R v Bonat

[2004] NSWCCA 240

CITATION:	R v Bonat [2004] NSWCCA 240
HEARING DATE(S):	5 July 2004
JUDGMENT DATE:	19 July 2004
JUDGMENT OF:	Sheller JA at 1; Sperling J at 2; Adams J at 120
DECISION:	(1) Appeal allowed; (2) Convictions under counts 2, 4, 6, 8, 9 and 10 set aside; (3) Direct the entry of verdicts of acquittal in lieu thereof.
CATCHWORDS:	Criminal law - appeal against conviction - whether inconsistent verdicts - whether verdicts of guilty unreasonable - whether to enter verdicts of acquittal or order a new trial
LEGISLATION CITED:	Supreme Court Rules 1970
CASES CITED:	Crisologo (1997) 99 ACrimR 178 Hayes (1973) 47 ALJR 603 Jones (1997) 191 CLR 439 Lebler [2003] NSWCCA 362 Lee [2004] NSWCCA 113 M (1994) 181 CLR 487 MacKenzie (1996) 190 CLR 348 Markuleski (2001) 52 NSWLR 82 MFA (2002) 193 ALJR 184 Nek [2001] NSWCCA 392 Parbury [2003] NSWCCA 120 Plomp (1963) 110 CLR 234 Raspor (1958) 99 CLR 346 Robinson (2000) 111 ACrimR 388 SBD [2003] NSWCCA 235
PARTIES :	Regina Stephen Bonat
FILE NUMBER(S):	CCA 60082/04
COUNSEL:	Mr B Knox SC for the Crown Mr P Hamill for the Appellant
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission for the Appellant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/71/0018
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

- 5 -

60082/04

Sheller JA
Sperling J
Adams J

Monday, 19 July 2004

Regina v Stephen Bonat

Judgment

1 Sheller JA: I agree with Sperling J.

2 Sperling J: This is an appeal against conviction.

The trial

3 On 7 March 2003, following a trial in the District Court before Norrish DCJ and a jury, the appellant was convicted on six of ten charges of sexual offences against his step-daughter (the complainant). A table follows, providing details of the charges and the verdicts of the jury.

Count	Charge	Date of Offence	Verdict
1	Indecent assault on person under the age of 16 years (namely, 10 years)	1 June 1984 – 30 September 1984	Not guilty
2	Sexual intercourse with person under the age of 16 years (namely, 10 years) knowing that she was not consenting	1 August 1984 – 30 September 1984	Guilty
3	Act of indecency with person under the age of 16 years (namely, 10 years)	1 August 1984 – 31 October 1984	Not guilty
4	Indecent assault on person under the age of 16 years (namely 10 or 11 years)	1 September 1984 – 31 December 1984	Guilty
5	Indecent assault on person under the age of 16 years (namely, 10 or 11 years)	1 January 1986 – 31 December 1986	Not guilty
6	Sexual intercourse with person under the age of 16 years (namely, 12 years)	23 March 1986 – 31 May 1986	Guilty
7	Sexual intercourse with person under the age of 16 years (namely, 12 years) and being a person in authority	1 May 1986 – 30 September 1986	Not guilty
8	Sexual intercourse with person under the age of 16 years (namely 13 years) and being a person in authority	1 March 1987 – 31 May 1987	Guilty
9	Sexual intercourse with person under the age of 16 years (namely, 15 years) and being a person in authority	1 May 1989 – 31 July 1989	Guilty
10	Sexual intercourse with person under the age of 16 years (namely 15 years) and being a person in authority	1 July 1989 – 30 September 1989	Guilty

4 The charges span a period of five years or thereabouts. The first four offences were alleged to have occurred in 1984 or thereabouts, the fifth, sixth and seventh in 1986, the eighth in 1987, and the ninth and tenth in 1989.

5 The first eight offences were alleged to have occurred while the family was living on a farm at Daysdale. The ninth and tenth offences were alleged to have occurred after the family moved to Oaklands.

6 The appellant was sentenced on 5 January 2003. The sentence was back-dated to 7 March 2003 (the date of conviction).

The appeal

7 A notice of intention to appeal was filed on 27 June 2003. A notice of appeal against conviction was filed on 27 February 2004. The appeal was heard on 5 July 2004.

8 Under the Rules, a notice of appeal should have been filed within six months. The notice of appeal was filed two months out of time.

9 No application has been filed for an extension of the time for filing the notice of appeal. However, the Crown has raised no objection. The appeal should accordingly be treated as competent.

10 I mention these procedural matters lest it be thought that the delay in disposing of this appeal has been due, in any significant degree, to delay in this court.

The evidence

11 The applicant was born on 27 March 1941. He was accordingly 43 years of age at the time of the first alleged offence, 48 years of age at the time of the last alleged offence and 62 years of age at the time of sentence.

12 The complainant was born on 19 November 1973. She was 9 years of age at the time of the first alleged offence and 15 years of age at the time of the last alleged offence.

13 The first complaint was to the Western Australian police in April 2000, something more than ten years after the last alleged offence. The complainant was then 26 years of age. A statement was made by the complainant at that time. A further statement was taken by the New South Wales police on 8 August 2000. It was following that statement that the appellant was interviewed and charged on 24 January 2001, something over 17 years after the first of the alleged offences and something over 11 years after the last of them.

14 By way of background, the complainant’s mother left the complainant’s father in early 1981 and moved with the complainant and other children to the small farm called “Killarney” at Daysdale in New South Wales. About six months later, the appellant moved into the house. In April 1983, the appellant and the complainant’s mother were married.

15 Evidence was led of an alleged episode, relied on as relationship evidence. It was said to have occurred a couple of weeks before the wedding when the complainant was 9 years old. The complainant’s evidence was as follows. The complainant’s mother bought her and her sister new underwear to wear with the flower girl dresses that she was making for them. The appellant made her go into the spare bedroom and get undressed and change into the underwear. The appellant reached from behind her and placed his hand down the front of her pants and rubbed her vagina. He tried to insert his fingers and she moved away from him. She took off the underwear and hid it in the wardrobe so that she didn’t have to wear it again.

16 In September 1984, the appellant was involved in a horse riding accident where he broke his pelvis. He was in hospital for a few days. When he came home he could not walk properly and needed assistance to get dressed and to get in and out of the bath. The date of the accident was used as a reference point for the dates of some of the alleged offences.

