Morgan (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0038

RONALD MORGAN (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, LYONS and KIDD JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2025
DATE OF JUDGMENT:	18 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 227
JUDGMENT APPEALED FROM:	DPP v Morgan (a pseudonym) [2024] VCC 90 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Sexual assault of child aged 16 or 17 under care, supervision or authority – Sexual penetration of a stepchild – Use of carriage service to cause offence – Whether jury verdicts inconsistent – Different verdicts explicable by inconsistencies and uncertainties in complainant’s evidence attributable to intellectual deficits – Complainant’s evidence less reliable and plausible in respect of some charges – Verdicts do not represent an affront to logic and commonsense – Whether judge erred in admitting Facebook messages as tendency evidence – Facebook messages support proof of tendency to have sexual interest in complainant and to act on that sexual interest – Facebook messages make it more likely that charged offences took place – Probative value of Facebook messages substantially outweigh prejudicial effect – Leave to appeal refused.

Evidence Act 2008, ss 97(1), 101(2).

MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; Erikson v The Queen [2021] VSCA 234; Hughes v The Queen (2017) 263 CLR 338, considered.

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Counsel
Applicant:		Ms F Fox with Ms T McWilliam
Respondent:		Ms S Lenthall
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
LYONS JA
KIDD JA:

Introduction

On 31 October 2023, a jury found the applicant guilty of three charges of sexual assault of a child aged 16 or 17 under care, supervision or authority (charges 2, 4 and 5)[1] and one charge of sexual penetration of a stepchild (charge 3).[2]
[1]Contrary to s 49E(1) of the Crimes Act 1958.
[2]Contrary to s 50D(1) of the Crimes Act 1958.
The applicant was found not guilty of three charges of sexual assault of a child aged 16 or 17 under care, supervision or authority (charges 1, 7 and 8) and one charge of sexual penetration of a stepchild (charge 6). [3]
[3]Charge 7 was an alternative to charge 6. In these reasons, we shall simply refer to the acquittal on charge 6.
The offending took place on a number of dates between Christmas 2019 and September 2020. All of the offending was against the applicant’s intellectually disabled 16 year old step-daughter (‘the complainant’).
Prior to the trial, the applicant pleaded guilty to one charge of using a carriage service to cause offence.[4] Between 3 June 2020 and 6 September 2020, the applicant sent the complainant Facebook messages that were sexually suggestive. The messages were in the form of photographs, cartoons and emojis, and included:
•an image of a couple embracing with the text ‘I want you this close to me’;
•an image of a couple in bed;
•an image of a man sitting down with a woman straddling him in a sexually suggestive way;
•a cartoon image depicting two animals in bed with the text, ‘Wish I was in your bed’; and
•a graphic interchange format (‘GIF’) showing a couple embracing and moving in a sexually suggestive way.
[4]Contrary to s 474.17(1) of the Criminal Code (Cth).
There was a pre-trial dispute about the admission of the Facebook messages for a tendency purpose. Defence counsel took no issue with the cross-admissibility of the charges and the prosecution’s reliance on tendency reasoning in respect of all charges, save for the charge relating to the Facebook messages. The trial judge ultimately ruled that the Facebook messages were admissible as tendency evidence.
The applicant now applies for leave to appeal against his conviction on the following grounds:
Ground 1: The verdicts are unreasonable in that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion they did. In particular, the verdicts of ‘guilty’ on charges 2, 3, 4 and 5 are inconsistent with the verdicts of ‘not guilty’ on charges 1, 6, 7, and 8.
Ground 2: The learned trial judge erred in admitting the Facebook messages as tendency evidence.

The evidence

The applicant was in a de facto relationship with the complainant’s mother for a period of about seven years. They had two children together. The complainant’s mother had three older children from previous relationships, including the complainant. At the relevant times, the two adults and five children (the eldest of whom was a young adult) lived together in a three bedroom house. There was no dispute at trial that the applicant was in a position of care, supervision or authority over the complainant.
It was an agreed fact that both the complainant and her mother suffer from an intellectual disability.
The offending was reported to police as a result of the eldest child seeing the Facebook messages on the complainant’s phone and alerting police.

The complainant’s evidence

On 6 September 2020, the complainant spoke to police in relation to the offending. Her evidence was recorded and adopted as video audio recorded evidence (‘VARE’) on the same day. A special hearing was conducted on 5 July 2023 during which she confirmed the truth of the VARE and was cross-examined by defence counsel. Both the complainant’s VARE and a recording of the special hearing were shown to the jury on the second day of hearing.
The complainant gave evidence of five incidents of sexual abuse by the applicant.

