Phan v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0175

DAVID PHAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2024
DATE OF JUDGMENT:	26 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 285
JUDGMENT APPEALED FROM:	DPP v Phan (Unreported, County Court of Victoria, Judge D Sexton, 27 July 2023)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of two counts of sexual assault – Applicant acquitted of one count of rape – All offences said to have occurred in a single transaction – Whether verdicts on sexual assault are unreasonable – Whether verdicts are inconsistent – Leave to appeal granted – Appeal allowed – Judgment of acquittal entered.

M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651; Gardner v The King [2024] VSCA 83, followed.

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Counsel
Applicant:		Mr C Mandy SC with Ms B Kelly
Respondent:		Ms S Clancy
Solicitors
Applicant:	Pica Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
TAYLOR JA
BOYCE JA:

Introduction

The applicant faced trial in the County Court on an indictment alleging three sexual offences against FN. The jury convicted him of two charges of sexual assault (charges 1 and 2) and acquitted him of one charge of rape (charge 3). All offences were alleged to have occurred in a single episode when FN awoke in the applicant’s bed to find him touching her breast underneath her bra (charge 1), moving his hand to touch her vagina on the outside of her underwear (charge 2) and digitally penetrating her vagina (charge 3).
The applicant now seeks leave to appeal against his convictions on the following grounds:
Ground 1: That the verdicts of guilty on charges 1 and 2 are unreasonable.
Ground 2: That the verdicts of the jury on charges 1 and 2 are inconsistent with the verdict on charge 3.
For the reasons that follow we would grant the application for leave to appeal, allow the appeal and enter a judgment of acquittal.

Factual background

The applicant and FN were close friends from school.
On 18 January 2020 the pair met at the applicant’s city apartment. They both drank alcohol. FN went to the applicant’s bedroom to have a short nap before they went out for the evening. She fell asleep fully clothed on the applicant’s bed. She did not wake until about 6 am. Upon realising the time, FN sent her mother a message as to her whereabouts.
FN went back to sleep. Upon waking a second time FN said that she found the applicant touching her body. She described him touching her breast underneath her top and bra (charge 1), moving his hand to her groin and touching her vagina on the outside of her underwear (charge 2) and then inserting two fingers into her vagina through her underwear about four times (charge 3). FN froze and tried to fall asleep.
FN went back to sleep again before waking and going to the balcony. She decided to leave. She collected her belongings and did so. She did not wake the applicant. He later sent FN a message asking if she got home all right.
FN disclosed the offending to three friends as well as the applicant’s girlfriend.
On 8 April 2020 FN made a recorded pretext call to the applicant. He made no admissions. He said that he did not recall the incident occurring.
At trial the applicant’s position was that he went to his room by himself and closed the door. FN remained on the couch. When he woke in the morning FN had left. The applicant did not suggest that FN was a dishonest witness; it was suggested that she believed the version of events she gave. His argument was that the Crown could not prove the offending beyond reasonable doubt because there was a reasonable possibility that no touching had occurred at all or, if it had, it was not conscious and deliberate.