17 The complainant’s evidence in support of the first charge was as follows. A couple of months before the horse riding accident the complainant was in the shower during the day when the appellant barged into the room, got undressed and got in the shower. The complainant tried to cover herself up. He got her to wash his back and the back of his legs. He had an erection and took the complainant’s hand and placed it on his penis. He told her that if she got soap under his foreskin it would sting. He got her to wash under his scrotum and then took the soap from her and started to wash between her legs on the outside of her vagina. She got out of the shower and tried to cover herself and dry herself. He said, “Make sure you don’t forget to dry my penis,” and placed her hand on his penis and made her move it up and down for a few minutes.

18 The complainant’s evidence in support of the second charge was as follows. About a month before the horse riding accident the appellant got into the complainant’s bed one night. She was asleep and he told her to be quiet and to move over. She said he must have just had a shower as his hair was wet and she could smell his Old Spice aftershave. He lifted up her long sleeve nightie and started to massage her vagina from outside her underpants. He then pulled her underpants down to her knees and started to massage her vagina and then he put his fingers inside her vagina. He asked her what it felt like and she told him that it hurt and she just wanted him to stop. She then looked over at the door and saw that her mother was standing there. She said, “I remember her saying in like a really firm voice, ‘What are you doing Steve?’ and he just like quickly got out of bed and left the bedroom.”

19 The complainant’s evidence in support of the third charge was as follows. In September 1984 about two months after the horse riding accident the complainant was made to stay home from school to attend to his needs. Her mother was at work at the time. The appellant called out from the bathroom that he wanted to have a shower and she had to undress him. He was only wearing tracksuit pants and underwear. She undressed him and he got into the shower using her shoulder and the wooden panelling as a support to step into the bath. He then made the complainant get undressed and get in the shower with him. She said, “He then got the soap and he placed my hand on his penis, and I remember him telling me make sure you soap his penis up, to soap it right up. I then had to wash his scrotum. I then got out of the shower, I tried to dry myself off again. I then had to dry him off and then place his jocks on, and then he grabbed hold of my hand because he asked me to straighten up his penis in his underwear.” This incident occurred during the day and apart from the appellant she was the only one home.

20 The complainant’s evidence in support of the fourth charge was a follows. About a month after this incident, the complainant was in the shower and the appellant came into the bathroom, got undressed and stepped into the shower with her. He had an erection and placed her hand on his penis and made her masturbate him. He told her not to be scared because he was going to come. He told her how it felt good and moved her hand away and made himself ejaculate onto the bathroom wall. This incident took place during the day on a school day, before anyone else got home. The complainant was shown a photograph of the bathroom, tendered as Exhibit A, and described where the shower nozzle was in relation to the curtain.

21 The complainant’s evidence in support of the fifth count was as follows. In early 1986 her younger sister and brother were in the kitchen and she walked in on the appellant in the lounge room watching an adult movie. He then made her close the lounge room door. He was laying on the lounge and he was only wearing shorts. She said, “He made me sit down next to him on the lounge. I remember him telling me that the women that were having sex in this video, ‘It looks like they really enjoy it.’ He then exposed his penis. He then grabbed hold of my hand and placed it on his penis, he made me move his foreskin back.” Her sister walked into the lounge room and he quickly covered himself up.

22 The complainant’s evidence in support of the sixth count was as follows. Around Easter 1986, when the complainant was 12 years old, the appellant made her go with him to the Berrigan butcher shop where he was filling in for someone who was working there. He called her out to the back of the shop. He was reading some dirty magazines and showed her the pictures of the women having sex with men. He said that those are the type of things he would do with her mother and there was nothing wrong with that. She said, “He then had his penis out at the time and he was masturbating himself in front of me. He then pulled down my pants and my underwear down to my ankles and put his hand between my vagina, and he was moving his fingers in and out.” After he moved his fingers in and out of her vagina he pulled her off the bench and pinned her up against the bench. He had hold of his penis and was forcing it between her legs to get it into her vagina. She saw a clear fluid coming from his penis and it got on her pubic hair and stomach. She wiped it off with a paper towel and he continued to masturbate himself in front of her.

23 The complainant’s evidence in support of the seventh count was as follows. A couple of months later, the appellant again made her go with him to the Berrigan butcher shop. It was cold and coming into the town there was a fog, like a mist. It was around June, July, August as it was cold. In the back of the butcher shop, before he opened up that day, he grabbed hold of her and he placed his hand down her pants. He then inserted his fingers up inside her vagina and she moved away from him. She left the butcher shop and didn’t come back for the whole day. The complainant described the butcher shop and drew a sketch of the layout of the two rooms which was tendered as Exhibit C.

24 The complainant’s evidence in support of the eighth count was as follows. Around March 1987, the complainant used to do a lot of training for athletics and the appellant had taken her down to the Daysdale football ground late one afternoon to train. She was doing some stretching exercises after she had finished training and he insisted on helping her stretch her leg. He was pushing her leg towards her chest when he got his hand and slipped it down her training pants and placed his fingers inside her vagina. She told him that she could stretch her other leg and to leave her alone.

25 The complainant’s evidence in support of the ninth count was as follows. Around July 1989, when they moved from Killarney to Young Street in Oaklands the complainant was sitting at the kitchen table when the appellant walked into the kitchen. He was only wearing his tracksuit pants and underwear. He pulled the front of his pants down and grabbed hold of his penis and forced it into her mouth. She said, “He grabbed hold of the back of my head and forced his penis into my mouth, he was holding onto his penis, and forced it into my mouth, and I remember just moving away from him.” After this she stood up and he grabbed hold of the back of her head and forced her to kiss him and put his tongue in her mouth. She told him to leave her alone and left the kitchen.

26 The complainant’s evidence in support of the tenth count was as follows. A couple of months after they moved out of the farm, she got home from school one day and went into her bedroom to do her homework on her bed. The appellant came into her bedroom and slightly closed the door and sat down. He placed his hand down onto her vagina and was touching her vagina on the outside of her pants. She said, “He then put his hand down in my pants and he put his fingers up inside me. I then remember just moving away from him and just telling him to leave me alone because I just had a gutful. I just had a gutful of everything, everything he was doing.”