First incident

In the VARE, the complainant said that on Christmas day in 2019, she was in her mother’s bedroom when the applicant squeezed her breasts under her pyjamas with two hands (charge 1 – not guilty). She said that the touching lasted for ‘maybe a minute’ until she grabbed his hands and pushed him away. She said that ‘it all started’ when she had asked her mum if she could help with getting the presents out. When asked how hard the applicant was touching her, she said that it was ‘pretty hard ‘cause [she] felt the lumps that day … [and] got really scared and told mum about it and she didn’t know what was happening’. She said that after it happened she went quiet for most of the day and wouldn’t talk to anyone.
At the special hearing, the complainant gave evidence that the offending occurred on Christmas morning and that she was in the bathroom next to her mother’s bedroom at the time. She said that her mother, sister and brothers were also at home. Her mother and sister were still in bed, her younger brothers were playing in the lounge room and her eldest brother was in his bedroom. She saw her mother later that day but did not tell her what the applicant did. When asked what the applicant did when he touched her, she said that she could not remember. When asked whether the applicant touched her she said ‘yes’.

Second incident

In the VARE, the complainant said that one morning before school sometime in February 2020, she was in the lounge room when the applicant grabbed her, put her on the couch, put his hands down her pants and rubbed her vagina with his fingers (charge 2 – guilty). She froze and he would not let her go. The rubbing went on for about 10 minutes. The applicant inserted his thumb into her vagina (charge 3 – guilty). She eventually rolled off the couch. She was wearing pyjamas at the time and the applicant was wearing jocks.
The complainant said that at the time, her mother was asleep in her bedroom with her youngest sibling and ‘everyone else’ was playing in her (the complainant’s) bedroom.
At the special hearing, the complainant gave evidence that the applicant ‘sat [her] on his lap and laid [her] down and then started touching [her] in the vagina.’ She said that her mother was asleep in the bedroom but no one else was sleeping with her, and that her brothers were also asleep in bed.

Third incident

In the VARE, the complainant gave evidence that ‘a couple of months’ before she spoke with police, the applicant approached her in the kitchen, slapped her on the bottom and then grabbed and squeezed her bottom with his hands three times (charge 4 – guilty). She was wearing ‘trackies’ and a jumper at the time. Her mother was doing the washing.
At the special hearing, the complainant gave evidence that the applicant also touched her breasts during this incident. He stopped when her mother came out of the laundry where she was doing the washing and went into the kitchen. She said that at the time, her brothers were playing video games in her eldest brother’s room.

Fourth incident

In the course of the VARE, the complainant was asked when was the last time the applicant touched her vagina. She said it was one afternoon after school two months earlier.
The complainant said that she was coming out of the bathroom after filming a TikTok video when the applicant came up behind her from her mother’s room and started touching her. She was standing in the hallway at the time ‘putting the hook back on [the bathroom door]. He grabbed her around the waist, bent her forward and started ‘humping’ her from behind. When asked to describe humping, she said that the applicant started moving ‘back and forward’ and she could feel his body against her buttocks (charge 5 – guilty). The applicant then put his hands down the front of her jeans and rubbed her vagina (charge 7 – not guilty) and put two fingers inside her vagina and moved them in and out (charge 6 – not guilty). The complainant pushed the applicant off and walked away. Both she and the applicant were clothed, although he had no top on.
At the special hearing, the complainant said that she walked out of the bathroom and closed the door with the hook when the applicant came up behind her and ‘started rubbing his dick on [her] arse’ and then touched her again ‘on the vagina and boobs’. This went on for about 5 minutes. She didn’t make any noise as the applicant had told her to be quiet. She said that at the time, her mother and brothers were in the loungeroom.

Fifth incident

In the VARE, the complainant said that the last time the applicant touched her breasts was ‘a couple of weeks’ earlier. She was standing outside near the garage and the applicant was in the garage. She asked him if she could stay at a friend’s house and he said no. He then came up to her and started firmly touching her breasts (charge 8 – not guilty). Both she and the applicant were clothed. Her mother was inside in the kitchen making a cup of tea at the time.
At the special hearing, the complainant said that the touching lasted for about 10 minutes when she was in the garage with the applicant. Her mother was in the lounge room and her brothers were not home. She later said that her eldest brother had been at home. She said that the applicant said to her ‘[y]ou can’t go out because … I just want to spend time with you’

Facebook messages

The complainant gave evidence that the applicant would send her messages on Facebook Messenger of pictures of ‘a guy and a girl in bed making out … and getting naked’ and of ‘sex positions’ such as a girl on top of a boy. She said that she ‘sent it back ‘cause [she] thought it was in a dad way’