The prosecution evidence

FN – evidence in chief

FN said that the applicant was like a brother to her. On Saturday 18 January 2020 they exchanged messages to arrange a night out. She attended his apartment block at about 10:30 pm. He met her at the ground level and together they went to a nearby bottle shop and purchased a pack of Smirnoff Double Black cans. Upon returning to the apartment FN spoke to the applicant’s sister who was staying in the guest bedroom.
Both FN and the applicant had two cans each in the apartment before moving to a communal garden. There the applicant drank white wine. FN said she had ‘a couple of sips’. They spoke about the applicant’s girlfriend and also FN’s ex-boyfriend, who she said had sexually assaulted her. The conversation lasted about an hour.
The applicant suggested that they go out to a bar in Fitzroy. FN said that she felt tired and mentally drained from the conversation, and first wanted a quick nap to refresh herself. She said that they both went to his bedroom. FN did not recall any conversation at this point. She removed her shoes and got into the bed. He got into the other side. This did not worry her because he was like a brother.
FN said that she fell asleep and woke up at about 3:30 am ‘freaking out’ because she did not expect to be asleep that long and also because her mother was expecting her home. She checked her phone, went to the bathroom, removed her contact lenses and returned to the bed. She woke up again at about 6:00 or 6:30 am. She sent a message to her mother that she was sorry that she had fell asleep and that she was safe.[1] FN told her mother that she was at the applicant’s place and would return later in the morning.
[1]All relevant messages were tendered before the jury. It was not disputed that this message was at 6:03 am.
FN said that she went back to sleep again. At one point she woke to see the applicant had also woken. They laughed about not going to the bar and slept again.
FN said ‘maybe a couple of hours later’ she woke again to find the applicant’s hand ‘sort of resting’ on her right hip as she was lying on her left side facing him. She said it did not feel sexual. FN then described herself drifting in and out of sleep while the applicant began to caress her hip. He touched her breast, over her dress, and then moved his hand back to her hip before going around to her ‘butt’ in ‘sort of a continuous cycle’. This happened ‘over about maybe an hour’. She was trying to keep her eyes shut and telling herself that it was not happening – ‘This isn’t real. He wouldn’t do this. He’s – he’s like a brother to me. It’s – it’s not – it’s not happening. Just go back to sleep’. FN said that she could not see his face clearly as it was obscured by a pillow.
FN said that the applicant’s hand kept progressing from her hip to her breast to her butt. The touching of her breast eventually became ‘skin on skin’. She did not say anything. The applicant then started stroking her vaginal area in an up and down motion on the fabric of her underpants. He ‘add[ed] that into the cycle’. The applicant used two of his fingers to penetrate her past her labia through her underwear. He did that about three or four times as part of the cycle. Each penetration lasted a couple of seconds.
The applicant and FN did not make eye contact. She said that she quickly glanced at the applicant a couple of times. His eyes were shut. He did not have ‘any emotion’ on his face.
FN said that after the three or four penetrations she could not deny in her head that it was happening. She was frozen but managed to cross her legs tightly. The next time the applicant tried to penetrate her as part of the cycle ‘he would have had to be a lot more forceful to succeed’ so he went back to caressing her bottom, breast and hip. FN said that she was exhausted and fell asleep again.
Upon waking FN was lying in the same position. She grabbed her phone while trying not to freak out and panic. The applicant was asleep. She went to the balcony for 30 to 40 minutes. She ‘freaked out’ and ‘tried to process’ what had just happened. Then she received a text message from her friend Sami Zehir.[2] It snapped her out of it. She realised where she was and what had happened. She replied to the message stating that she would call in five minutes after she had left.
[2]It was not disputed that the time of this message was 8:08 am.
FN returned to the applicant’s bedroom to see if he was awake. He was still and facing away from her. She grabbed her bag and shoes and left the apartment. She called Mr Zehir from the elevator. She was ‘freaking out’ – feeling anxious, panicky and overwhelmed. FN travelled towards Southern Cross Station and waited for a train, still on the call. She disclosed to Mr Zehir what had happened. FN returned home.
After she was home FN spoke to Sachini Radalage, one of her closest friends. She told her what had happened.
Later that day FN received a message from the applicant asking if she got home all right. She did not respond. A few days after she had disclosed the incident to the applicant’s girlfriend, the applicant sent her an apology to which she did respond. The message exchange was in the following terms.
Applicant: I know you never want to hear from me again and I understand. I’ve cut down our pillar of friendship and it really hurts me knowing that I betrayed you. I’m really sorry but I know sorry can’t undo how I have violated you.
I thank you for your support during my saddest and worst times and if it weren’t for you I wouldn’t be here.
I just want you to know that I sincerely am sorry and it is something I will hold onto for the rest of my life. Though, I know that this would impact you more considering your history with sexual assault. I do not think anything else could impact me more and this message sounds like an absolute load of shit but I feel like my world is crumbling.
I am sorry.
I don’t recall any of it happening but I trust you and have to judge myself on my actions. I would never intentionally hurt you – you’re literally like another sister.
FN:are you just going to apologise for the sake of it, for your peace of mind, or are you going to actually acknowledge what you did to me
Applicant:Of course I acknowledge it, I’m not just apologising for the sake of it
On 8 April 2020 FN conducted a recorded pretext call at a police station. It lasted about 50 minutes. It was played to the jury. The applicant’s response to FN was consistent. He was at pains to avoid calling her a liar because she was his friend but maintained that her allegation did not make sense and that he had no recollection of the event, as exemplified by him saying:
… I don’t remember any of it happening. All right? That’s it. That’s why it’s hard for me to accept – like, feel guilt, because I don’t remember it happening or I don’t know if I did it. All right? It’s as simple as that.

