R v NEOCLEOUS - [2017] SASCFC 162

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NEOCLEOUS
[2017] SASCFC 162
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Doyle)
5 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - INCONSISTENT VERDICTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
The appellant was charged with five counts of aggravated indecent assault of the same complainant, who was 9 or 10 years of age at the relevant time. Following a trial by jury the appellant was found guilty of counts 1, 4 and 5; however, the jury was unable to reach a verdict on counts 2 and 3.
The appellant appeals against his convictions on counts 1,4 and 5 on the grounds that they were unreasonable or unable to be supported by the evidence given inconsistences in the complainant’s evidence, and that convictions on those three counts were inconsistent with the jury’s inability to reach a verdict on counts 2 and 3.
Held per Doyle J (Kourakis CJ and Peek J agreeing), dismissing the appeal:
1.      The matters raised in relation to the evidence of the complainant were not sufficient either individually or in combination to render the verdicts on counts 1, 4 or 5 unreasonable or unable to be supported having regard to the evidence (at [140]).
2.      The verdicts of guilty in respect of counts 1, 4 and 5 were not inconsistent with the jury’s inability to reach a verdict in relation to counts 2 and 3 (at [235]).
Held per Doyle J (Peek J agreeing):
1. Consideration of the operation of the principles of inconsistencies in cases involving a jury that has been unable to reach a verdict ([152]-[230]).
2.      It is appropriate to have regard to the principles of inconsistency in cases involving not only differing verdicts in the strict sense, but also differing outcomes more generally – and hence including cases where the jury has been unable to reach agreement on one or more counts (at [230]).
Criminal Law Consolidation Act 1935 (SA) 56, s 353; Criminal Code 1899 (Qld) s 668E; Criminal Appeal Act 1912 (NSW) s 6, referred to.
Osland v The Queen (1998) 197 CLR 316, applied.
R v Markuleski (2001) 52 NSWLR 82; M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; The Queen v Nguyen (2010) 242 CLR 491; MFA v The Queen (2002) 213 CLR 606; R v Eccles-Smith [2016] SASCFC 84; R v Georgeson [2017] SASCFC 93; TK v R (2009) 74 NSWLR 299; Darby v R [2016] NSWCCA 164; MacKenzie v The Queen [1996] HCA 35; R v James [1999] NSWCCA 191; R v AG [2000] NSWCCA 86; R v Markuleski (2001) 52 NSWLR 82; Millar v R [2003] WASCA 211; R v DAL [2005] QCA 281; R v Ritchie (2015) 12 VR 145; R v JK [2005] QCA 307; R v Kahu [2006] QCA 33; R v CX [2006] QCA 409; R v Garrett [2009] QCA 300; R v CBF [2012] QCA 294; R v R, GJ (2009) 105 SASR 506; Pillay v R (2014) 43 VR 327; R v Formhals [2014] 1 WLR 2219; Tukuafu v R [2014] VSCA 345; PA v R (2015) 253 A Crim R 154; GW v The Queen (2015) 306 FLR 104; R v Graham [2016] QCA 73; R v Russo [2017] SASCFC 78, discussed.

R v NEOCLEOUS
[2017] SASCFC 162
Full Court: Kourakis CJ, Peek and Doyle JJ

KOURAKIS CJ: I would dismiss the appeal. I agree with the reasons given by Doyle J save in one respect. Notwithstanding the comprehensive analysis essayed by Doyle J, I adhere to the view I expressed in R v R, GJ[1] on the legal significance of a jury not reaching a verdict.
[1] (2009) 105 SASR 506 at 517, [32].
I doubt that it will ever be necessary to finally determine the question arising out of the slightly divergent lines of authority, nonetheless, I make the following interrelated observations.
First, a failure to reach a verdict is just that. It means that the jury, as an institution, has yet to reach a decision in the time allowed.
Secondly, setting aside a jury verdict of guilty, when there is sufficient evidence to support it, on the ground that it is inconsistent with a verdict of not guilty on another charge in the same trial is an exceptional derogation from the constitutional role of the jury as the tribunal of fact in the common law criminal trial. The justifications for doing so are to correct illogicality and to guard against impermissible compromise. The experience of criminal trial judges is that the combined experience, insight and knowledge of 12 members of the community renders the jury a very intelligent institution. Inconsistent verdicts are more likely to be the product of compromise than illogicality. The failure to reach a verdict shows that there has been no compromise. To the extent that the failure manifests an inconsistency with a verdict which is returned, the cause of the inconsistency is most probably limited to the illogicality of those jurors who had not yet joined with the majority before the jury was discharged.