27 The complainant said that she did not have any relationship with her mother and that her mother was never home to talk to. After the wedding the relationship with her mother became worse. In cross-examination, the complainant agreed that her mother would provide clothes and cooked meals but insisted that she had no relationship with her mother. Her mother focussed on the other children and she never spoke to her.

28 The complainant moved from home to Albury after completing year 10 and stayed with Melita Ball and her nieces. She used to come home every weekend to Oaklands but said that she didn’t have a choice, she was made to. If the appellant didn’t bring her home then he made arrangements for someone to bring her home. Around 1990 or 1991 her mother left to go and live in South Australia. Not long after that she stopped coming back to Oaklands. She agreed that at the committal she said, “I know my mum left, yes, I still had to come home, he would make me come home.” She said that she would be at work at KFC in Lavington and he would be there and would force her into the car or make sure someone was there. She said, “He still had control over me for many years, that’s why I moved to Perth.” When asked why, if she was physically forced into the car, didn’t she go to the police she said that she was scared of him. She said she moved to Perth in the early 1990’s, around 1993.

29 The complainant’s mother gave evidence that she had four children, two girls and two boys, before she married the appellant. Around June of 1981, the appellant moved in with her and the children. At this time, the appellant was running the butcher’s shop and she began to do the mail run. She worked on the mail run for three years and then did seasonal work tomato picking in 1984 and 1985. She subsequently worked in a hotel, starting around 1986. The appellant was working in the Oaklands butcher shop when they were married and worked there up to about 1985. They ran a video hire service from the butcher shop including family movies and some adult or x-rated videos. They would pack up all the videos each evening and bring them home for security reasons.

30 In September 1984, the appellant had a bad horse riding accident and broke his pelvis after which he was laid up at home for some time. Prior to the accident she got up in the early hours of the morning one night and checked on the girls. She walked over to the bedroom door and saw the appellant either crouched over the complainant’s bed or beside the bed. She asked him what he was doing. She said, “[h]e was near the bed, which made me very irate. So I followed him down the hallway and had an argument with him and called him sick.” She said that this was before the horse riding accident but the same month as the accident. This evidence was led as corroboration in relation to the second charge but the mother’s evidence was insufficiently similar to that of the complainant to constitute corroboration and, accordingly, the jury was instructed to regard the mother’s evidence in this regard as of no relevance.

31 The complainant’s mother said that she had “no relationship with her daughter”. The relationship had broken down after she was married to the appellant. In cross examination, the complainant’s mother agreed that when she bought the complainant clothes or presents the complainant was sometimes excited or said thank you but insisted that there was no relationship. When it was put to her she disagreed that their relationship was a “normal mother/daughter relationship”.

32 The complainant’s mother said that the appellant was fairly incapacitated after the accident and was on crutches for about four weeks afterwards. He was in a lot of pain and she agreed she would help him get in and out of the bath “when she was there”. She would also help him get dressed and undressed. She disagreed that she made the complainant stay away from school to look after the appellant during this period.

33 She agreed that on one of her mail runs to Berrigan she picked up the complainant from the butcher shop when the appellant was working there but only ever picked up the complainant’s younger sister with the younger brother, not the complainant and her sister together. She disagreed that the complainant and her sister were at the butcher shop together on one occasion.

34 She started work at the Oaklands Hotel around 1986 or 1987 doing breakfasts and later on started doing evening bar work. It was around the beginning of 1989, about three months before they moved from Killarney, that she started the evening work.

35 The complainant’s mother agreed that she was quite involved in the local netball team and used to play every Saturday during the season. The appellant would sometimes massage her legs after the game. She agreed that the appellant would also massage the complainant’s legs after training but that she was present.

36 The foregoing account of the evidence given at the trial is taken from the Crown’s written submissions on appeal. That account was not challenged.

37 The appellant was interviewed by the police and gave evidence at trial. It is sufficient, for present purposes, to note that, in the ERSP and his evidence at the trial, the appellant denied that any of the alleged offences had occurred, and was unshaken in that denial when cross-examined.

Discrepancies in relation to the complainant’s evidence

38 The appellant relied on the following discrepancies in relation to the complainant’s evidence.

39 In relation to count 1, the complainant agreed in cross-examination that she had not told the Western Australian police how the time of this incident related to the horse-riding accident. She also said in cross-examination that she told the appellant to get out of the shower whereas she had not mentioned that in examination in chief.

40 In relation to count 2, there had been no complaint about the incident in the statement to the Western Australian police. Furthermore, she said, at the committal, that her mother had just returned from work at the time of this incident and that it was night-time. However, she also agreed that, at that time, her mother was working during the day and did not work in the evening until after the horse-riding accident. The complainant’s mother said she commenced working at the hotel in approximately 1986 which was two years after the incident was said to have occurred. The incident was said by the complainant to have occurred in 1984 or thereabouts, but the complainant told the New South Wales police that the incident happened before her fourteenth birthday in 1987 which was three years later. Further, the complainant told the police that the incident happened straight after the appellant returned home from hospital following the riding accident, rather than a couple of months after that, as stated in her evidence. She said she had to stay home every couple of days to help the appellant after the accident, which the complainant’s mother disputed. Further, the complainant told the Western Australian police that the incident happened at night, whereas, in her evidence in court, she said it happened during the day.

41 In relation to count 4, the complainant did not mention this incident to the Western Australian police. She said, in her evidence, that she was still being made to stay home from school to look after the appellant at this time, which the complainant’s mother disputed as ever having occurred.

42 In relation to count 5, in her evidence she said that two of her siblings were in the kitchen when she walked in on the appellant watching a video. However, she told the Western Australian police that she did not know where those two siblings were at the time. She related the timing of this incident to an occasion when she received a jewellery box but did not mention that either to the Western Australian or New South Wales police or at the committal hearing. She said, in her evidence, that her mother was at work when this incident occurred but in cross-examination she was unable to say whether this was so.

43 In relation to counts 6 and 7, neither of these incidents was mentioned to the Western Australian police. In relation to the second of the two incidents, she said, in her evidence, that she could not remember what she did after leaving the butcher shop that day. However, at the committal, she said that she had met a friend named Sally when she left the shop and played with her in the park.

