R v Eccles-Smith

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ECCLES-SMITH
[2016] SASCFC 84
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
5 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
Following a trial by judge and jury, the appellant was found guilty of the first count of indecent assault, but acquitted of the second count of rape. The complainant gave evidence in which she described the alleged offending. Significantly, her evidence included reference to two telephone calls that she recalled the appellant receiving from his wife while she was at his residence. The offending was said by her to have occurred between the two telephone calls, with the second call interrupting the appellant’s alleged rape and enabling her to escape. Telephone records relating to the appellant’s mobile phone were tendered during the course of the prosecution case. These records did not contain any record of the two telephone calls which the complainant recalled the appellant receiving from his wife during the time of the alleged offending.
The appellant appeals against his conviction on the grounds that the jury verdict is unreasonable or cannot be supported having regard to the evidence, and that the jury verdict is unreasonable because it is inconsistent with the acquittal on the rape charge.
Held per Kourakis CJ and Blue J, dismissing the appeal:
1.       The only aspects of the complainant’s evidence capable of raising a doubt which the jury’s advantage in hearing her testimony could not resolve is the absence of a record of the phone calls the complainant described between the appellant and his wife (at [1]).
2.       The verdict was not unreasonable or incapable of being supported having regard to the evidence (at [6]-[12]).
3.       The verdict of guilty on the first count is not unreasonable for inconsistency with the acquittal on the second count (at [21]-[26]).
Held per Doyle J (dissenting), allowing the appeal:
1.       The inconsistency between the complainant’s evidence and the telephone records as to the second phone call was of sufficient significance to require doubt on the part of the jury as to the credibility or reliability of the complainant’s evidence as to the critical matters, with the result that the verdict is unreasonable and not able to be supported having regard to the evidence.
2.       Having regard to the acquittal in respect of the rape charge, the verdict of guilt in respect of the indecent assault charge is unreasonable as it is inconsistent with that acquittal.
Criminal Law Consolidation Act 1935 (SA) s 35, referred to.
M v The Queen (1994) 181 CLR 487; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Gbojueh (2009) 103 SASR 545, discussed.
Libke v The Queen (2007) 230 CLR 559; The Queen v Nguyen (2010) 242 CLR 491; R v C, CN (2013) 117 SASR 64; R v Kirkman (1987) 44 SASR 591; R v Szejnoga (1998) 199 LSJS 97; R v S, DD (2010) 109 SASR 46, considered.

R v ECCLES-SMITH
[2016] SASCFC 84
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

KOURAKIS CJ & BLUE J: We gratefully adopt the summary of the evidence in the reasons for judgment of Doyle J. We agree with Doyle J that the only aspects of the complainant’s evidence arguably capable of raising a doubt which the jury’s advantage in hearing her testimony could not resolve is the absence of any record of the phone calls the complainant described between the appellant and his wife. However, with respect to Doyle J, we are not persuaded that the verdict is unreasonable or cannot be supported having regard to the evidence. We have concluded that such doubt as might arise from the gap in the prosecution evidence with respect to those phone calls was capable of being resolved by the jury’s acceptance of the complainant’s testimony. To put it in another way, we are not persuaded that the jury was bound to doubt the complainant’s evidence, if it was otherwise favourably impressed by it, because the records did not show that the telephone calls to which she testified were made. We are also satisfied that the verdict of guilty on the first count (indecent assault) is not inconsistent with the acquittal of the appellant on the second count (rape). Our reasons follow.
Unreasonable or incapable of being supported
The proper framing of the question posed by the absence of confirmatory telephone records is important. It was not an element of the offence, or otherwise necessary, for the prosecution to prove that the phone calls were made. The question is whether the jury was entitled to act on the complainant’s evidence to find the sexual assault in the bathroom proven beyond reasonable doubt, even though a finding might not be made beyond reasonable doubt that the phone calls were made because of the absence of any record of the calls on Telstra’s business records.
We commence our consideration of those questions by making a number of observations about the telephone evidence. First the records were tendered by the prosecution as business records and were received with an accompanying affidavit which provided only a short explanation of them. We will refer to the records and the affidavit as the documentary telephone evidence. The records themselves appear to be secondary records extracted from primary records of data relating to phone calls. Both the prosecution and the defence chose not to put into evidence a full explanation of the records by examining or cross-examining the deponent. The weight of the documentary telephone evidence was therefore readily susceptible to displacement by evidence to the contrary which the jury found persuasive.
Secondly, Mrs Eccles-Smith’s phone records were not put into evidence nor were any of the phone records of the appellant’s which might or might not have shown calls made to him by his wife from her work on other days.
Thirdly, the cross-examination of the appellant’s wife left open the possibility that the calls were made to the appellant’s mobile phone over the internet in a way which was not recorded by Telstra. Mrs Eccles-Smith gave the following evidence on that possibility:
QWhen you’re at work and he’s at home do you give him a call from time to time.
AUsually at least once a day.
QWhen you call him do you always use your mobile phone, or sometimes call from your work number.
AI generally call from my work number.
QYour mobile phone, does that have internet capability like can you look at the internet on your phone.
AYes.
QDo you have any applications on your phone, something like Skype.
AYeah, I – yes, it’s not activated.
QWhat about Viber.
ANo.
QHave you heard of that one.
ANo.
QI hadn’t either. Anything that you can use on that telephone to make a call via the internet rather than by your Telstra service provider.
ANo. No, because it was only in the last 12 months that I’ve actually gone onto the internet. So I don’t even know if I had internet back then. Because we have a wi-fi at home that we just turn on and use there.
QDo you remember, and if you don’t please say so but on that 14 November, do you remember whether you called your husband on that day. Do you have a memory of that.
ANo, I don’t. I probably called him two or three times a day.
QBut you can’t specifically remember that day.
ANo, no. Just depends on my meetings and what’s happening in the ward. So on Fridays we have the physicians meeting so, you know, it depends on what time those meetings finish.
QWhen you call him from work is that always to his mobile phone.
AAlways.
QIs there any other number that you ever use to call him at your house.
ANever.
(emphasis added)
A phone call may have been made to the appellant’s mobile phone using one of a variety of voice-over-internet protocol applications. Mrs Eccles-Smith gave evidence that there had been Wi-Fi at home. This would have been capable of supporting a mobile phone in the house. Mrs Eccles-Smith gave evidence that she had Skype and internet capability on her own mobile phone. The jury was not bound to accept Mrs Eccles‑Smith’s testimony that she had not activated a Skype application on her mobile telephone. In particular, the jury may well have been sceptical of the answer italicised in the above passage because of the way in which it was given. Mobile phone connectivity via the internet was well established by 2014 and would have been known to the jury. The relevant question is, as already observed, not whether the prosecution proved that the phone calls were made but whether the absence of a record of the telephone calls in Telstra’s records necessarily created a doubt about the complainant’s testimony. In this respect, it is significant that after the addresses of counsel the jury asked whether there was a telephone connected to a modem in the appellant’s home. The jury was entitled to take into account the possibility that the phone calls were made over the internet in evaluating the weight they would attach to the telephone records.
As against the absence of a record of the calls in the documentary telephone evidence, there were strong reasons for accepting the complainant’s evidence. First, and very importantly, there was no reason for the complainant to make up the account of the first telephone call. Indeed, it is quite consistent with the way in which the Eccles-Smiths might have organised their affairs that Mrs Eccles-Smith would remind him of some shopping which needed to be done. Mrs Eccles-Smith testified that she would often ring her husband for such a purpose. The complainant’s testimony about the phone call was linked to her testimony that Mr Eccles-Smith left to pick up a reindeer decoration and returned with, and then played, a CD which he had purchased. The complainant gave a detailed account of the conversations with Mr Eccles-Smith both before and after he returned. It was not put to the complainant that Mr Eccles-Smith had not left the home to go to the shops. Nor was it put that he did not return with the CD. The jury was entitled to accept the complainant’s evidence notwithstanding the state of the documentary telephone evidence particularly if they took the view that there were plausible explanations for the absence of any record of the call.