FN – cross-examination

FN said that she could not remember her mental state on the evening of 18 January 2020. She accepted that she had sent messages that day to various people, including the applicant, that she was feeling ‘overwhelmed’, ‘like a loser’, ‘in a shambles’ and ‘shit’s cooked’. She said she does not recall why specifically, but that at that time she was struggling with her mental health. It had been declining for about two years and she had been engaging with Headspace and Western Region Centre Against Sexual Assault (‘WestCASA’). She was diagnosed with depression and anxiety. She also had an informal, as well as self, diagnosis of post-traumatic stress disorder arising from her past experiences with sexual assault. Those conditions made her experience panic attacks, flashbacks and high levels of stress. During flashbacks she relived a traumatic event as if it was happening again. FN said that she also became hyper-vigilant. That was when her ‘mind logically didn’t necessarily feel like I should be’. FN was taking fluoxetine, an antidepressant. She was told by her psychiatrist that if she were to consume alcohol, it might heighten the effects of alcohol.
FN denied any experiences of paranoia. She did report experiences of being followed by people who targeted her on public transport. She thought those experiences were real. She was surprised by how regularly they occurred. She noticed those following her because she was hyper vigilant and anxious.
FN accepted that her memory of the events of 18 January 2020 was ‘fixed’ and that the evidence she had given to the jury was similar to her police statement of 8 April 2020. She had looked at that statement prior to giving evidence and had been thinking about its contents. She had amended the statement at committal (as to the penetration happening four times) to ensure that it was accurate. She readily accepted that prior to 8 April 2020 she remembered the events differently and gave different accounts of them to others. She accepted that because she had read the transcript of the evidence that she had given at the committal. FN accepted that memories can change. She further accepted that she sometimes ‘reconstructed’ her memory by identifying a certain event, going back in time in her mind and working her way towards it.
FN confirmed that by 2020 she and the applicant had been very close for about two years. She had open communication with him and could confide in him about anything. They shared a deep trust. During their conversation in the communal garden they spoke at some length about her ex-boyfriend who had sexually assaulted her. She said that the applicant was disgusted that there were still people in their social group who were friends with him. She accepted that he was being nothing more than a supportive friend. She did not experience hyper vigilance going into the applicant’s bedroom, as she was not in public and knew him. FN accepted that from her understanding of him, it would have been completely out of character for the applicant to do anything untoward her in bed.
FN denied that when they returned from the communal garden she laid down on the couch and that at some stage someone put a blanket over her. She said that she did not later move from the couch into the applicant’s bedroom.
The time estimates of the various events said to have occurred by FN between her message to her mother (at 6:03 am) and her message (at 7:32 am) to Ms Radalage from the balcony – ‘I think I just got assaulted’ – were put to her as being impossible. FN said that her time estimate of being assaulted for an hour was what it felt like. She denied that any touch was fleeting or that if there was a brushing of the applicant’s hand against her body, her hypervigilance and anxiety made her overreact and interpret it as something extreme. She said, as she had in her 8 April 2020 statement, that she realised the applicant was awake when he stopped trying to penetrate her and resumed touching her butt and breasts. She said that her text message to Ms Radalage used the words ‘I think’ because it is scary to discuss or say out loud that you have been assaulted.
The various accounts of the events FN gave to people were put to her. She said she was not lying. She accepted that various things she said were no longer part of her memory.
(a)FN told Mr Zehir – a friend with whom she was working to develop an app for the prevention of sexual assault – about an hour after she left the apartment that she and the applicant had been sitting up in bed speaking. She fell asleep and woke up to him touching her sexually. She spoke to him but he was unresponsive. She stormed out to the balcony from where she shouted at the applicant. He then invited her back to bed to ask what was wrong.
(b)FN told Ms Radalage that she was not raped, knowing that digital penetration without consent amounted to rape. She said that was because saying rape rather than assault was a ‘very big and scary thing’ but accepted that in effect she was telling Ms Radalage that there had been no penetration of her vagina. FN did not recall later sending Ms Radalage a message saying ‘I’m overreacting’. FN also accepted that she did not tell police about her communication with Ms Radalage and the messages were discovered only after the defence issued a subpoena for the records of her mobile phone. FN did not recall telling Ms Radalage that the applicant was visibly drunk or that after lying in bed for a while the applicant moved up behind her and started touching her inappropriately.
(c)FN did not remember telling Gavrill Gourevitch on 20 January 2020 that the applicant had held her hand and cuddled her a bit and she figured that he thought she was Jean Zhang, the applicant’s then girlfriend. She accepted that she told him that the applicant had tried to finger her but had not raped her.
(d)FN had a conversation with Jean Zhang via Facebook Messenger on 20 January 2020. Ms Zhang was overseas at the time. In it she was counselling Ms Zhang about her relationship with the applicant. She did not tell her of the assault until a different conversation two days later. FN then told her that she could tell that the applicant was awake as his eyes looked open. He was fumbling with her clothes trying to get inside. FN said that the applicant’s arm was out of the bed and he moved it towards her ‘arse’, so she got up and went to the balcony. FN did not recall Ms Zhang telling her that the applicant had said ‘this didn’t happen’. Rather she recalled Ms Zhang saying that the applicant did not recall it happening but knew that she (FN) would not lie, so it must have happened and it must be true.
(e)FN told Detective Senior Constable (‘DSC’) Emma Hockey the day after the assaults that the applicant had had his hand on her head playing with her hair, brushed his fingers against her face and had his hand around her neck so that she could not breathe. FN also said that the applicant had tried to finger her but she didn’t uncross her legs. She then went to the bathroom and, when she returned, he tried to start again. FN did not recall what she had told DSC Hockey but said that whatever she said was the truth.
(f)FN did not recall telling DSC Clark and Senior Constable (‘SC’) Bennett on 5 February 2020 that the applicant had tried to finger her but did not rape her, had groped her boobs or that his eyes were closed the whole time. FN said that she believed that on 18 January 2020 she had had about four standard drinks but accepted that she might have told DSC Clark and SC Bennett she had consumed six to eight. She said that if she had that amount she would have been a little bit intoxicated.
FN accepted that she told DSC Hockey about numerous prior sexual assaults. She said that when she was 14 years old she had been assaulted by a friend three times in a single week. She also said that her ex-boyfriend – the one she had discussed with the applicant – sexually assaulted her in the stairwell at school by touching her and fingering her. FN said that in July 2019 she had been on the dance floor of a nightclub where three males groped her. She told them to fuck off and one fingered her. FN then experienced a panic attack for about an hour. She could not find any security guards so stayed in the bathroom. FN also told DSC Hockey that on an excursion to the National Gallery of Victoria (‘NGV’) in Year 11 she had gone to the female toilets alone at about 10:00 or 11:00 am. A stranger came in and aggressively held her down and raped her. She blocked it out and could not give a description of the man. FN accepted that she told police that she did not want any of these incidents investigated. FN did not recall telling police ‘I don’t feel it’s real. I can’t explain it.’
FN further accepted that she had told Mr Zehir that she had been sexually assaulted seven different times.
FN accepted that she had a ‘me too mood board’ in her house that was photographed by police. On it the phrase ‘boys will be boys’ was altered to read ‘boys will be held accountable for their fucking actions’. It also contained the words ‘stop silencing yourself, your voice is important’. FN said that she made it about a month before 18 January 2020. It was ‘like therapeutic journaling to validate’ herself.

