
For the Crown	Mr J Lewis	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA:

The course of the trial and ground of appeal

1. Not long after midnight on 25 March 2016, the applicant visited the female complainant’s home.  In the course of an episode of sexual activity, the applicant attempted to penetrate the complainant’s anus with his penis, and he had penile-vaginal sexual intercourse with her.  On the applicant’s version of events, all of the sexual activity was consensual.  According to the complainant, however, all of the sexual activity was without her consent.

1. Eventually, an indictment was filed in the County Court charging the applicant with attempted rape[1] (charge 1) — relating to the attempted anal penetration — and rape[2] (charge 2) — relating to the penile-vaginal penetration. 

   [1]Crimes Act 1958, ss 38 and 321M.

   [2]Crimes Act 1958, s 38.

1. Initially, the applicant faced trial in May 2017, but the jury was unable to agree on a verdict.

1. A second trial took place in September 2017.  As is not unusual, the complainant did not give evidence in person at the second trial.  Instead, a recording of her evidence from the first trial — including cross-examination and re-examination — was played to the jury.[3]  The applicant gave evidence in his defence.  

   [3]See Criminal Procedure Act 2009, ss 379 and 381. The only other evidence in the prosecution case consisted of the evidence of a police officer, Detective Senior Constable Jennifer Parker, recorded at the first trial, also being played to the jury.

1. Following addresses by counsel and the judge’s charge, the jury retired to consider its verdict at 2.45 pm on Wednesday, 6 September 2017. 

1. In the morning of the next day, Thursday, 7 September 2017, the jury asked two questions related to the issue of consent: ‘Can you provide any further direction around whether consent needs to be given before a sexual act commences or can it be during the act?’; and, ‘If an act is attempted, then during the attempt, consent is sought and not given, has an offence occurred?’.  The judge accordingly gave further directions in answer to those questions.  

1. Later that same morning, the jury asked two further questions:  ‘What is the process if we cannot agree?’, and ‘What happens to the case?’.  The judge answered the first question by giving a form of Black direction;[4] but he did not answer the second question, because, he said, he ‘just could see potential risk of compromise’. 

   [4]Black v The Queen (1993) 179 CLR 44 (‘Black’).

1. In the afternoon of that day, at 2.02 pm, the judge read a note from the jury: ‘We have reached a verdict on Charge 1, [but] we cannot reach a unanimous decision on Charge 2’.  In response, the judge then gave another Black direction. 

1. Later in the afternoon, at 3.27 pm, the judge read a further note from the jury: ‘Regarding Charge 1, we have arrived at a decision beyond reasonable doubt, that is, unanimous. Regarding Charge 2, we are unable to arrive at a unanimous decision despite extensive deliberation’.  As a result, at 3.53 pm, the judge informed the jury that he would take a majority verdict ‘that is agreed upon by 11 of the 12 of you’.  At 4.03 pm, however, the judge read a note from the jury: ‘A further discussion has occurred and the decision remains unchanged’.  The jury then returned a verdict of guilty on charge 1, attempted rape.[5]  No verdict was, however, returned on charge 2, rape.[6] 

   [5]On 28 September 2017, the trial judge sentenced the applicant to be imprisoned for three years, with a non-parole period of 18 months.

   [6]The Director of Public Prosecutions later filed a notice of discontinuance on that charge.  See Criminal Procedure Act 2009, s 177.

1. The applicant seeks leave to appeal on a single ground, formulated as follows:

That the verdict of guilty to charge 1 of attempted rape is unsafe and unsatisfactory and logically, and factually cannot be reconciled with the Jury’s inability to reach a verdict on charge 2 of rape, to such an extent that it is an affront to logic and common sense and strongly suggests of compromise in the performance of the jury’s duty.

1. In my view, the ground should succeed.  The fact that the jury convicted the applicant of attempted rape, yet could not agree on the charge of rape, is in my view ‘an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’,[7] rendering the verdict on charge 1 unsafe and unsatisfactory.[8]

   [7]MacKenzie v The Queen (1996) 190 CLR 348, 368 (proposition 5) (Gaudron, Gummow and Kirby JJ) (‘MacKenzie’).

   [8]Ibid, 357.

Principles applicable

1. It must be borne steadily in mind that this Court’s jurisdiction derives from

   
   

   s 276 of the Criminal Procedure Act 2009, which requires the Court to allow an appeal against conviction if the appellant satisfies the Court that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’, or ‘for any other reason there has been a substantial miscarriage of justice’.

1. In the present case, the thrust of submissions by counsel for the applicant was that the verdict of guilty on the charge of attempted rape is inconsistent with the jury’s failure to reach a verdict on the rape charge, and is therefore unsafe and unsatisfactory.[9]

   [9]See [0] below.

1. There is some authority for the proposition that the inconsistent verdicts doctrine cannot be invoked when comparing a guilty verdict on one charge with a jury’s inability to agree on another charge.[10]  In Formhals,[11] however, the England and Wales Court of Appeal expressed the view that the principles applicable to inconsistent verdicts are capable of application by analogy to a situation where a jury has convicted on some counts but failed to agree on others. 

   [10]See [18] and footnote 17 below.

   [11]R v Formhals [2014] 1 WLR 2219 (Davis LJ, Nicol J and Judge Elgan Edwards) (‘Formhals’).

1. The appellant in Formhals faced trial on six charges (among others) of fraud by dishonest representation.  He dealt in antiques and memorabilia on the internet auction site ‘eBay’, and had sold a number of items — purportedly signed by Winston Churchill — to the complainant.  The signatures on the items were not, however, genuine, and the prosecution went to the jury on the basis that the appellant had forged the signatures (it necessarily following that he knew that they were forgeries). Expert evidence was adduced at trial with a view to showing that the purported signatures of Winston Churchill on the various items which were the subject of the various counts were indeed forgeries.  In evidence, the appellant denied having forged the signatures himself, and said that he believed that the signatures on the items that he sold were genuine and therefore that he had not acted dishonestly.  His evidence was to the effect that he had bought the various items already bearing the signatures.  The defence case also involved putting the prosecution to proof that the signatures were indeed not genuine, and that the goods identified at trial were the same as the ones that he had sold.

1. Ultimately, the Court in Formhals dismissed the appeal on the basis that there was no logical inconsistency in the overall result, since the jury were not logically required to achieve the same outcome on all of counts 1 to 6.  As the Court pointed out, the expert evidence had focused on various of the lots separately comprising the separate counts, so that the jury did not have to make an identical evaluation of the expert evidence on each such matter.  The jury could, the Court said, have made a different assessment and reached a different conclusion depending on the lot in question.[12]  Importantly, however, the Court recognised that the principles applicable to inconsistent verdicts are capable of applying by analogy to cases where it is logically inexplicable as to how a jury could fail to reach a verdict on one count notwithstanding having reached a verdict of guilt on another count.  The Court observed:[13]

Overall in this context what the Court of Appeal ultimately has to consider is whether or not a conviction is safe.  The failure of a jury to agree on a verdict is, as we have said, self-evidently not a verdict.  But in our view, in a context such as the present, linguistics should not be allowed to triumph over justice.  It thus may be that where a jury fails to reach a verdict that cannot be said to give rise, strictly, to an inconsistent verdict when set against another verdict.  But that is labelling; and in our view, the principles applicable to inconsistent verdicts are capable of applying by analogy where it simply is logically inexplicable as to how a jury could not reach a verdict on one count when set against a verdict of guilt they had reached on another count.  We thus think it would be going too far to preclude a defendant in such a situation from even being permitted to argue that the resulting situation gives rise to an unsafe conviction.  Accordingly, it is open to the appellant to raise this point in this appeal.

[12]Ibid, 2227 [33].

[13]Ibid, 2225 [27] (emphasis added).

1. Formhals was applied by this Court in Pillay.[14]  In that case, the three applicants had each faced trial on two charges of rape (charges 1 and 2) and one of indecent assault (charge 3).  The jury convicted each applicant of indecent assault, but were unable to agree on a verdict on the charges of rape.  On appeal against conviction, each applicant contended that the guilty verdict on the charge of indecent assault was unsafe and unsatisfactory by reason of inconsistency with the jury’s inability to arrive at a unanimous verdict on either of the two rape charges.  The applicants submitted that, as all three sexual acts that were the subject of the indictment took place at the same time, and in circumstances where the only issue for the jury to determine was whether the prosecution had established that these acts were non-consensual, the verdict of guilty of indecent assault ‘stood in stark, and inexplicable, contrast with the jury’s inability to reach a verdict on either charge of rape’.[15]

   [14]Pillay v The Queen (2014) 43 VR 327 (Maxwell P, Redlich and Santamaria JJA) (‘Pillay’).

   [15]Ibid, 329 [14].

1. The Court observed:[16]

What was striking about this case was that the evidence against each applicant, as regards the only matter in dispute in this trial, namely consent, was identical.  Yet the jury were unable to agree on charges 1 and 2, even after having been given a majority verdict direction.  At the same time, they were able to reach a unanimous decision on charge 3.

The fact that the jury were given the option of a majority verdict after they had indicated that they could not unanimously agree in relation to two of the three charges meant that at least two (and possibly more) jurors entertained a reasonable doubt as to lack of consent when it came to charges 1 and 2, but no such doubt when it came to charge 3.

There is a considerable body of authority[17]  in support of the proposition that the ‘inconsistent verdicts’ doctrine, as the basis for an unsafe and unsatisfactory submission, cannot be invoked, as such, when comparing a guilty verdict with an inability on the part of the jury to agree on another charge. That is because, strictly speaking, in the case of a disagreement on the part of the jury, there is no ‘verdict’. Accordingly, so it is said, there is no room for any argument based on inconsistent verdicts.