44 In relation to count 8, the complainant said that she could fix the time of this incident as March 1987 because it was an occasion when she won many trophies and medallions. However, she told the Western Australian police that the incident had occurred some time after November 1987.

45 In relation to count 9, the complainant’s evidence was that the incident had occurred in around July 1989. However, she said, at the committal, that the incident had happened in 1987. Further, she said nothing about the incident to the Western Australian police. Further, she told the New South Wales police that the incident occurred in her year 10 at school at a time when her brother had gone into the army. She conceded, however, that her brother did not go into the army until after the family had moved from the farm to Oaklands, and the complainant’s mother said, in her evidence, that the brother went into the army in about March 2000.

46 In relation to count 10, there was no discrepancy of any arguable significance.

Trial judge’s observations

47 After the jury had returned its verdicts, there was an application for bail pending sentence, which was refused. In the course of the argument on that application, the trial judge made the following observation.

I must say that I have not analysed these verdicts, they are strange verdicts in the circumstances. I think I made it very clear to consider the evidence separately, perhaps I should have added the proviso that the jury should not compromise. But I am not suggesting for a moment they have compromised, but I am trying to rationalise in my own mind that basis of these verdicts, but that may fall to other people.

48 In the course of his remarks on sentence, the trial judge made the following observations.

Without commenting upon the strength of the Crown case, at first blush there appears some element of compromise in the verdicts reached. As to whether the verdicts are inconsistent or not, that may be a matter for a superior court. Mr Bonat should understand and the community should understand that my responsibility is to sentence the prisoner in accordance with the verdicts that the jury has returned. The appropriateness of the verdicts, having regard to the evidence available at trial and the issue of inconsistency, are matters for others to determine.

49 His Honour also made an observation concerning relationship evidence in the course of his remarks on sentence. That was the evidence of an incident antedating the first alleged offence charged. In that regard, His Honour said,

In relation to that evidence I do not propose to sentence the prisoner on the basis of the evidence available to the jury in that respect. I am unable to conclude beyond reasonable doubt that those other incidents as alleged by the complainant occurred.
That is not a finding inconsistent with the jury’s verdict. From the jury’s verdict one could not safely conclude that the jury was satisfied beyond reasonable doubt of those other matters. One would never know, given the structure of the indictment and the verdicts returned.

Grounds of Appeal

50 The grounds of appeal are as follows.

(1) The verdict of the jury in relation to counts 2, 4, 6, 8, 9 and 10 is unreasonable and cannot be supported having regard to the evidence and the verdicts of not guilty on counts 1, 3, 5 and 7.

(2) The learned trial judge erred in failing to direct the jury that if it had a reasonable doubt in relation to one or more of the charges that it should take such doubts into account in assessing the credibility of the complainant in relation to the other charges.

The law relating to ground 1

MacKenzie (1996) 190 CLR 348

51 The seminal authority relating to inconsistent verdicts is the joint judgment of Gaudron, Gummow and Kirby JJ in this case. The following passage (366-368) has been adopted and applied on many occasions.

From a review of the cases, a number of general propositions can be stated:
1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court’s record there will be two verdicts which, in law, cannot stand together…..
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events…..
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:
“He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a “merciful” view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman , in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O’Loughlin JJ) observed:
“[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
We agree with these practical and sensible remarks.
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. “It all depends upon the facts of the case.”
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.
[Footnotes omitted]

52 The implication arising from the concluding observations in this comprehensive statement of principle is that the consequence of a verdict or verdicts being quashed for unreasonableness due to inconsistency may be either that the appellate court will substitute a verdict of acquittal or that it will order a new trial.

53 New trials on this account are rare. In Markuleski (2001) 52 NSWLR 82, Spigelman CJ listed 18 New South Wales cases in which convictions had been quashed on this ground. Of these, a new trial was ordered in only two of them: Crisologo (1997) 99 A Crim R 178 and Robinson (2000) 111 A Crim R 388. I will come to those cases and the circumstances in which one remedy or the other will be selected.

A slip in MacKenzie

54 I should refer at this stage to the following sentence in paragraph 4 of the above quote:

If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.

The authority cited in MacKenzie for this statement of principle is Hayes (1973) 47 ALJR 603 at 604-605. (It is referred to in a footnote, not reproduced above.)

55 The sentence was relied on by the Crown in the present appeal. It is easy to see why. Obviously enough there was some evidence to support the verdicts of guilty in the present case. There usually is where inconsistency between the jury’s verdicts arises for consideration.

56 The problem for the Crown in this regard is that their Honours inadvertently misstated what was said in Hayes, with the result that the statement is the very opposite of what must have been intended.

57 I say that for the following reasons. First, as the sentence appears in MacKenzie, it is discordant with the theme of the passage in which it appears. Secondly, examination of what was stated by Barwick CJ in Hayes puts the matter beyond doubt. He said (at 604):

In considering the matter, I have not taken the view that, so long as there is some evidence on which reasonable jurymen might be entitled to convict, there is no responsibility in a Court of Criminal Appeal in any case to consider whether none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I agree with what was said in the joint judgment of Dixon CJ, Fullagar J and Taylor J in Raspor v The Queen (1958) 99 CLR 346, at pp. 350 – 352, and what was said by Sir Owen Dixon in Plomp v The Queen (1963) 110 CLR 234, at p. 244.

The emphasis is mine.

58 I have checked Raspor (1958) 99 CLR 346 and Plomp (1963) 110 CLR 234. They support the statement of principle by Barwick CJ, rather than the opposite statement which appears in MacKenzie, putting beyond question that the slip is in MacKenzie rather than in Hayes.

59 It follows that the Crown derives no support from the quoted sentence as it appears in MacKenzie .

Jones (1997) 191 CLR 439

60 For reasons which will become apparent, it is necessary to review not only the legal principles laid down in this case, which elucidate what was decided in M (1994) 181 CLR 487, but also the facts of the case and the decision on those facts.

61 The following is an extract from the headnote:

A man was charged on indictment with three acts of sexual intercourse with a female child. The child was a pupil at a gymnastic academy at which the accused was an instructor. The trial took place five years after the act the subject of the first count. The complainant was aged eleven during the periods mentioned in the first two counts and twelve during the period mentioned in the third count. She made no allegation to any person against the accused until more than four years after the first alleged act. On the complainant’s evidence, the acts of intercourse took place when there was nobody present but herself and the accused. The jury acquitted the accused on the second count, but convicted on the first and third counts. The accused appealed against conviction on the ground that there had been a miscarriage of justice within the meaning of the Criminal Appeal Act 1912 (NSW), s 6(1).