Thirdly, the question is not merely one of semantics. If there is a sufficiency of evidence to support a verdict it is difficult to see how a verdict can be said to be unreasonable within the meaning of s 353 of the Criminal Law Consolidation Act 1935 (SA) other than by reason of its inconsistency with a verdict actually returned in the same trial.
Fourthly, it is inconsistent with the institutional role of the jury to dismember it into its components in order to impugn its collective verdict by reference to some jurors who at the time of its discharge still adhered to an illogical position on another charge.
Fifthly, if the veil of inscrutability of a jury verdict is to be pulled aside, a close analysis reveals that treating a failure to reach a verdict as a verdict of not guilty compounds rather than reduces illogicality. If a jury fails to reach a verdict of guilty on one charge which logically and necessarily follows from its finding of guilt on another, the most probable explanation is that a minority of jurors have illogically adhered to a verdict of not guilty and that the majority have refused to compromise. In such a case, a verdict of guilty returned on the first charge unanimously, or by majority, cannot be said to be unreasonable within the statutory meaning of that term merely because some members of the jury may have thought the accused to be not guilty when they were discharged.
If the verdict of guilty on one charge, which is posited to be unreasonable because the jury failed to reach a verdict on another, was unanimous it follows that as many as nine jurors, or 75 per cent of the jurors returning the guilty verdict, maintained a consistent and logical position. If the verdict of guilty was returned by majority, again nine jurors, but in this event 90 per cent of the jurors returning the guilty verdict, maintained a consistent and logical view. A failure to return a verdict on the other charge means only that the nine logical and consistent jurors who returned the verdict of guilty failed to persuade several of their fellow jurors of the illogicality of their different position in the time allowed.
I acknowledge that the preceding discussion assumes that a majority of jurors held the view that the accused was guilty of the charge on which the jury failed to reach a verdict. It is, I acknowledge, possible that it was a majority of jurors who took the illogical position of wanting to return an inconsistent verdict of not guilty. However the long experience of criminal courts of the common sense of juries demands the rejection of that possibility.
Finally the majority in Osland v The Queen[2] held that there were rational explanations for the failure to reach a verdict on the perpetrator of the crime whilst on the same trial convicting another charged as the instigator of the joint criminal enterprise. The acceptance by McHugh and Kirby JJ of the premise that a failure to reach a verdict could be equated with a verdict of not guilty is therefore obiter. Nonetheless the facts in Osland do illustrate the possibility of an exceptional case in which the failure to reach a verdict may indicate a failure of the jury to find unanimously, or by statutory majority, an element of an offence necessary for a conviction to properly be returned on another count. That is not this case.
[2] Osland v The Queen (1998) 197 CLR 316.
Be all of that as it may, because a failure to reach a verdict does not manifest a final collective view of the jury, I suspect that a Court of Criminal Appeal will rarely conclude from that failure that the verdict of guilty on another charge is an affront to logic and common sense.
PEEK J: I would dismiss the appeal. I agree with the reasons of Doyle J.
DOYLE J: The appellant was charged with five counts of aggravated indecent assault involving the same complainant. The offences were aggravated because the complainant was under the age of 14 years at the time of the charged conduct.
On 8 June 2017, the jury returned verdicts of guilty on counts 1, 4 and 5, but was unable to reach a verdict on counts 2 and 3.
The appellant appeals his convictions on counts 1, 4 and 5 on the bases that those convictions were:
· unreasonable or unable to be supported having regard to the evidence given various inconsistencies and variations in, and other difficulties with, the evidence of the complainant; and
· unreasonable on account of the convictions on counts 1, 4 and 5 being inconsistent with the jury’s inability to reach a verdict on counts 2 and 3.
Background
The particulars of the five charged counts of aggravated indecent assault were to the following effect:
·    that between 19 September 2014 and 9 December 2014 the appellant indecently assaulted the complainant by touching her on the buttocks (count 1);
·    that between 1 December 2014 and 11 December 2014 the appellant indecently assaulted the complainant by touching her on the buttocks (count 2);
·    that between 4 December 2014 and 27 January 2015 the appellant indecently assaulted the complainant by touching her on the labia majora (count 3);
·    that between 11 December 2014 and 28 March 2015 the appellant indecently assaulted the complainant by touching her on the labia majora (count 4); and
·    that on 28 March 2015 the appellant indecently assaulted the complainant by touching her on the labia majora (count 5).