[16]Ibid, 330 [18]–[20] (emphasis added).

[17]See, eg, Osland v R (1998) 197 CLR 316, at 406, [232] per Callinan J; Millar v R [2003] WASCA 211, at [45] per McKechnie J; R v Kahu [2006] QCA 33, at [27] per Keane JA; R v DAL [2005] QCA 281, at [21] per Keane JA. Cf R v R, GJ (2009) 105 SASR 506, at 517, [32] per Kourakis J (‘R, GJ’).  (Citations as in original).

1. Having discussed the approach in Formhals —which seemed to the Court to be correct, and should be adopted[18] — the Court went on to say:[19]

The authorities make it clear that appellate courts should approach a claim of inconsistent verdicts with caution.[20]  If there is an apparently rational explanation for a jury’s having differentiated between various charges, that explanation should be preferred to one which suggests that the jury may have foresworn their oaths, and impermissibly compromised.[21]

The principles that govern factual inconsistency as a ground of appeal are well settled. …

[18]Pillay, 331 [23].

[19]Ibid, 331 [26].

[20]R v JA [2008] VSCA 169, at [48] per Vincent, Dodds-Streeton and Weinberg JJA; Goldsmith v R [2010] VSCA 99, at [51] per Weinberg, Mandie and Bongiorno JJA (‘Goldsmith’); Director of Public Prosecutions v Fattal [2013] VSCA 276, at [36] per Buchanan AP, Nettle and Tate JJA; R v Motlop [2013] QCA 301, at [47] per Boddice J; Andrew v R [2013] VSCA 333, at [40] per Weinberg JA; Amato v R [2013] VSCA 346, at [5] per Maxwell P. (Citations as in original.)

[21]Goldsmith [2010] VSCA 99.

1. Making the point that the case ‘was not, in the literal sense, a case of inconsistent verdicts’,[22] the Court expressed itself as being:[23]

prepared to deal with each application before this court as if the jury had returned verdicts of not guilty on charges 1 and 2.  It seemed to us that at least some of the reasoning that lay behind the notion that inconsistent verdicts rendered a conviction unsafe and unsatisfactory had application to this particular case, as well.  The real question, in our view, was  whether there could be any explanation for the outcome of the jury’s deliberations in the first trial, apart from some form of irrational and improper compromise. In our opinion, no such explanation was apparent.  Accordingly, we concluded that it would be unsafe to allow the convictions on charge 3 to stand.

[22]Pillay, 333 [29].

[23]Ibid, 333–4 [30].

1. This Court considered the same issue in Tukuafu.[24]  The Court said:[25]

Recently, in Pillay v The Queen, this Court determined that a jury’s failure to reach a verdict could give rise to an inconsistency with a verdict of guilty.  The failure to reach a verdict gave rise to the question whether there could be any explanation for the outcome of the jury’s deliberations ‘apart from some form of irrational and improper compromise’.   The Court in Pillay concluded that it was not rational for the jury to have found consent not to be present in relation to an indecent assault charge but to have failed to reach unanimity on the same issue with respect to rape charges.

The appropriate inference to be drawn from the jury’s failure to reach a verdict with respect to a particular charge is to be determined according to the circumstances of the particular case. …

[24]Tukuafu v The Queen [2014] VSCA 345 (Maxwell P, Redlich and Whelan JJA) (‘Tukuafu’).

[25]Ibid, [26]–[27] (citations omitted).

1. Of significance, this Court recognised in both Pillay and Tukuafu that the principles concerning inconsistent verdicts deriving from MacKenzie may, in some circumstances, be applied by analogy to cases such as the present.

1. Pillay has not, however, received universal approbation.  Thus, in PA,[26] Hoeben CJ at CL (with whom Johnson J agreed) said:[27]

With great respect to the Victorian Court of Appeal, I am not persuaded that the approach in Formhals and Pillay is correct.  To follow such an approach implicitly accepts that there is no difference between a verdict of acquittal or guilt and a failure to reach a verdict, a proposition which is contrary to law and common sense.  The reasons why a verdict of acquittal or guilt and a failure to reach a verdict should be treated differently, are set out in DAL^[[28]] and the cases which followed it.  That is sufficient to deal with this ground of appeal.

Contrary to the proposition in Formhals, the difference between a verdict of acquittal or guilt and a failure to reach a verdict by a jury is not simply a matter of ‘linguistics’.  In this case the conviction on count 4 of necessity involved 11 jurors being satisfied as to the elements of the offence. Their failure to arrive at a verdict in relation to count 5 potentially could involve a number of other permutations.  The language of the High Court in MacKenzie v The Queen (1996) 190 CLR 348; 90 A Crim R 468 and that of Callinan J in Osland^[[29]] when dealing with the difference between a verdict on the public record, as opposed to a failure to reach a verdict, cannot be regarded simply as a ‘linguistic’ analysis.  Rather, they raise fundamental concepts reflecting important differences between the two factual circumstances.

Similarly, the concept of a compromise in circumstances where a jury has failed to arrive at a verdict is hard to conceptualise, ie what was the precise nature of the compromise?

It follows that this ground of appeal cannot succeed and ought be dismissed.

That does not end the matter.  There is a possible way of reconciling the approach in Formhals and Pillay with the DAL line of decisions but not on the basis of inconsistent verdicts.  In circumstances where an ‘unreasonable verdict’ ground has been raised (such as in the second ground of appeal here), it may be possible to argue that a possible inconsistency between a verdict by the jury and a failure to arrive at a verdict constitutes another reason why a jury verdict was unreasonable.  It is difficult to envisage circumstances where such a ground alone without other grounds could provide a basis for a finding that a verdict was unreasonable. This is because of the possible explanations for a failure to reach a verdict set out in DAL at [23].

[26]PA v The Queen (2015) 253 A Crim R 154 (‘PA’).

[27]Ibid, 167–8 [36]–[40].

[28][R v DAL [2005] QCA 281].

[29][Osland v The Queen (1998) 197 CLR 316, 406 [232].]

1. Hamill J agreed that the appeal should be dismissed because he was not persuaded that the relevant guilty verdict was ‘irreconcilable’ with the failure of the jury to agree on the other relevant count.[30]  His Honour continued:[31]

In those circumstances, it is unnecessary for me to express any final opinion on the possible conflict between the Victorian authorities and those emanating from Queensland and elsewhere.  I am inclined to the view expressed by the Victorian Court of Appeal (Maxwell P, Redlich and Whelan JJA) in Tukuafu v The Queen [2014] VSCA 345 that:

the appropriate inference to be drawn from the jury’s failure to reach a verdict with respect to a particular charge is to be determined according to the circumstances of the particular case.

Also, I am inclined to agree with the reconciliation of the authorities proposed by Hoeben CJ at CL at [40] of his draft judgment.  In other words, I agree that a jury’s failure to reach a verdict may, in particular circumstances, provide some support for a ground of appeal based around an assertion that a guilty verdict reached by the same jury is unreasonable or unable to be supported.

[30]PA, 175 [73].

[31]Ibid [74]–[75].

1. After a review of authority, in Neocleous[32] Doyle J (with whom Peek J agreed) concluded that:[33]

it is appropriate to apply the principles of inconsistency in cases involving a contention of inconsistency between a verdict of guilt on one count and the jury’s inability to reach agreement on another count.  While it will be rare that appellate intervention will ultimately be justified, there is in my view no barrier in logic or principle to intervention in an appropriate case on the ground that there is an inconsistency in the outcomes that warrants a conclusion that a verdict of guilty is unreasonable and should be set aside.

[32]R v Neocleous [2017] SASCFC 162.

[33]Ibid, [206]. Compare [1]–[11] (Kourakis CJ). See also R v Russo (2017) 128 SASR 377, 383–4 [24]–[25] (Stanley J).

1. Finally, in GW,[34] a case in which appellant complained that a verdict of guilty against him on one charge was inconsistent with the jury being unable to agree on other charges involving the same alleged victims, the ACT Court of Appeal observed:[35]

The first question is whether a guilty verdict should be treated as inconsistent with the failure of the jury to reach a verdict on another count.  In Pillay v The Queen (2014) 43 VR 327 at [20]-[23], the Victorian Court of Appeal referred to conflicting authorities on this point. The Court adopted the approach taken in R v Formhals [2013] 1 WLR 2219. It observed that, in Formhals, it was accepted that although, strictly speaking, a verdict of guilty is not inconsistent with the failure to reach a verdict on another count, the guilty verdict may be set aside as unsafe or unsatisfactory if, logically and factually, it cannot be reconciled with the jury’s inability to agree on the other count.  In Pillay, the offenders contended that verdicts of guilty of indecent assault were inconsistent with the jury’s failure to reach a unanimous verdict on rape charges that related to the same occasion as the only issue in the trial was consent.  The Court was unable to identify a rational basis for differentiating between the charges and upheld the appeal.

A verdict of guilty on one count is not ‘inconsistent’ with a jury’s failure to agree on another count in the sense that it creates an unexplained contradiction ‘on the public record’: Pillay at [27] (quoting MacKenzie v The Queen (1996) 190 CLR 348 (MacKenzie)).  In that sense, it does not manifest a ‘miscarriage of justice’.  However, in the context of the jury’s failure to agree on another count, a verdict of guilty may be ‘unreasonable’ within s 37O(2)(a)(i)^[[36]] of the Supreme Court Act. The debate about whether the difference is the same as an ‘inconsistency’ between a verdict of guilty and one of not guilty is barren; the underlying concern of ‘unreasonableness’ can be addressed under s 37O(2)(a)(i) in any event.