Secondly, the complainant was more likely to have obtained the personal information about the Eccles-Smith’s affairs from the telephone call she described than elsewhere. In addition to the information about the purchase of the reindeer decoration, the complainant was aware that Mrs Eccles-Smith had a personal dislike of organising the pays on Friday. The complainant was unlikely to have picked up that information from another source.
Thirdly, the complainant described in her evidence a gross deformity on the appellant’s abdomen which photographs received in the trial showed him to have. The complainant’s esoteric knowledge of that deformity supports her credibility. We acknowledge that the complainant testified that she saw the appellant in the shower when he called her into the bathroom but her evidence was that she only saw his back and not the front part of his body. If the complainant had fabricated the account of observing the deformity in the course of the appellant’s offending, it is unlikely that she would have included, within her account, an opportunity to view the deformity unconnected with that assault. In any event, the circumstance that the complainant saw the appellant naked, howsoever that may have occurred, provides some support for her account because an opportunity to see the appellant naked is less likely to arise in the ordinary course of cleaning his house than it is if the appellant was making sexual advances.
Fourthly, the complainant’s testimony was also supported by the very large number of texts between herself and the appellant on the morning of 14 November, which are consistent with her evidence of the appellant’s persistent messaging with sexual innuendo after the first occasion on which she cleaned the premises.
Fifthly, the complainant’s testimony reads plausibly and coherently. If her demeanour was as persuasive as the transcript of her testimony suggests, the jury was entitled to resolve any question arising from the telephone evidence against the appellant having regard to the preceding matters already mentioned.
The jury had the opportunity to observe the complainant testify over the course of more than a day. The jury was entitled to give its assessment of the complainant’s testimony great weight. The documentary telephone evidence was not so comprehensive and detailed as to preclude the jury accepting the complainant’s testimony and finding the first count proved beyond reasonable doubt.
Verdicts not inconsistent
The jury’s acquittal of the appellant on the second count is not a reason to doubt the appellant’s guilt on the first. The verdicts relating, as they do, to two discrete incidents are not inconsistent. The acquittal of the appellant on the second count can be attributed to the jury’s conscientious application of the heavy prosecutorial onus.
In MacKenzie v The Queen,[1] Gaudron, Gummow and Kirby JJ explained the proper approach to a consideration in the inconsistent verdict ground of appeal as follows:[2]
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 …
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.
…
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 … 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”.
(emphasis added)
[1] (1996) 190 CLR 348.
[2] MacKenzie v The Queen (1996) 190 CLR 348, 366-368.
In MFA v The Queen,[3] Gleeson CJ, Hayne and Callinan JJ made these general observations on the legal context in which verdicts thought to be factually inconsistent must be considered:[4]
Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed.
It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. …
(citations omitted)
[3] (2002) 213 CLR 606.
[4] MFA v The Queen (2002) 213 CLR 606, 617-618.
In R v Gbojueh,[5] Kourakis J emphasised the importance of respecting the role of the jury in the administration of criminal justice:[6]
[36]The unreasonable verdict ground represents the most intrusive ground on which a jury’s verdict is reviewed. It is the ground that most obviously is designed to “afford a mechanism against [the] prospect that … an innocent person has been wrongly convicted”. It is one thing to set aside a jury verdict where the Court of Criminal Appeal’s own appraisal of the evidence leaves it with a doubt that cannot be explained by the jury’s advantage in hearing and seeing the witnesses. It is quite another thing to set aside a verdict where, as in this case, the evidence itself does not suffer from any discrepancy or inadequacy, or is not, for any other reason, weak or inherently improbable. The determination of guilt or innocence in a case like the one before us rests entirely on whether the “constitutional tribunal of fact” is prepared to accept that the testimony of the complainant proves the offence beyond reasonable doubt. In such a case it is a serious step and a huge leap to say that the jury’s very assessment of the evidence that leaves it in no doubt with respect to one count but with some doubt in another is reason enough to set aside the verdict of guilty on the former count.
…
[56]It is a necessary consequence of the important function a jury performs in a common law criminal trial and the criminal onus of proof that a verdict of guilty returned by it will rarely be set aside on the ground of inconsistency alone where the evidence in support of the different counts is substantially different. I drew attention to the difficulty in concluding that verdicts returned on charges relating to different occasions were factually inconsistent in R v H, GJ, a judgment with which Doyle CJ and White J concurred. It is not surprising that true factual inconsistency has been more commonly found where there are different verdicts on counts relating to a single incident.
[57]The deference accorded to juries to determine the facts and to differentiate in their verdicts between counts is also illustrated by the decisions of the State courts of criminal appeal on the directions that should be given on the effect that the existence of a doubt on one count should have on their deliberations on the remaining counts. In R v RAT it was suggested that following Jones juries should be directed that if they were not satisfied beyond reasonable doubt that the complainant was telling the truth in relation to one count, then it was not open to them to convict on the remaining counts. That proposition, at least as a universal rule, has been rejected.
(citations omitted)
[5] (2009) 103 SASR 545.
[6] R v Gbojueh (2009) 103 SASR 545, 557 and 563.

Kourakis J also explained that a jury might reasonably differentiate between related counts even when the prosecution case relied on the same witnesses:[7]
[53]Courts of criminal appeal faced with the problem of apparently inconsistent verdicts have often attempted to reconcile the verdicts by reference to an item of objective evidence or the existence or absence of corroboration. Plainly, if a difference of that nature can be identified the apparent inconsistency can be explained and there is no irrationality. However, it is fallacious to reason that because the existence of some objective difference in the evidence offered in support of each count can justify different verdicts, its absence means that the verdicts must be illogical. It must not be forgotten that verdicts will often be reached simply on the basis of the jury's view of the inherent probabilities or improbabilities of the events that are in dispute. The degree of confidence that a jury will have in a witness' testimony on a particular matter will be critically affected by the extent to which that witness' account conforms with the life experience of the jury. A jury might not be satisfied that all innocent possibilities have been disproved beyond reasonable doubt, even if there is no evidence from which an inference consistent with innocence can be drawn. It must be remembered that proof beyond reasonable doubt is a high onus. A doubt need not be based on any factual finding or even on an item of evidence. On the contrary, it is simply a failure to be satisfied to the requisite degree.
[54]An accused need not point to some objective evidence to be given the benefit of the doubt. It would be a misdirection to tell a jury that they must find some feature of the evidence that is inconsistent with the prosecution case before they can acquit. A jury can properly acquit for no other reason than that by applying their experience of human affairs and the workings of the natural world they are not satisfied that the prosecution evidence has excluded all possibilities consistent with innocence. It is for that reason that juries are commonly told that they can properly come to different verdicts on each count.
[7] R v Gbojueh (2009) 103 SASR 545, 562.
An offence is not necessarily proved beyond reasonable doubt merely because the jury believes a complainant. It is for the jury to determine what, if any, supporting evidence it requires in order to return a verdict of guilty even if it accepts the complainant’s testimony.
The jury in this matter was directed that a reasonable doubt is ‘simply a doubt which you as reasonable jurors are prepared to entertain’. It was also told that it had an absolute right to believe all, or any part, or none, of a witness’s testimony. Finally, it was instructed to consider each charge separately.
In this case, the matters mentioned in [7]-[11] above provide significant supportive evidence on the first count. So too did the complaint evidence. The Judge explained the use of that evidence to the jury as follows:
When considering this evidence I remind you of the evidence of Ms Burford. You will remember she was the proprietor of the business, … the cleaning company which employed the complainant as a casual employee. Her notes are to the effect that the complainant said to her over the telephone, this was on Tuesday, 25 November, that she was cleaning the shower, Mr Eccles-Smith went into the shower too ‘Rubbing himself against her’. This particular piece of evidence is relevant only to count 1 and it is no evidence at all against Mr Eccles-Smith on count 2. The evidence of the complainant about this was simply that she was asked ‘had he touched me?’ to which she responded ‘Yes’. This was something Mr Jolly addressed you about.
This evidence of the statement ‘rubbing himself against her’ is admitted for the very limited purpose of informing you as to how the allegation in relation to count 1 first came to light, when this complaint was made and to whom and as to what was said at that particular time. It is evidence there to inform you as to the consistency of conduct of the complainant, if any, in relation to what took place in the shower. It is not I stress, admitted as evidence of the truth of what was said. There may be varied reasons why she made that complaint at that particular time to Ms Burford. Otherwise it is a matter for you, the jury, to determine the significance if any of this piece of evidence in the proven circumstances confined I repeat to count 1.