Applicant’s record of interview

The applicant denied that he had ever touched the complainant inappropriately. When asked about physical contact he had had with the complainant he said he would give her a cuddle. When asked about the allegations that he had touched her buttocks or breasts, he said, ‘[w]hen I accidentally bumped into her or something like that’. He denied that his hand ever went into her clothing.
In response to being shown one of the Facebook messages, the applicant said that he knew it was ‘inappropriate’. When shown a photograph that he had sent the complainant of two people cuddling and asked what the context of the message was, he said ‘[w]ell, I just saying I love her … as a father figure’. In response to being asked to describe what one photo showed, he agreed that it was inappropriate, and said that it was ‘a little bit sexual’ and ‘just stupid’. The photo in question showed a woman straddling a man in a sexually suggestive way.
When asked to explain why he sent love hearts to the complainant, the applicant said ‘[c]ause she loves me. That’s as a father. I wouldn’t hurt her, no way’.

Ground 1: inconsistent verdicts

Applicant’s submissions

The applicant submits that the acquittals on charges 1, 6 and 8, and the convictions on charges 2, 3, 4 and 5 are inconsistent and constitute an afront to common sense and logic.
The applicant argues that all five incidents shared a number of common features. They occurred in the same household and within the same, although somewhat protracted, timeframe. All of the conduct was of short duration — under 10 minutes or so — and all of it occurred when other family members were also at home. In each case, the complainant’s description of the core elements of the offending was unequivocal and she was clear about the touching in relation to each charge. Her description of each incident contained some inconsistencies as between the special hearing and the VARE. In each case, the only evidence came from the complainant and there was a denial of the offending in respect of each charge.
The applicant submits that the verdicts of guilty on charge 5 and not guilty on charge 6, which arise from the same incident (the fourth incident), provide a stark example of the illogical and inconsistent nature of the verdicts. According to the applicant, the conviction on charge 5 is inconsistent with the acquittal on charge 6 and there is no logical pathway to explain the difference.
Specifically, the applicant submits that the humping (charge 5) and the touching of the vagina (charge 6) are factually intertwined and there is no temporal division or distinction between them. On the complainant’s account, the vaginal touching was an escalation of the conduct commenced by the humping. The offending conduct moved from humping and grabbing to reaching into the complainant’s pants. It was ‘a single succession’, a ‘continuous flow’, and ‘indivisible’. The complainant’s evidence about the fourth incident is said to constitute a ‘singular description’.
Specifically, the applicant points out that the complainant’s description of the fourth incident begins with the applicant reaching for her vagina: ‘Like, he pulled me and all that and then he started reaching out for my vagina and stuff’. That conduct is then contextualised by reference to the complainant making a TikTok video in the bathroom, putting the hook on the door when she came out of the bathroom and the applicant coming up behind her. The complainant then described a sequence of events commencing with the humping and progressing to the touching of the vagina.
The applicant submits that there is no difference between the quality of the evidence given in respect of charge 6 and charge 5. There is nothing to distinguish the credibility of the complainant’s accounts as between the charges. Her account is consistent across the VARE and the special hearing.
The applicant submits that the different verdicts are explicable only on the basis that the jury was not satisfied that the offending continued within the same incident. Such a conclusion, it is submitted, presents an affront to logic.
The applicant submits that the discrepancy between the convictions on the other vaginal touching charges — charges 2 and 3 — and the acquittal on charge 6 further reveals the illogicality of the verdicts. Charges 2 and 3 involved an incident (the second incident) in which the applicant put his hands down the complainant’s pants and inserted his thumb into her vagina. This conduct occurred in a location that was just as exposed as the hallway in which the conduct in charge 6 allegedly took place. The second incident took place in the loungeroom on a busy school morning; the fourth incident took place in the hallway on a busy school afternoon. In terms of brazenness, the conduct is indistinguishable.
Furthermore, the applicant submits, the quality and depth of the complainant’s description is the same as between the two sets of charges. The complainant used similar language for charges 2 and 3, on the one hand, and charge 6, on the other. When describing the conduct in charges 2 and 3, the complainant had some hesitation and used some equivocal language, just as she did in relation to charge 6.
Neither incident, the applicant submits, was more or less plausible than the other, having regard to the entirety of the circumstances. Both sets of vaginal touching involved touching under clothing and both occurred in an open area of the house. At all times, the mother and the other children were around. The applicant submits that there is simply insufficient difference between the quality and nature of each of the charges to provide a pathway of reasoning for inconsistent verdicts.
Overall, the applicant submits that there is no distinction between the complainant’s credibility on each charge. There was no material inconsistency or equivocation in the delivery of her evidence, her description of the central allegations which formed the charged acts or the implausibility of any of the events. The complainant was firm in details of the central allegations of each offence and none of the incidents was said to have been witnessed by any other family member. Any conflicting evidence given by the complainant related to the surrounding circumstances and cannot explain the different verdicts.
Finally, the applicant submits that the irregularity of the mixed verdict is more apparent in light of the cross-admissibility of charges and the fact that the jury were entitled to use the findings of guilt to reason that it would be more likely the applicant had committed the balance of the offences for which he was ultimately acquitted.