Appellate courts should approach a claim of inconsistent (or unreasonable) verdicts with caution.  Particularly where there is evidence to support a verdict of guilty, there is a need for great caution in presuming that a jury has acted inappropriately in returning that verdict: Still v The Queen [2010] NSWCCA 131 at [60] per Johnson J (Basten JA and Rothman J agreeing), Youkhanis v The Queen [2014] NSWCCA 220 at [87]. If there is an apparently rational explanation for the jury differentiating between charges, that explanation should be preferred to one that suggests that jurors have failed to adhere to their oaths and agreed on a compromise: Pillay at [26].

The test of whether there is an inconsistency (or whether the verdict of guilty is ‘unreasonable’) is a test of logic and reasonableness: MacKenzie.  The question is whether no reasonable jury that had applied its mind properly to the facts in the case could have arrived at the conclusion: R v Stone [1955] Crim LR 120 (cited in MacKenzie).  Another way of formulating the test is: Whether the only explanation for the outcome is irrational and improper compromise by the jury: Pillay at [30].

[34]GW v The Queen (2015) 306 FLR 104 (Murrell CJ, Refshauge and Ross JJ).

[35]Ibid, 115–6 [54]–[57].

[36][Section 37O(2) provides:

(2) The Court of Appeal on an appeal against conviction must—

(a)allow the appeal if it considers that—

(i)  the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence; or

(ii) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law; or

(iii) on any other ground there was a miscarriage of justice; or

(b)dismiss the appeal.]

1. Regardless of the apparently ongoing debate concerning the application of the ‘doctrine’ of inconsistent verdicts to a case such as the present, in my view it is not necessary to try and fit the basis of this Court’s intervention into a particular doctrinal pigeon-hole.  I consider that there is much to be said for the view, expressed in GW, that the debate whether the kind of ‘inconsistency’ in a case such as this is the same as an ‘inconsistency’ between a verdict of guilty accompanied by one of not guilty, is barren; since I consider that — in accordance with the statutory foundation of this Court’s jurisdiction — the underlying concern must be whether the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.

The evidence at trial

1. In order to understand the competing contentions of the parties, it is necessary to set out the evidence in some detail.

1. The complainant’s evidence was that she met the applicant’s wife, Lauren — whom she called ‘Loz’ — at a TAFE course in 2006.  They reacquainted about ten years later.  For a time the complainant lived across the road from the applicant and his wife, until they moved to a nearby residence in about May 2015, shortly before their wedding.  The complainant indicated that six months before the alleged offending she and the applicant’s wife had a ‘bust up’ over money. 

1. On Thursday, 24 March 2016, the complainant had spent the day with family.  She returned home, and, sometime after midnight, took a bath.  She had music turned up ‘fairly loud’ so that she could hear it in the bath.  Whilst in the bath, at about 1.30 am, she ‘heard a very loud knock on the door’.  Thinking it was police, the complainant wrapped a bath towel around her and peeked through a gap in the door.  She saw ‘Michael’ — the applicant — was at the door.  The complainant said, ‘Oh, wait there’, and ‘flung the door shut’, saying, ‘ Wait, wait, I’ll go put a dressing gown on’.  She then went to the bedroom and put on her dressing gown and knickers.  When she came out of the bedroom Michael was in the hallway.  The complainant asked, ‘Is Loz with you?’, and the applicant replied, ‘ No, she’s home in bed’.

1. When the complainant pushed past the applicant to go to the lounge area, she could smell alcohol.  In the lounge room, whilst she was sitting on the couch, the applicant  ‘kept trying to be extra close’, trying to kiss and cuddle her and to open her dressing gown up, ‘both at the bottom or the top’.  He may possibly have landed a kiss on her cheek.  During the evidence that followed, the complainant described the attempted anal penetration:[37]

   [37]Emphasis added to this and following passages.

What did you do in response to him trying to kiss you?---I was just saying no.  Like and sort of, you know, in a ‘what the hell’ kind of manner.  I just didn’t know what was going on.  ‘You’ve got Lauren.  You’ve got Loz.’

Had this ever happened before, anything like this?---Nah.  No.

And you said that he was trying to disrobe you basically or open your robes, is that right?---Yeah.

What were you doing in response to that?---Just saying no.  Um, he was - - -

You didn’t have a drawstring on?---No.  No but he was trying to open at the top and the bottom.  So, each time he did, because I was holding it in the middle, you know, he’d get a vision, little bits of a vision and once he got it wide open, I think I’ve fully like went into shock I think.

Where were you when he started to try at least to open up your robe.  What position were you in?---In front of the couch.

Try to speak up.  It’s really hard---?---In front of the couch.

In front.  Were you standing or were you sitting?---Sitting.

So, you were sitting on the couch?---Yeah.

And where was he?---In front of me, like very close.

Was he standing, sitting, kneeling.  What was he doing?---Um, I think mostly kneeling.  So, he’d be like, more of the same level to see.

So, he was – his face height was what, almost like your face height was it?---Yeah.

And he must’ve been close enough to be grabbing at your robe?---Yes.

And you said once he eventually got it open, your state of mind was shock?---Yeah, and there’s only two people that have seen me naked in my life and like even Phil, I’ve known him for over a decade and he couldn’t come after seeing me for six months and do that.

Don’t worry about that so much.  But the point is, you felt shock about what has just happened?---Yeah.

And how did that affect what you did next, that is, your shock; what did you do next?---I’m not exactly sure, like I know that somehow he got me into the position, um, that he wanted, and um, I – because I was repeating, ‘You’ve got Loz, you’ve got Loz.’  ‘Oh, there’s certain things she won’t do.’  And that      

Who said that?---Michael.

You said ‘You’ve got Loz’ and what did he say?---Um, ‘There’s certain things she won’t do.’

In what sort of tone do you think, or do you remember you saying ‘You’ve got Loz’?---A shocked tone, like hurried, and um, yeah, confused as to what was going on.

Did you say anything to stop him?---I was saying ‘No’ and ‘Stop’ but I – I can’t remember all orders, I can’t – I can’t give exact details of that, like but it was very soon after he’d come in the door.

I didn’t hear that, I’m sorry?---It was very soon after he’d come in the door. 

You said, he said ‘There’s certain things she won’t do’ – did he tell you what he meant by that?---I think that was while he was trying to put me in the position and I just assumed, I guess, that what he was ---      

Okay, don’t worry about that, but he didn’t tell you what he meant by that then and there?---No.

But he was getting you in a position; what sort of a position did he get you in?---Into like, I guess what they refer to as the doggie position or whatever, the squat.

Yes and was that – you said you were initially on the couch sitting down?---Yep.

Try your best … to remember how it is that you got into that position.  You’re motioning, do that for us yes?---Yeah, he got my dressing gown off one arm, um, it was always stayed on the other, and like, pushed me to, like the doggie style position. … I was facing my window at the time.

...

What about him; what position did he get in?---He had one leg on, and the other one off, ‘cause it’s a quite narrow – the back of it can actually fold down into a – a single bed, um, the bit you sit on is quite narrow really, so I guess he could only put one knee up.

One knee up on the couch?---Yes.

And one on the – and what?---And a foot on the floor.

Had you, at this stage, seen his penis that night?---Yes.

No, that night?---And I’m not sure whether or not the dressing gown came off before he dropped his daks, but yeah.

Did you see him drop his daks?---I remember that he – him doing it, yes, but I don’t know what order, but I ---     

What about your underpants, were they still on after you’ve been turned into this position on the couch?---They were off, but see I don’t know exactly when that happened.  I think it was about the same time as he was taking the dressing gown off.

Who took them off; that is your underpants?---He would have, yeah it wasn’t me, but I just don’t remember all orders about – I wish I could, I’ve – yeah.

So what did he do once you’re in that position?---He started trying to penetrate first my bum and then my vagina.

When you say he tried to penetrate your bum, what was he trying to penetrate you with?---His penis.

...

Did you feel his penis at all that night?---Um, there was one stage when he tried to grab my arm and I was sort of flat down at that point, because I don’t remember until I got to that position and then he said – I said ‘Yuck, yuck’ and that was when he was trying to get me to help him force it into my bottom, um ---      

…      

Did you touch his penis?---Yes.

When did you say ‘Yuck, yuck’ in relation to touching his penis?---When he was trying – when I realised what he was trying to get me to do by puttin’ it in there, I think.

So you’re saying you realised he was trying to get you to help him put his penis in your anus?---[Yes, sorry].

Could you feel his penis on your anus, as opposed to in?---Yes.

How many attempts, a crude word, but how many attempts did he have to do that?---Probably three.

What were you doing in response, other than being in the state that you’re in, what were you doing?  Were you doing anything in response to that?---Um, once he’d moved me, it was when I just started bawling.  I think that was ---      

No, that’s not the question.  What were you doing in response to him when he was trying, the three times, to penetrate your anus?---Nothing, I guess. 

Did you kick him away, did you run away?---No.  No.

Where were your feet?---My feet were tucked up, like I was trying to have my feet so that I was making it as awkward as I could for him in that way …

So you’ve manoeuvred your feet, did you?---Yes.

Into what sort of position, did you say?---Well they pretty much, you know, can cover my vagina if I'm in that position.

1. I pause to note that in cross-examination the complainant agreed that she had made no mention in her statement to police of having said, ‘yuck, yuck’, and she said that she thought ‘it was meant to be a thought that come out’.  In re-examination, the complainant said that although she thought that she had said it, she was not sure if she had ’fully said it out loud’.  By way of context, the prosecutor read to the complainant what she had said at paragraphs 29 and 30 of her statement (as follows):

Michael tried to penetrate my anus.  He tried to force his penis into my anus.  I kept saying, ‘What are you doing’.  I remember squeezing my backside cheeks together as tight as I could, I remember Michael giving me instructions and at one time grabbed my hand, tried to get me to help.  I don’t know if he wanted me to help him penetrate me or to masturbate, I just pulled my hand away.  Michael was trying to put his penis into my anus, he was trying to force it in but he couldn’t and he penetrated my vagina instead.