62 At the conclusion of the argument in the High Court, the court quashed the appellant’s convictions and ordered that verdicts of acquittal be entered in respect of the first and third counts. Later a separate judgment was published by Brennan CJ and a joint judgment by Gaudron, McHugh and Gummow JJ supporting the orders of the court. Kirby J dissented.

63 In their joint judgment, Gaudron, McHugh and Gummow JJ observed that the first and third of the alleged offences consisted of penile-vaginal penetration. The second consisted of tongue-vaginal penetration. The first and second offences were alleged to have occurred after gymnastics class at school. The third offence was alleged to have occurred at the appellant’s home. There was, accordingly, some differentiation, related to the act of penetration alleged, as between the second alleged offence, as to which the appellant was acquitted, and the first and third alleged offences, as to which the appellant was convicted.

64 However, apart from the asserted inconsistency between the verdicts, there were the following further problems in relation to the Crown case. The days of the week that she specified in relation to the first two incidents differed from the days of the week specified in her statement to the police. There was a delay of four years to two and a half years in complaint concerning the alleged offences. Thirdly, the complainant had sent amiable greeting cards to the appellant after the three incidents were alleged to have occurred and had on one occasion spent the night at the appellant’s home at the invitation of the appellant’s wife.

65 The appellant denied the offences. He said he was accompanied by the assistant coach, Ms Darvall, at gym classes and had always driven her home at the conclusion of each session. Accordingly, it was said that he did not have the opportunity of committing the alleged offences which were the subject of the first and the second counts. Ms Darvall, the appellant’s wife and the appellant’s daughter supported his case in that regard.

66 In M there had been some slight divergence in the formulation of the test for unreasonableness as a ground of appeal. Their Honours now stated that the formula proposed by the majority in M was the test. That was whether the appellate court was of the opinion that, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

67 Their Honours then quoted the well-known passages in M concerning the regard to be paid to the special opportunity of the jury to assess the evidence. The passages from M are, at 493:

[T]he court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

And at 494:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

68 The Court of Criminal Appeal had dismissed the appeal in Jones. The High Court reversed that decision. In their joint judgment, Gaudron, McHugh and Gummow JJ gave the following reasons, at 453-4, for doing so.

[T]he jury’s rejection of the complainant’s account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. …
It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.
Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care — (1) her delay in making the complaint; and (2) the lack of any corroborative evidence.
In sexual offences cases, recent complaint, or its absence, is a factor which is ordinarily of limited assistance. This Court has held that a complaint “does not itself go to establish the facts of which the complainant gives evidence nor does it go to disprove those facts”. Barwick CJ said in Kilby v The Queen that a complainant’s delay in making a complaint in a sexual offence case has “no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence”. Promptness or delay in complaint is itself relevant only to the credibility of the complainant.
[Footnotes omitted]

69 There was then a discussion of possible reasons for the delay in complaint. Their Honours concluded, in this regard, that the delay in complaint was unexplained. With further reference to delay, their Honours went on to say, at 454:

Furthermore, in some cases — and we thought that this was one — the delay in making a complaint may be so long that it hampers an accused person’s right to defend him or herself. An innocent person’s ability to recall the events which took place at the time of an alleged incident is undoubtedly impeded by any extensive delay in the making of the complaint against him or her. As Mahoney ACJ said in the Court of Criminal Appeal, delay is “a matter of considerable importance to the person accused”, and has the effect of relegating the accused from giving an account of what actually happened to “what must have happened”.

70 Their Honours’ conclusion was as follows, at 455:

In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury’s finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.
As we have already said, nothing in the complainant’s evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory.

Discussion of Jones

71 Jones is, of course, an important case in defining the test for unreasonableness in appellate review of jury verdicts. It is also important precedent for the way in which what was called in MacKenzie “factual inconsistency” between verdicts may properly result in substitution of a verdict of acquittal rather than ordering a new trial.

72 Where, as in Jones, it was not open to the jury on the evidence to convict, despite the jury’s advantage of seeing and hearing the witnesses, a verdict of acquittal will be substituted. That may occur, as in Jones, by a combination of factors: the absence of a rational reason to distinguish between the reliability of the evidence supporting the various counts and other factors, such as (in Jones) cogent opposing evidence, unexplained delay and delay depriving the accused of an opportunity to answer the charges.

73 In such a case, the finding of the appellate court goes further than a finding that the jury appears to have compromised to achieve a result. Crisologo and Robinson were cases of the latter kind.

Crisologo (1997) 99 A Crim R 178

74 In this case, the appellant was charged with two counts of sexual intercourse without consent, the first being an allegation of cunnilingus and the second an allegation of penile-vaginal intercourse, allegedly occurring on the same occasion. Simpson J, with whom Hunt CJ at CL and James J agreed, having reviewed the evidence, said, at 182:

The verdicts depended largely upon the view the jury took of the complainant’s credibility and whether they accepted the appellant’s account as a reasonably possible version of the events of the evening. There was nothing apparent in the evidence and certainly nothing in the directions given to the jury by the judge that would, on the face of it, invite the jury to see the two charges differently.

75 Her Honour then referred to the comprehensive statement of principle in MacKenzie at 366-8 and to Jones. Her Honour noted that in Jones the three alleged offences were not, as in Crisologo, part of the same episode but were alleged to have occurred on distinct occasions widely separated in time. Her Honour noted that the majority in Jones considered that the only reasonable conclusion that could be drawn from the acquittal on the second count was that the jury were not satisfied beyond reasonable doubt of the truth of the complainant’s evidence concerning the incident that gave rise to that count.

76 However, on the facts in Crisologo, Simpson J took the view that compromise was the most likely alternative explanation for the verdicts. Accordingly, no other basis having been made out on which to find the jury’s verdict unreasonable, the appeal against conviction was allowed but a new trial was ordered.

