Owen Ballard (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0031

OWEN BALLARD (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, KIDD and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2025
DATE OF JUDGMENT:	29 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 120
JUDGMENT APPEALED FROM:	DPP v Ballard (a pseudonym) (County Court of Victoria, Judge Dempsey, 19 October 2023) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Rape – Applicant charged on indictment with two charges of rape of wife – Jury returned verdict of guilty on Charge 1 and not guilty on Charge 2 – Whether verdict on Charge 1 inconsistent with verdict on Charge 2 – Whether verdict on Charge 1 a compromise verdict – Whether reasonable and rational basis for jury to distinguish between Charge 1 and Charge 2 – Where complainant’s evidence in relation to Charge 1 not able to be distinguished from evidence in relation to Charge 2 – Complainant’s evidence not capable of rationally explaining different verdicts – Verdicts explicable only as compromise – Appeal allowed.

MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) CLR 606, considered.

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Counsel
Applicant:		Mr C Oldham
Respondent:		Mr L McAuliffe
Solicitors
Applicants:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KIDD JA
KAYE JA:

Introduction

On 19 October 2023, the applicant was found guilty by a jury in the County Court of Victoria of one charge of raping the complainant in 2013 (Charge 1),[1] but not guilty of a further charge of raping the complainant in 2017 (Charge 2).[2] The complainant was the applicant’s wife.
[1]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
[2]Contrary to s 38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
Charge 1 involved a digital rape that was alleged to have taken place shortly after the birth of the couple’s second child in June or July 2013; Charge 2 involved a penile rape that was alleged to have taken place not long before the couple separated in 2017.
The applicant and complainant met in late 2005. They moved in together in either 2005 or 2006 and married in November 2009. They had two children, the eldest of whom (Jasper)[3] was born in October 2010 and the youngest (Isabel)[4] in June 2013. Their marriage ended in about December 2017.
[3]A pseudonym.
[4]A pseudonym.
In May 2020, while applying for a Family Violence Intervention Order against the applicant, the complainant told police that she had been sexually assaulted by the applicant while they were married. Some time after the alleged incident that was the subject of Charge 2, the complainant had also told her childhood friend, Ms Amy Wittner,[5] that the applicant had sexually assaulted her.
[5]A pseudonym.
Ms Wittner gave evidence of the complaint at trial. Apart from the informant and Ms Wittner, only the complainant gave evidence at trial. The applicant’s record of interview was played to the jury.
The defence case was that the conduct did not occur as alleged and that there was no non-consensual sex during the relationship.
The prosecution relied on evidence that the applicant had a tendency to act in a particular way with a particular state of mind, namely, to engage in an ongoing pattern of sexual violence towards the complainant during their marital relationship by sexually penetrating her while she was asleep and/or in circumstances where she had verbally refused consent. The tendency was said to be evidenced by both the two charged acts and a number of uncharged acts.
The applicant now seeks leave to appeal against his conviction on the following ground:
The verdict of guilty for Charge 1 is unreasonable and cannot be supported having regard to the evidence and the verdict of not guilty on Charge 2.
The fundamental complaint is that the verdict of guilty on Charge 1 must have been a compromise verdict as there was no reasonable and rational basis for the jury to acquit on Charge 2 but find the applicant guilty of Charge 1.
For the reasons that follow we would set aside the applicant’s conviction on Charge 1 and enter an acquittal on that charge.