The complainant was born on 16 February 2005 and so was 9 or 10 years of age at the time of the charged conduct. She lived with her mother and two younger sisters in her grandfather’s house, which was next door to where the appellant lived. It was an agreed fact that the appellant commenced his rental of the neighbouring property on 20 September 2014.
The appellant was born on 5 November 1965 and so was 49 or 50 years of age at the relevant time. He lived with three of his children (being his sons G (aged 12) and A (aged 16), and his daughter S (aged 22)). He had an older daughter who no longer lived at the family home. He had been separated from his wife since 2010, but retained custody of the children during the week, with his wife having access over the weekend.
The offending was all alleged to have occurred when the complainant was visiting the appellant’s house, which she regularly did in order to spend time playing with the appellant’s son, G, and another boy, M, from a few houses further down the street.
On 3 April 2015, the complainant was interviewed by police. The interview was video recorded. During the course of this interview the complainant made allegations that gave rise to the charges laid against the appellant.
The charges against the appellant first proceeded to trial on 6 September 2016 (the first trial).[3] The prosecution tendered the video recording of the complainant’s police interview, and it effectively stood as the complainant’s evidence in chief. The complainant was cross-examined by counsel for the appellant. The cross-examination was not completed because the trial miscarried.
[3] At the time of the first and second trials, count 4 was charged as unlawful sexual intercourse; however, count 4 was subsequently amended to aggravated indecent assault.
The trial recommenced a few weeks later on 26 September 2016 (the second trial). The prosecution again relied upon the video recording of the complainant’s police interview, and the complainant was cross-examined by counsel for the appellant. The second trial concluded with the jury unable to reach a verdict on any count.
A third trial commenced on 1 June 2017. On this occasion, the prosecution tendered both the video recording of the complainant’s police interview, and the video recording of the complainant’s cross-examination from the second trial.[4] The appellant gave evidence in which he denied the alleged offending. The appellant also called evidence from a number of additional witnesses, being members of his extended family. The general effect and relevance of this evidence is summarised later in these reasons.
[4] The complainant had given evidence in that trial via video link from a remote facility with the result that a video recording of that evidence was available.
The third trial concluded on 8 June 2017, with the jury returning verdicts of guilty on counts 1, 4 and 5, but unable to reach verdicts on counts 2 and 3. It is the convictions resulting from this third trial that are the subject of this appeal.
Before addressing the merits of the appeal, it is necessary to summarise the evidence at the third trial, which included the video recordings of the complainant’s police interview and cross-examination in the second trial. The (incomplete) cross-examination of the complainant in the first trial did not become evidence in the third trial, except to the extent that the complainant (during cross-examination in the second and third trials) gave some answers which made reference to, or adopted, some aspects of her evidence in the first trial. For that reason, I do not consider it relevant to consider the content of the complainant’s evidence in the first trial, except to the extent mentioned. It is also necessary to summarise the balance of the evidence in the third trial, and to mention some aspects of the trial judge’s summing up.
The complainant’s police interview
The police interview of the complainant occurred on 3 April 2015, and so less than two months after the complainant’s 10^th birthday, and not long after the conduct she alleged the appellant had engaged in.
During the course of the interview the complainant gave a relatively clear, detailed and essentially chronological account of what she described as “the five times” the appellant touched her. A summary of her description of the five incidents follows.
Count 1: slapping bottom in kitchen
The “first thing he did to me” that made the complainant feel scared occurred about two months, or five or more weeks, after the appellant’s family moved into the house next door.
The complainant walked through the appellant’s house to get a drink. While bending down to get a drink from the fridge, the appellant slapped her on the bottom. He did so gently; it was not a hard slap. He did not say anything; nor did she. She felt scared, and she went out the back of the house and ran back to her house.
Count 2: grabbing bottom in kitchen
The second time was about three months after the first. It was on a Wednesday, two days before the end of school before the Christmas holidays. The complainant remembered that she had a cut on her leg and was not able to go on a school excursion to Waterworld on the Thursday; and that the next day, a Friday, was a pupil free day.
It was an agreed fact that the complainant’s school held an excursion to Waterworld on Thursday, 4 December 2014, and that the school term finished on Friday, 12 December 2014. Further, medical records in evidence at the trial included reference to the complainant attending a medical centre during the relevant period to receive treatment for a laceration to her leg.