FN accepted that on 11 February 2020 she told a worker at WestCASA that she wanted to make a statement to police. At the same time she reported increased symptoms of depression and also nightmares. At that time she was confused by Ms Zhang who said that she believed FN and that she continued to support the applicant. FN denied that her request to police to investigate the applicant – but not any of the other sexual assaults she alleged – was because she wanted to prove to Ms Zhang that what she was saying was true. FN accepted that by the time she made her police statement on 8 April 2020 she had had a lot of time to think about what had happened, many discussions and nightmares about it and relived it many times in her mind. Her statement reduced to writing what the state of her memory was on 8 April 2020. FN agreed that her memory prior to that day had been different in many respects.

FN – re-examination

In re-examination FN said that when she told Ms Radalage that the applicant had not raped her, she meant that he had not penetrated her with his penis.

Section 54D Jury Directions Act 2015 (‘JDA’) Direction

At the conclusion of FN’s evidence the judge, at the request of the prosecutor, gave the jury a s 54D JDA direction as to differences in her account of the charged offences.

Sami Zehir

Mr Zehir said that he and FN were friends and had a professional relationship working on an app together. It was designed to prevent sexual assault in small communities by networking members of that community together to support one another when they were feeling uncomfortable.
Mr Zehir said that when he spoke with FN on the morning of 19 January 2020 she was in a ‘hyperventilated, almost panic attack-like state’. She was breathing in and out sharply and also crying. She did not know what train to get or how to get home. He could hear noises from Southern Cross Station in the background.
In telling him about the incident Mr Zehir said that FN said that she was caressed by the applicant while she was asleep and then woken up frozen and was stuck there as he continued. FN eventually vocalised that she did not like it but he continued. She escaped and ran to the balcony. She said she was there for a long period. Mr Zehir recalled thinking it was a long time to be on a cold balcony in the night. FN said to him that when the applicant fell asleep, she came back in and escaped.
In cross-examination Mr Zehir said that FN had told him that she had been sexually assaulted seven times. He could not recall whether that was before or after 18 January 2020 but he was collaborating on the app with her as a victim. He said that as a survivor she had information to help construct and design it. Mr Zehir said that FN had had a hard few days prior to 19 January 2020 which was why he sent her a text message to check in with her. He confirmed the account of the incident FN told him as put to FN in cross-examination, namely that she and the applicant had been sitting up in bed talking, she fell asleep and was then assaulted by him touching and caressing her in a sexual way. FN had said that it was different from other sexual assaults because he was not a stranger or an ex-partner. FN said she vocalised herself but he was unresponsive. She then got the courage to get up and storm out to the balcony where she shouted at him in anger and frustration before he invited her back to bed and asked her what was wrong.

Jean Zhang

Ms Zhang said that she was in New Zealand in January 2020. She said that on 22 January FN called her and said that she had gone out with the applicant who had physically and sexually assaulted her. She said that she had gone to his apartment and they had been drinking in the shared garden. When she woke in the morning she could feel him trying to touch her breasts and trying to finger her, but there were too many clothing items in the way.
At the conclusion of that call, Ms Zhang called the applicant to discuss what FN had said. The applicant told her that he had no idea what she was talking about because he had gone to sleep. He said that FN was not supposed to stay over and it made no sense that this had happened and he had no recollection of it. He said that he had gone to bed alone. His sisters were in the other room.
Ms Zhang said that she had a further conversation with FN on 22 January 2020. She told FN that the applicant had no idea what was going on. They spoke about FN’s mental health. FN was clear that she was mentally unwell and had been in hospital. Ms Zhang told her that she believed her but that she would not break up with the applicant.
In cross-examination Ms Zhang said that when she told FN she believed her, she meant that she believed that FN’s version was true to her (FN) but that she (Ms Zhang) did not necessarily think that her version was factual. She said that on the night of 18 January 2020 she and the applicant exchanged messages which included him telling her that FN was on the way so that they could go out. Ms Zhang had earlier suggested that FN could go out with the applicant and his sisters. The messages also included several statements of the applicant’s love for Ms Zhang.
Ms Zhang said that when FN told her details of the allegations she said that the applicant was awake because his eyes looked open.
After Ms Zhang had been excused, the jury was told that it was an agreed fact that she and the applicant had remained in a relationship for some years after January 2020 and had only broken up a few weeks before the trial (being July 2023).