The evidence

The complainant

The complainant gave evidence that in the early stages of her relationship with the applicant, their physical relationship was relatively normal and they had sexual intercourse on a regular basis. However, in about 2007, the applicant began initiating sex with her while she was sleeping. He would wake her up by touching her vagina with his hand or by putting his penis between her legs or penetrating her vagina with his penis. This would occur once every couple of months.
The complainant said that when this occurred, she would sometimes try to roll over, but eventually she would just ‘continue doing it’. She said that she and the applicant had many conversations over the course of their relationship about how she felt pressured to do things (have sex) with him more often than she wanted to. She said that she did not leave the relationship as she loved the applicant and did not see it as a huge issue. It was something that happened slowly (meaning, gradually) that she got used to.
The complainant gave evidence that over the course of the relationship, she woke to the applicant penetrating her vagina with either his fingers or his penis around 20 to 30 times. It was a regular occurrence, although it became more frequent towards the end of the relationship.
The complainant gave evidence that the first specific incident of this type of conduct that she could recall took place some time between 25 June 2013 and 14 July 2013 when Isabel was two weeks old. The complainant said she woke up to the applicant’s fingers inside her. She told him ‘no’ and tried to move him away (charge 1). She said that she ‘kept going with it’ but that it was not something she wanted or felt comfortable with. She remembered this incident because, at the time, she had not yet had a medical check‑up to confirm that she was able to resume having sexual intercourse after giving birth.
The second specific incident alleged by the complainant took place in 2017. The complainant said that on this occasion, she woke to the applicant’s penis between her legs against the back of her. He was trying to insert his penis into either her anus or vagina. She said ‘no’ and told him to stop, and then rolled over onto her stomach. The applicant then got on top of her and she began to cry. He moved her legs apart with his knee and inserted his penis into her vagina (charge 2). He penetrated her until he ejaculated.
The complainant gave evidence that after this incident, the applicant chastised her for crying while he was penetrating her. He said that she made him ‘feel like shit’ and ‘like he was raping [her]’.
The complainant said that as a result of the incident, and in an attempt to prevent it from happening again, she began sleeping in the same bed as Isabel, either in her own bed or in Isabel’s bed. She did this until the separation in December 2017. After the separation, the applicant slept in a different room.
In her evidence in chief, the complainant gave evidence that she was able to remember the date of this incident because of the layout of the bedroom, as the bed had been repositioned at the end of summer. She also recalled it being warm, and that she had come home from an afternoon shift at work and gone straight to bed.
The complainant initially told police that the offending the subject of Charge 2 took place in 2017. In examination-in-chief, she gave evidence that it took place in 2016. She said that it could have been either January or December, but that it definitely occurred before February 2017. The prosecutor then sought to clarify the date of the offending by reference to the period of time that the complainant slept in the same bed as Isabel:
Yes. Well, this is what I wanted to ask you about. So, as I understand your evidence, you believe that this is in early 2016, this incident? That’s what you said before?---Ah yeah, it’s 2016 or 2017, I’m — might be getting the dates mixed up with the anxiety.
All right, well just listen to me and we’ll just take you carefully through it. So, you separate in December 2017?---Yep.
And for some time prior to that separation you’ve had this situation where you’ve had [Isabel] in the bed with you and in an effort to prevent similar occurrences?---Yes.
Is it the situation — well, thinking about that and how long that went on for, do you say that the incident occurred in 2016, the start of 2016, or was it 2017, the start of 2017?---2016.
Sorry?---2016.
Yes, all right. So, you’re saying that you effectively got the child [Isabel] in your bed to try and avoid this situation for nearly two years?---Yes.
In cross-examination, the complainant said that the incident took place in 2017:
Now, there was a second incident that you told this jury about. And you told this jury that that incident occurred in early 2016, is that right?---It did, but off — it’s — was 2017. I was nervous and I got my years wrong.
Well, the — you were given a few different opportunities to correct yourself, and you were [quite] adamant it was 2016. So, do you now say it was 2017?

---I — I wasn’t adamant. I was, um, tossing up between the two. It was 2017 because we separated at the end of 2017.
So, when you say you were tossing up between the two, what does that mean?‑‑‑I was trying to, um, remember which one it was. My nerves had made me feel — forget the year.
Now, [the prosecutor] said to you or asked you to confirm that it was 2016. You confirmed that it was 2016, and [the prosecutor] then said, so, it was after this second incident that your daughter stayed in bed with you or you kept your daughter in bed you or slept in her bed. Do you remember that?---Yes.
And you told this jury that it was a period of two years, which would have taken you from the early 2016 date all the way up to separation it the end of 2017?

---M’mm. It was a year.
When it was put to the complainant that what she told the jury was inconsistent with what she initially said to police, the complainant said ‘for a moment it was [inconsistent], but I’ve corrected what I said that was wrong before’. She agreed that she told police the incident occurred in 2017.
The complainant gave evidence of a telephone conversation in August 2018 with the applicant, the purpose of which was to organise a time for him to visit the children. When asked whether during the conversation she spoke to him about something that had occurred in the relationship, she said ‘I told him that he wasn’t able to see the children because of his behaviour towards myself and the children’. When asked whether she said something specifically about his behaviour in a sexual sense, she answered ‘I specifically said, um, you raped me’.
In response to being asked about the applicant’s reaction to being told he had raped her, the complainant said:
He was crying and he apologised and said he didn’t want to do anything to hurt me and then said that he shouldn’t be talking about this ‘cause he could get himself in trouble.
The following exchange took place in cross-examination in relation the complainant’s evidence that the applicant had been crying during the phone conversation:
But you don’t recall though whether [the applicant crying] was in response to the fact that he hadn’t seen the children in a while or that you accused him of raping you, is that right?---Um, no. I recall his responses to me saying that though.
So the question is, you don’t recall why he was crying though, do you?---I can’t say why he was crying.
…
In response to what part of the conversation he started crying, you just can’t assist us?---Yes.
The complainant said that after she separated from the applicant, she told her friend, Ms Wittner, about the sexual assault, but did not tell her specific details. This occurred some time in July or August 2018, but she could not remember whether it was before or after the telephone conversation with the applicant. The complainant gave evidence that she had another conversation with Ms Wittner in December 2018, but she could not remember what they spoke about. Some years later (in 2021) she texted Ms Wittner to ask whether she would provide a statement to police in relation to what the complainant had told her in 2018.
The complainant gave evidence that in about 2016, she and the applicant attended marriage counselling. The complainant said that she discussed her sex life in these sessions only so far as to say she was feeling pressured. She did not disclose the sexual assaults to anyone during the marriage, including her family and friends, the police and medical professionals.