The complainant went over to the appellant’s house to play with G and M at about 5.30 pm in the evening. After about half an hour, she went into the kitchen to get a drink. The appellant was in the kitchen, cooking dinner. The complainant bent over to get some water from the bottom of the fridge. When she bent over, the appellant “grabbed” her bottom with one hand. He did not say anything. She put her leg back and kicked him. He walked back, and she ran off to M’s house.
Count 3: touching private part during a dizzy whizzy
The next occasion was about “a month and bit” later. It was about two days before school started for the year.[5] On the Friday or Saturday she was in the backyard of the appellant’s house. There were other children present, including the appellant’s sons A and G.
[5] It was an agreed fact that the first term of school in 2015 commenced on Tuesday, 27 January 2015.
The appellant was giving some of the children present a “dizzy whizzy”. He said “come here, I’ll give you a dizzy whizzy”. The complainant said “no” but he just picked her up and gave her a whizzy. He held her body flat with her chest on his arms, and spun her around. While doing so he put his hand inside her pants and touched her. She was wearing pants or leggings or shorts; she thought they were shorts, but they were grey and made out of the same material as jeans.
The appellant put his hand inside her knickers and put his hand on her “private part” or “fanny”. His hand was there for five or six seconds and was massaging and grabbing.
After he had been touching her for three or four seconds, she pinched him on his arm, and after five or six seconds he took his hand out of her pants and put her on the ground. He said “shh” and walked off. She said “ow” because when he put her down she landed on a prickle. She told her friend, M, that she did not feel comfortable there and went home.
Count 4: touching private part in the lounge room
About two or two and half months after the whizzy incident, the appellant was sitting on the couch in the lounge room. The complainant had been playing out the back with M and G. She and G went to ask the appellant if she could have a juice box. He said “yeah” but then grabbed her under the arm, pulled her towards him, picked her up and started tickling her. He was initially tickling her with two hands. G was still in the room.
While tickling her, he put one hand in her pants. She was wearing jeans that were too big for her. She was also wearing knickers, and his hand was inside her knickers. He was grabbing and massaging her “private part”. It lasted about 11 or 12 seconds. She said it would have looked to G like the appellant was tickling her with both hands.
The complainant was scared. She said “stop”. She pushed him and scratched him on the arm. He said “ow”, then stopped touching her, pushed her away and told her to go out the back. Instead, she went out the front, before returning to the backyard where the appellant was giving the children juice boxes.
Count 5: touching private part in G’s bedroom
The fifth incident occurred on the weekend before the police interview, on the Saturday. It occurred when the complainant was in G’s bedroom. G had given her the remote control to the Xbox and had left the bedroom to get a drink.
The appellant entered the bedroom. He scared the complainant, causing her to drop the remote control. As she bent down to pick it up the appellant touched her. The touching occurred when he put his hand down the back of her pants and touched her on the “private part”. She was wearing purple jeans. His hand went outside her knickers this time. He was massaging and grabbing her for five seconds.

The complainant could hear G coming, and she elbowed the appellant. He quickly took his hand out of her pants. When G saw her bent down, she said that his dad had scared her. G asked the appellant why he had done this; and the appellant responded that he was just playing around.
At some point after taking his hand out of her pants, the appellant had said “shoosh” and had whispered to her not to tell anyone.
Complainant’s evidence at the second trial
The complainant was cross-examined at the second trial by counsel for the appellant. She was taken through each of the five incidents she had described in her interview, which were the foundation for counts 1 to 5. She was shown the video recording of her police interview the day before she gave evidence.
While her account under cross-examination was broadly consistent with what she had said in her interview, both in terms of the conduct she described and the detail in which she described it, she did elaborate upon some of the incidents. She also gave some answers that were inconsistent with, or at least varied from, what she had said in the interview. She also identified some additional incidents. What follows is a summary of these aspects of her evidence during cross-examination at the second trial.
Count 1
In cross-examination, the complainant described the first incident as having occurred “I think two weeks after he moved in”. She said the slap occurred as she was in the kitchen, bending over to get a cup from a cupboard near the fridge. The appellant slapped her with his left hand.
Count 2
The complainant said the second incident occurred “I think two months” after the first incident. While maintaining that she was grabbed on the bottom in the kitchen, she was not able to recall what she was doing in the kitchen when this occurred.