Respondent’s submissions

The respondent submits that the jury’s verdicts are capable of logical resolution when regard is had to the evidence adduced on each charge. Furthermore, it cannot be said that the quality of the complainant’s evidence was the same across all charges.
In relation to charge 1 (not guilty), the complainant’s account was inconsistent. In her VARE, she said the offending occurred in her mother’s bedroom after she had asked her mother if she could help getting Christmas presents out, whereas at the special hearing she said that it occurred in the bathroom next to her mother’s room when her mother was asleep. Importantly, when asked at the special hearing to describe what the applicant did when he touched her, the complainant said, ‘I can’t remember’.
In relation to the second incident (charges 2 and 3 – guilty), the respondent submits that the complainant gave clear and direct answers and her evidence was not undermined in cross-examination. There was no real inconsistency between the evidence in the VARE and the special hearing: the difference between being ‘grabbed’ and ‘laid down’ was inconsequential. Likewise, the third incident (charge 4 – guilty) was supported by a cogent, free narrative that was not undermined in cross-examination.
In relation to the fourth incident, the respondent submits that the complainant’s account of the offending the subject of charge 5 was consistent throughout both her VARE and the special hearing, whereas her account of the conduct in charge 6 suffered from some inconsistency. The narrative of the fourth incident was not continuous, unlike the other incidents. The complainant initially stated in her VARE that the applicant ‘sort of put his hands down [her] pants’, before she pushed him out of the way and told him to let go, after which he stopped. Only upon specific questioning by the police officer conducting the VARE did the complainant particularise that the applicant had touched her vagina at that time. When asked for further detail about how the applicant had touched her, the complainant first said, ‘[h]e was just reaching down for it’. It was only when directly questioned by the police officer that the complainant described the applicant touching her vagina and then later agreed with a proposition put to her — that she meant the applicant had touched her ‘vagina hole’.

The respondent submits that the complainant’s apparent difficulty in describing the conduct underpinning charge 6 stands in stark contrast to her description of the sexual penetration the subject of charge 3.
The respondent further submits that the jury may have viewed the conduct alleged in charge 6 as less plausible than the conduct in charge 5 having regard to the evidence that the complainant’s mother and brothers were in the loungeroom at the time. The loungeroom opened directly to the kitchen from which the hallway was visible. Activity in the hallway could be heard by a person in another room of the house. It follows that charge 5, which involved contact over the complainant’s jeans from which the applicant could have swiftly desisted, can be distinguished from the conduct in charge 6, which carried a greater risk of detection.
In relation to the fifth incident (charge 8 – not guilty), the respondent submits that the complainant’s account was inconsistent. In the VARE, she described being touched on the breasts near the garage, whereas at the special hearing she said that the incident occurred in the garage. She also gave inconsistent evidence at the special hearing about whether her brothers were home, initially stating that they were not at home and then later confirming that her older brother was at home. The respondent also submits that the jury may have viewed charge 8 as implausible, given that, in accordance with the evidence given at the special hearing, the complainant’s mother was in the loungeroom at the time and the loungeroom had a view of the backyard.