Having read that portion of the statement to her, the prosecutor asked the following question and elicited the following answer:

Where does the ‘yuck, yuck’ fit into that sequence that we’ve just read from 29 to 30?---It doesn’t I guess, I wasn’t sure if I’ve fully said it out loud or not but I think I did.

1. Returning to her evidence in chief, after being taken to photographs, and having described the position of the couch and of the applicant, the complainant gave the following evidence relevant to the vaginal penetration:

So, your feet are pointing down around about where the strips are.  Were you still doing that thing where you’re trying to hold your feet up towards your vagina?---No.  Well, that’s not as easy to do.

And so, what happened then in that position?---That was when I really did start crying.  It was like I realised what was – what had – what was happening.

And when you say crying, was it obvious crying.  Was it loud?---Yeah.  Yeah, and I couldn’t stop shaking and when I get the shakes ‘cause of my severe anxiety, I – it’s like convulsion like shakes.  Once I get really nervous.

Were you saying anything to [the applicant]?---No, I’d given up.  It was too late.

When you say you’d give up, it was too late, what do you mean.  Tell us what you mean by that?---He’d has sex [sic.] with me, you know.  Feeling guilt towards Lauren.  Feeling yucky at myself.  Worrying about, you know, I don’t take sex lightly.  I’ve had two unplanned pregnancies.  I’m a grandmother.

Don’t worry about that so much.  But it was a big deal for you, all right.  Is that what you’re saying?---Yeah.

But he hadn’t had sex with you at this stage yet, had he?---Yes.

Where?---Yes.  It had gone on like, when he couldn’t try get it in my bottom, he had got it in the right place.

He got it in the where?---In the vagina.

What, before you moved to this new position, sorry?---Yeah. 

It was my---?---But he’d started to lose his erection I think when he moved me and that was when he got very rough.

So, by that stage, he’d already had sex with you.  You’re in this state of mind and you let it be, did you?---Yep. …

When you said he got more forceful, in what way did he get more forceful?---I don’t know how to describe – you know.  Humping harder and ---     

You mean the pumping action of the penis into your vagina?---Yeah.

What about his hands.  Do you know where they were when we was doing that?---I’m not sure, no.

Did he say anything to you throughout this?---He didn’t move much after he’d moved me, so they could’ve still possible been on the top of my arms or ---     

All right.  And he’s obviously behind you?---Yeah.

Is he standing on the floor or is he kneeling on the couch or what?---I think he was able then to have both knees on the couch, but I’m only guessing.

So you weren’t  looking behind you?---I couldn’t – can’t see there.

How long was he pumping for?---Not all that long, and yeah, he did pull out when he ejaculated. 

So he pulled out, do you think, before ejaculation or not, or you just don’t know?---At the time, I guess.

1. The complainant said that after the applicant had intercourse with her he started crying, saying that he had not seen his children for four years.  He apologised that he had ‘taken advantage’ of her, and she told him that ‘he shouldn’t even be that forceful with his wife, those sort of things, along those lines’, and that ‘it wasn’t fair’.  The applicant spoke about his wife not finding out, and the complainant indicated that she would not tell his wife what had occurred.  After the applicant left, the complainant called the police (the defence theory being that she did so because she was concerned that the applicant’s would find out about the sexual activity).

1. Detective Senior Constable Jennifer Parker gave evidence based on the contents of the police investigation file.  It established that the complainant had telephoned police at 1.45 am.  She sounded upset and anxious, said that she had been ‘raped’, but was ‘unsure whether she wanted to pursue the matter’.

1. As I have indicated, the applicant gave evidence.  He said that he and his wife, Lauren, had lived opposite the complainant for about a year from 2014, but that, by the time they married on 2 May 2015, they had moved.  During the morning of 25 March 2016, he decided to go looking for cannabis.  He went to the complainant’s place, because he thought he might be able to get some from her.  When he got close to her house, he could hear music, so he knew that she was awake.  He said the only reason he knocked on her door was because someone was up, and he could get ‘weed’.

1. After he knocked, the complainant opened the door in a towel, with another towel wrapped around her head.  He asked whether she minded if he came in, and she said she would put something on.  The applicant said that he walked inside, and as the complainant went to put on some clothes, he said he would use the toilet.  When he saw the complainant coming back down the hallway, she was wearing a blue robe.  Just at the start of the hallway, ‘she opened her blouse on the way past and flashed her boob’.  The applicant’s evidence was that he used the toilet, then went back to the lounge room where the complainant was sitting on the couch.  He sat on an arm chair.  They spoke about the ‘falling out’ between the complainant and the applicant’s wife.

1. The applicant said that as the complainant sat on the couch, ‘her blouse [was] coming open’.  He asked if he could look at her, and she replied, ‘You are looking at me’.  The applicant asked the complainant if he could kiss her, and she said he could if he wanted to.  He sat beside her on the couch and kissed her on the cheek and lips.  The applicant asked if he could take off the complainant’s robe.  Once her robe was off, he started to take off his own clothes.  He asked for a ‘head job’, but the complainant said that she did not do that.  The applicant asked her to stand up and he kissed her above her belly button.  He then laid on top of the complainant on the couch and removed her underwear.  His evidence continued:

Where were you?---Laying on top of her.

What happened when you laid on top of her?---I pushed her legs up and entered her vagina.

What with?---My penis.

How long did you stay in that position for?---Not very long.  It didn’t really feel very comfortable.

What happened after that?---I asked if we could move positions.

Did she say anything?---She said, ‘Yeah.’

What happened?---Um, we’ve then moved to the back of the couch, like doggy style up against the back of the couch.

...

She’s facing towards the back of the couch?---Yep.

Where are you in relation to her?---Standing up on the ground behind her.

What happens then?---I put my penis back into her vagina.

Just in relation to how she’s positioned on the couch are you able to say whether she’s kneeling on the couch, standing on the couch?---Um, she was kneeling.  Her knees would have been nearly to the back of the couch and she was over the top – sort of over the back part of the couch in the doggy position.

You’ve said that you put your penis in her vagina?---Yep.

How long did that last for?---Um, maybe 30 or 40 seconds or so roughly.

What happened then?---I took it out and put it towards her bum.

Was anything said?---Well, she said, ‘Not my bum, just not my bum.’

What did you do?---I put it back in her vagina.

What happened after you put it back in her vagina?---Um, I sort of had pumping, had sex for a little bit and then I was just about to ejaculate.

So what did you do?---I’ve pulled out and held onto my penis and ejaculated over my hand.

1. After the applicant had cleaned himself and the complainant had got dressed, as he started to get dressed he ‘got a bit emotional’.  His evidence was that he said that he was upset that he had cheated on his wife.  The complainant then walked him to the gate and they had another discussion about cannabis.  He then went home.

Analysis

1. As was the case in Pillay, the fact that the jury in this case indicated that they could not agree on a verdict in relation to charge 2, rape, after they were given the option of a majority verdict, necessarily means that at least two jurors entertained a reasonable doubt concerning lack of consent on that charge, but entertained no such doubt when it came to charge 1, attempted rape.  In my view, so much defies rational explanation.

1. Counsel for the applicant in this Court submitted that a verdict can be set aside as unsafe or unsatisfactory if that verdict could not logically be reconciled with the jury’s inability to agree on another charge.  The complainant’s evidence was that the alleged attempted anal rape immediately preceded the vaginal penetration.  It was submitted that, given the close temporal proximity of the foundational acts — where the sole issue was consent — it was illogical for the jury to conclude that the applicant was guilty of attempted anal rape, but not be able to reach a verdict on the rape charge.[38]  The complainant’s evidence was of clear non-consent throughout the entire episode.  Notwithstanding that this is so, the jury must have accepted the complainant’s lack of consent in relation to the attempted anal penetration, yet — on the very same evidence — at least two members of the jury (perhaps more) were unable to be satisfied beyond reasonable doubt of the complainant’s lack of consent to vaginal penetration.  To adopt the language in Pillay, there is something deeply troubling, in the present case, about the outcome of the jury’s deliberations.[39]  The verdict is unsafe and unsatisfactory.

   [38]I note that in his charge to the jury, having given a separate consideration direction with respect to the two charges, the judge observed: ‘With that said, of course these things happened very closely connected in time‘.

   [39]Pillay, 331 [24].

1. In oral submissions, the respondent’s counsel adopted his written response to the applicant’s written case.  The gravamen of the respondent’s arguments may be discerned from the following passages of that response:

10.23.  In response to the acts constituting charge 1 the complainant verbally expressed her disgust at the prospect of being anally penetrated by saying ‘Yuck, yuck’.  She physically expressed her disapproval of the act by raising her feet up towards her vagina in order to make the penetration more awkward for the applicant.

10.24.  In response to the acts constituting charge 2, however, her evidence was that she said nothing and that she did not raise her feet up as she had in relation to the attempted anal penetration.  She did, however, state that she cried and shook during the vaginal penetration.

10.25.  During each charged act the applicant was behind the complainant and was facing in the same direction. It was open to the jury to conclude that the applicant must have been aware of the two abovementioned acts that evidenced the lack of consent to the attempted anal penetration.  However, it was also open to the jury to question whether they could be satisfied beyond reasonable doubt that the applicant became aware of the complainant crying and shaking during the vaginal penetration in the circumstances described by the complainant as follows:

Q: When you said he got more forceful, in what way did he get more forceful? 

A: I don’t know how to describe – you know.  Humping harder and - - -

Q: You mean the pumping action of the penis into your vagina?