(emphasis added)
The jury may have regarded the absence of a complaint to Ms Burford about the offences charged in the second count as a reason to exercise caution before returning a verdict of guilty on that count. It matters not that we, sitting as a Court of Criminal Appeal, might not accord the complaint evidence much weight. It was a matter for the jury whether or not Ms Burford’s evidence justified different verdicts on the two counts.
Even though the charged offences were temporally and circumstantially closely connected, the strength of the evidence supporting each was sufficiently different for the jury, consistently with the oath taken by the jurors and the directions it was given, to differentiate between them.
It is important to emphasise that there is no reason to think that the verdict of not guilty on the second count is a product of the jury’s doubting of the complainant’s credibility rather than a reflection of the difference in the relative strength of the supporting and contradictory evidence on each count.
In R v Gbojueh, Kourakis J explained that the proposition that a verdict of guilty is inconsistent with a verdict of not guilty must, if sound, also hold true for the converse:[8]
[51]It might be observed here that as a matter of logic and common sense the irrationality of the jury verdict must be demonstrable both on the basis that a doubt on one count must lead to a doubt on the other, and on the basis that if there is no doubt on one count there could be no doubt on the other. To say that, on the evidence presented, the verdicts of guilty on one count and not guilty on the other are illogical is but another way of saying that such is the similarity between the evidence on both counts that the jury could only rationally bring in the same verdict on both.
[52]It follows that if the conclusion is reached that it was irrational for the jury in this case to convict on the second count, having acquitted the appellant on the first, then it must also be possible to say that it was irrational for the jury to acquit on the first count having convicted on the second. The latter proposition reveals the difficulty in demonstrating irrationality and illogicality given the high standard set by the criminal onus of proof.
[8] R v Gbojueh (2009) 103 SASR 545, 561-562.
If on this trial the argument had been put by the prosecutor in her address that if the jury decided that the appellant was guilty of the first count they must logically and necessarily convict of the second count, the accused’s counsel could properly have replied, and indeed the Judge would have been bound to direct, that each count must be considered separately and that for example absence of complaint of digital penetration might still cause the jury to hold back from finding the second count proved beyond reasonable doubt even if it thought the complainant to be a truthful witness. If that is so, it cannot be said that the verdict of not guilty on the second count is inconsistent with the verdict of guilty with the first.
The verdict of guilty on the first count is not unreasonable for inconsistency with the acquittal on the second count.
Conclusion
We would dismiss the appeal.
DOYLE J: The appellant was charged with indecent assault (count 1) and rape (count 2). Following a trial by judge and jury, the appellant was found guilty of count 1, but acquitted of count 2.
The appellant appeals against his conviction on two grounds, namely:
1. The jury verdict on count 1 was unreasonable or cannot be supported having regard to the evidence.
2. The jury verdict count 1 was unreasonable because it is inconsistent with the acquittal on count 2.
Overview
The prosecution case was that on Friday, 14 November 2014 the appellant indecently assaulted and raped the complainant.
As at that date, the appellant was a 51 year old man, approximately five feet 10 inches tall and 100 kilograms in weight. The appellant had suffered a serious injury to his right leg in a work place accident in 2011, resulting in him ceasing work and receiving compensation from WorkCover. He had a cane to assist him when walking.
The complainant was a cleaner and engaged through WorkCover to provide domestic cleaning services for the appellant and his wife at the appellant’s residence. She was 38 years of age at the time of the alleged offending. She was about five feet tall, and weighed approximately 70 kilograms.
Both counts were alleged to have occurred on an occasion when the complainant was cleaning the appellant’s residence. The first count, the indecent assault, was alleged to have occurred in the bathroom and involved the appellant touching the complainant’s buttocks and breasts, and rubbing his penis against her buttocks. The second count, the rape, was alleged to have occurred in the lounge room and to have involved digital penetration by the appellant of the complainant’s vagina.
The complainant gave evidence in which she described the alleged offending. Significantly, her evidence included reference to two telephone calls that she recalled the appellant receiving from his wife while she was at his residence on 14 November 2014. The offending was said by her to have occurred between the two telephone calls, with the second call interrupting the appellant’s rape of her and enabling her to escape.
The prosecution also called evidence from the complainant’s employer, Ms Burford, as to the complaint subsequently made by the complainant to her. The complaint related only to the first count.
In addition to this oral evidence, a series of agreed facts, photographs, a plan of the appellant’s residence, and telephone records were tendered during the course of the prosecution case. The significance of the telephone records, from the perspective of the defence case, was that they did not contain any record of the two telephone calls which the complainant recalled the appellant receiving from his wife, and that they showed the complainant using her mobile phone during the time she alleged the offending was occurring. They also did not show a text message she claimed to have received from the appellant later on the day of the offending.
The appellant did not give evidence. He called evidence from his general practitioner, Dr Try, and his wife, Ms Eccles-Smith. Their evidence was led in part to describe the appellant’s physical limitations as a result of the work place injury he had suffered. On the defence case, the limitations upon his mobility made it unlikely, if not impossible, for him to have engaged in some aspects of the conduct attributed to him by the complainant. Ms Eccles-Smith also gave evidence to the effect that she and the appellant did not have a landline in their residence. It was agreed that police investigations had not revealed any evidence of a landline in operation at the appellant’s residence. The appellant also tendered a photograph of himself (which showed significant scarring on his stomach, as well as a prominent tattoo on his arm), and a summary of the medical procedures in relation to his injured leg.
It is appropriate to summarise the above evidence in greater detail before turning to consider the arguments advanced in support of the two grounds of appeal.
The complainant’s evidence
The complainant’s evidence was that she first attended the appellant’s residence on 29 October 2014 in the company of her employer, Ms Burford. On that occasion she met the appellant and his wife and was shown around the appellant’s residence.
She next attended the appellant’s residence on 31 October 2014. On that occasion, only the appellant was present. While cleaning the premises she engaged in conversation with the appellant. She described him as talkative and polite. It seems that during the course of that attendance, the appellant obtained the complainant’s mobile phone number from her phone. He subsequently sent her some text messages, which included content of a flirtatious and sexual nature.
The complainant next attended the appellant’s residence on 14 November 2014. She was due to commence cleaning at 10.00 am, with an expectation that the job would take her three hours. Earlier that morning she missed two calls from the appellant, and then exchanged text messages with him. The exchange related to a suggestion by the appellant that she might start earlier to allow the appellant to meet a commitment later in the day, but this did not eventuate.
The complainant recalled arriving at the appellant’s residence at about 10.00 am. While the telephone records showed her sending and receiving some text messages between 10.08 am and 10.37 am, she believed she must have sent these while at the appellant’s residence.
Upon arriving, the complainant knocked on the door and heard the appellant say “come in”. She let herself in. Loud music was playing, but following the sound of the appellant’s voice she ended up at the bathroom door. The door was open and she noticed the appellant was in the shower. She caught sight of the back of his naked torso. She promptly apologised and stepped back from the door. She moved to another part of the house to commence cleaning. At some point she placed her mobile phone and keys on the bench in the kitchen, where they stayed until she retrieved them when leaving the house.
Some time after she had commenced cleaning, the complainant heard the appellant receive a phone call from his wife and place it on loud speaker. She was able to hear the content of the phone call (the first phone call). She heard the appellant’s wife tell the appellant that she felt “sick” because she was “doing the pays or something and she didn’t want to muck it up”. The complainant also heard the appellant’s wife say to him “not to forget to go and pick up the reindeer”, which she understood to be a Christmas decoration.
Soon after this, the appellant left the house for about half an hour, saying he was going to pick up the reindeer, and offering to get the complainant a cream bun (which she declined).
The complainant said that she initially thought that the first phone call was received by the appellant on his mobile phone. However, having seen the phone records which did not include this call, she said the call must have been received on the appellant’s “home phone”. She was “pretty sure” the appellant had a cordless home phone as well as a mobile phone.