Sachini Radalage

Ms Radalage said that FN told her on 19 January 2020 via Messenger that she had been assaulted by the applicant. After FN had gone to hospital she said, again via Messenger, that she had told the people there that he had not raped her. On 22 January Ms Radalage visited FN at home. There FN said that she, the applicant and a bunch of people had been at the applicant’s apartment. They were partying and everyone had alcohol. FN and the applicant were the only two left by the end of the night. He had more alcohol than her. She felt tired and wanted to sleep, so she went to his bed with his permission. FN said that while she was lying down, the applicant came up behind her and started touching her inappropriately. She froze, did not realise what was happening and wanted it to stop.
In cross-examination Ms Radalage said that the message at 7:32 am on 19 January – ‘I think I just got assaulted’ – was the first communication she received from FN about the incident. She said that she did not recall FN during the 22 January 2020 conversation giving any more detail as to the nature of the touching other than saying that the applicant came up behind her and started to touch her body inappropriately.

Police witnesses

DSC Emma Hockey, SC Thomas Bennett and DSC Lee Evans all gave evidence about the investigation.
DSC Hockey said that she was tasked to conduct a welfare check on FN on 21 January 2020. FN appeared withdrawn. DSC Hockey took a photograph of the mood board in FN’s bedroom. FN told her of a number of previous sexual assaults. DSC Hockey detailed them in her notebook. One of the assaults related to the applicant. The notes record that FN said that there were drinks at the apartment prior to going to a bar. FN needed a nap and passed out in the applicant’s bed. His partner was overseas. FN and the applicant were best friends. She woke at about 6:00 am. Her mother called. She fell back asleep. Half an hour later it started happening. He had his hand on her head, playing with her hair, he held her hand, felt her up, touching her boobs and body. FN was wearing a dress at the time. It did not stop. He was brushing against her face with his fingers and had his hand around her neck. He didn’t say anything. She froze and couldn’t breathe. She did not ask him to stop. He tried to finger her but she did not uncross her legs. He was not overly aggressive. After a while FN got up and went to the bathroom. He tried to start again when she got back into bed. FN immediately sat up. She cried on the balcony for about an hour. He asked if she was okay. FN grabbed her belongings and snuck out. FN said that she had had two Double Blacks and some wine over an hour or two. She said she got to the apartment at about 11:30 pm and went to bed at about 1:00 or 1:30 am.
DSC Hockey also made notes about what FN said concerning her mental health. FN said that she had not been sleeping and ‘I don’t feel it’s real, I can’t explain it’.
DSC Hockey said that she made a referral to the Sexual Offences and Child Abuse Investigation Team (‘SOCIT’).
In cross-examination DSC Hockey said that although FN said that the applicant tried to finger her, the notes did not record any allegation by FN that the applicant had otherwise touched her vagina. If such an allegation had been made it would have been recorded.
DSC Hockey also said that FN told her that she had been the victim of sexual assault on five previous occasions. These were:
(a)By a friend when she was 14 years old.
(b)At the NGV on a school excursion in year 11, the details of which were recorded as ‘the stranger raped her, aggressive in nature, blocked it out, no idea on description or particulars’.
(c)By an ex-boyfriend by touching and fingering.
(d)On a nightclub dance floor by three males, one of whom fingered her.
(e)By the applicant.
The notes made by DSC Hockey also recorded FN saying that her mental health had declined over the previous two years and that she was engaged with Headspace and WestCASA.
SC Bennett said that in January 2020 he was with Melbourne SOCIT. Together with DSC Clark he met FN at the Melbourne West Police Station. Reading from notes, SC Bennett said that FN reported a sexual assault of her breasts and bottom as well as a digital rape over her underwear. She had initially said that the applicant did not rape her but had tried to finger her. She had kept her legs crossed. She said that the assault occurred after she had called her mother at 6:00 am. He groped her boobs. She was in and out of sleep. His arm was out on the bed. He moved it towards her arse. She got up and went to the balcony. Randomly a friend texted her to ask if she was okay. She grabbed her things and went to Southern Cross to go home. FN then said that she was on her side facing him in the bed. His touching was first over clothing and then skin on skin. She froze and possibly hyperventilated. After the groping of her breasts he put his hand towards her vagina, fondling first over clothes and then underneath. When he tried to finger her it was over the top of her underwear. She went to the bathroom then came back. She went to sit on the bed and he tried to put his hand under her arse. FN said he was asleep when she left. He sent her a message later in the day to ask if she was okay. She did not respond. After she told his girlfriend what had happened, he sent a text message apologising.
In cross-examination SC Bennett agreed that FN said that she had had six to eight standard drinks. He agreed that the note ‘rubbing her vagina past her lips near the entrance of the vagina’, which appeared at the end of the notes, was in response to a question asked near the end of the interview about what FN meant when she said that the applicant had tried to finger her. It was not a detail that FN had volunteered earlier. Until then she had not said that there had been penetration.
DSC Evans said that in May 2020 he was with the Melbourne SOCIT. He was the informant in the matter. In cross-examination he confirmed that the applicant had no prior convictions. He said that until a defence-issued subpoena for FN’s phone records, he believed that the only non-police complaint witness was Sami Zehir. FN had not told police that she had spoken with Sachini Radalage or Gavrill Gourevitch.