A: Yeah.^[[40]]

10.26.  The jury may have considered that the forceful nature of that penetration could have detracted from the applicant’s ability to detect the complainant’s reaction to it.  But at this level it becomes a matter of speculation as to exactly what the jury may or may not have regarded as significant.  The fact is that there were a number of pieces of evidence which allowed for relevant distinctions to be drawn as between the two charged acts.

10.27.  Whether or not any particular piece of evidence had any influence on the jury’s deliberations, in light of the entirety of the evidence, it must be concluded that it was open to the jury to be satisfied that the applicant was aware of the complainant’s lack of consent in relation to the attempted anal penetration and to nonetheless harbour concerns about whether the requisite state of mind in relation to the vaginal penetration had been proved beyond reasonable doubt.

[40]For context, see [33] above.

1. The respondent’s attempt to support the integrity of the jury’s verdict on charge 1 contained the following steps (albeit not necessarily advanced in the same order): 

·      first, it was submitted that it must be inferred that the jury were satisfied beyond reasonable doubt ‘that the applicant was aware of the complainant’s lack of consent in relation to the attempted anal penetration [but] nonetheless harbour[ed] concerns about whether the requisite state of mind in relation to the vaginal penetration had been proved beyond reasonable doubt’; 

·      secondly, ‘there were a number of pieces of evidence which allowed for relevant distinctions to be drawn as between the two charged acts’; 

·      thirdly, a point of distinction was that the complainant orally indicated her unwillingness to be anally penetrated by saying ‘yuck, yuck’ (and physically by raising her feet); 

·      fourthly, as to the vaginal penetration, however, the complainant’s evidence was that she said nothing and did not raise her feet up (albeit that she stated that she cried and shook during its occurrence); and 

·      finally, given that the applicant was behind the complainant during each charged act, it was open to the jury to conclude that he must have been aware of the two things that evidenced lack of consent to the attempted anal penetration, yet to fail of satisfaction beyond reasonable doubt that the applicant was aware of the complainant crying and shaking during the vaginal penetration.

1. Despite the respondent’s submissions — which revolve around the applicant’s state of mind concerning consent — the main contest at trial, so it seems to me, concerned the reality of the complainant’s consent (or lack of consent), and not the reasonableness (or otherwise) of the applicant’s belief in consent.  Indeed, although one must be circumspect when interpreting a jury’s questions, the two questions that the jury asked in the course of deliberations about consent clearly relate to the reality of the complainant’s consent, rather than to any belief on the part of the applicant.[41]

   [41]See [6] above.

1. In any event, one of the major planks in the respondent’s argument seeking to reconcile the jury’s verdict on charge 1 with their failure to return a verdict on charge 2, is the contention that the complainant indicated aloud her unwillingness to be anally penetrated by saying ‘yuck, yuck’.[42]  The major problem with this argument is, of course, the complainant’s concession that, although she thought she had said ‘yuck, yuck’, she was not sure that she had ‘fully said it out loud’ (as opposed to thinking it).  It is noteworthy in this regard that, although she had gone into some detail in her statement as to the circumstances of the alleged anal penetration, she made no mention of having orally communicated her unwillingness to permit anal penetration.  In my view, given that state of the evidence, no reasonable jury could have been satisfied to the criminal standard that the complainant had verbalised out loud her lack of consent to anal penetration by uttering the words ‘yuck, yuck’.  And, although I appreciate that a jury must act on the evidence as a whole, the critical importance of this piece of evidence cannot be ignored, since this utterance was the slender thread by which the respondent sought to support the conviction on charge 1.  In so saying, I do not ignore the complainant’s evidence that she also raised her feet, but it is difficult to see how that evidence could realistically have borne on the issue of consent.

   [42]See [31] above.

1. Furthermore, it is significant that there was no attempt by the prosecutor to elicit from the complainant the stage at which she allegedly verbalised her lack of consent to anal penetration.  Thus, although the prosecutor elicited that the applicant made three ‘attempts’ to penetrate the complainant’s anus, the complainant gave no evidence as to whether she uttered the words ‘yuck, yuck’ before or after the first, second or third attempt.[43]  Self-evidently, if the applicant had made a further attempt at anal penetration after an unequivocal oral indication by the complainant that she did not consent to anal sex, then the applicant could not have had an objectively reasonable belief in consent, so that any such further attempt would have been sufficient to found a charge of attempted rape (all other things being equal).  On the other hand, if the words ‘yuck, yuck’ were uttered only after the third alleged attempt — there not having been any apparent antecedent denial of consent — so much might be consistent with the applicant having desisted from attempted penetration once he became aware that any tacit consent had been withdrawn.  Indeed, the applicant’s evidence was that, once he withdrew his penis from the complainant’s vagina, ‘put it towards her bum’ and she said, ‘Not my bum, just not my bum’, he once more penetrated her vagina, that being consistent with him abiding by the complainant’s communicated denial of consent.

   [43]See [31] above.

1. As I have said, the present case appears to have been conducted on a single principal issue.  That issue was the actual absence of consent of consent on the part of the complainant, rather than any belief on the part of the applicant.  That being so, in my view it is impossible to see how any rational jury could logically have been satisfied beyond reasonable doubt as to the lack of actual consent on the first charge, whilst at the same time failing to be satisfied unanimously on that same issue on the second charge. 

1. To my mind, the verdict on the first charge smacks of compromise.  I consider that it is a verdict that no jury, acting reasonably, could on the evidence have returned.  In my view, the conviction is unsafe and unsatisfactory, and must be set aside.

Proposed orders

1. I would grant leave to appeal against conviction; allow the appeal; and set aside the conviction on charge 1.

1. When allowing an appeal against conviction, the Court has two options available to it: either order a new trial or enter a judgment of acquittal.[44]  Since neither party has yet addressed the subject of the appropriate orders, I would invite

submissions on the topic, addressing the considerations, first, that the main body of evidence in the prosecution case consists of the recorded evidence of the complainant (and thus will not improve unless the complainant gives further evidence at a retrial); secondly, that the applicant has already faced two trials; and, thirdly, that the applicant has served a substantial portion of his non-parole period.

[44]Criminal Procedure Act 2009, s 277(1). In the circumstances of this case, there would be no option of substituting a verdict.

HARGRAVE JA:

1. The applicant was charged with one count of penile-vaginal rape and one count of attempted penile-anal rape.  He was tried twice in the County Court.  At the first trial, the jury was unable to return a unanimous verdict on either charge.  Following a second trial, a jury of 12 found the applicant guilty of attempted penile-anal rape but were unable to return a unanimous or majority verdict on the penile-vaginal rape charge.  In light of this history, the Director of Public Prosecutions discontinued the penile-vaginal rape charge. 

1. The applicant seeks leave to appeal against his conviction on the attempted penile-anal rape charge.  There is only one ground of appeal, as follows:

That the verdict of guilty to charge 1 of attempted [penile-anal] rape is unsafe and unsatisfactory and logically, and factually, cannot be reconciled with the jury’s inability to reach a verdict on charge 2 of [penile-vaginal] rape, to such an extent that it is an affront to logic and common sense and strongly suggests of compromise in the performance of the jury’s duty. 

1. The charges arose out of sexual activity between the applicant and a complainant known to him in the early hours of the morning on 25 March 2016 at the complainant’s premises.  The complainant was aged 36 years at the time and the applicant was 31.  Immediately after the applicant left her premises on that morning, the complainant telephoned the police and complained that she had been raped. 

1. Both the complainant and the applicant gave evidence at the first trial and were cross-examined.  At the second trial, a video of the complainant’s evidence at the first trial was shown to the jury, and the applicant again gave oral evidence and

was cross-examined.  In summary, the complainant’s evidence was that she did not consent to any of the sexual activity.  In particular, the complainant gave evidence that, without her consent, the applicant commenced the sexual activity with at least three attempts to insert his penis into her anus.  She said that she immediately made it clear she was not consenting, by lifting her heels near her anus and squeezing her buttocks together as tight as she could and saying: ‘what are you doing’, ‘you’ve got Lauren’ (a reference to the applicant’s wife) and, when the applicant tried to get her to assist him in penetrating her anus, she said: ‘yuck, yuck’.  On the other hand, the applicant gave evidence that the complainant consented to sex and that, after penile-vaginal penetration for a while, he took his penis out of the complainant’s vagina and put it towards her anus — at which time the complainant said: ‘not my bum, just not my bum’, and he then resumed penile-vaginal penetration until he withdrew shortly before ejaculation. 

1. It is necessary to recount the evidence at trial in more detail. 

The complainant’s evidence

1. The complainant gave evidence to the effect set out below.

1. The complainant knew the applicant’s wife.  They had met at a TAFE course about 10 years before the incident, however they had not stayed in touch after the course finished.  In 2015 the applicant and his wife moved into a flat across the road from the complainant and the complainant came to know the applicant.  All three then developed a friendly relationship.

1. The complainant would sometimes go over to their house for coffee, and she sometimes lent money to the applicant’s wife.  The pair would also come over to the complainant’s house.  The friendship continued after the applicant and his wife moved to another home.

1. Prior to March 2016, the complainant had known the applicant for about a year, but was friendlier with his wife.  There was no previous sexual or intimate relationship between them.  If the applicant ever came to the complainant’s house, it was always with his wife or his father and he had never been alone in the complainant’s house with her.  About six months before the incident the complainant ended the friendship with the applicant’s wife over a dispute about a debt.

1. In the early hours of the morning on 25 March 2016, the complainant was home alone and soaking in the bath, listening to music.  She heard a knock on the front door and jumped out of the bath, wrapping a towel around her.  She opened the door and saw that it was the applicant.  She was surprised, as she had not had any contact with him for about six months.