Amy Wittner

Ms Wittner gave evidence that she had known the complainant since she was 14 years old. She was friends with the applicant while he was married to the complainant.
Ms Wittner recalled receiving a text message from the complainant in February 2021 in relation to this case. She replied to the text message from the complainant and said that she would be happy to help and make contact with the relevant police officer, which she later did.
Ms Wittner gave evidence that the first conversation she had with the complainant about the applicant was at a café some time in 2018 when she had just moved back to Bairnsdale. She recalled the complainant’s two young children being there. She said that the complainant told her how horrible her marriage had been and that she had separated from the applicant. Ms Wittner walked away from the conversation with the impression that something more serious had happened, but the complainant did not provide any detail as to what this might be.
Ms Wittner gave evidence of a second conversation with the complainant some time in December 2018, around the time of the complainant’s birthday, in the outdoor area of the Lakes Entrance Sporting and Community Club. She asked the complainant how everything was going from their last conversation. The complainant replied, ‘He raped me’. The conversation was interrupted and the complainant did not provide any further details.

The applicant’s record of interview

The applicant was arrested on 16 October 2020 and participated in a record of interview. He denied the offending alleged by the complainant.
The applicant described his relationship with the complainant when they first met as that of a ‘perfect couple’. He said of their intimate relationship that at the start there was ‘a lot more’ and it was ‘fantastic’. However, as the years went on, there were ongoing issues and their intimate relationship became ‘basically non-existent’. He said that ‘everything was always consensual’.
When asked about the pressure that the complainant said she experienced in their intimate relationship, the applicant responded that he was not ‘nagging her constantly’, he was just ‘trying to make [the] marriage work’. He said, ‘you don’t do that by pressuring someone to loving you’.
In response to the complainant’s allegation that she had woken on countless occasions between 2005 and 2007 to find his finger or fingers inside her vagina, the applicant said that he would not do that, ‘not if she was asleep’. In response to the allegation that sometimes the complainant would wake to find his penis inside her vagina, he said, ‘[w]hen she was awake, with consent, yeah, like, not when she’s asleep’.
The applicant described the allegation that he had penetrated the complainant while she was asleep as ‘ridiculous’:
How do you cuddle up with someone in bed at night, as a couple, try to make some sort of intimate relationship happen without waking the other person up. I mean, that’s just ridiculous.
The applicant expressly denied the allegations in Charge 1. He said:
It would never have happened. Not two weeks after [Isabel] was born. I mean, seriously, she spent 36 hours in labour with [Jasper], [Isabel] just fell out of her.
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I would not be the sort of person to do that to someone that I loved, OK. If she had told me no, that would have been the end of it, simple as that. I would not be forcing myself onto someone else, especially two weeks after giving birth, yeah. I can quite happily say that with a clear conscience, yeah, I would not do that to someone that I love.
He also expressly denied the allegation in Charge 2. He said:
[I]f she said no, or she rolled away from me that would have been the end of it.
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No, it didn’t happen, mate. Didn’t happen. Do you think I’d be having sex with someone who’s crying?
…
I would never force someone to have sex with me. So that is completely false.
In relation to the allegation that he chastised the complainant after the incident because she made him feel like he had raped her, he said, ‘none of that ever happened’.
The applicant recalled the phone call with the complainant in August 2018 and the complainant accusing him of raping her. He said that he was upset hearing this and so started apologising and ‘actually thinking I … might have done it without realising it. And I felt … terrible’. He thought he was probably intoxicated at the time. He went on:
And I apologised to her if that’s how I made her feel and stuff like that but that’s not what happened. She was just venting and she was fuckin’ going off at me about everything: the kids, the house, the fuckin’ loan, everything yeah. You know, why is she allowing me to see the kids.
When asked why he had apologised to the complainant, he said:
‘Cause she made me believe I fuckin’ done it.
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I was in the fuckin’ car probably drunk as a fuckin’ skunk, talking to her about — on the phone going, ‘I can’t believe what I’ve done’, and she’s playing on my being intoxicated, yeah. That shit never happened.
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Well I’m not gonna — I’m not gonna just go out and straightaway told her she’s a fuckin’ idiot, that she’s wrong. I’m going to hear her out, see what she has to say and apologise regardless of whether it happened or it didn’t happen. It didn’t happen but you still apologise, don’t you? You still apologise for hurting someone even though you don’t — you know you haven’t hurt them.
The applicant denied that it was possible he did not remember committing the alleged offences.