Consideration

The principles relating to the inconsistency of verdicts were clearly articulated by the High Court of Australia in MacKenzie v The Queen[5] and MFA v The Queen.[6]
[5](1996) 190 CLR 348; [1996] HCA 35 (‘MacKenzie’).
[6](2002) 213 CLR 606; [2002] HCA 53 (‘MFA’).
In MacKenzie, the High Court observed that when faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives: according the respect due to the jury as the ‘constitutional’ tribunal for resolving disputed factual questions; and intervening where, in a particular case, doubt is cast upon the verdict. In a criminal appeal, the court must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.[7]
[7]MacKenzie (1996) 190 CLR 348, 365; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ).
In this context, the High Court cautioned that ‘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’.[8] Nevertheless, cases do arise where different verdicts returned by a jury represent ‘an affront to logic and commonsense’ and suggest a compromise in the performance of the jury’s duty. Such a conclusion depends upon the facts of the case. There can be no ‘hard and fast rules’ except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission.[9]
[8]MacKenzie (1996) 190 CLR 348, 367; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ), citing R v Wilkinson [1970] Crim LR 176.
[9]MacKenzie (1996) 190 CLR 348, 368; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ).
Where the inconsistency is said to be based on jury verdicts on different charges, the test is, as the applicant submits, ultimately one of logic and reasonableness. The appellant must demonstrate that no reasonable jury, applying their minds properly to the facts of the case, could have arrived at the conclusion reflected in the different verdicts.
In determining this question, it must be borne in mind that, where an accused person has been indicted on separate charges, the jury is ordinarily directed that they must give separate consideration to each charge. Jurors are also directed that they can accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection or non-acceptance of a particular aspect of a witness’s evidence does not necessarily mean that they have to accept or reject the whole of that witness’s evidence.
Furthermore, in a criminal trial particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal by a jury on a charge does not necessarily mean that the jury found that the witness’s evidence as a whole was unsatisfactory, untruthful or unreliable. As Gleeson CJ, Hayne and Callinan JJ said in MFA:
A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. 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.[10]
[10]MFA (2002) 213 CLR 606, 617 [34]; [2002] HCA 53 (Gleeson CJ, Hayne and Callinan JJ).
In this case, there seems to be no disagreement that it was open to the jury to acquit on charge 1. The complainant’s evidence in the VARE and at the special hearing was inconsistent in important respects. The complainant gave a different account of where the offending occurred and about her interaction with her mother beforehand. Importantly, when pressed, the complainant said she could not remember how the applicant touched her.
The same consideration applies to charge 8 (the fifth incident), which also involved different accounts of where the offending took place. Furthermore, the jury may have viewed charge 8 as implausible, given that the complainant’s mother was making a cup of tea nearby.
There is no mystery as to why a jury might acquit on charges 1 and 8. The verdicts of not guilty were explicable.
As to the verdicts of guilty on charges 2 and 3 (the second incident) and charge 4 (the third incident), the complainant gave free and relatively clear narratives of the offending conduct in each case which was not undermined in cross‑examination. Again, the verdicts were capable of rational explanation.
The focus of the complaint about inconsistent verdicts is the different verdicts arising from the fourth incident. According to the applicant, there is no reasonable explanation for the finding of guilt in relation to the first part of the incident — the humping — but not the second part of the incident — the vaginal touching — given that the incident was a single incident.
In order to consider this submission, it is necessary to look closely at the way in which the complainant’s evidence about the fourth incident unfolded.
In the VARE, the questioning about the fourth incident commenced immediately following the complainant’s description of the second incident, which also involved vaginal touching:
A. How many times has he touched you on the vagina?
Q. A couple of times.
The complainant was then asked when was the last time the applicant had touched her on the vagina. She responded that it was two months earlier. When asked to tell the police officer everything about the last time the applicant touched her on the vagina, the complainant said:
He was, like — he wasn’t aggressive, but, like, he felt like he was. Like, he pulled me and all that and then he started reaching out for my vagina and stuff. And I didn’t know what to do.
The police officer asked the complainant where she was when this happened. The complainant explained that she was coming out of the bathroom because she was making a TikTok and the applicant came up behind her ‘and started touching me there and stuff’. The complainant was asked where she was standing, what she was wearing and what the applicant was wearing. She was asked where the applicant was standing and what she was doing at the time. The complainant said that she was standing in ‘the second hallway’. The applicant was behind her.
The police officer asked the complainant to describe what the applicant did next. The complainant said the applicant ‘started humping me’, he grabbed her waist and ‘then he sort of put his hands down — down my pants’. He let go because she pushed him out of the way and told him to let her go.
This was the first complete account of the fourth incident.
The complainant was then asked to give a description of the humping. When asked which part of the applicant was touching her, she said she thought it was just his hands, because his penis was still in his jocks. She said she could not feel any part of the applicant touching her.
At this point, the questioning returned to the touching of the vagina:
Q. And you said that he touched you on the vagina there. When did that happen?
A. Like, when I’m trying to, like, bend up … and then he touched it and all that and then I, you know, ran out.
The police officer asked whether the applicant’s hands went into the complainant’s pants. The complainant said they did. When the complainant was asked to describe how the applicant put his hands in her pants, the following exchange ensued:
A.      He was just reaching down for it.
Q.      Down for what?
A.      My vagina.
Q.      OK.
A.      And I didn’t know what to do.
Q.      Did he touch it?
A.      Yeah.
When asked to describe how the applicant touched her vagina, the complainant said the applicant was rubbing his hand over it. His hands were in her pants when he was doing ‘this’.
There then followed quite a lengthy interrogation about which part of the complainant’s vagina was touched. The complainant had some difficulty describing which part of her vagina the applicant touched. She said she had forgotten what it was called. Ultimately, however, she was unequivocal that the touching was on the ‘inside’. She said the applicant put two fingers there and that she grabbed his hand and pushed it. She went behind him and pushed him and then walked off.
During the special hearing, the complainant was asked whether she remembered telling the police about an incident in the hallway near the bathroom. When asked to explain what happened, the complainant said as follows:
So my thing is when I get home, I normally make my TikToks in the bathroom because of the good lighting. Um, so I was just, like, you know, making a TikTok, being funny, and I went to go — ‘cause we have — like, we've got — we had little kids back then, so we always had to, like, lock the bathroom door with this little hook thing so the kids won’t go in and play with all the soap and make potions. So I walked out, I closed the door with the hook, and then he just came up behind me and started rubbing his, like, dick on my arse. And then he touched me again on the vagina and boobs and I could feel his dick on my arse.
The complainant was questioned about what she told police the applicant was wearing at the time; where her mother was; what time of the day it was; and where her brothers and sister were. She was asked about their proximity to the bathroom. She said her sister was in the bedroom and she knew that because she (the complainant) was there before she walked into the bathroom. The bedroom door was closed and her sister was on her iPad, awake.
The questioning turned to the humping. The complainant was asked how long the applicant was behind her rubbing his penis on her with his pants still on. She said probably a good five minutes. She was asked whether she made any noise. She said she did not because the applicant told her to be quiet.
The complainant was not asked in the special hearing about the vaginal touching or penetration. It was simply put to her that the applicant said that he had never put his finger inside her vagina. When asked whether he did so, she said ‘yes’. It was then put to her that the applicant said the fourth incident never happened at all and that it was something that was not the truth. When asked whether it was the truth, she said, ‘[i]t is the truth’.
Turning to our analysis, we accept the applicant’s submission that evidence of the vaginal touching was given at the very start of the evidence about the fourth incident and that it featured again in the middle and at the end of the evidence. The evidence about the fourth incident was prompted by the complainant being asked at the outset when was the last time the applicant touched her on the vagina. The vaginal touching was an integral part of the evidence about the fourth incident and there was no temporal distinction in the narrative between the conduct the subject of charge 5 and the conduct the subject of charge 6. The conduct was, as the applicant submitted, intertwined. Although a complete account of the fourth incident was given in short form at the outset, and the complainant was then prompted to give further evidence about discrete aspects of the incident, the applicant was correct to describe the evidence as a ‘singular’ narrative. The evidence of the incident was, in that sense, ‘indivisible’.
However, we do not accept the submission that the different verdicts on charges 5 and 6 are explicable only on the basis that the jury was not satisfied that the offending continued within the same incident. There were other reasons why the jury might have reached different verdicts on the different conduct alleged in the fourth incident.
First, the complainant’s evidence about vaginal touching did not emerge and flow as freely as her evidence about the humping. Although she began by referring to the applicant ‘reaching out’ for her vagina, the complainant initially said only that the applicant ‘sort of’ put his hands down her pants before concluding the narrative by saying she pushed him out of the way and he stopped and let her go. When prompted to give more detail, she said that ‘[he] was just reaching down for it’. When further prompted, the complainant described rubbing, and further questioning was required to elicit detail about touching ‘inside’, with two fingers in her ‘vagina hole’.
Secondly, there was clearly more risk attached to the vaginal touching than the humping, which might have been passed off as ‘horse play’ if someone had come into the hallway (or the kitchen) and seen it. The jury may therefore have considered the allegation of vaginal touching to be less plausible than the allegation of humping.
In this context, it is necessary to bear in mind the principles set out in [52] above, namely that 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 this case, the quality of the complainant’s evidence was affected by her intellectual disability. Her use of language and her ability to organise her thoughts was generally poor. There were inconsistencies and uncertainties in her evidence that were plainly attributable to her intellectual deficits. The jury had to make allowances for the complainant’s intellectual limitations when assessing the reliability of her evidence. The point at which that allowance was exhausted or had reached its limit was a matter for the jury. Having regard to the somewhat hesitant or staccato quality of the complainant’s evidence about the vaginal touching, the jury may have decided that the evidence fell short of satisfying them to the requisite standard. However, they may not have had the same reservations about her evidence of the humping.
Furthermore, the jury may have been comforted by the similarity of the conduct underpinning charge 5 and the conduct underpinning charge 4, which involved slapping on the buttocks, and was accompanied by evidence of surrounding circumstances that was relatively clear.
In the circumstances, we consider that there is a reasonable explanation for the different verdicts within the fourth incident and that it was open to the jury to be satisfied beyond reasonable doubt that the humping occurred while at the same time harbouring a reasonable doubt that the vaginal touching occurred as alleged. The different verdicts do not, in our view, represent an affront to logic and commonsense.
As to the difference between the verdicts of guilty on charges 2 and 3 and the verdict of not guilty on charge 6, we do not accept that the quality and depth of the complainant’s description was the same as between the two sets of charges. There was a level of immediacy and physical and emotional detail in the evidence about charges 2 and 3 that was not present in the evidence about charge 6. The jury may have been attracted to the evidence underpinning charges 2 and 3 in terms of its reliability. The jury may have considered there was a more plausible opportunity for digital penetration under charges 2 and 3 than there was for charge 6. On the complainant’s account, she was wearing pyjamas, not jeans. She was also alone with the applicant on the couch in the loungeroom, while her mother and siblings were still in their respective bedrooms. We consider that it was open to the jury to find that the quality of the evidence about the vaginal touching in the fourth incident was less reliable than the evidence about the second incident, which was described spontaneously, and was consistent across the VARE and the special hearing. Again, there is a reasonable explanation for the difference in the verdicts.
We do not consider that the cross-admissibility of the charges makes it more likely that the mixed verdict is irregular. For the reasons we have given, it was open to the jury to find that the complainant’s evidence was stronger in respect of the charges of which the applicant was convicted than those of which he was acquitted. The jury may have reasoned that even if the findings of guilt on some charges made it more likely that the applicant had committed the balance of the offences, the quality of the complainant’s evidence in respect of those charges was insufficient to satisfy them to the requisite standard that the applicant was guilty.
It follows that ground 1 is not made out.