1. She told him to wait at the door while she put a dressing gown on, and went into her bedroom and put on some underwear and a robe.  As she walked out of the bedroom she saw the applicant walking up towards her bedroom down the hall.  She walked past the applicant to get him to follow her into the lounge room.

1. The applicant smelt strongly of alcohol and was overly affectionate towards her, which was something that had never happened before.  The applicant kept trying to kiss and cuddle her.  She was shocked at his behaviour and kept saying ‘no’ and ‘stop’.

1. She sat on the couch and the applicant knelt down in front of her and tried to open her bathrobe saying, ‘let me look at you’.  She was holding her robe closed and said to the applicant ‘what are you doing, you have got Lauren’.

1. The applicant continued to pull at her robe.  He was becoming more forceful and the complainant was scared.  At some stage he removed her underwear.  She kept telling him to stop.  The applicant removed her dressing gown and pushed her over so that he was now behind her.

1. She was crouched on her knees on the couch with the applicant behind her.  He tried to get his penis into her anus ‘probably three times’ without success.  While he was trying, the complainant squeezed her buttocks together as tight as she could and lifted her knees near her anus.  She kept saying ‘what are you doing’ and ‘you’ve got Lauren’.  The applicant told her that there were ‘certain things Lauren wouldn’t do’.

1. The applicant tried to get her to use her hand to assist him in penetrating her anus with his penis.  She pulled her hand away and said ‘yuck, yuck.’  The applicant tried to penetrate her anus but was unable to.

1. The applicant moved her so she was facing the back of the couch.  He was still behind her but with both feet on the floor.  She started crying and shaking.  The applicant kept trying to penetrate her anus, and in the process his penis went into her vagina — ‘when he couldn’t … get it in my bottom, he … got it in the right place’.  He became frustrated and more aggressive.  The applicant continued to penetrate her vagina until the moment of ejaculation and pulled out when he ejaculated.  During the whole ordeal the complainant was terrified and had been crying and shaking.

1. The applicant asked for some tissues to wipe his penis and the complainant motioned to the applicant that the tissues were under the coffee table but did not see him wipe himself.

1. The complainant put her underwear and robe back on and was still crying and shaking.  The applicant also started crying and apologising for taking advantage of her.  The applicant told her not to tell anyone.  She was scared and agreed because she wanted him to get out of the house.  The applicant left the house and she called the Benalla Police Station at 1:45 am and spoke to a police sergeant and reported she had been raped.

The applicant’s evidence

1. The applicant gave evidence to the following effect.

1. When the applicant and his wife lived across the road from the complainant they used to smoke cannabis together at either his house or the complainant’s house, probably three or four times a week.  The applicant and his wife then moved home in 2015 prior to their marriage.  Afterwards, they saw the complainant maybe once or twice a week.

1. On the odd occasion when they socialised, the complainant ‘would be close — touching of the arm, cuddle every now and again’.  The complainant would also make comments that the applicant looked fit and looked good. 

1. The relationship between the applicant’s wife and the complainant ended when the complainant had caught a taxi to the applicant’s home.  She was in the kitchen with the applicant while his wife was sleeping.  They were laughing and joking.  His wife woke up and yelled at the complainant telling her to leave, because she believed they were behaving flirtatiously.

1. In the hours leading up to the incident, the applicant drank five or six cans of Jack Daniel’s and coke between 3:00 pm and 11:00 pm.  His wife and a friend had also been drinking.  The friend left, and his wife vomited and passed out in bed.  The applicant felt like he couldn’t sleep, so he decided to go for a bicycle ride to obtain cannabis to help him sleep.  The applicant rode to two places where he might obtain cannabis but was unsuccessful.  The applicant then rode to the complainant’s home.

1. The applicant knocked on the door and the complainant came to the front door, wrapped in a towel and a towel around her head.  The applicant asked if he could come in.  The complainant said ‘yeah, I’ll just go put something on’.  The applicant entered the premises while the complainant was getting changed, and at some stage the applicant said he was going to use the toilet.  When walking towards the toilet, the complainant was walking down the hallway and opened her robe and exposed a breast to the applicant.  The applicant went to the toilet but couldn’t urinate, he then returned to the lounge room where the complainant was sitting on the couch.  The applicant sat on the arm chair and they had a conversation about cannabis and the falling out between the applicant’s wife and the complainant. 

1. The applicant then asked to look at the complainant — meaning for her to expose her breasts — and then asked to kiss her.  The applicant then sat next to the complainant on the couch and kissed her on the cheek and then the lips. He took the complainant’s robe off, took his clothes off — involving some difficulty because of his boots — and stood naked in front of the complainant.  He asked for oral sex, to which she said ‘no, I don’t do that.’  The applicant then asked the complainant to stand up.  He kissed her on the stomach and above where her underpants were and said she looked like the girls in ‘skinny porn’.  They ‘had a bit of a giggle about [that]’.

1. He then took the complainant’s underwear off and they cuddled and then lay down on the couch.  The complainant laid on her back with her head towards the window and he laid on top of the complainant and pushed her legs up and entered her vagina with his penis.  The applicant was uncomfortable and so asked to change positions.  The complainant agreed and moved to a position ‘doggy style up against the back of the couch’.  He then put his penis into her vagina for about 30 or 40 seconds.  The applicant took his penis out of the complainant’s vagina and ‘put it towards her bum’, and the complainant said: ‘Not my bum, just not my bum.’ 

1. As a result of the complainant’s obvious lack of consent to anal penetration, the applicant placed his penis back into the vagina of the complainant, pumped until he was about to ejaculate, and then pulled out and ejaculated over his hand.  The applicant then asked for something to clean himself up with.  The complainant got the applicant some tissues which he used to wipe himself.  The complainant got dressed and the applicant then got dressed and got emotional and said he was upset that he had cheated on his wife.

1. The complainant then accompanied him to her gate where they had a further conversation about cannabis and the complainant then ‘pretty much said, “safe trip home…”’.

1. The applicant stated sex was consensual between himself and the complainant.

Applicable legal principles

1. The proposed ground of appeal must be considered in light of s 276(1)(a) of the Criminal Procedure Act 2009.  That section provides that the Court must set aside a conviction if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.  This statutory provision underlies the applicant’s contention that the guilty verdict on the attempted penile-anal rape charge was ‘unsafe and unsatisfactory’.  The basis of that contention is that the failure to reach a verdict on the penile-vaginal rape charge makes the jury’s unanimous verdict on the attempted penile-anal rape charge unreasonable, because the two verdicts cannot be reconciled. 

1. In Pillay v The Queen,[45] this Court accepted that a guilty verdict can be set aside on appeal as unsafe or unsatisfactory if, logically and factually, that verdict cannot be reconciled with the jury’s inability to agree on another related charge, as such a result may indicate ‘some form of irrational and improper compromise’.[46]  However, this Court has emphasised that a failure to reach a verdict should not be equated with an acquittal.[47] 

   [45](2014) 43 VR 327, 330–1 [21]–[23] (‘Pillay’). 

   [46]Ibid 334 [30].

   [47]Tukuafu v The Queen [2014] VSCA 345 [25] (‘Tukuafu’). 

1. Where a court is faced with an appeal such as the present, whether based on alleged inconsistency between verdicts, or between a guilty verdict and a jury’s inability to agree on a related charge, courts have adopted a cautious approach.  The relevant principles were stated in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen,[48] in the following terms:

   [48](1996) 190 CLR 348.

From a review of the cases, a number of general propositions can be stated:

1.A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency …

2.Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events …

3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

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

5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common-sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.  It is impossible to state hard and fast rules.  ‘It all depends upon the facts of the case.’

6.The obligation to establish inconsistency of verdicts rests upon the person making the submission.  But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders.  In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside.  Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal.  It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s).  But once again, the relief which is appropriate depends upon the facts of the particular case. [49]

[49]Ibid 366–8 (emphasis added) (citations omitted).

1. More recently, Gleeson CJ, Hayne and Callinan JJ made the following observations in MFA v The Queen:[50]

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.  And there may be an interaction between this consideration and the two matters earlier discussed. [51]

[50](2002) 212 CLR 606.

[51]Ibid 617 [34] (emphasis added) (citations omitted).

1. In Pillay, a case raising similar issues to the present, where the jury convicted of one count but not others arising out of a single sexual encounter, this Court stated:[52] 

The authorities make it clear that appellate courts should approach a claim of inconsistent verdicts with caution.[53]  If there is an apparently rational explanation for a jury’s having differentiated between various charges, that explanation should be preferred to one which suggests that the jury may have foresworn their oaths, and impermissibly compromised.[54] 

[52](2014) 43 VR 327, 331 [26] (emphasis added) (citations in original).

[53]R v JA [2008] VSCA 169 [48] (Vincent, Dodds-Streeton and Weinberg JJA); Goldsmith v The Queen [2010] VSCA 99 [51] (Weinberg, Mandie and Bongiorno JJA) (‘Goldsmith’); Director of Public Prosecutions v Fattal [2013] VSCA 276 [36] (Buchanan AP, Nettle and Tate JJA); R v Motlop [2013] QCA 301 [47] (Boddice J); Andrew v The Queen [2013] VSCA 333 [40] (Weinberg JA); Amato v The Queen [2013] VSCA 346 [5] (Maxwell P).

[54]Goldsmith [2010] VSCA 99.

Contentions of the parties

1. The applicant contends that it was illogical for the jury to conclude that the applicant was guilty of attempted penile-anal rape but unable to reach a verdict on the penile-vaginal rape charge in the context of the acts constituting each charge occurring in very close temporal proximity.  He contends that such a result is ‘deeply troubling’,[55] because it means that the jury accepted beyond reasonable doubt that the complainant had not consented to penile-anal penetration, but some members of the same jury concluded that the prosecution could not prove beyond reasonable doubt that she did not consent to penile-vaginal penetration.  In the context of the complainant’s consistent evidence that she did not consent to any sexual activity, protesting her lack of consent both verbally and in her body language, it is to be inferred that the jury reached an irrational and improper compromise. 