Upon the appellant’s return, the complainant was still cleaning. The appellant began following her around and talking to her. After a while the appellant began to speak in a flirtatious and sexual manner.
The complainant entered the bathroom, which was the final room she intended to clean. She initially said that this occurred at about 12.30 pm, but when she was told that the phone records showed her responding to a text message at 12.51 pm she said she must have got the time wrong. She denied that she received this message while she was in the bathroom, or that she took her phone into the bathroom. She said that her phone remained on the kitchen bench throughout the day, albeit that she did check it from to time to time.
In any event, the appellant was standing in the doorway of the bathroom while the complainant cleaned the bathroom with her back to him. He told the complainant that she had given him a “hard-on”. When she turned around, the appellant was rubbing his genital area outside his clothes, and said that he needed a “wank” and would like some assistance. She attempted to ignore him and resume cleaning, but she became aware that the appellant had removed his clothes and was masturbating. The complainant noticed not only the appellant’s erect penis, but also that he had a “deformity on his belly”, which she described as being “like an A-shape or something, of skin going up to his belly button and down again”. He said that he “wanted a hand”. She refused and asked him to leave the room, saying that she was there only to clean. When he did not leave she again attempted to ignore him and to continue cleaning with her back to him. At that point she was on her knees, cleaning the bath.
The complainant then used the content of the first telephone call (and in particular, the prospect that because his wife was feeling sick she might arrive home) in conversation with the appellant in an attempt to dissuade him from masturbating in front of her. She was unsuccessful in this attempt. The appellant’s response was to lock the bathroom door behind him. By this point the complainant was “stressing out” and “freaking out”. Her whole body “went to jelly”. She was scared of confined spaces, and told the appellant this. She showed him her shaking hands and asked him to unlock the door. He refused, saying that she would be alright.
The complainant attempted to focus on her cleaning duties, remaining on her knees with her back to the appellant. The appellant continued masturbating. He then moved up to immediately behind the appellant and began rubbing his hands over various parts of her body, including her lower back, buttocks and right breast. She kept flicking his hand away, telling him to stop, and saying words to the effect of “no, I am here to clean”. But he continued to touch and rub her with his hands.
After a while, the complainant moved into the shower to commence cleaning it. By this stage she was standing up, but still facing away from the appellant. The appellant stepped into the shower and began rubbing his penis just above her bottom, and rubbing his hands all over her. Again she kept “flicking him off and pushing him away”, but he kept coming back. She kept telling him to stop, to go away and that she was only there to clean, but he continued to ignore her.
The complainant estimated that this continued for “an hour or over an hour”. Eventually, when she moved to start cleaning the shower door, and their positions changed, she was able to push him away with more force. She managed to break away from him, unlock the door and leave the bathroom.
The complainant ran down the hall to get her mobile phone and keys from the kitchen, but was intercepted by the appellant who was running after her. He then physically pulled her into the lounge room. Upon entering the lounge room, she was able to note that the clock in that room was showing the time as about 1.45 pm. The appellant dragged her onto the couch alongside him. While restraining her on the couch with one arm across her breasts, the appellant continued to masturbate himself with his other hand. The complainant was terrified and began crying.
The appellant then moved in front of the complainant. While using one arm to hold her hands above her head, he pulled down the leggings she was wearing with his other hand, and used his legs to force her legs apart. He then penetrated her vagina with his middle finger and proceeded to do so a number of times. The complainant estimated that this digital penetration commenced at about 2.30 pm. It continued for “a good five minutes”, before he returned to his position next to her on the couch and continued masturbating.
During the course of the incident in the lounge room, while he was masturbating, the appellant asked the complainant to help him. She said “no” and told him to “hurry up”. At this point the appellant said something to the effect that if she didn’t help it was going to take a while because he had not had sex in three years, and that his wife would not have sex with him because she was scared she might hurt him given his leg injury. The complainant continued to say “no”, but he ignored her. She continued crying, as well as verbalising her pain when he digitally penetrated her.

The appellant’s conduct only ceased upon a telephone call being received by the appellant (the second phone call). The appellant said he had better answer it as it might be his wife. He then answered the phone, and as with the first phone call, the complainant said that she was able to hear that the person making the call was the appellant’s wife. While she initially thought this call was received on the appellant’s mobile phone, having become aware that it was not shown in the phone records, she said she was not sure whether it was his mobile or the home phone.
This second phone call allowed the complainant to break free from the appellant. She retrieved her mobile phone and keys, and left the appellant’s residence.
The complainant’s recollection was that she left the appellant’s residence at about 3.00 pm. When informed that the phone records showed activity on her phone at 2.56 pm, she said that this may have been when she left. The complainant also said that the appellant sent her a text message about half an hour later in which he said that that he had had a think about what had happened, that he could now see she was nervous and scared, and that he apologised for that. She deleted the message, just as she had all the other text messages that they had exchanged. When asked how she explained the absence of any record of a text message from the appellant in the phone records for 14 November 2014 (other than the early morning messages mentioned earlier), the complainant’s answer was that while her memory was that she received the message that day, she obviously didn’t, and all she could suggest was that it was sent a day or two later.
The first time the complainant spoke to anyone about what had occurred was when she spoke to Ms Burford, 11 days later, on 25 November 2014. The appellant had contacted her by text message seeking to change the cleaning arrangements to shorter weekly attendances, rather than the longer fortnightly ones that had been organised. The complainant had not yet decided whether she would even turn up to the appellant’s house on the next occasion given what had happened, but she rang Ms Burford to seek her approval of the proposed change. Ms Burford approved the change. The complainant did not want to tell Ms Burford about what had happened, but in the course of that conversation the complainant asked Ms Burford whether, when she (the complainant) next attended the appellant’s place, she (Ms Burford) could ring her mobile and stay on the line to listen to what was going on. The complainant’s thinking was that if Ms Burford heard what was going on, then she would not have to continue working at the appellant’s residence. But Ms Burford wanted to know why the complainant had made this request. When the complainant did not volunteer an answer, Ms Burford asked her whether the appellant had touched her, and she said “yes”. That was all the complainant recalled of that conversation.
Towards the end of her evidence, it was put to the complainant by counsel for the appellant that she knew Ms Burford was away for a period following 14 November 2014; that she waited until Ms Burford returned before ringing her with a view to using her in an attempt to gather evidence so that she (the complainant) could lodge a WorkCover claim; and that consistent with this she subsequently attended Ms Burford’s office on 1 December 2014 to complete the paperwork to lodge a WorkCover claim and also discussed with Ms Burford how to go about making a victims of crime claim. While acknowledging that she lodged a WorkCover claim, and that she did inquire about a victims of crime claim, the complainant denied the suggestion that she was being dishonest about what happened on 14 November 2014.
Ms Burford’s complaint evidence
Ms Burford gave very brief evidence as to the telephone conversation she had with the complainant on 25 November 2014. She did so with the assistance of some notes she made at the time. According to Ms Burford, the complainant told her that while she was in the shower cleaning it, the appellant entered and was rubbing himself against her.
Evidence led by the appellant
The appellant’s treating general practitioner, Dr Try, gave evidence about the appellant’s workplace injury, treatment and rehabilitation. He described the consequential limitations upon the appellant’s mobility, which inhibited his ability to walk and bend.
The appellant’s wife, Ms Eccles-Smith, gave similar evidence in relation to the limitations upon the appellant’s mobility, describing his difficulties in walking, standing for prolonged periods and bending, as well as in dressing and undressing.
The complainant had given evidence to the effect that the appellant had not used his cane when moving around the house on 14 November 2014. Ms Eccles-Smith’s evidence was that while the appellant usually used his cane when walking, he was able to (and sometimes did) walk around the house without the cane. When doing so he usually supported himself by placing his hands on furniture or the walls. She acknowledged that it was only about 12 paces from the bathroom to the kitchen, and about the same distance again from the kitchen to the lounge, but said that she did not think the appellant was capable of running.
Ms Eccles-Smith’s evidence was that while the appellant was capable of dressing and undressing himself, it usually took him a while to do so, and usually involved him sitting down.