Count 3
The complainant said that she saw the appellant give two other children (N and S) a whizzy before he gave her one. She gave the names of three or four other children who were also present in the backyard when the whizzies occurred, being her younger twin sisters (A and H), and M and his younger brother, B.
The complainant gave a slightly more detailed explanation of the mechanics of the whizzy incident. She said that the appellant picked her up and held her on his outstretched arms. She was positioned face down across his forearms, with one of his arms across her chest area, and the other across her belly button area. His arms were under her, and wrapped around her, with his hands upwards and touching or holding the side of her body. He started spinning her fast, but then slowed down and put one of his hands in her pants. He did so with the hand that was across the lower part of her body. Her pants were three quarter length shorts, which she thought had an elastic waist.
The incident lasted about 10 seconds. It finished when he almost dropped her. He lost balance and put her down, resulting in her falling back, landing on a prickle and hurting her arm.
Count 4
The complainant was not sure how long after the third incident this one occurred, but thought it was in the Christmas school holidays.
Again, she described the mechanics of this incident in slightly greater detail than she had done in the police interview. She said that she went into the lounge room and asked the appellant (who was sitting on the couch) for a juice box. He was about a metre away and leaned forward to pick her up and put her on the couch. He laid her on the couch, on her back, and started tickling her on the stomach. The appellant remained seated and was beside her. She said “stop” and thought she did so loud enough for G, who was in the room and watching the television, to hear. G turned around and said “dad, stop”. She thought he said this twice, but then kept watching the television. At that point the appellant put his hand in her pants. She thought her pants had an elastic waist, and that the appellant put his hand down the top of her pants, but at the side near her hip, ending up with his hand near her private part or fanny. At some point G started trying to pull the appellant off her. As he did so, the appellant took his hand out of her pants. It had been in her pants for “sort of, five seconds”.
She said in cross-examination that she thought the appellant’s hand was outside her knickers. It was put to her in re-examination that in the police interview she had said his hand was inside her knickers; she clarified that she thought it was outside but could not “remember fully”.
Other incidents
After being cross-examined in relation to incidents 1 to 4, the complainant was asked whether there was anything else that happened between her and the appellant after those incidents. The complainant answered:
A.    I think that there was one more where I dropped something and he touched me again.
Q.    Can you say when that was.
A.    No.
Q.    Was that the last thing that happened or was that earlier some time.
A.    There was some that I didn’t mention in the video but I mentioned last time.
Q.    How many other incidents are we talking about.
A.I think there was one in the hallway, I dropped one thing more, one thing, another thing and he did it, and then that’s it. So two more after this and then there’s the one – I dropped two things and there’s one in the hallway, so three things; one I mentioned in the video, one I remembered.
The trial judge then intervened, and the complainant clarified that there were three further occasions when the appellant “did things” to her after the couch incident (count 4). She said that one happened in the hallway, and that two happened in another room, which she later said was G’s bedroom.
As to the incident in the hallway, she said she did not know how long after the couch incident this occurred; she thought it was “about a month or two, maybe even three”. She thought the hallway incident occurred around the time of New Years, and while she was still on school holidays. The complainant said that she was carrying some cars outside to play with G when the appellant came out and scared her, resulting in her dropping the cars. She later said she dropped the cars because she was carrying too many. In any event, when she bent down to pick them up, the appellant slapped her on the bottom.
The complainant was then asked about the two incidents in G’s bedroom. She later clarified that the first of these occurred before the hallway incident described above (but after the couch incident), and that the second of these occurred after the hallway incident.
As to the first of these, she said that she was in the room “either playing a game or getting cars to play with [G]”. The appellant came up behind her. He came up from behind and scared her; she let out a little shout, and jumped, dropping a car. She bent to pick it up and the appellant put his hand down her pants but outside her knickers. She heard G’s footsteps and then G walked into the room, and the appellant stopped. G said “why did you do that, dad? Why did you scare [the complainant]?” The appellant said “I was just playing around”. The complainant said something like “I think [L][6] is calling me”. She went home, asked L if she could go to M’s house, and then went to see M.
[6] Her grandfather’s partner.
As to the second incident in G’s bedroom, the complainant said that she was playing Xbox with G in his room when he went to get a drink. The appellant came into the room and scared the complainant, saying “bah”. She jumped and dropped the remote for the Xbox. The appellant slapped her bottom. She ran outside, and said to G “I’m going to [her friend H’s] house.” She thought this incident occurred after school had resumed for the new year.