The defence evidence

Sandra Phan

The applicant called his sister, Sandra Phan. She said she was in the applicant’s apartment on the night of 18 January 2020. FN arrived at about 11:00 pm. FN and the applicant were drinking together. They were loud, laughing and intoxicated. Ms Phan said that things went quiet. She went from her room to the living room at about 1:00 or 2:00 am. FN was sleeping on the couch. Her brother’s door was shut. She assumed everyone was asleep. Ms Phan said she put a blanket on FN because she was wearing a short dress and might be cold. Ms Phan then went back to her room.

The charge

The judge’s charge (of which no complaint is made) included directions as to separate consideration of each charge, the use of both distress and complaint evidence, a repetition of the s 54D JDA charge, the potential unreliability of FN’s evidence due to her mental health issues and the applicant’s good character.
The judge also directed that the applicant did not need to prove a reason why FN would give false or inaccurate evidence. The judge said that it would be wrong to reason that FN must be telling the truth unless the jury found a reason for her to give false or inaccurate evidence. That direction was given in light of a question FN asked the applicant in the pretext call, namely ‘why would I lie about this?’. To that question the applicant answered ‘I’m not saying you’re lying, but, like, what else can I say apart from the truth of what I know?’ A similar exchange occurred later in that call in the following terms:
FN:How – how can you – this is what I’m – this is why – this is what I’ve been confused about. Right? ‘Cause you say that you believe me. Like, you say that you believe me and you know I’d never lie about sexual assault, but then you say, ‘I don’t know if it happened’ Like, how can you do both?
Applicant:OK. It’s easier to say that, OK. It’s because they don’t both line up, is the reason. They – they’re not both happening together.
FN:Yeah.
Applicant:OK What’s the alternative? Right? I say you’re a liar? Like, I – I don’t want to choose a side when it comes to that, so obviously I’m gunna pick the – obviously I’m gunna pick the side that seems more plausible, all right, more reasonable, because – all right. What – what makes more sense to me, you’re telling the truth or you’re lying? Like, obviously I’m – why – why the fuck would you make it up? It just doesn’t make sense. So obviously I’m gunna say, OK, she’s telling the truth. But the – so that’s – that’s from you. And from me, I don’t remember it or I have no recount of it. So I’m not saying they can both exist at the same time. It just – it just doesn’t make sense.

Applicant’s contentions

Under cover of ground 1 the applicant contends that, while it was never suggested that FN was anything other than an ‘honest’ witness, her mental health issues, prior sexual assault traumas, numerous prior inconsistent statements, her estimates of time and her demonstrably false recollections made her account unreliable, or that, at least, there must be a reasonable possibility that that was so.
The specifics of the evidence, referred to above, as to these issues are highlighted. The applicant submits, as he did to the jury, that sexual assault had become part of FN’s identity. He makes reference to the mood board and her work with Mr Zehir on the sexual assault app. Given all of the circumstances, including FN’s observation that the applicant showed no signs of being awake, there was a reasonable possibility that some innocent touching in the bed – if she had in fact been in it – had resulted in a nightmare or flashback such that when FN woke in an anxious state she wrongly believed that she had or may have been assaulted.
The applicant further points to his consistent account – particularly in the pretext call – that he had no recollection of the events and was asleep or unconscious at the time they were said to have occurred.
The applicant submits that because the honesty of FN was not challenged, the jury had no meaningful advantage over this Court in resolving the issues raised in this application.
Ground 2 was argued both as a standalone ground and as a particular of ground 1. The verdict meant that the unambiguous account FN gave in evidence describing the feeling of two of the applicant’s fingers penetrating beyond her labia four times was rejected by the jury. The applicant argues that the reasonable doubt about that ‘granular detail’ of rape, in light of the numerous prior statements made by FN that she had not been raped but that the applicant had tried to digitally penetrate her, infected the whole of FN’s account with reasonable doubt.

Respondent’s contentions

The respondent contends that the applicant’s position that FN was an honest witness left a narrow path for acquittal. The jury were not bound to find that her clear account of the offending, bolstered by immediate distress and immediate complaint, was either a nightmare or a flashback. The jury were able to rationally reject the argument that FN was not able to distinguish between reality and non-reality. There was no expert evidence of the effect of FN’s mental difficulties on her perceptions and memory. In particular there was no evidence that she was prone to confabulation. All of the matters raised by the applicant were fully ventilated at the trial. None, either alone or in combination, required the jury to reject FN’s account.
With respect to ground 2, the respondent argues that there is a logical and reasonable basis for the conviction on charges 1 and 2 and the acquittal on charge 3. Unlike the allegation of sexual touching, there was a significant difference in the complaint evidence as opposed to the evidence given at trial as to whether penetration had occurred at all. Further, given that FN said that the applicant had penetrated her vagina through her underwear, the jury may well have accepted her account, but had a reasonable doubt as to whether penetration, as legally defined, actually occurred.