Closing addresses

The prosecutor described the complainant’s evidence as ‘the lynchpin of the prosecution case’. He referred to the defence case that the complainant was lying and observed that this would be highly unlikely in light of the surrounding circumstances, including the impact of such a lie on the complainant, her family and the applicant. Importantly, he said, the absence of ‘precise particulars’ was not suggestive of an allegation made by someone who has lied.
Of the complainant’s inconsistent evidence in relation to the date of the alleged offending the subject of Charge 2, the prosecutor said:
Now, this is a woman who’s describing a marriage that took place over a number of years when she’s been sexually dealt with by her husband in this way a number of times. She got the year wrong, all right? She’ll be criticised roundly, it’ll be said that’s an inconsistency and that should give rise to a reasonable doubt in your minds. Well, nothing could be further from the truth.
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All right, she’s got the year wrong, that’s the best they’re going to come up with. She hasn’t got the details of what happened to her wrong or you would have heard all about it. Would have heard her cross-examined about inconsistencies if there were any others.
The prosecutor described Amy Wittner’s evidence as ‘extremely important’ unchallenged complaint evidence.
Of the tendency evidence, the prosecutor said:
[H]ere, [the complainant] gives an overall account of how the [applicant] is controlling; when he wanted sex it happened and she would regularly wake up to find his fingers in her vagina or his penis in her vagina. That’s the general account.

The prosecutor’s submission in relation to the tendency evidence was that ‘it makes it more probable that he offended in the way outlined in the two charges’.
Finally, in relation to the evidence of the phone call that took place between the applicant and the complainant in August 2018, the prosecutor described the applicant’s apology to the complainant during the phone call as a ‘confession to the crime of rape’. He observed that both the applicant and the complainant agreed that the apology had happened and that the complainant had not made it up: ‘[i]t’s not a question of having a few drinks and being in the car, he said it, he meant it’.
Defence counsel submitted to the jury that there was not ‘a single piece of evidence that is independent of what [the complainant] says’. It was a case of, ‘he said, she said’. If the jury considered it to be reasonably possible that the applicant was telling the truth, they were required to acquit.
Defence counsel emphasised for the jury the applicant’s denials in his ‘full and frank’ record of interview. For example, in relation to the suggestion that if the complainant had said ‘no’ to sexual intercourse then the applicant would have stopped, counsel said:
I submit to you that it is open for you to find that [the applicant] answered those questions, the questions that he was asked by police, in a very matter-of-fact way. I submit to you that he wasn’t being evasive, he wasn’t being difficult. He gave an answer to the question that he was confronted with. When I put that to [the complainant], she said no, and that was it. You saw her answer no and the manner in which she answered my question. He said, she said.
Defence counsel contrasted the applicant’s consistent denials with the complainant’s inconsistent evidence about the date of the Charge 2 offending and the discrepancies between her evidence and Amy Wittner’s evidence about their conversations in August and December 2018.
In relation to the telephone call in August 2018 and the evidence that the applicant was crying and apologised to the complainant, defence counsel said:
We all have experiences of saying something during an argument, when you are emotional, and what you said coming out in a way that you didn’t intend.
…
You are unable to fully and impartially assess [the applicant’s] demeanour at the time, and it makes it difficult to assess whether he meant what he said or whether he was willing to agree to any suggestion made to him just so that he could spend some more time with his kids.

The charge and following

After summarising the evidence in the Crown case, the judge referred to the tendency relied upon, which was the applicant’s tendency to engage in a pattern of sexual violence towards his wife in the marital relationship by penetrating her while she was asleep without her consent. His Honour told the jury that that evidence could be used to infer that the applicant had a tendency to act in the way alleged and, accordingly, that he behaved in accordance with that tendency on the occasions alleged in the indictment.
In summarising the defence case, the judge said as follows:
The defence position really is a denial that the events the subject of these allegations occurred at all. He denied in his record of interview ever having nonconsensual sexual activity of any kind with his then-wife: that includes a denial of penetrating her at any time when she was asleep, or awake for that matter, and telling him, ‘No’, and trying to force him off her.
The judge described the denials as ‘complete’ in that they related both to the charged acts and the 20 to 30 occasions that were not the subject of the charges.
The judge recorded that the denial of the offending was put to the complainant in cross‑examination and that she disagreed with what was put to her. Attacks were made on her credibility and reliability by reference to the delay it took to complain, the differences in her account and the lack of confirmation or support of her account from external sources such as hospital shifts, records or science in the form of DNA or medical evidence or recording of conversations, taped evidence or other witnesses to key events.
The judge told the jury that, when distilled, the real issue for them was whether the events occurred at all, or in the way alleged by the complainant. The issues had crystallised as the case had gone on. The jury could see that for Charge 1, if the events occurred in the way alleged by the complainant, she was penetrated while she was asleep, that is to say, she was not consenting. For Charge 2, if the events occurred in the way alleged, the complainant having said ‘no’, resisted and cried, then likewise the complainant was clearly not consenting and no argument could be or was made that the applicant thought that she was consenting.
The judge duly gave the jury a series of directions relating to consent, the absence of physical injury, responses to non‑consensual acts, post‑offence relationship, the effect of delay on complaint and previous representations. As to differences in a complainant’s account, the judge told the jury that in this case they had heard evidence that suggested a difference or perhaps a gap in the complainant’s account of the offence or offences. This might be used when assessing the complainant’s credibility and reliability.
The gaps or differences identified by the judge included the year of the alleged offending for Charge 2. The judge recorded that, in evidence‑in‑chief, the complainant ‘equivocated somewhat’ before confirming that the alleged offending had occurred in about 2016. In cross‑examination, she corrected herself after a break and said the offending occurred in 2017. The judge referred to the defence submission that this was not evidence of nerves but rather untruthfulness.
Having set out a second so‑called ‘gap’, which was some difference in the evidence of Ms Wittner and the complainant in relation to what the complainant told Ms Wittner, the judge said as follows:
It is important to note when you are assessing evidence in this way, bear in mind experience shows that people might not remember all of the details of a sexual offence or may not describe a sexual offence in the same way each time — or in total each time, for that matter. Trauma affects people differently, including by affecting how they recall events. It is common for there to be a difference in accounts of a sexual offence. For instance, people might describe a sexual offence differently at different times to different people and in different contexts. Both truthful accounts and untruthful accounts of a sexual offence may contain differences.
The jury were sent out to deliberate at around 12:40 pm. Within about one and half hours of the jury retiring, the judge received a question from the jury as follows:
The jury is not unanimous and won’t be able to agree. Please advise where to from here.
The jury was not directed to persevere at that time, but given a separation oath and sent home to resume deliberating the following day.
The following day, before lunch, the jury asked to review the complainant’s testimony. They were given a disc of the evidence of all of the witnesses (in the interests of balance).
By 3:17 pm on that day, the judge had received a further note from the jury:
Jury still can’t come to a unanimous decision and never will.
The jury was then given a perseverance direction and let go for the day on the basis they would resume deliberating at 10:00 am the following morning.
By 3:00 pm the following day, the jury had reached its verdicts.