She also gave evidence that the house in which they lived had never had a fixed telephone line, or a landline, while they lived there. She said that she was in the habit of telephoning the appellant from her work, usually at least once a day and probably two or three times a day, but that she always rang him on his mobile, and generally from her work number rather than her mobile. She said that any calls made by her from her mobile were made through her Telstra service and not via the internet. While they had wifi at home, she was not even sure she had the internet connected on her phone at the time.
Ms Eccles-Smith was not able to recall whether she telephoned her husband on 14 November 2014. She agreed, however, that at about that time she had been interested in purchasing a reindeer Christmas decoration, and that at some point she had asked the appellant to order it and pick it up. She also agreed that she usually organised the payslips at her work on a Friday, and that this was a task which she found a challenge, and that caused her to worry, because her training was as a nurse and not as an accountant and she worried that she might pay people incorrectly.
Finally, Ms Eccles-Smith also agreed that the appellant’s ongoing injuries, and associated weight gain, had impacted their sex life. She said that they had last had sex in April 2013, although they had tried unsuccessfully to do so on subsequent occasions, including most recently in about July 2014.
The telephone records
Exhibits P5 and P6 were schedules summarising the effect of the telephone records obtained from Telstra Corporation Limited in relation to the appellant’s and complainant’s mobile phones respectively. They were accompanied by signed statements from a system specialist from Telstra, confirming their status as summaries of Telstra’s business records and to some extent explaining their content.
The records were tendered on the basis they recorded all activity to and from the complainant’s and appellant’s mobile phones on 14 November 2014. To assist in interpreting the records, the parties agreed the people or telephones to which various of the telephone numbers related.
The records appear to reveal some 18 text messages between the appellant and the complainant between 8.39 am and 9.15 am. While these messages were not explained in any detail in the evidence, as mentioned earlier, there was reference in the evidence to an exchange of text messages in relation to the appellant’s attempt to alter the start time for the complainant’s cleaning duties that day.
The records do not show any further telephone contact between the complainant’s and appellant’s telephones on that day.
There was no record of the appellant receiving any phone call from his wife on 14 November 2014, although the records indicate that he did send her a text message at 11.49 am. There was also no record of any incoming or outgoing activity on the appellant’s phone between this text message, and two phone calls the appellant made to unknown numbers after 8.30 pm that evening. It follows that there was no record of the appellant sending the complainant a text message after she left his residence on 14 November 2014.
The record of activity on the complainant’s phone revealed a number of text messages between her phone and several unknown numbers after the last of her text messages from the appellant at 9.15 am and prior 10.37 am, including several text messages sent or received between 10.08 am and 10.37 am. There is then a gap in the complainant’s telephone activity until 12.50 pm and 12.51 pm, when her phone received and responded to a text message from an unknown number. There is then a further gap until 2.56 pm, when her phone received a 35 second phone call.[9]
[9] It may be that this is a record of a call going through to the complainant’s message bank, although there was no evidence to this effect.
Between 3.07 pm and 8.39 pm, the complainant’s phone received and sent a handful of text messages, and received and made a handful of relatively short phone calls.
I mentioned earlier that in addition to Ms Eccles-Smith’s evidence to the effect that there was no landline in the appellant’s residence, it was agreed that police investigations had not revealed any evidence of a landline. The agreed fact was that checks conducted on SAPOL computer systems, employment records for Ms Eccles-Smith and records kept by Ms Burford for her cleaning business had not located any reference to a home phone number.
Ground 1: unreasonable verdict
In determining whether a jury verdict is unreasonable or cannot be supported having regard to the evidence, the task of this Court is as stated by the High Court in M v The Queen.[10]
[10] M v The Queen (1994) 181 CLR 487 at 492-495, as applied, for example, in Libke v The Queen (2007) 230 CLR 559 at [113] and The Queen v Nguyen (2010) 242 CLR 491 at [33].
The question is one of fact which the Court must decide by making its own independent assessment of the evidence, and determining whether, notwithstanding that there was evidence upon which the jury might convict, it would be dangerous to allow the verdict of guilty to stand. The Court must ask itself whether it thinks on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Put another way, the Court must ask itself whether the jury must have, as distinct from might have, entertained a doubt about the appellant’s guilt.[11]
[11] Libke v The Queen (2007) 230 CLR 559 at 596-597.
The plurality in M v The Queen added:[12]
But in answering that question the 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.
… To ask only whether the court has a doubt may place insufficient emphasis upon the fact the jury, having seen and heard the evidence given, was in a position to evaluate that evidence in a manner in which a court of appeal cannot.
… 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 leave 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. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[12] M v The Queen (1994) 181 CLR 487 at 493-495.
If the jury accepted the complainant’s evidence as credible and reliable, then it provided a sufficient basis for the conviction of the appellant of indecent assault (count 1). The complainant gave a detailed account of the appellant touching her in various indecent ways while she was cleaning the bathroom, and it was not suggested at trial that this was in any way consensual.
The issue in this case was not the sufficiency of the evidence, but rather the credibility and reliability of the complainant’s evidence. Accordingly, the issue for this Court is whether the matters identified by the appellant undermined the complainant’s credit or reliability to the extent that a reasonable jury must have entertained a doubt about the appellant’s guilt.
The appellant points to the following matters:
1.   differences between the complainant’s statements to the police and her evidence in court;
2.   the complainant’s failure to note the appellant’s tattoo on his left arm;
3.   the evidence as to the appellant’s lack of mobility; and
4.   the inconsistencies between the complainant’s evidence and the phone records.
The appellant quite properly accepts that the first three of these are in the nature of mere “inconsistencies and discordances in the evidence”[13] which would not individually or cumulatively suffice to render the verdict on count 1 unreasonable or unable to be supported having regard to the evidence. The appellant accepts that success on ground 1 stands or falls by reference to the significance of the telephone records.
[13] R v C, CN (2013) 117 SASR 64 at [71].
However, because the significance of the telephone records must be considered in the context of the evidence as a whole, it is appropriate to commence by considering briefly the first three matters relied upon as impacting upon the complainant’s credibility and reliability.
As to the first, the complainant gave a statement to the police in late November 2014. During cross-examination of the complainant, a number of variations between this statement and the complainant’s evidence in court emerged. It is not necessary to catalogue those variations here. It is sufficient to note that most were examples of the complainant including additional detail in her evidence in court that was not in the statement she gave to the police. As to some of these omissions from her police statement, the complainant’s response was that the extra detail in her evidence (for example, in relation to things said by her and the appellant at various stages while she was at the house on 14 November 2014) were not matters she was asked about by the police, and in any event did not appear to her to be relevant to what she alleged the appellant did to her. As to other omissions, the complainant explained that over time her memory had improved in some respects and deteriorated in other respects. In relation to some variations in the sequence of events, the complainant acknowledged that she was not entirely sure about the precise sequence of some aspects of the detail she described.
In my view, these challenges to the complainant’s evidence related to relatively minor and peripheral aspects of her evidence. They were quintessentially matters for the jury to weigh and assess in arriving at their conclusion as to the complainant’s credibility and reliability. They did not require doubt as to the complainant’s credibility or reliability, or at least not doubt that could not have been resolved through the jury’s advantage in having seen and heard the complainant give evidence.
The same can be said of the complainant’s failure to notice the appellant’s admittedly prominent tattoo on his upper arm. While it is perhaps unexpected (on the complainant’s version of events) that she did not notice and recall the tattoo, it is not implausible given the stress and ordeal she was subjected to. Further, the significance of this issue needs to be considered in the context of both the complainant’s accurate description of the scarring on the appellant’s stomach, and her evidence to the effect that she saw the back of the appellant’s naked torso when she arrived at his residence that morning and saw him in the shower. In so far as her failure to mention the tattoo might suggest she did not see the appellant naked, her description of his scarring suggests that she did. Against this, it might be said that the complainant had an opportunity to observe the scarring when she saw the appellant in the shower. The net effect is that I do not consider that the complainant’s failure to notice the appellant’s tattoo required doubt as to the credibility or reliability of her evidence as to the critical events. Again, significance of this aspect of the evidence was a matter for the jury to assess and determine.