   [55]Referring to Pillay (2014) 43 VR 327, 331 [26].

1. The respondent’s submissions were similarly straightforward.  The respondent contends that a careful reading of the complainant’s evidence reveals a number of pieces of evidence which allowed for relevant distinctions to be drawn between the two charged acts, and the Court should not speculate as to which pieces of evidence caused some members of the jury to retain a reasonable doubt about the complainant’s lack of consent to penile-vaginal penetration.  Such an approach is consistent with the judge having directed the jury to give separate consideration to the consent issue in relation to each charge. 

Analysis

1. In my view, the manner in which the jury dealt with the two charges is reasonably reconcilable and does not represent an affront to logic and common sense.  My reasons follow. 

1. First, this is a case where it is unnecessary to infer that the jury gave full faith to the separate deliberation direction in respect of each charge.  The jury asked questions which demonstrate that they gave separate consideration to the consent issue in respect of each charge.  The questions were as follows:

(1)       ‘Can [the Court] provide any further direction about whether consent needs to be given before a sexual act commences or can it be during the act?’

(2)       ‘If an act is attempted, then during the attempt consent is sought and not given, has the offence occurred?’

1. Following discussion with counsel, the trial judge directed the jury in relation to the first question that, in considering whether the complainant consented on each charge, they must consider all the evidence and determine:

[The complainant’s] state of mind at the time, the moment of penetration or the moment of attempted penetration.  She must be freely agreeing to the penetration, that is there and then occurring or attempting to be done.

1. As to the second question, the judge directed the jury that:

…if this question surrounds the scenario that came from [the applicant’s] evidence, to summarise it as best I can, that he put his penis near her bottom and she said ‘Just not in my bum’ and he did not go further, and put his penis in her vagina, then as I understand it, the movements and the words are so close that there would be no offence.  The prosecution don't seek that [the applicant] be found guilty of [attempted anal penetration], on the basis of that scenario.

1. Second, without speculating as to any thought processes underlying the ultimate position reached by the jury on each charge, the conflicting evidence left open a logical, reasonable and common sense alternative to the binary choice of either conviction or acquittal on both charges.  It was common ground that the complainant did not consent to anal penetration and that the applicant appreciated that was so.  In substance, the complainant’s and the applicant’s evidence differed as to whether:

(1)        the complainant consented to sex involving vaginal penetration;

(2)        the applicant simply put his penis ‘towards her bum’, or in fact attempted anal penetration by forcefully trying to insert his penis in her anus;

(3)       the conduct in (2) occurred before or after vaginal penetration; and

(4)       the applicant attempted anal penetration after the complainant’s obvious refusal.

1. In these circumstances, the jury as a whole could have accepted the complainant’s account that, following her protestations, the applicant attempted anal penetration.  It is not then necessarily inconsistent for some jurors to have had a reasonable doubt as to whether the applicant had a reasonable belief that the complainant was consenting to vaginal penetration.  Some jurors may have accepted the applicant’s evidence that the complainant consented to vaginal penetration, while rejecting his evidence that, when he placed his penis towards her anus, he did not attempt anal penetration after the complainant made her lack of consent clear.

1. Contrary to the reasons of Priest JA, I do not accept that there was any issue before the jury as to whether the complainant was consenting to anal penetration.  As I have said, it was common ground that she was not.  Thus, whether or not the jury accepted the complainant’s evidence that she said ‘yuck, yuck’, or the applicant’s evidence that the complainant said ‘not my bum, just not my bum’, both statements clearly indicate a lack of consent.  The live issue for the jury was whether the applicant attempted anal penetration after the complainant’s accepted lack of consent.

1. Moreover, the applicant gave evidence that the complainant had on previous occasions been tactile towards him, complimented his appearance, and laughed and joked with him in a flirtatious manner so as to cause his wife to end her friendship with the complainant.  If accepted, this evidence was capable of supporting a doubt by some jurors as to whether the complainant was sexually attracted to the applicant — thus giving some support to his evidence of her consent to sex involving vaginal penetration.

1. As this Court has previously pointed out, results such as the present are consistent with the jury performing its function diligently and considering each charge, and thus the evidence in support of it, on its separate merits.  For example, in Avery v The Queen,[56] Warren CJ and Redlich JA stated:

   [56][2014] VSCA 86 [6].

Contrary to the applicant’s submission, verdicts of not guilty or disagreement on the balance of the charges on the indictment do not necessarily reflect a view by the jury that the complainant was untruthful or unreliable, such that this Court should assess the reasonableness of the three guilty verdicts on the basis that the complainant was a person of damaged credibility.  Credit is not a homogeneous and indivisible whole.  It simply does not follow that because the jury, or some of them, had a reasonable doubt as to the evidence the subject of the charges other than those upon which a guilty verdict was returned, that it should have had a doubt about the evidence of the complainant on [the charges upon which a guilty verdict was returned].  As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen,  a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or demonstrate a want of confidence in the complainant.  A verdict of not guilty or a disagreement by the jury may reflect no more than a cautious approach to the discharge of its heavy responsibility.  That caution might be attributed to the

absence of supporting evidence or detail in the complainant’s account, some level of uncertainty, a faulty recollection, a contrast in different parts of the account that suggest that parts of it are more reliable than others, or to the jury thinking that although a number of offences had been alleged, justice was met by convicting the applicant on some only.[57]

[57]Ibid [6] (emphasis added) (citations omitted).

1. For these reasons, while the application for leave to appeal should be allowed, the appeal should be dismissed.

WEINBERG JA:

1. I have had the very considerable advantage of reading in draft the judgments prepared, respectively, by Priest JA and Hargrave JA.  Priest JA would grant leave to appeal, allow the appeal, and set aside the conviction on the charge of attempted anal rape (charge 1).  Hargrave JA would grant leave to appeal, but dismiss the appeal.  For the reasons that follow, I agree with Hargrave JA.

1. Both Priest JA and Hargrave JA have set out in considerable detail the background facts to this matter.  Both have summarised, again in some detail, the evidence that bears upon the proposed ground of appeal.  This saves me the task of dealing with these matters in this judgment, except where it becomes necessary to do so in order to explain my reasoning

1. Priest JA considers that the verdict of guilty on the charge of attempted anal rape is unsafe and unsatisfactory.  He regards the jury’s inability to reach a verdict on the charge of vaginal rape (charge 2) as logically and factually inconsistent with the verdict of guilty on charge 1.  In his view, the inconsistency rises to the point where it would be an affront to logic, and common sense, to permit the conviction to stand.

1. Hargrave JA, on the other hand, regards the results in the present case as ‘consistent with the jury performing its function diligently and considering each charge on its separate merits’.

1. The starting point, in my view, should be the decision of this Court in Pillay v The Queen.[58]  The three accused in that case stood trial in the County Court, each facing two charges of rape, and one charge of indecent assault.  They were each convicted of indecent assault, but the jury were unable to agree upon a verdict on the rape charges.[59]

   [58](2014) 43 VR 327 (‘Pillay’).

   [59]It is not presently relevant, but at their re-trial on the charges of rape, each accused was acquitted.

1. On their applications for leave to appeal against conviction, each applicant submitted that the guilty verdict rendered against him was unsafe and unsatisfactory.  This was said to be so by reason of the logical and factual inconsistency between the jury’s inability to arrive at a unanimous verdict in respect of either of the two rape charges, but their having found each accused guilty of indecent assault.

1. It is important to note that in Pillay, the only issue in the trial was whether the Crown had established that the particular acts charged were non-consensual.  The complainant claimed that she had been forcibly raped.   The accused claimed that she had willingly engaged in a sexual orgy with all three of them. 

1. It was against that background that this Court held in Pillay that the verdicts of guilty of indecent assault stood in stark, and inexplicable, contrast with the jury’s inability to reach a verdict on any of the charges of rape.

1. There was one point of general principle determined in Pillay. This was that the ‘inconsistent verdicts’ doctrine, as the basis for a submission that the convictions were unsafe and unsatisfactory, could be invoked when comparing a guilty verdict with a mere inability on the part of the jury to agree upon a verdict in relation to another charge.

1. The Court in Pillay followed a decision of the English Court of Appeal in R v Formhals[60] in holding that the doctrine could be invoked in such circumstances.  Although it was self-evident that the failure to agree on a verdict was not, itself, a verdict, the Court agreed with the observation in Formhals that in a context such as this, ‘linguistics should not be allowed to triumph over justice’.

   [60][2014] 1 WLR 2219 (‘Formhals’).

1. In the present case, the Crown did not challenge the correctness of Pillay on that point.  Accordingly, I proceed upon the basis that an inconsistency between a verdict of guilty, and an inability to arrive at a verdict on a different, but closely related charge, can, in some cases, give rise to an inconsistency of a kind that would render the conviction unsafe.[61]

   [61]It may be, though it is unnecessary to say anything definitive about the point, that an inconsistency of this kind is less likely to give rise to an unsafe or unsatisfactory finding on appeal, than an inconsistency between a verdict of guilty and an acquittal.

1. The critical issue, so far as the present case is concerned, is whether the fact that at least two members of the jury in this trial were not satisfied of the guilt of the applicant on the charge of vaginal rape, but were satisfied of his guilt on the charge of attempted anal rape, can be explained on some rational and non-fanciful basis.  If so, the authorities make it clear that this Court should not uphold the contention that the conviction now impugned is unsafe.   If, however, no such rational basis can be found for the ‘inconsistency’, that conviction must be set aside.