Ground of appeal

The applicant submits that the verdict of guilty on Charge 1 should be set aside as it is unreasonable and cannot be supported having regard to the evidence and the verdict of not guilty on Charge 2.

Submissions

In substance, the applicant submits that there is no reason for the jury to have rejected the complainant’s evidence in relation to Charge 2 but to have accepted the complainant’s evidence — beyond reasonable doubt — in relation to Charge 1, as there is nothing in the complainant’s evidence that markedly distinguishes the circumstances of Charge 1 from Charge 2. It is submitted that as a matter of logic and reasonableness the jury’s entertainment of a reasonable doubt for the elements of Charge 2 is inconsistent with its finding that all the elements of Charge 1 were proven. The case against the applicant rested entirely upon the jury accepting the reliability and credibility of the complainant’s account, and while there was evidence of complaint, no particulars of the charged acts were disclosed to the complaint witness (Ms Wittner).
The applicant submits that this Court should be satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt on Charge 1 in circumstances where:
(a)there are no distinguishable differences between the circumstances of each alleged offence;
(b)there is no direct evidence that supports the complainant’s version of each alleged offence;
(c)there is no evidence of complaint that is contemporaneous with each alleged offence;
(d)the applicant denied the offending ever took place, and consent was never raised as a defence;
(e)the only issue at trial was whether or not the alleged conduct occurred; and
(f)there were [no] notable differences in the complainant’s accounts.
Furthermore, the applicant submits, the trial judge correctly directed the jury on the proper use of the evidence and the differences in the complainant’s account.
The applicant submits that as there are no real distinguishable differences between the circumstances of Charge 1 and Charge 2, in the application of logic and common sense, a jury, acting reasonably in deciding the facts of this case, would either convict the applicant on both charges or acquit him of both charges. Any other alternative demonstrates an inconsistency in the jury verdict.
As a result, the applicant submits, the verdict of guilty on Charge 1 has the flavour of compromise between jurors. Although the alleged offending in Charges 1 and 2 is not temporally proximate, given the lack of distinguishing features between the charges and the main issue in dispute being whether the conduct occurred as alleged, the different verdicts are only explicable as a compromise.[6]
[6]See, eg, R v JA [2008] VSCA 169, [49], [54], [69].
The applicant relies on the High Court decisions of M v The Queen[7] and Pell v The Queen[8] to submit that, upon the whole of the evidence, it is open to this Court to be satisfied that the jury, acting rationally, ought to have rejected the complainant’s evidence and entertained reasonable doubt as to the applicant’s guilt.
[7](1994) 181 CLR 487; [1994] HCA 63.
[8](2020) 268 CLR 123; [2020] HCA 12.
In response, the respondent submits that it was well open to the jury, acting rationally, to accept the complainant’s evidence as to Charge 1 but to have a reasonable doubt as to the applicant’s guilt on Charge 2. The circumstances of the conduct alleged in respect of Charge 1 and Charge 2, while similar in some respects, were markedly different in other respects. Moreover, the complainant’s evidence at trial was such that the prosecution case on Charge 1 was clearly stronger than on Charge 2.
The respondent points to the following differences between the nature and circumstances of the offending in each charge:
(a)the offending in Charge 1 involved digital penetration, whereas Charge 2 concerned penile penetration;
(b)the offending in Charge 1 was alleged to have occurred when the complainant was asleep, whereas the offending in Charge 2 allegedly occurred after the applicant had woken the complainant;
(c)the offending in Charge 1 occurred at a time that could be precisely identified by the complainant, whereas there was uncertainty about when the offending in Charge 2 was (initially) alleged to have taken place; and
(d)the offending in Charge 1 occurred at a time when the relationship was still ongoing, whereas the offending in Charge 2 occurred when it was in decline, four months prior to the couple’s separation.
The respondent also points to specific features of Charge 1. The complainant was able to pinpoint when the incident occurred by reference to the birth of her child. Having given birth two weeks earlier and having not yet been given medical clearance to resume sexual activity, she did not want to be digitally penetrated. Furthermore, it was consistent with the tendency evidence that she had woken up to find the applicant penetrating her with his fingers on 20 to 30 occasions during the course of the marriage.
As a result, it is submitted, it was well open to the jury to accept the complainant’s evidence in relation to Charge 1 as credible and reliable. Her account of when the conduct occurred was clear and unequivocal. Her evidence that she did not want to be digitally penetrated because it was so soon after childbirth and she had not yet had her six-week medical review made rational sense and was compelling in its detail. Furthermore, her explanation for continuing the relationship with the applicant after this incident was also rationally explicable on the basis that, at that time, she was ‘trying to make [the relationship] work for the sake of [her] children’.
The respondent submits that, in contrast, the complainant’s evidence in relation to Charge 2 gave rise to a reasonable doubt as to the applicant’s guilt. For example, her evidence as to when Charge 2 occurred was not consistent. She told police that it occurred in 2017, however in examination in chief she said that it occurred in 2016. In cross-examination, she reverted to 2017. In closing, defence counsel relied on this inconsistency as a reason for the jury to have a reasonable doubt. Further, the complainant’s evidence regarding the deterioration of her relationship with the applicant may have lent support to the applicant’s assertions that their sex life was ‘basically non-existent’ and therefore may have led a jury to have reasonable doubt as to whether sexual relations were occurring at this time. Finally, the strength of the tendency evidence in relation to Charge 2 was considerably less than in relation to Charge 1. The alleged tendency was a tendency to (mostly digitally) penetrate the complainant while she was asleep, but the complainant’s evidence as to Charge 2 was that she woke to the applicant ‘trying’ to penetrate her vagina with his penis.
The respondent submits that the verdicts are logical and reasonable having regard to the differences in the circumstances of each charge and the nature and strength of the evidence in support of the charges, as the evidence emerged at trial. The jury were not compelled to doubt the complainant’s evidence in respect of Charge 1 just because they doubted it in respect of Charge 2.