The evidence as to the appellant’s lack of mobility is more significant. The appellant contends that the evidence of Dr Try and Ms Eccles-Smith as to the appellant’s physical limitations was inconsistent with several aspects of the conduct attributed to him by the complainant – namely his ability to undress himself; his ability to move about in the manner the complainant described while he was in the bathroom; his ability to run after the complainant and then drag her into the lounge room after she had fled the bathroom; and his ability to not only restrain the complainant for a period of time, but also manoeuvre himself in front of her and then use his legs to force her legs apart, while holding her hands above her head and at the same time digitally penetrating her.
That said, Ms Eccles-Smith’s evidence was not precise or absolute as to the appellant’s physical limitations. She made it plain that not only was he able to walk around the house without his cane (albeit usually supporting himself using furniture or walls), but also that his mobility varied. He had good days and bad days. While the movements attributed to the appellant by the complainant were perhaps surprising (assuming the jury accepted Dr Try’s and Ms Eccles-Smith evidence), they were not entirely implausible. That is particularly so given Ms Eccles-Smith’s evidence that it was only some 12 steps from the bathroom to the kitchen, and a similar distance from the kitchen to the lounge room. The jury might also have thought that it was relevant, in the circumstances as described by the complainant, that the appellant had every motivation to test his physical boundaries and endure whatever pain might have been associated with him doing so. As the prosecutor said in her closing address, sexual gratification can be a powerful motivator.
Ultimately, I consider that the issue of the appellant’s physical limitations and mobility was also one for the jury to weigh and assess, and not one that required doubt on their part as to the appellant’s guilt of count 1.
Turning to the asserted inconsistencies between the telephone records and the complainant’s evidence, there were five of them:
1.   The absence of any record of the first phone call from the appellant’s wife to the appellant.
2.   The receipt and sending by the appellant of text messages at 12.50 pm and 12.51 pm.
3.   The absence of any record of the second phone call from the appellant’s wife to the appellant.
4.   The receipt of a phone call by the complainant at 2.56 pm.
5.   The absence of any record of a text message from the appellant to the complainant on 14 November 2014 after the complainant left the appellant’s house.

In my view, the second and fourth asserted inconsistencies are of little significance.
As to the second asserted inconsistency, it is said that this was inconsistent with the complainant’s initial recollection that the incident in the bathroom commenced at 12.30 pm. However, the jury were entitled to approach the matter on the basis that the complainant was never doing more than purporting to estimate the time, and that the difference of approximately 20 minutes was not significant in the scheme of things. They might also have taken into account that upon becoming aware of the reference to these text messages in the phone records, the complainant acknowledged that she must have been wrong about the time of 12.30 pm. The complainant impliedly accepted that she must have entered the bathroom at about 12.51 pm. This is consistent with her evidence that she was expecting her cleaning to last three hours from 10.00 am and that this was the final room she was to clean. It also remains generally consistent with her evidence that the incident in the bathroom lasted “an hour, over an hour”.
As to the fourth asserted inconsistency, similar reasoning is applicable. The complainant originally estimated that she left the appellant’s residence at 3.00 pm. However, when she became aware of the phone records suggesting she received a call at 2.56 pm, she readily accepted that she might have left by 2.56 pm. Again, the discrepancy is hardly significant in the scheme of things. The jury were entitled to approach the matter on the basis that the complainant was simply mistaken as to her initial estimate of the times at which the alleged offending commenced and finished. The jury were entitled to accept that people are not always able to be precise about estimates of times and time frames, particularly when they are experiencing the stress and ordeal the complainant was (on her evidence) experiencing at the time. Indeed, the jury might have thought that, if anything, the shorter overall time period suggested by the phone records was more inherently likely or plausible than the longer estimate of the complainant.
I also consider that the fifth asserted inconsistency was a matter for the jury to assess. While a review of the transcript suggests the complainant was quite confident that she received the message in question from the appellant about half an hour after she left on 14 November 2014, she accepted that she might have in fact received it a day or so later. The significance of this discrepancy was a matter for the jury to assess and take into account. I do not think it required the jury to doubt the complainant’s reliability more generally.
That leaves the first and third asserted inconsistencies, namely the absence of any record of the first and second phone calls from the appellant’s wife. While both of these phone calls formed a relatively significant part of the complainant’s narrative of the relevant events, I consider that the significance of the second phone call was greater in that it interrupted the alleged offending, and provided the opportunity for the complainant to escape. In this way, the second phone call was inextricably linked with the complainant’s description of the very offending.
The jury was required to assess the complainant’s evidence as to these two phone calls (from which she never resiled) against the absence of any reference to them in the telephone records. The issue for this Court is whether the absence of any record of the two phone calls in the telephone records gave rise to a doubt about the complainant’s credibility or reliability as to the conduct constituting the first count, which could not be resolved having regard to the jury’s advantage.
Broadly speaking, there are three possible explanations for the discrepancy between the complainant’s evidence and the telephone records as to the two phone calls. The first is that the records are inaccurate or incomplete, in the sense that they do not include all telephone contact between the appellant and his wife on the day in question. The second is that the complainant’s evidence was mistaken or unreliable as to the occurrence of the two phone calls. The third is that the complainant’s evidence was untruthful.
If the jury came to the view that the explanation for the discrepancy was that the complainant was being untruthful in her evidence in relation to the phone calls, then in my view this must inevitably have led to a doubt about the credibility and reliability of her evidence more generally. In those circumstances the jury could not reasonably have found the appellant guilty of count 1. It is necessary therefore to consider the availability and implications of the first two possible explanations.
The difficulty with the first explanation is that there was no challenge at trial to the accuracy or completeness of the telephone records. It ultimately being a matter for the jury, they might have contemplated the possibility that, despite being derived from Telstra’s business records, and despite the records including a text message from the appellant to his wife at 11.49 am, and a number of other text messages and phone calls on the day in question, nevertheless the records omitted the two critical phone calls. Alternatively, the jury might have contemplated the possibility that the phone calls were made without using Telstra’s services, for example, over the internet.
However, in my view, it was not reasonably open to the jury on the evidence to be satisfied as to either of these possible explanations. There was simply no evidential foundation for the former, and I do not consider it was reasonably open to the jury to find that the records were incomplete based on their own common sense and experience. As to the latter, the only evidence on the issue was Ms Eccles-Smith’s evidence which, if accepted, foreclosed the possibility of her having made the phone calls over the internet. There was certainly no evidence to support this explanation for the complainant’s evidence. While the complainant expressed a belief that the appellant had a portable home phone, there was evidence that police investigations had not revealed the existence of any such telephone service, and Ms Eccles-Smith’s evidence was that there had never been a home phone (or landline) at that premises while she and the appellant had been living there.
In considering whether the telephone records were incomplete, the jury were entitled to have regard to the fact that the complainant’s account of the first phone call included reference to two topics of conversation (namely, Ms Eccles-Smith feeling sick because she was organising the wages at her work, and the request that the appellant collect the reindeer Christmas decoration) which, based on Ms Eccles-Smith’s evidence, reveal some level of esoteric knowledge on the part of the complainant. However, it is possible that the complainant learned of these matters through some other means. On the complainant’s own evidence, the appellant mentioned the reindeer Christmas decoration when he left the house for half an hour during the morning of 14 November 2014, and so that may explain her knowledge of that matter. There is no explanation in the evidence for the complainant knowing that the appellant’s wife was organising the wages at her work and that this made her feel sick, although given Ms Eccles-Smith’s evidence that she undertook this task most Fridays, it may be that she learnt this detail from her previous attendance or from one of her conversations with the appellant.
However, even having regard to the complainant’s knowledge of these matters, I do not think it was reasonably open to the jury to be satisfied that the two phone calls did occur. In my view, there remains doubt about whether these phone calls occurred, and I do not think this doubt was capable of being resolved by reference to the advantage the jury had in seeing and hearing the complainant give evidence. In my view, the jury were required to proceed on the basis that there was at least a reasonable possibility that the complainant’s evidence was wrong in relation to the first and second phone calls.
This leads to consideration of the second possible explanation for the discrepancy between the complainant’s evidence and the phone records in relation to these two phone calls, namely that the complainant was mistaken about them. The issue here is whether she might have been mistaken about them in a way which did not undermine her credit or her general reliability as a witness. In other words, were the jury reasonably entitled to accept as credible and reliable the complainant’s evidence as to what happened in the bathroom even if she was wrong about the first and second phone calls.