The applicable principles

The principles to be applied by this Court in considering a ground that contends that the verdict is unreasonable or cannot be supported having regard to the evidence[3] are well understood.[4] This Court must consider all of the evidence and ask itself whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.
[3]Criminal Procedure Act 2009 s 276(1)(a).
[4]M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); Pell v The Queen (2020) 268 CLR 123, 145 [38]–[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12 (‘Pell’); Dansie v The Queen (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25.
In Pell the High Court said that the analysis to be undertaken by this Court must proceed on ‘the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable’.[5] The assumption that the jury assessed the complainant’s evidence as credible and reliable is because the assessment of a witness by the jury is based on what the jury has seen and heard in the trial. That assessment is not to be duplicated by the appellate court.[6] If this Court is to disturb a jury’s verdict, it must be by reference to something other than ‘the evaluation of the witness in the witness-box’.[7] The Court ‘examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’[8] In other words, the question is whether, having regard to those matters, the jury must have entertained a doubt as to the applicant’s guilt.
[5]Pell, 145 [39].
[6]Pell, 144–5 [37].
[7]Pell, 145 [37].
[8]Pell, 145 [39].
In so doing this Court does not simply give effect to its own view in place of the jury. In Gardner v The King[9] this Court disavowed an approach by which the Court first asks whether it has a doubt about the conviction and then considers whether the conviction is explicable by the advantages enjoyed by the jury. Such an approach would ‘invert the process’ and ‘blur the functional or ‘constitutional’ demarcation between the province of the jury and the province of the appellate court.’[10]
[9][2024] VSCA 83 (Emerton P, McLeish and Macaulay JJA).
[10]Ibid [88], citing Pell 145 [38] and M 493–4.

The principles to be applied in considering a ground that contends that there are inconsistent verdicts are also well understood. The question of whether verdicts are inconsistent should be approached as a matter of logic and reasonableness and also with caution. If there is a proper way by which this Court may reconcile the verdicts, it will generally conclude that the jury performed its function as required.[11]
[11]MacKenzie v The Queen (1996) 190 CLR 348, 367 (Dawson, Toohey, Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (‘MacKenzie’).
In cases such as the present, where a single complainant alleges multiple sexual offences, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable across the board.[12] That is so even where the acts constituting the offences alleged occurred in close temporal proximity.[13] Each case will turn on its own facts. The question remains whether there is a logical and reasonable explanation for the differing verdicts.
[12]MFA v The Queen (2002) 213 CLR 606, 618 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [2002] HCA 53.
[13]See, eg, Schliefert v The King [2024] VSCA 197 (Priest, Taylor and Boyce JJA) where differing verdicts were held to be consistent; Cf Sladek v The King [2024] VSCA 119 (Emerton ACJ, Priest and Kaye JJA) where differing verdicts were held to be inconsistent.