Consideration

As discussed, the applicant submits that, as a matter of logic and reasonableness, the jury’s entertainment of a reasonable doubt as to whether the elements of Charge 2 had been proven is inconsistent with the jury finding all of the elements of Charge 1 proven beyond reasonable doubt, and is suggestive of juror compromise.
The principles relating to the inconsistency of verdicts were articulated by the High Court in MacKenzie v The Queen[9] and MFA v The Queen.[10]
[9]MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 (‘MacKenzie’).
[10]MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (‘MFA’).
In MacKenzie, the High Court described the tension inherent in an appellate court reviewing jury verdicts on the ground of inconsistency. Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives:
On the one hand, there is the respect due to the jury as the “constitutional” tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law.[11]
[11]MacKenzie (1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (citations omitted).
On the other hand:
[S]ometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking … If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.[12]
[12]MacKenzie (1996) 190 CLR 348, 365 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
In determining whether verdicts are inconsistent, 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’.[13] 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.[14] 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.[15]
[13]MacKenzie (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35, citing R v Wilkinson [1970] Crim LR 176.
[14]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
[15]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.
Thus, 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.[16]
[16]MacKenzie (1996) 190 CLR 348, 366; [1996] HCA 35, citing R v Stone (Unreported, Devlin J, 13 December 1954).
In determining this question, it must be borne in mind that, where a person has been indicted on separate charges, the jury is ordinarily directed that it must give separate consideration to each charge. Such a direction was given in this case. The jury was also directed that they could 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 did not necessarily mean that the jury had to accept or reject the whole of that witness’s evidence.
Furthermore, it must also be borne in mind that 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 on the indictment does not necessarily mean that the jury found that the relevant witness’s evidence 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.[17]
[17]MFA (2002) 213 CLR 606, 617, [34].