When asked whether the slapping on the bottom in the second of these incident in G’s room above was the “last thing” that happened with the appellant, the complainant said that there was one more incident that sort of scared her. She said she was playing out the front yard looking for fruit on the plum tree; but the appellant saw her; his kids were not there; it was only him, but he asked if she wanted to come over. He kept asking, but she did not go over to his house.
The complainant was asked whether she recalled at the first trial giving evidence that she was “pretty sure” the first incident happened in G’s room and involved a slap. She said she remembered that evidence and said again that she was “pretty sure” that the slapping in G’s room was the first incident. She said that there was one incident involving a slap on the bottom that she had not mentioned “in the video”.
However, the complainant then went on to describe a further incident in which she was slapped on the bottom in the kitchen. She said it was only a day or week after the appellant had been moving his boxes in. He was still moving in, and she had been helping move things. The appellant was in the kitchen cooking. She went into the kitchen to get a drink and the appellant slapped her on the bottom. She was bending over to get a cup out of the cupboard. It was a gentle slap. He said nothing, but she left and ran back to her house or to her friend H’s house. She recalled each of A, G and S (the appellant’s three children who were living with him at the time) being elsewhere in the house on this occasion. She thought this was the first incident because it was when they were helping the appellant move in. She said this incident was separate from anything else she had mentioned in this (the second) trial.
Nearing the end of her cross-examination, the complainant confirmed that she had now mentioned eight incidents. The first was the slap on the bottom in the kitchen a day or a week after the appellant had moved in. The second was a slap on the bottom in the kitchen about two weeks after the appellant had moved in. The third was when the appellant had grabbed her on the bottom in the kitchen. The fourth was when the appellant had put his hand down her pants while giving her a whizzy. The fifth was when the appellant had put his hand down her pants while tickling her on the couch in the lounge room. The sixth was when the appellant had put his hand down her pants when she dropped a car in G’s bedroom. The seventh was when the appellant slapped her on the bottom in the hallway. The eighth was when the appellant slapped her on the bottom in G’s room when she dropped the Xbox remote.
The complainant agreed that by the end of her cross-examination she had thus identified three incidents in addition to those mentioned in her police interview. When asked whether there was a reason she did not tell the police about those things, she answered “because I forgot”, adding “I think it was I forgot, if it wasn’t, then I was too scared”. She then clarified “I don’t think I remembered them [at the time of the police interview]”.
In re-examination it was pointed out to the complainant that in her police interview she said the second incident (which formed the basis of count 2) involved the appellant grabbing her bottom when he was cooking in the kitchen, but that in her cross-examination that had just taken place she had said that there was an incident prior to the five mentioned in the police interview in which the appellant had been cooking in the kitchen and slapped her on the bottom. She was asked whether there was a chance she may be confusing these two incidents involving the appellant cooking and that she might have been talking about the same incident. She answered “yes”.
The third trial
The third trial commenced on 1 June 2017 and so over eight months after the second trial. The complainant was by this stage 12 years of age. She was shown the video recording of her police interview a day or so before giving her evidence.
As mentioned, the video recordings of the complainant’s police interview and her cross-examination at the second trial were tendered in the third trial. The complainant was then cross-examined by counsel for the appellant.
The complainant gave evidence that was broadly consistent in its content and level of detail with what she said in her interview and cross-examination in the second trial. What follows is a summary of the respects in which her evidence varied from what she had said on those earlier occasions.
Count 1
The complainant described this incident as occurring about five months after the appellant moved in next door, although she added that it was still in school time rather than the holiday period. She otherwise described this incident in terms consistent with her earlier accounts.
Hallway incident
When asked what was the next thing that happened between her and the appellant, the complainant described the incident involving her being slapped by him on the bottom while walking in the hallway. She thought she was walking to the toilet from G’s bedroom, where she had been playing either cars or Xbox with G.
She was not able to recall the timing of this incident, including whether it occurred during the school year or during the holiday period.
Count 3
When asked what the next thing that happened was, the complainant said “I think it was either the dizzy whizzy or something else”. She agreed she was not really sure now what the next thing was, but said that “there was a part where he did give me a dizzy whizzy”.
The complainant said she was not able to recall when the whizzy incident occurred relative to the second slap on the bottom, but said she thought it was either late in the school holidays or at the start of term 2.