Robinson (2000) 111 A Crim R 388

77 A new trial was also ordered in this case, albeit in somewhat unusual circumstances.

78 The appellant was charged with two counts of indecent assault and two counts of sexual intercourse without consent. The appellant was convicted of both counts of indecent assault (counts 1 and 2) and one count of sexual intercourse without consent (count 3) and acquitted of the other count (count 4). It was submitted on appeal that there was nothing to distinguish the counts from each other and that the convictions on counts 1 and 2 should be quashed.

79 Fitzgerald JA was of the opinion that there was no reasonable differentiation between the respective counts and that, combined with the uncorroborated nature of the complaints and the lengthy and unexplained delay in the making of complaint, the convictions were unreasonable and verdicts of acquittal should be entered.

80 Barr J was of the opinion that the verdicts were a compromise. He said that the evidence for that conclusion was overwhelming (at [66]). That was evidence of the pressure under which the jury had been placed to reach a verdict late on a Friday evening; they were kept back and returned their verdict after 8pm.

81 Smart AJ was of the opinion that there was a rational basis on which to differentiate between the respective verdicts. He would have dismissed the appeal. However, he deferred to Barr J in order to achieve a result.

Comment on Crisologo and Robinson

82 In both cases, a new trial was ordered rather than substituting verdicts of acquittal. That was because the reason only reason for setting aside the convictions was a finding on appeal that the jury had compromised.

Markuleski (2001) 52 NSWLR 82

83 The appellant submitted that the convictions were unreasonable, relying on asserted factual inconsistency between the convictions and acquittal on another count, and on other factors such as delay in complaint. The court found that there was a rational basis for the jury having not accepted the complainant’s evidence in relation to the one count while accepting her evidence in relation to the others. Other factors relied upon did not impress the court. The appeal was accordingly dismissed.

84 The decision turned on its own facts. There was, however, seen to be a need to restate the principles relating to cases of this kind. The court sat five judges to enhance the authority of the decision.

85 I can best convey what was stated by way of legal principle in Markuleski by quoting from the review of that case by Priestley JA in Nek [2001] NSWCCA 392:

15 The most extensive opinion in Markuleski was that of Spigelman CJ. In regard to Jones he noted that:
“[s]ince the High Court decided Jones there have been numerous decisions by courts of criminal appeal where a complete acquittal has been obtained by an appellant who had been found guilty of some, but not all, sexual assault counts.’ (par 27)
He then listed sixteen cases in New South Wales and eleven in Victoria, Queensland, Western Australia and Northern Territory where this had happened, followed by counter lists of a number of cases in which the inconsistency ground had failed on appeal.
16 For the appellant in Markuleski it seems to have been submitted that cases in New South Wales in which the inconsistency ground had succeeded had established the proposition, thought to be required by Jones , that in a pure word against word case where there were a number of charges involving sexual offences, a mixture of acquittals and convictions by a jury could not be sustained unless the court could detect a relevant difference in the quality of the complainant’s evidence supporting the charge or charges on which the jury convicted.
17 Spigelman CJ’s conclusion was that the High Court had not intended in Jones to establish such a proposition. In his view:
“Whether or not the failure of the jury to accept the complainant’s version in one respect ought to have led the jury to have a reasonable doubt with respect to other matters, must depend on the full range of relevant circumstances. The High Court held in Jones that on the facts of that case the acquittal necessarily undermined the credibility of the complainant’s evidence about other alleged incidents. By reason of the wide range of matters of fact and degree that must be considered in making a credibility finding, that conclusion does not, in my opinion, follow in every such case ...” (par 65)
1 8 Spigelman CJ then referred to, and said he agreed with, what had been said by Winneke P in R v KET [1998] VSCA 73:
“[29] However, in my view, it would be wrong to draw from the decision of Jones’ case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury’s acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.” (my emphasis)
1 9 A little later Spigelman CJ stated the position in his own words:
“73. The circumstances of a particular case may lead to the conclusion that a jury which has found that it had a reasonable doubt with respect to a complainant’s evidence on one count, ought to have had such a doubt with respect to other counts. However, it does not follow that that must necessarily be the case.” (emphasis added)
20 The Chief Justice went on to point out the difficulty in formulating principles
“as to when a jury should conclude that a reasonable doubt on one count, not withstanding the complainant’s evidence on that matter, means that the jury ought to have a reasonable doubt about other counts, about which the only evidence is from the complainant” (par 74).
He then considered a number of cases in which courts of criminal appeal had met with this problem. His examination of the cases showed that some factors were identifiable as frequently influencing courts in finding whether or not there was such inconsistency in verdicts as to justify setting aside what a jury had done. I will not recite the various factors; Spigelman CJ has already done the necessary work in Markuleski , which should be consulted for the detail. Spigelman CJ’s analysis showed that it is not possible as the authorities stand at present to state a firm set of specific criteria governing all cases.
21 Some propositions however, useful for the present case, appear from Spigelman CJ’s full examination of the subject. One comes from MacKenzie v The Queen (1996) 190 CLR 348, a High Court decision of the same level of authority as Jones . In MacKenzie , Gaudron, Gummow and Kirby JJ, in joint reasons said:
“Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.” (at 366)
22 In par 78 of his reasons Spigelman CJ referred to this sentence, saying:
“There are cases in which nothing at all appears to differentiate the complainant’s evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of ‘logic and reasonableness’ is not satisfied.”
23 The other point which should be mentioned here, and which also emerges from MacKenzie appears from the approval in the joint reasons of Gaudron, Gummow and Kirby JJ of what King CJ had said in R v Kirkman (1987) 44 SASR 591 at 593:
“Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.”
24 Spigelman CJ’s principal point in Markuleski was that Jones was not authority requiring courts of criminal appeal to regard mixed verdicts of acquittal and guilty, when all depended upon the evidence of a complainant, as necessarily showing inconsistency by the jury; Jones did not exonerate courts of criminal appeal from deciding upon claims of inconsistency in the light of a consideration of all the circumstances of the case.
27 Wood CJ at CL, who in earlier cases had been of a somewhat different opinion, reconsidered his views on the topic of inconsistency and came to a conclusion which seems to me to be in substance the same as that of Spigelman CJ:
“238. Ultimately, the question remains one of fact and degree as to whether the difference in verdicts is such that as a matter of logic and reasonableness , bringing to account all of the factors which I have mentioned, including the practical approach which juries are entitled to bring to their task, the conviction should be regarded as unreasonable or incapable of being supported upon the evidence.” (emphasis in original)
29 Grove J agreed with the opinions of both Spigelman CJ and Wood CJ at CL in regard to the inconsistency ground of the appeal.
30 Carruthers AJ agreed with the Chief Justice’s reasons and his proposed orders.
31 Simpson J dissented. Her opinion was that the appeal should be upheld on the basis that the case could not be relevantly distinguished from Jones .
32 In light of the authorities as interpreted in Markuleski the question for a court of criminal appeal when considering an inconsistency ground of appeal is whether as a matter of logic and reasonableness the court is satisfied, after considering all the relevant circumstances of the case, that there is an acceptable explanation for the differentiation between the divergent verdicts.