The question for this Court, then, is whether, applying these principles, there is a reasonable or proper explanation, based on the evidence, for the different verdicts reached by the jury on the two charges — Charge 1 and Charge 2 — that were under consideration.
In this case, securing a conviction on each charge depended on the jury accepting the evidence that the complainant gave in respect of that charge. If the jury had a reasonable doubt about the complainant’s evidence, it was bound to acquit on that charge. Given the verdict that was entered, the jury must have had a reasonable doubt about the complainant’s evidence on Charge 2. Indeed, given that the defence was that the conduct alleged did not occur, the jury must be taken to have accepted as a reasonable possibility that no act of non-consensual penile-vaginal penetration took place at all and that the complainant’s evidence was simply untrue or otherwise fundamentally unreliable.
This was so, notwithstanding that the complainant’s evidence in respect of Charge 2 was supported by other (albeit not independent) evidence: her complaint to Ms Wittner in December 2018 (‘he raped me’); and the evidence that the applicant had a tendency to wake her by either digitally penetrating her vagina or penetrating her vagina with his erect penis. In addition, there was what was described as the applicant’s ‘confession’ in the 2018 phone conversation in response to the complainant accusing him of raping her.
In respect of Charge 1, the complainant’s evidence was given as a specific instance of the 20 to 30 occasions on which she was woken from sleep to find the applicant penetrating her vagina with his finger or his penis. It was recalled as a specific instance of such conduct because it was fixed in time to the birth of her second child and her concern about not having medical clearance to engage in sexual activity. This meant that the complainant was able to give precise evidence about when this conduct occurred.
Like Charge 2, the evidence for Charge 1 was supported by the tendency evidence.
We have carefully considered the quality of the evidence given by the complainant in relation to each of Charge 1 and Charge 2. Charge 1 was based on the complainant’s evidence that when Isabel was about two weeks old, the complainant woke up with the applicant’s fingers inside her. She did not stop him at that time. She ‘sort of’ tried to move him away, but ‘kept going with it’. As she had just given birth and did not have medical clearance to engage in sexual relations, she was not comfortable with being digitally penetrated. In respect of Charge 2, the complainant’s evidence was that this was a specific instance when she did not go along with it, forcefully said ‘no’, rolled over and, when the applicant lay on top of her and penetrated her vagina with his penis, made her distress evident to him by crying. The complainant also gave evidence of what the applicant said to her about her crying, namely, that it made him feel ‘shit’ and like he was raping her.
In these circumstances, we reject the respondent’s submission that the complainant’s evidence at trial was such that the prosecution case on Charge 1 was ‘clearly stronger’ than on Charge 2. Both were cogent and plausible, and both were supported by the tendency evidence.
Contrary to the submissions of the respondent, the tendency evidence concerned both penile and digital penetration. The complainant was asked questions in cross-examination that were framed on the incorrect basis that the 20 to 30 instances she described of being woken by the applicant penetrating her involved exclusively digital penetration. She answered the questions on that basis and did not challenge the misstatement of her evidence. However, it is clear from her evidence-in-chief that the instances of which she complained involved both digital and penile penetration, and the jury was charged on that basis. Contrary to the submission of the respondent, it is not the case that the strength of the tendency evidence in relation to Charge 2 was considerably less than in relation to Charge 1. We consider the tendency evidence to have been neutral as between Charge 1 and Charge 2.
Furthermore, we do not consider that the complainant’s evidence about the deterioration of her relationship with the applicant towards the end of their marriage and/or the applicant’s assertions that their sex life was ‘basically non-existent’ at that point, provided a reasonable or logical explanation for the jury’s different attitude to the complainant’s evidence on Charge 2. There is no good reason why that evidence would give rise to a reasonable doubt as to whether the applicant forced himself on the complainant in 2017, in circumstances where the jury accepted — beyond reasonable doubt — that he had forced himself on her in 2013.
Having regard to these factors, the evidence on Charge 2 must be seen to be stronger — rather than weaker — than the evidence on Charge 1. In particular, the complainant’s evidence on lack of consent was plainly more specific and unequivocal on Charge 2 than on Charge 1.
It remains to consider, however, the possible effect on the jury’s deliberations of the complainant’s initial confusion in her evidence about when the incident the subject of Charge 2 took place.
We have set out in paragraphs [19]–[21] some of the evidence on this topic given by the complainant. It is convenient to set it out again in context in order to provide a more complete description of how the complainant’s evidence unfolded.
In her evidence in chief, when asked when ‘approximately’ the alleged rape (the second incident) took place, the complainant said that it was early in 2016. She said she recalled the change to the bedroom layout at their home in Calvert Street. It was warm. She estimated that the incident happened in January. She also said that she knew the incident happened before another incident (unspecified) in February 2017.
After describing what occurred, the complainant said that after the incident, she often slept in the same bed as Isabel. That went on until the separation. At this point, the complainant volunteered that she might be getting the dates mixed up ‘with anxiety’. She said the incident was in 2016 or 2017. The examination-in-chief continued:
Is it the situation — well, thinking about that and how long that went on for, do you say that the incident occurred in 2016, the start of 2016, or was it 2017, the start of 2017?---2016.