Ground 2: Facebook messages as tendency evidence

Applicant’s submissions

The applicant submits that the judge erred in admitting the Facebook messages as tendency evidence to demonstrate both a sexual interest in the complainant and a willingness to act on that sexual interest. He submits that the Facebook messages did not have significant probative value for the facts in issue and that the probative value of the Facebook messages did not outweigh their prejudicial effect.
The applicant submits that at their highest, the text messages were generally sexualised in nature, and were not directed at the conduct alleged to have been undertaken by the applicant against the complainant. The Facebook messages are not significantly probative of whether the applicant had a specific sexual interest in the complainant, and they do not support a finding that the applicant had a tendency to act on any sexual interest in the complainant. Furthermore, they carry significant prejudice owing to the distasteful nature of the messages.
The applicant relies on Erikson v The Queen,[11] in which this Court excluded evidence that the accused had taken pornographic photographs of his step-daughter as tendency evidence in relation to charges of sexually touching the same girl. The Court held that it was ‘too great a leap’ to suggest that it was more likely that the accused would continue to ‘seek to fulfil the attraction by committing acts of a very different sexual nature as the occasion presented’.[12]

Respondent’s submissions

[11][2021] VSCA 234 (‘Erikson’).

[12]Erikson [2021] VSCA 234, 16 [60] (Kyrou, Niall and Emerton JJA), citing R v Bauer (a pseudonym) (2018) 266 CLR 56, 88 [60]; [2018] HCA 40 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

The respondent submits that the Facebook messages clearly reveal the applicant’s sexual interest in the complainant and that his conduct in sending the messages to the complainant demonstrates not only that he possessed that sexual interest but that he was willing to act on it. This stands in contrast to Erikson, where the evidence did not establish a sexual interest. The respondent argues that the messages can be seen not only as an expression of the applicant’s sexual interest in the complainant, but also as an attempt by him to normalise the notion of sexual intimacy between them or to recast their relationship as one of romantic partners rather than father and daughter.
The respondent submits that the Facebook messages made it more likely, to a significant degree, that the charged offences took place. The messages were sent within the timeframe of the alleged charges. When considered alongside the complainant’s evidence of the charged acts, the messages made it inherently more plausible that the applicant had breached the boundaries of a normal parent-child relationship — that is, they evidenced the applicant’s tendency to view the complainant as a sexual partner and behave towards her accordingly. This did not require a ‘great leap’ in logic.
Furthermore, it is submitted, it cannot be said that the messages as a whole depicted acts of a ‘very different sexual nature’ to the charged offences. Although sending a message is objectively different to committing a physical sexual act, the value of the evidence lay not in the applicant’s tendency to commit particular sexual offences against the complainant, but his tendency to have a sexual interest in her which led him to engage with her in a sexualised fashion.
The respondent submits that the prejudicial effect of the Facebook messages is low. The images are not offensive or distasteful. They are not pornographic in nature. They do not reveal a paedophilic tendency. The judge’s directions also specifically addressed the permissible and impermissible uses of the tendency evidence.