1. In Pillay, there were a number of unusual factors that strongly suggested that some members of the jury may have approached their task impermissibly by arriving at a compromise outcome.  The complainant in that case gave evidence which did not allow for even the slightest possibility that the applicants may have believed, (whether reasonably or not) that what had there taken place had been consensual.  She claimed to have been held down by all three applicants and forcibly raped by two of them, one orally and one vaginally.  The indecent assault was said to have been constituted by one of the men masturbating close to the complainant and ejaculating upon her.  That assault was alleged to have taken place at the very same time as both the alleged rapes were occurring.  The complainant’s evidence was that she had protested loudly and resisted throughout.  On her account, she had made it abundantly clear to the three accused that she wanted no sexual activity of any kind with any of them.

1. As previously indicated, the defence case in Pillay was that the complainant had willingly engaged in sexual intercourse, both oral and vaginal, and at the same time, with the accused in their hotel room.  She had met them at a nightclub earlier that evening. 

1. In those circumstances, it was clearly difficult to understand how some members of the jury might have had a doubt about lack of consent on the rape charges, but no such doubt when it came to the act of masturbation, and consequent ejaculation. 

1. The present case has a number of features in common with Pillay.  However, there are also some significant differences.  In Pillay, the Court noted that the complainant’s evidence ‘if accepted, did not allow for any possibility that the applicants may have believed, whether on reasonable grounds or otherwise, that what was taking place was consensual’.[62]  As will be seen, that was not the position in the trial of this matter.

   [62](2014) 43 VR 327, 329.

1. Secondly, in Pillay, the Court observed:

What was striking about this case was that the evidence against each applicant as regards the only matter in dispute in this trial, namely consent, was identical.[63]

[63]Ibid 330.

1. Once again, as will be seen, the evidence regarding what was in dispute in the present trial was by no means the same, depending upon whether the jury were considering the charge of attempted anal rape, or the charge of vaginal rape.

1. In Pillay, the Court recognised that there was a theoretical possibility that the jury might have viewed, as reliable, so much of the complainant’s evidence as indicated that she had not consented to having anyone masturbate in close proximity to her, or ejaculate upon her.  At the same time they might not have been prepared to accept her evidence that she had not consented to sexual intercourse.  That theoretical possibility might have provided an explanation as to how the jury could have arrived at what would otherwise seem to have been an extraordinary outcome.  However, the scenario thus propounded struck the Court as being highly improbable.

1. As the Court in Pillay stated:

The idea that [the complainant] would agree to participate in what was, in effect, a full-fledged orgy with three total strangers, including having oral sex with one of them, but draw the line at having one of those men with whom she was then having consensual intercourse ejaculate upon her seemed to us to border upon fanciful.[64]

[64](2014) 43 VR 327, 331. This statement by the Court should be understood against the background of the facts in Pillay, which are detailed at 328-9.

1. In MacKenzie v The Queen,[65] the High Court made it clear that any submission that verdicts are inconsistent, logically and factually, should be approached with caution. In a passage that has often been cited, the Court stated:

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

jury took a ‘merciful’ view of the facts upon one count: a function which has always been open to, and often exercised by, juries.[66]

[65](1996) 190 CLR 328.

[66]Ibid 366-8 (citations omitted) (emphasis added). See also MFA v The Queen (2002) 213 CLR 606 and Avery v The Queen [2014] VSCA 86.

1. Unlike Pillay, the jury in the present case were confronted not just with one issue to resolve, but also to consider, quite separately, different evidence that bore upon each of the two charges levelled at the applicant.

1. The trial judge’s charge to the jury made it plain that although consent was a central issue in the trial, there was also a live question as to whether the applicant believed, (on reasonable grounds), that the complainant was consenting to his actions. 

1. Of course, the matter was not put in that way by the applicant in his evidence at trial.  His account stood in stark contrast to that of the complainant. He claimed that as regards the sexual activity that he embarked upon with her, she was a willing participant, freely agreeing to have sex with him, or at least vaginal sex.

1. The applicant acknowledged, however, that the complainant made it clear, when he sought to have anal intercourse with her, that she did not want to take part in that particular activity.  Accordingly, consent was not really in issue in relation to the charge of attempted anal rape.  The critical issue in relation to that charge was whether, when it became clear to him that she was not consenting to that form of intercourse, he persisted to the point of attempting such penetration.[67]

   [67]The trial judge directed the jury that if the applicant had at once desisted from attempting anal intercourse as soon as he discovered that the complainant would not consent to that form of sexual penetration, he should be acquitted on that charge. That was plainly correct.

1. It is clear, therefore, that the jury, in considering their verdict on the two charges before them, had to determine on the charge of vaginal rape, whether the Crown had established that the complainant had not consented to sexual intercourse.  In respect of that charge, the way that the evidence came out at trial did not really give rise to a significant issue as to whether the applicant believed, on reasonable grounds, that there was consent.[68]

   [68]That is not to say that those members of the jury who were not satisfied of the applicant’s guilt on the charge of vaginal rape, may not have reasoned that although the complainant did not consent, the applicant may have believed, on reasonable grounds, that she had. Unlike the relatively straightforward situation in Pillay, the various permutations of consent, and belief in consent, in the present case, made the jury’s task particularly difficult, and makes the task confronting this Court on this ground extraordinarily difficult as well.

1. The position was quite different with regard to the charge of attempted anal rape.  Because the applicant became aware, almost at once, even on his own account, that the complainant did not want to have anal sex with him, any acts that he performed thereafter that were directed towards achieving that end would almost certainly have constituted an offence.  That would be so unless he believed, on reasonable grounds, that despite her earlier lack of consent, she had changed her mind.

1. In addition, the evidence that bore upon each of the two charges was significantly different.

1. When it came to the allegation of attempted anal rape, there were clear indications of lack of consent on the part of the complainant.  These indications were not all present in relation to the allegation of vaginal rape.

1. The complainant’s evidence regarding the attempted anal rape was that having implored the applicant to desist, and having reminded him repeatedly that he had his wife, he responded ‘there’s certain things she won’t do’.   That of course was suggestive of his understanding that his wife would not engage in anal sex.  The complainant said that when she reminded him of his wife, she did so in a ‘shocked tone’.  She added that she was saying ‘no’ and ‘stop’, almost from the moment he began making sexual advances towards her, as he prepared to engage in intercourse with her. 

1. In relation to the initial attempted anal penetration, her evidence was that she said ‘yuck, yuck’, as he was trying to get her to help him force his penis into her bottom.  Presumably, he wanted her assistance to achieve an erection, or at least to guide his penis into her anus. 

1. It should be noted, as Priest JA has properly pointed out, that the complainant acknowledged that in relation to that particular expression ‘yuck, yuck’, she was not sure whether she ‘fully said it out loud or not’, but added,  ‘I think I did’. 

1. The complainant said that the applicant made several attempts, probably three, to insert his penis into her anus.  She claimed that she was ‘bawling’ at the time.  She said that, although she did not kick him or try to run away as he was attempting anal penetration, she manoeuvred her feet to make it as awkward as she could for him.

1. In her statement to police, which was read to the jury, the complainant said that when the applicant tried to force his penis into her anus, she kept saying, ‘what are you doing?’. She also remembered having squeezed the cheeks of her bottom together, as tight as she could. When the applicant grabbed her hand, to put it on his penis in an effort to get her to help him achieve penetration, she pulled her hand away. She said that applicant then tried again to insert his penis into her anus, but could not do so. He then penetrated her vagina instead.

1. It was open to the jury, on this evidence, to find that the applicant attempted anal rape. It was never suggested to the complainant that she had consented to anal penetration, it being common ground at the trial that she had not done so. The defence case in answer to this charge acknowledged that (a) there was an act of attempted anal penetration, and (b) there was no consent to anal penetration, but argued that (c) the Crown could not exclude the reasonable possibility that the applicant believed, at all relevant times, that such consent was forthcoming.

1. When it came to the charge of vaginal rape, the complainant’s evidence was that this particular act of penetration took place after the various failed attempts at anal intercourse. She said that, by that stage, she was no longer trying to hold her feet up to prevent the applicant from engaging in sexual penetration, as she had been moments earlier in response to his attempts at anal penetration. She explained that resisting in that manner was ‘not as easy to do’ in relation to vaginal intercourse.

1. Nothing in this case was cut and dried. The complainant said that, at this stage, after the attempted anal penetration, she was still crying. She said that she had got ‘the shakes’. When asked whether she said anything to the applicant at that time, her response was telling. She said ‘no, I had given up, it was too late’. She explained that, by that stage, the applicant had had sex with her. She meant by that, that he had by then ‘got it in the right place’, namely in her vagina. She added that she felt guilt towards the applicant’s wife, and also ‘yucky’ at herself. She said that while in that state of mind, she had ‘let it be’.

1. Faced with this evidence regarding the alleged vaginal rape, two or more members of the jury, might well have entertained a doubt as to whether, by that stage, the complainant may have been consenting to vaginal intercourse. That would be so, despite her having earlier made it clear that she did not want to engage in any sexual activity at all with the applicant. It was also possible that two or more members of the jury might have entertained a doubt as to whether, at that stage, the applicant had been shown not to have a belief, on reasonable grounds, in consent to vaginal intercourse. 

1. It follows from this analysis that the conviction on charge 1, and the jury’s inability to agree on charge 2, can stand together without amounting to an affront to logic and common sense. The combination of different defences, and different evidence in relation to each of the two charges, allows that conclusion to be reached on a rational basis. That is so, without the need for any fanciful reconstruction of the kind that this Court eschewed in Pillay.

1. For these reasons, I agree with Hargrave JA. Leave to appeal should be granted, but the appeal itself should be dismissed.

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