Sorry?---2016.
Yes, all right. So, you’re saying that you effectively got the child [Isabel] in your bed to try and avoid this situation for nearly two years?---Yes.
In cross-examination, the complainant immediately said that she got the 2016 date wrong. The cross-examination on this topic proceeded as follows:
Now, there was a second incident that you told this jury about. And you told this jury that that incident occurred in early 2016, is that right?---It did, but off — it’s — was 2017. I was nervous and I got my years wrong.
Well, the — you were given a few different opportunities to correct yourself, and you were [quite] adamant it was 2016. So, do you now say it was 2017?
--- I — I wasn’t adamant. I was, um, tossing up between the two. It was 2017 because we separated at the end of 2017.
So, when you say you were tossing up between the two, what does that mean?‑‑‑I was trying to, um, remember which one it was. My nerves had made me feel — forget the year.
Now, [the prosecutor] said to you or asked you to confirm that it was 2016. You confirmed that it was 2016, and [the prosecutor] then said, so, it was after this second incident that your daughter stayed in bed with you or you kept your daughter in bed you or slept in her bed. Do you remember that?---Yes.
And you told this jury that it was a period of two years, which would have taken you from the early 2016 date all the way up to separation it the end of 2017?
---M’mm. It was a year.
After a break in the cross-examination, counsel for the defence returned to the complainant’s evidence about the date of the incident alleged in Charge 2:
Now … you’ll agree that what you said to the jury today is inconsistent with what you initially said to the police, is that right?---Ah, for a moment it was, but I’ve corrected what I said that was wrong before.
Right. But it’s right you told the police 2017, isn’t it?---Yes, and that was correct.
But now, in relation to you say your nerves or nervousness for today, I suggest to you that the evidence is not incorrect because you’re nervous. The evidence is incorrect because it’s not true. Is that right?---No.
And in fact, the reason you are unable to remember a clear date is because you’ve made that evidence up regarding the rape that occurs, you say now, in 2017?---The date that I gave to police was my estimate of the time it happened. But I certainly remember exactly what happened to me.
It is clear that the complainant made a mistake about the year in which the second incident occurred when giving her evidence-in-chief. She could pinpoint that it occurred when the family was living in Calvert Street and that it occurred before an incident in February 2017. However, she quickly realised that she had been confused about the year. In cross-examination, the complainant was firm that the second incident occurred in 2017, as she had initially reported to police. Furthermore, irrespective of what year it occurred in, she said that she remembered ‘exactly’ what had happened to her on that occasion.
Unsurprisingly, in his closing address, defence counsel placed some emphasis on the complainant’s initial confusion. This would undoubtedly have served to contrast the precision with which the complainant was able to fix the first incident in time. This difference between the complainant’s ability to recall when each of the incidents took place might be thought to provide a reasonable basis for the jury to distinguish between Charge 1 and Charge 2.
However, unlike the first incident, the second incident was necessarily never able to be firmly fixed in time. That was not a function of the clarity of the complainant’s account (or memory) of the incident, but simply a matter of circumstance. The first incident was marked by its proximity to the birth of a child. That was a fortuitous marker. Had consent or belief in consent been in issue, the complainant’s allegation that she was digitally penetrated so soon after giving birth might have been relevant, in and of itself, to whether Charge 1 was made out. But where the defence was simply that the incident alleged did not occur, the complainant’s ability to fix the first incident quite precisely in time was not something that gave her account of the first incident more plausibility than her account of the second incident. The complainant’s account of the second incident was highly detailed, at least as detailed as her account of the first incident.
The charged and uncharged acts in this case arose from a marital relationship that spanned over 10 years. The complainant said that she put up with many such (unwanted) acts over most of this period in the interests of preserving her marriage. The second incident stood out, not because it was associated in time with any particular event, but because, on the complainant’s account, this was an occasion on which she forcefully resisted the applicant and made her lack of consent plain to him. Thereafter, she said, she effectively abandoned the marital bed. In this context, it is of no moment that the complainant became confused about the year in which she said the incident took place.
It is the experience of the law, the Jury Directions Act 2015 tells us, that it is common for there to be gaps, inconsistencies and differences in accounts of a sexual offence, and that people may not remember all the details of a sexual offence. In his charge, the trial judge directed the jury in accordance with s 54D of the Jury Directions Act 2015 to the matters set out above in paragraph [59].
In view of the foregoing, it must be concluded that no feature of the complainant’s separate evidence in relation to Charge 1 and Charge 2 was capable of rationally explaining the different verdicts. There was no distinguishing feature, such as different elements arising in relation to one charge, but not the other, or different features of the applicant’s denial of one charge but not the other. The different verdicts on Charges 1 and 2 appear to be explicable only as a compromise.
This conclusion does not depend on, but is supported by, the fact that the jury, on two separate occasions, informed the trial judge in emphatic terms that it was impossible for them to reach a unanimous decision before, apparently, doing so.

Disposition

In the circumstances, we would set aside the applicant’s conviction on Charge 1 and enter an acquittal on that charge.
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[2025] VSCA 120

29 May 2025