Discussion

The inconsistencies in FN’s evidence are clearly identifiable. They are:
(a)FN’s evidence that she did not fall asleep on the couch compared with the evidence of Ms Phan as to finding FN on the couch after ‘it went quiet’ and putting a blanket on her.
(b)FN’s statement to Mr Zehir that she and the applicant had sat up in bed talking or laughing about not going out to a club, being a matter she could no longer remember at the time of giving evidence.
(c)FN’s various statements to various others that she had not been raped or that there had been attempted but no actual penetration as compared with the very specific description of digital penetration four times by two fingers through her underwear in her evidence to the jury.
(d)FN’s statement to Mr Zehir that the applicant came up behind her and touched her inappropriately compared with her evidence to the jury that she and the applicant had been facing each other.
(e)FN’s statements to DSC Hockey that the applicant played with her hair, held her hand, brushed her face with his fingers and had his hand around her neck, being matters she told no one else and did not refer to in her evidence.
(f)Her evidence that she was frozen and said nothing compared with her statement to Mr Zehir that she ‘vocalised’ herself but the applicant was unresponsive to her.
(g)Her evidence that she could not tell if the applicant was awake or had his eyes open because a pillow obscured his face compared with her earlier statements that the applicant had his eyes open.
(h)Her statement to Mr Zehir that she ‘stormed out’ to the balcony, shouted at the applicant before he invited her back to bed to ask what was wrong compared with her evidence that the applicant was asleep and she snuck out of the apartment without waking him.
(i)That she made no previous complaint of the applicant stroking her vagina before her police statement and gave evidence of the applicant doing so in an up and down motion.
If this application was based only on these discrepancies, the verdict of the jury would be readily sustained. The jury were not bound to accept every aspect of FN’s evidence beyond reasonable doubt, only the evidence proving the elements of the offences. Although relevant to ground 2, the acquittal on charge 3 is clearly explicable on this basis. That is, that the previous denial of ‘rape’ and descriptions of attempted penetration coupled with the ultimate evidence that the penetration occurred through her underwear may well have founded a reasonable doubt as to whether penetration in fact occurred without necessitating a finding that FN was an unreliable witness. Further, the jury were told pursuant to s 54D of the JDA that it was open to them to use any difference in FN’s account of the offending to assess her credibility and reliability but, in doing so, they were required to bear in mind that trauma affects different people differently, including affecting how they recall events. And, in her evidence, FN gave an explanation for some of the discrepancies. Moreover, some of them were clearly capable of rational explanation. For example, it is entirely possible that Ms Phan did place a blanket over FN on the couch and FN later went to the applicant’s bedroom without recollecting either event.
This application, however, is not wholly based on these discrepancies in FN’s evidence. That evidence has other inadequacies.
First, FN’s description of how her memory worked. Her memory changed and evolved. Her evidence of what happened on 18 January 2020 became ‘fixed’ as at 8 April 2020 when she made her statement. On occasions she ‘reconstruct[ed]’ her memory.
Second, and relatedly, her state of mental health at the time. Although no expert evidence was called on the issue, there was clear evidence that FN’s mental health was less than robust and that it was unwise for her to mix her medication with alcohol. She was hyper vigilant and said that she was not infrequently followed by strangers on public transport. FN accepted that she had flashbacks about sexual assault which took the form of her ‘reliving’ an experience as if it were real. In the detail of the previous sexual assaults she alleged, at least two involved ‘fingering’. FN also suffered nightmares about sexual assault. The state of FN’s mental health was such that it made her evidence potentially unreliable.
Third, whether or not it is accurate to say that sexual assault had become part of FN’s identity, FN was a very young woman who said that she had been sexually assaulted on seven occasions, sometimes in unusual or unexpected situations, was engaged in counselling as a result, was consulting on an app as a victim-survivor, created a ‘me too’ mood board as validation and had, on 18 January 2020, spent some time talking to the applicant about sexual assault. It was a topic that loomed very large in her life. She was susceptible to interpreting the actions of others as sexual misconduct targeted at her. One way of understanding her statements to Ms Radalage ‘I think I just got assaulted’ and ‘I’m overreacting’ and also her statement ‘I don’t feel it’s real’ to DSC Hockey is that in all of the circumstances – including her mental health and the nature of her memory – she viewed her experience with the applicant through the prism of being a repeated victim and survivor of sexual assault. Even if she was unable to recall events clearly, she believed that she had again been subjected to sexual abuse.
Next, the utterances of the applicant in the text messages he exchanged with FN and the pretext call must also be considered. It is clear that the applicant was, because of their friendship and her mental fragility, at pains to avoid calling FN a liar. At the same time, he maintained that he had no recollection at all of the incident, did not believe that he had done anything wrong and that if, contrary to his knowledge, FN had been in his bed at some point and he had touched her in his sleep, any such touch would have been inadvertent. In other words, the applicant’s position was that FN was not telling a deliberate untruth, but rather had convinced herself that something had happened when in fact it had not. She had convinced herself because she had a particular vulnerability to finding herself as a victim of sexual assault. As already described, that was why the applicant ran his trial in the manner he did.
Finally, given the evidence the jury heard about the prior experiences of sexual assault alleged by FN and her response to them, the notion that FN ‘did not lie’ about sexual assault was a very powerful force in the trial. The very lengthy pretext call, in particular, was replete with both express and implied statements that that was so. The evidence of Ms Zhang emphasised that the ‘truth’ of FN’s statements about sexual assault could not be challenged. The judge correctly told the jury that the evidence of FN could be rejected without the need to find she had a motive to give false or inaccurate evidence, but it was a thin shield against the repeated message that because she had been a repeated victim of sexual abuse in the past, FN did not lie about sexual abuse in general and had not lied about the applicant’s conduct. Implicit was the suggestion that ‘not lying’ equated with accuracy. Accordingly, despite the warning of the judge there remained a real danger that in the particular circumstances of this case, the jury conflated issues concerning FN’s credibility with those concerning her reliability. The defence position was not that FN had a motive to give untrue or inaccurate evidence but that she had inadvertently done so.
Having regard to the number and nature of the discrepancies in FN’s evidence in combination with these other inadequacies, it must be concluded that the jury acting rationally should have had a doubt as to the applicant’s guilt. It was not open to the jury to accept the complainant’s evidence of the sexual assaults to the criminal standard. There was a reasonable possibility that any touching – if it occurred at all – was not done intentionally, consciously or voluntarily.
Ground 1 must succeed.
It is therefore unnecessary to fully consider the issues raised by ground 2.

Conclusion

We would grant leave to appeal and allow the appeal. The convictions on charges 1 and 2 should be quashed and verdicts of acquittal entered in their place.

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[2024] VSCA 285

26 November 2024