In considering the impact of the complainant being mistaken as to the phone calls upon her credit and reliability, it is appropriate to consider the two phone calls separately.
In relation to the first phone call, the jury may have contemplated the possibility that the complainant’s evidence was a product of innocent confusion by her, perhaps as a result of her confusing information she received from the appellant that morning with a phone call she had heard on the previous occasion she had cleaned. If the first phone call had been the only discrepancy between the complainant’s evidence and the phone records, I consider that the jury might reasonably have treated a mistake as to this phone call as not undermining the complainant’s credit, and not undermining her reliability as to the critical events. While the complainant’s version of these critical events included her use of information she believed she had ascertained from the first phone call in her attempt to persuade the appellant to stop his conduct in the bathroom, the fact of the first phone call was not closely connected to the conduct constituting the appellant’s offending, or central to her evidence as to the same.
Turning to the second phone call, however, this was closely connected to the conduct constituting the appellant’s offending. On the complainant’s evidence, this phone call interrupted the alleged offending in the lounge room, and provided the complainant with her opportunity to escape. The second phone call in effect brought about the end of the offending.
In considering whether an error as to the second phone call was the product of an innocent mistake rather than deliberate untruth, the jury might have had regard to a possibility mentioned by the prosecutor in her closing address – namely that the complainant may indeed have heard the phone ring, and perhaps have assumed or known (from catching sight of the screen, or from being told by appellant) that it was his wife on the other end of the phone; but that the complainant might have mistakenly assumed or believed the phone call was answered, when in fact it was not. While this was not a matter raised with the complainant in her evidence, or suggested by her when pressed as to whether the second phone call occurred, that did not prevent the jury considering it as a potential explanation for the discrepancy between the complainant’s evidence and the telephone records. An unanswered phone call might well have provided sufficient distraction or interruption to permit the complainant to escape as she said she did, and yet at the same time explain the absence of any reference to the second phone call in the telephone records.
However, there is a significant degree of speculation in all of the above. There is no evidential foundation in the complainant’s evidence or otherwise for this possible scenario. The complainant was adamant that the second phone call occurred, that it was answered by the appellant, and that she was able to hear his wife’s voice on the other end of the phone. In my view, it was not reasonably open to the jury to be satisfied that this was the explanation for the complainant’s evidence in relation to the second phone call.
In summary, having undertaken my own independent assessment of the evidence, as the authorities require, I am left with a doubt as to whether the second phone call occurred. Once it is accepted, as I consider it must be accepted, that there was at least a reasonable possibility that the complainant was wrong in her evidence as to the second phone call, then in my view the close link between this phone call and the conduct said to constitute the appellant’s offending made it unsafe and unreasonable to convict the appellant on either count.
In my view the apparent inconsistency between the complainant’s evidence and the telephone records as to the second phone call was of sufficient significance to require doubt on the part of the jury as to the credibility or reliability of the complainant’s evidence as to the critical matters. The second phone call was not a mere matter of detail. As mentioned, it not only marked the end of the alleged offending, but also provided the explanation for the complainant being able to escape. I do not think it matters that it marked the end of the conduct the subject of count 2 rather than count 1. While those counts involved separate conduct, they nevertheless formed part of one continuous sequence of events. If the complainant’s evidence as to count 2 was rendered unreliable by her evidence as to the second phone call, then in my view this equally infected the reliability of her evidence in relation to count 1.
In the ultimate analysis, I do not consider that the discrepancy in the evidence as to the second phone call is a mere inconsistency or discordance to be resolved by the jury having regard to their advantage over this Court, or that could be put to one side if the jury were otherwise satisfied as to the credit and reliability of the complainant. It was more fundamental than that. Its connection with the very acts constituting the alleged offending meant that the unreliability of the complainant’s evidence in relation to this matter gave rise to a doubt about her evidence more generally. As the doubt is one which arose from the telephone records it was not one that could in my view be resolved by reference to the jury’s advantage in seeing and hearing the complainant’s evidence.
Even if this had been a case in which the doubt was one capable of being resolved by the jury’s advantage (and in particular, a favourable view by the jury as to the credibility and reliability of the complainant’s evidence), I observe that, for the reasons developed in the context of the second ground of appeal, it is apparent from the acquittal in respect of count 2 that in fact the jury (at the very least) exercised some caution in relying on the complainant’s evidence in respect of count 2.
Finally, I add that while I consider that the discrepancy in the evidence as to the second phone call is sufficient to warrant the verdict of guilt in respect of count 1 being set aside as unreasonable, the other discrepancies and potential sources of frailty or unreliability in the complainant’s evidence that I have considered, while not themselves warranting a conclusion that the verdict is unreasonable, nevertheless reinforce the danger in allowing the verdict to stand.
Ground 2: inconsistent verdicts
In light of my conclusion in relation to ground 1 it is not necessary for me to consider this ground of appeal. However, I do so for the sake of completeness.
The appellant contends that the verdict of guilty in respect of count 1 is unreasonable within the meaning of s 353 of the Criminal Law Consolidation Act 1935 (SA) in that it is inconsistent with the jury’s acquittal in respect of count 2. Put another way, the contention is that having regard to the jury’s decision to acquit on count 2, there is no logical basis for the different verdict in respect of count 1. The appellant’s contention is one of factual inconsistency rather than legal or technical inconsistency.
In MacKenzie v The Queen,[14] Gaudron, Gummow and Kirby JJ described the approach to factual inconsistency between verdicts in the following terms:
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. …
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.
[14] MacKenzie v The Queen (1996) 190 CLR 348 at 366-367 (omitting citations).
Expanding upon this reference to ‘merciful’ verdicts, their Honours proceeded to quote and adopt as “practical and sensible” King CJ’s description in R v Kirkman[15] of the circumstances in which verdicts might be reconcilable on the basis that an acquittal of one or more charges may simply represent the jury’s application of their “innate sense of fairness and justice in place of the strict principles of law”.
[15] R v Kirkman (1987) 44 SASR 591 at 593.
Gaudron, Gummow and Kirby JJ continued:[16]
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 suggest 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.”
[16] MacKenzie v The Queen (1996) 190 CLR 348 at 368 (omitting citations).
In MFA v The Queen,[17] Gleeson CJ, Hayne and Callinan JJ said the following in relation to suggested inconsistent verdicts:
Since the ultimate question concerns the reasonableness of the jury’s decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
[17] MFA v The Queen (2002) 213 CLR 606 at [34].

Their Honours also approved the remarks of King CJ in R v Kirkman, adding that there was a third consideration, namely that it may appear to the jury that although a number of offences have been alleged, justice is met by convicting an accused of some only. Their Honours added that there may be an interaction between this third consideration and the first two matters mentioned in the extract from their reasons above.[18]
[18] MFA v The Queen (2002) 213 CLR 606 at [34].
In support of his contention of inconsistency, the appellant submitted the jury’s verdict on count 2 “bespoke disbelief” in the complainant’s evidence,[19] most likely by reason of the inconsistencies exposed by the telephone records, and that having rejected her evidence on this count, logic required that they also reject her evidence in respect of the first count.
[19] Adopting the language of Peek J in R v S, DD (2010) 109 SASR 46 at [181].
In determining whether the jury’s verdict of acquittal on count 2 does bespeak disbelief in the complainant’s evidence, it is relevant to consider any differences in the evidence relevant to the respective counts. It is often the case that differing verdicts can be reconciled having regard to the differences in the evidence relevant to the individual counts. In this case, the respondent points to two aspects of the evidence – the evidence as to the appellant’s limited mobility, and the complaint evidence.
However, before considering those two aspects of the evidence, it is relevant to commence by noting that in this case, while involving separate conduct, the two counts were not separated by any significant period of time. They occurred on the same day, and indeed as part of one continuous sequence of events involving the appellant and the complainant. This may be contrasted with differing verdicts in respect of counts which involve conduct occurring on quite separate occasions. Differences in the evidence are inherently more likely to occur, and more likely to be significant, in the latter category of case. While the jury were directed to, and required, to consider and reach their verdicts separately in respect of each count, it remains relevant that both involved conduct in the same continuous sequence of events.