Nek [2001] NSWCCA 392

86 Sully J and Smart AJ agreed with the judgment of Priestley JA in this case.

87 The appellant was charged on 12 counts of sexual offences against his daughter and one count of assault occasioning actual bodily harm to her. The trial judge directed the jury to find the appellant not guilty on one of the counts involving an alleged sexual offence. Of the remaining 11 counts, the jury found the appellant guilty on one count (sexual intercourse without consent) and not guilty on the remainder.

88 The appellant’s primary ground of appeal was that the jury’s acquittal of him on 11 counts meant, in the circumstances of the case, that the jury must have had at least sufficient reservation about the credibility of the complainant as to make it unreasonable for them not to have acquitted the appellant on the one charge on which he was found guilty.

89 In the course of his judgment, Priestley JA reviewed the decision in Markuleski in the terms I have quoted earlier. He then went on to deal with the issues in Nek itself.

90 As to the possibility that the jury may have regarded the one conviction as sufficient, Priestley JA said, at [54]:

54 It does not seem at all plausible that the jury were acting along the lines explained in Kirkman and approved in MacKenzie ; that is, it is very difficult to see how the jury could have thought that justice would sufficiently be met by convicting the appellant of one only out of the eleven counts they were considering if they thought he was guilty of more.

91 His Honour went on to say, at [55]:

55 Finally, it seems very difficult to me to understand how a jury which in the circumstances of this case were not prepared to accept M’s evidence as proving ten out of eleven charges beyond reasonable doubt could logically or reasonably have decided to accept her evidence as proving the offence charged in count 11 beyond reasonable doubt.

92 His Honour then went on to deal with an attempt by the Crown to differentiate between the one count on which there was a conviction and the other counts. He said, at [57]:

57 I am not persuaded by these submissions that there was any such significant difference between M’s evidence concerning count 11 and the circumstances of that alleged offence as to overcome the very powerful impression, created by the eleven acquittals, that the jury were not prepared to rely on M’s evidence as justifying a guilty verdict against the appellant on the counts on which he was acquitted.

93 His Honour’s conclusion was as follows.

61 Accepting in full the effect of the statement by Winneke P in KET, namely that the jury’s acquittal on some counts does not compel this court to conclude that the jury must necessarily have regarded B generally as an untruthful witness and of the similar statement by Spigelman CJ in Markuleski , I note that those statements also recognise that in some cases at least it will be open to a court of criminal appeal to draw such conclusions and sometimes necessary for it to do so.
62 This case seems to me to fall into the category described by Spigelman CJ in par 78 of his reasons in Markuleski (quoted in par 21 above). I can see nothing of any significance in the present case to differentiate M’s evidence which the jury accepted beyond reasonable doubt in regard to count 11 from the evidence which in my opinion the jury did not accept in regard to the counts on which they acquitted the appellant. Thus, in my view, in this case the MacKenzie test of logic and reasonableness was not satisfied.
63 On this ground, in my opinion, the conviction of the appellant on count 11 and the jury’s guilty verdict should be set aside and a verdict and judgment of acquittal entered.

MFA (2002) 193 ALR 184

94 In MFA, there were nine counts alleging sexual offences against a minor. The jury returned verdicts of guilty on counts 7 and 8 only. The High Court (per Gleeson CJ, Hayne and Callinan JJ at [36]) declined to set aside the convictions. There was corroborative evidence in relation to counts 7 and 8, which was not the case in relation to the other counts; and, in relation to counts 1 to 6, there were persons said to be eye-witnesses who were not called to give evidence.

95 There was a sound basis on which to distinguish between the counts on which the jury convicted and those on which they did not.

96 This and later cases decided after the decision in Markuleski were cited in argument. They lay down no new principle. They turned on their own facts.

Lebler [2003] NSWCCA 362

97 In this case, the appellant was charged on three counts alleging sexual intercourse without consent. Of these, the first and third alleged penile penetration. The second alleged cunnilingus. The offences were alleged to have been committed on the same occasion. The jury returned verdicts of guilty on counts 2 and 3, and not guilty on count 1.

98 The appellant admitted the act of cunnilingus (count 2) and the act of penile penetration (count 3) but said those acts were done with the complainant’s consent. He denied the first alleged act of penile penetration (count 1).

99 Kirby J (with whom Meagher ACJ agreed) held, at [55], that the verdicts could be rationally explained by the admission in relation to counts 2 and 3. The ground of appeal that the convictions were unreasonable was accordingly rejected.

Parbury [2003] NSWCCA 120

100 In this case, the appellant was convicted on two counts and acquitted on seven. Budden J (with whom Ipp JA and Smart AJ agreed) held, at [42], that, on the facts of the case, there was nothing to differentiate the complainant’s evidence as between the respective counts. The test of “logic and reasonableness” propounded in MacKenzie was accordingly not satisfied.

101 There were also additional factors which contributed to the convictions being held to be unreasonable. These included (at [37]) absence of corroboration, delay in complaint (not due to threats from the appellant), no protest or attempt by the complainant to get away, repeated acceptance of invitations to be in the appellant’s company (sometimes for lengthy periods of time), instances of implausible evidence by the complainant, instances of uncertainty by the complainant as to detail, the appellant’s prior good character and his unshaken denials on oath.

SBD [2003] NSWCCA 235

102 This was a similar case to Parbury.

103 The appellant was convicted on two counts (counts 5 and 6) out of six counts alleging sexual offences against the complainant. Adams J (with whom Wood CJ and Simpson J agreed), at [34], was unable to differentiate counts 5 and 6 from counts 3 and 4 in a rational way.