Consideration

Section 97(1) of the Evidence Act 2008 relevantly provides that evidence of a tendency that a person has or had is not admissible to prove that a person has or had a tendency to act in a particular way unless the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Section 101(2) further requires that the probative value of tendency evidence sought to be adduced by the prosecution in a criminal proceeding substantially outweigh any prejudicial effect it may have on the accused.
The ‘probative value’ of evidence is defined as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[13]
[13]Evidence Act 2008, Dictionary pt 1 (definition of ‘probative value’).
In Hughes v The Queen,[14] a majority of the High Court stated that the probative value of tendency evidence will vary depending upon the issue that it is adduced to prove.[15] However, there is likely to be a high degree of probative value where: (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency; and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.[16]
[14](2017) 263 CLR 338; [2017] HCA 20 (‘Hughes’).
[15]Hughes (2017) 263 CLR 338, 355–6 [39]; [2017] HCA 20 (Kiefel CJ, Bell, Keane and Edelman JJ).
[16]Hughes (2017) 263 CLR 338, 356–7 [41]; [2017] HCA 20 (Kiefel CJ, Bell, Keane and Edelman JJ).
In this case, we are well satisfied that the Facebook messages had a high degree of probative value because they strongly supported proof of a tendency to have a sexual interest in the complainant, and to act on that sexual interest. That in turn strongly supported the proof of the conduct charged. The sending of the Facebook messages made it more likely, to a significant degree, that the charged offences took place.
In our view, having regard to their content and the fact that they were sent to the complainant, the Facebook messages plainly reveal a sexual interest in the complainant. Many are sexualised images, and some have accompanying text signalling a desire for sexual engagement. Messages of that kind would not be sent to a person unless the sender had a sexual interest in the recipient of the messages. Although some appear innocuous, in combination they quite clearly signal a sexual interest in the person receiving them. Furthermore, the mere fact that the applicant sent these messages to the complainant indicated a willingness to act on this sexual interest. As the respondent submitted, sending the Facebook messages in and of itself involved engaging with the complainant in a sexualised fashion. This, in turn, made it inherently more plausible that the applicant had breached the boundaries of a normal parent-child relationship, and in the manner alleged.
This stands in contrast to Erikson.
In Erikson, the judge admitted as tendency evidence oral evidence about photographs found on the accused’s work computer. The photographs were of the accused’s daughter, who was the complainant. Because they had been lost and no copies remained, the prosecution sought to prove their contents by calling two witnesses to describe what the photographs depicted. One of the witnesses described the photographs as follows:
The rest of that sequence were of his daughter, [GC] who is roughly 11. She was lying [on] the couch, face down, watching TV. She was wearing loose fitting boy shorts. The angle of the photos were taken from her rear end, aimed at her crotch. In each photo, her leg would move slightly, revealing more of her crotch area.[17]
[17]Erikson [2021] VSCA 234, 2 [10] (emphasis omitted).
The prosecution also relied on statements made by the accused in his record of interview, which were said to amount to admissions that he took the photographs and that they were indecent. Among other things, the accused told police that the photographs had been taken while he was suffering from an addiction to pornography.
This Court, having reviewed the evidence, concluded:
In our opinion, having regard to the relatively anodyne content of the photographs and the ambiguity in the answers given by the applicant in which the connection between the photographs and his so called addiction is vague and somewhat attenuated, the evidence taken as a whole, and at its highest, does not strongly establish that the applicant had a sexual interest in the complainant.[18]
[18]Erikson [2021] VSCA 234, 15 [55] (Kyrou, Niall and Emerton JJA) (citations omitted).
Thus, the evidence in Erikson did not support the existence of a tendency to have a sexual interest in the complainant. For the reasons we have given, that is not the case for the Facebook messages.
In Erikson, this Court also found that the fact that the accused took photographs of the complainant, even of a sexualised nature, did not strongly support a conclusion that he engaged in sexual offending of a very different, and far more serious, kind. It was ‘too great a leap’ to say that, because the accused found a photograph of the complainant sexually appealing, it was more likely, to a significant degree, that he would seek to fulfil the attraction by committing acts of a very different sexual nature as the occasion presented.[19] This is the finding on which the applicant relies, by analogy, in this case.
[19]Erikson [2021] VSCA 234, 16 [60] (Kyrou, Niall and Emerton JJA).
However, taking sexualised photographs and keeping them on a computer is not analogous to sending sexualised messages to a complainant. In Erikson, the accused did not use the photographs to communicate or engage with the complainant in a sexualised manner, or at all. In this case, as discussed, the Facebook messages were a form of communication that effectively operated as an invitation to the complainant to engage in sexual or sexualised conduct with the applicant. Sending the Facebook messages involved the normalisation of sexually inappropriate conduct and was, in practice, a form of grooming. From there, it was not ‘too great a leap’ to say that it was more likely, to a significant degree, that the applicant would commit the offences alleged.
Furthermore, the judge was correct to find that the probative value of the Facebook messages substantially outweighed any prejudicial effect they may have had on the applicant. Apart from revealing the distorted father/stepdaughter relationship that he endeavoured to foster, the Facebook messages were not, in and of themselves, unfairly prejudicial to the applicant.
This ground has no merit.

Disposition

None of the grounds is made out. Leave to appeal will be refused.
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[2025] VSCA 227

18 September 2025