Turning to the evidence as to the appellant’s limited mobility, the respondent contended that this was evidence that might have led to caution on the part of the jury in respect of count 2. The difficulty with this contention, in my view, is that while the appellant’s limited mobility was a significant issue at the trial, I do not think it was of materially greater relevance to count 2 than count 1.
The primary significance of this evidence was an attempt to impugn the complainant’s evidence to the effect that the appellant was able to run through the house and grab hold of her as she went to leave after the conduct the subject of count 1. While the appellant’s conduct in running after the complainant explains the occasion for the conduct the subject of count 2, it was in my view equally relevant to both counts – albeit only in a general way. It was conduct which occurred between the two counts, rather than being an aspect of either count. If the jury were concerned about the truth or reliability of the complainant’s evidence that the appellant ran after her and caught her, then this ought to have impacted equally upon the truth or reliability of the complainant’s evidence in respect of both counts. It was evidence which was relevant more to the overall credit and reliability of the complainant’s evidence than to her evidence as to the conduct constituting count 1 or count 2.
I acknowledge that the evidence as to the appellant’s limited mobility might also have had some relevance to the likelihood of him being able to undertake the conduct constituting count 2 (for example, in him being able to position himself in front of the complainant and then use his legs to force her legs apart). But in my view, this was equally, if not more, so in relation to count 1. There was evidence to the effect that the appellant’s limited mobility made it difficult for him to undress, and that he was unlikely to have been able to do so while standing up. There was also evidence suggesting that his injuries might have inhibited his ability to stand up for the duration of the conduct constituting count 1, or to have generally manoeuvred himself around the bathroom in the manner described by the complainant.
In summary, while it was a matter for the jury as to precisely what significance they attached to the evidence as to the appellant’s limited mobility, I do not think this evidence provided a basis for meaningfully distinguishing between the two counts. I do not think it was sufficient to reconcile the differing verdicts.
Turning to the complaint evidence, the respondent relied upon the evidence of Ms Burford that the complainant told her that while she was in the shower cleaning it, the appellant entered and was rubbing himself against her. As the respondent contended, this evidence related to conduct forming part of count 1. The jury were accordingly directed to the effect that this evidence was relevant only to count 1, albeit only so as to inform the jury as to how the allegation in relation to count 1 came to light and as to the consistency of the complainant’s conduct, and not as evidence of the truth of what was said.
As Duggan J observed in R v S, DD,[20] there are a number of cases in which it has been held that the fact of a complaint in respect of certain alleged offences, but not in respect of others, can be an important consideration in explaining why the jury may have reached differing verdicts.
[20] R v S, DD (2010) 109 SASR 46 at [3], applying R v Szejnoga (1998) 199 LSJS 97 at 102.
However, in considering the significance of complaint evidence, it is important to bear in mind the particular circumstances of the case.
The appellant challenged the weight or probative force of the complaint evidence in this case, noting that the complaint was very general in its terms (relative to the detail the complainant recounted in her evidence) and came a number of days after the incident, and in the course of a conversation with her employer which led her to making a WorkCover claim. While the precise weight to be afforded to this evidence was a matter for the jury to assess, it is relevant that the complaint evidence in this case was of relatively limited probative value.
Further, and more importantly in my view, while counts 1 and 2 involved separate conduct, it must be remembered that they occurred on the same occasion. Even allowing for the fact that it was a matter for the jury to determine the weight they attached to the complaint evidence, I do not regard this evidence as a basis for meaningfully distinguishing between the two counts. The complaint was at most a general reference to an aspect of the conduct constituting count 1, and yet at the same time can also be regarded as a general reference to the sequence of events which included both counts 1 and 2. Put another way, while complaint evidence may constitute a significant difference in the evidence between two counts which are quite separate, where the complaint evidence is very general or limited in its terms and the counts form part of the one sequence of events, I consider this to be a relatively minor difference in the evidence. In my view, it is not a sufficient basis for reconciling the two verdicts.
In summary, I have come to the conclusion that the differences in the evidence relied upon by the respondent are too slender a basis for reconciling the verdicts.
I do not think this can be regarded as a case in which it can be assumed that the jury was generally satisfied as to the credit and reliability of the complainant, but simply took a cautious approach to the discharge of the burden of proof that required “something more” than the complainant’s evidence, with the difference in the evidence as to each count explaining the differing verdicts.
In part this is a conclusion that flows from the fact that the two counts arise from the same sequence of events, and the related conclusion that the differences in the evidence as to both were relatively slight. But I also bear in mind the nature of the allegations constituting count 2, and the nature of the complainant’s evidence in relation to that count. While there might have been some room for confusion or error in relation to the precise sequence and nature of the appellant’s manoeuvres while they were on the couch in the lounge room, there was no equivocation or ambiguity in the critical aspect of the complainant’s evidence in relation to this count. She said that she was digitally raped multiple times over a period of about five minutes, and that she was protesting and crying in pain during this occurring. There was no room on the complainant’s evidence for her to have misconstrued what had occurred, or to have been mistaken as to whether she was digitally penetrated. There was unlikely to have been any issue as to the reliability of the complainant’s evidence on this topic. The complainant’s evidence as to digital penetration was either credible and believable, or it was not. It follows, in my view, that in the circumstances of this case the verdict of acquittal on count 2 does bespeak disbelief in the complainant’s evidence in relation to that count, rather than mere caution as to the reliability or sufficiency of her evidence.
If the jury’s acquittal did reflect caution, then it is difficult to understand why the same caution was not applicable in respect of count 1, and reflected in an acquittal on that count. But given the nature of the allegations in count 2, and the evidence of the complainant, the better view is that the acquittal reflects a view that the complainant’s evidence as to count 2 was not believed by the jury. In my view, this ought to have resulted in doubt on the part of the jury as to the credibility and reliability of the complainant’s evidence in relation to count 1.
I have concluded that there is, as a matter of logic and reasonableness, an inconsistency between the verdicts. Having regard to the acquittal in respect of count 2, the verdict of guilt in respect of count 1 is unreasonable within the meaning of s 353 of the Criminal Law Consolidation Act.
Implicit in this conclusion is my view that this is not an appropriate case in which to reconcile the verdicts (or overlook an inconsistency) on the basis that the acquittal in respect of count 2 represented a ‘merciful’ verdict, or mere application of the jury’s “innate sense of fairness and justice in place of the strict principles of law.”[21]
[21] R v Kirkman (1987) 44 SASR 591 at 593.
This was not a case in which the acquittal was entered in respect of a charge which was of a lesser seriousness, was of a complex or technical nature, or relied upon evidence which was lacking in detail or precision, or evidence of a complicated or unclear nature. I do not suggest that these are the only circumstances in which an appeal court may take the “practical and sensible” approach contemplated by King CJ in R v Kirkman. But it is relevant that count 2 was the more serious charge, was simple in nature, and was the subject of clear and unequivocal evidence. As Gaudron, Gummow and Kirby JJ observed in MacKenzie v The Queen,[22] consideration of the factors mentioned by King CJ in R v Kirkman cannot be elevated to the point that ‘mercy’ on the part of the jury is always sufficient to justify apparent inconsistency between verdicts on different counts.
[22] MacKenzie v The Queen (1996) 190 CLR 348 at 370.
In my view, the inconsistency that arises in this case is of a more fundamental nature than contemplated by King CJ. It is such as to “strongly suggest a compromise of the performance of the jury’s duty … to the point that … intervention is necessarily required to prevent a possible injustice”.[23]
[23] MacKenzie v The Queen (1996) 190 CLR 348 at 368.
Conclusion
For the reasons I have given, I consider that grounds of appeal 1 and 2 have been made out. As success in relation to ground 1 warrants entry of an acquittal in respect of count 1, I do not need to consider whether ground 2 would have justified this relief (as opposed to an order that there be a retrial).
I would allow the appeal, set aside the conviction in respect of count 1, and enter an acquittal in respect of that count.

[2016] SASCFC 84

5 August 2016

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