104 Adams J said, at [35] that the verdicts smacked of compromise. However, there were, as in M and Parbury, factors which contributed to the conclusion that the verdicts in relation to counts 5 and 6 were unreasonable. These included, at [36], inconsistencies between the complainant’s evidence and his initial account to the police, inconsistency with the history given to the complainant’s general practitioner, the absence of any statement by the complainant to the police that he was frightened of the appellant as he said in his evidence that he was, inconsistency with other evidence, compliance without protest, and continuously seeking out the appellant’s company, giving rise to inconsistency between the complainant’s evidence and his conduct.

Lee [2004] NSWCCA 113

105 This case was also referred to in argument at the hearing of the appeal. The appellant had been convicted on one out of three counts, all relating to the same episode. Smart AJ, with whom Sully and Dowd JJ agreed, found that the jury could reasonably have discriminated between the respective counts on the evidence. The appeal was dismissed. The case turned on its own facts.

Summary of legal principles

106 I would summarise the principles laid down by these authorities as follows:

(1) There is no hard and fast rule. It all depends on the circumstances of the case.

(2) A primary consideration, in a case of inconsistent verdicts, is whether there is an acceptable explanation for differentiation as a matter of logic and reasonableness.

(3) A likelihood that the jury has been satisfied of guilt in relation to the verdict or verdicts in question and has otherwise acquitted the accused because the verdict or verdicts of guilty were thought to be sufficient to serve the interests of justice should be excluded.

(4) In deciding whether to substitute a verdict or verdicts of acquittal rather than order a new trial, a likelihood that compromise provides a complete explanation for the inconsistency should be excluded.

(5) Where there are factors additional to the inconsistency between verdicts, tending to make the verdict or verdicts in question unreasonable, that weighs in favour of quashing the verdicts in question and in favour of substituting a verdict or verdicts of acquittal rather than ordering a new trial.

Ground 1: Discussion and conclusion

107 The Crown submits that the jury could reasonably have differentiated between the alleged offences. Obviously enough, the incidents as described by the complainant varied in time, place and other circumstances. There is, however, no pattern in the respective verdicts of guilty and not guilty corresponding with any particular feature or features of the incidents as described.

108 One has to bear in mind that the only relevant consideration is whether the differences as between the alleged incidents provide a basis in logic and reason upon which to treat the complainant’s uncorroborated evidence as more credible or more reliable in relation to those incidents where there was a conviction than in relation to those incidents where there was an acquittal. The Crown says that the complainant’s description of the incident covered by count 4 was “particularly evocative”. The Crown also refers to the complainant’s evidence in relation to the butcher shop incident (counts 5 and 6), namely, that she had “strong recall” for those incidents. The difficulty about this approach is that these points relate to only some of the counts on which there was a conviction. They do not distinguish the group of counts on which there was a conviction from the group of counts on which there was an acquittal.

109 Taking a broad view of the verdicts returned by the jury, the distinctions relied upon by the Crown are distinctions without difference. They do not serve to discriminate between the complainant’s credit or reliability in relation to the respective counts.

110 The trial judge had the opportunity of observing the demeanour of the complainant. Obviously enough, he perceived no basis on which to discriminate between the respective counts. If there had been anything relevant in the complainant’s demeanour bearing on the question, I am sure he would have mentioned it. (This observation fortifies my conclusion but is not necessary in reaching it.)

111 There is no reason to suppose that , in this case, the jury may have decided to forego convicting on the four counts because they thought conviction on the six counts was sufficient to satisfy the interests of justice. If that were so, one would expect the jury to have let the lesser charges go, whereas they convicted on one of the four lesser charges of indecent assault and acquitted on one of the more serious charges of sexual intercourse without consent.

112 Having regard to the other factors material to whether the convictions were unreasonable, this was not a case where factual inconsistency is attributable purely to compromise. There were discrepancies between the complainant’s evidence, on the one hand, and other evidence such as her statements to the police, her evidence at the committal and her mother’s evidence. There were also discrepancies between the those prior accounts. These discrepancies contribute significantly to my conclusion that the verdicts of guilty were unreasonable.

113 There was the delay in complaint. There was a reasonable explanation for that delay until the complainant went to Western Australia at the age of 20 or thereabouts. Until then, her evidence that she felt herself to be under the appellant’s power and was frightened to speak out provided an acceptable explanation for the delay. Her evidence in that regard also provides an acceptable explanation for the complainant returning to the house on visits after leaving to live in Albury and before going to Perth. The absence of complaint to the mother is explained by the poor relationship which they had. However, after the complainant went to Western Australia in 1993 or thereabouts, the delay of a further six or seven years is unexplained. That unexplained delay goes to the complainant’s credit.

114 The delay as a whole was a significant factor in a second way, in that it prejudiced the appellant’s prospect of being able to answer the complainant’s evidence. In a case such as this, positive proof that even one of the incidents alleged did not occur or could not have occurred as the complainant alleges can readily affect the outcome of the case as a whole. The possibility that the appellant might have been able to refute some one or more of the allegations given earlier notice, reduces the weight to be given to the complainant’s evidence.

115 Then there was the appellant’s denial in his ERISP and on oath of the complainant’s uncorroborated evidence, and the fact that he was unshaken in cross-examination.

116 Having regard to the totality of relevant factors-- the factually inconsistent verdicts, the complainant’s evidence being wholly uncorroborated, the discrepancies in the complainant’s evidence, the delay in complaint and the appellant’s unshaken denials-- the convictions do not stand the test of logic and reasonableness required by the authorities.

117 It follows that verdicts of acquittal should be substituted for the convictions.

Ground 2

118 In view of the foregoing conclusion in relation to ground 1, it is unnecessary to take time in relation to ground 2. I would observe in passing, however, that the asserted inadequacy in the summing up does not appear to have been made out.

Orders

119 I propose the following orders:

(1) Appeal allowed;

(2) Convictions under counts 2, 4, 6, 8, 9 and 10 set aside;

(3) Direct the entry of verdicts of acquittal in lieu thereof.

120 Adams J: I agree with Sperling J.

-oOo-

Last Modified: 08/04/2004