She described seeing some of the girls outside and receiving whizzies from the appellant. She mentioned her sisters A and H, and two other girls N and S. She was not sure whether S was there. M was there, but she was not sure whether his brother B was there. She thought she saw N and A receive whizzies from the appellant.
She described the whizzy and touching in similar terms to what she had done previously, albeit describing the appellant’s lower arm as across her “kidney” area rather than belly button area. She said he had his hand in her pants (inside her knickers) for about five to six seconds. In addition to saying “stop”, she scratched or pinched him on the arm, but could not now remember which. She recalled that after this incident, the appellant held his finger to his mouth and “shh”.
Later in her evidence, she said she was not able to say whether G or A, the appellant’s sons, would have been able to see her get the whizzy, because she did not see where they were at the time it was being done.
Count 5
When asked whether she recalled anything else happening other than the two slaps and the whizzy incident, the complainant commenced describing the incident in G’s room when G went to get a drink, she was scared by the appellant, she dropped an item (which she could not recall whether it was an Xbox remote or a toy car), and the appellant put his hand down her pants (that is, count 5).
Apart from not recalling whether the item she dropped was an Xbox remote or toy car, the complainant’s account of that incident was consistent with the account she had given in her police interview, save that she explained or added that the appellant scared her (resulting in her dropping the item) by approaching her from behind and putting his hands on her shoulder. She also said that she recalled saying “stop” to the appellant two or three times. She thought she yelled this pretty loudly. She thought she pinched, scratched or slapped him, but did not kick him. The appellant said “ow”.
During the course of explaining this incident, the complainant interrupted herself, saying that she thought there was one incident between the whizzy incident and the incident in G’s room. She referred to this as the incident when the appellant was on the couch (count 4).
Before addressing this incident, the complainant was asked whether there were any other incidents beyond the slap in the kitchen, the slap in the hallway, the whizzy incident and the couch incident. The complainant said “I’m not sure, but I think that’s all”.
Count 4
By the time of her evidence in the third trial, the complainant was not able to recall when the couch incident (count 4) occurred; she could not recall if it was during the holiday period or school term. She thought it was after the whizzy incident (count 3) but before the incident in G’s bedroom (count 5).
When describing this incident she said that G was already in the lounge room watching television with his dad, the appellant, when she entered and asked for a juice box. G was standing between a bean bag that was in the room and the television.
She described the mechanics of the incident as involving the appellant grabbing her (picking her up under the arms from in front of her), pushing her onto the couch and then tickling her. She added that as he put his hand in her pants “he was sort of blocking with his body … and kept tickling me, so [G] thought he was still tickling me”. She described the appellant as “hovering over her”, and his knees being on her legs (above her knees), holding them down so that she could not kick him. She believed the appellant was blocking her (or at least what the appellant was doing to her) from the view of G. The appellant put one hand in her pants inside her knickers. His hand was there for about three seconds out of the total of the five to six seconds that he was tickling her.
She started saying “stop” and asking G to help. She did this a couple of times in something between a normal tone of voice and yelling. G told his dad to stop a couple of times, and then moved to help. G tried to pull the appellant off her a bit, and she got a knee loose and kicked the appellant. She left and ran home.
Other incidents
Towards the end of her cross-examination, the complainant agreed with the cross-examiner’s summary of her version as involving five incidents: first, the slap in the kitchen; secondly, a slap in the hallway; thirdly, the whizzy; fourthly, asking for the juice box in the lounge room; and fifthly when the appellant scared her in G’s bedroom. She said she was not able to recall any other incidents.
The complainant was then asked about her previous evidence to the effect that there was a time when the appellant was cooking in the kitchen, she went to get a drink, and he slapped her on the bottom. She said she didn’t know when this incident occurred, but said it was separate from the kitchen incident that she had described while giving evidence in the third trial. She thought it was after the kitchen incident that she had mentioned in the third trial, and she thought she kicked him. She did so by bending forward and pushing her leg backwards into him.
The complainant then confirmed that she could not recall any further incidents beyond the five she had initially mentioned in her evidence and this additional incident in the kitchen. She said she could not remember any other things that happened in G’s room. She was then told that at the previous trial she had said there were two incidents in G’s room, one involving dropping a remote for the Xbox and another dropping a toy car. She said she couldn’t remember saying that, but when asked whether “you now remember there was just one incident in [G’s] room or two?”, she answered “yes, just one”. Later in re-examination, she was again asked whether there was only one time when she was touched in G’s room and she answered “I’m not sure”.
The complainant was also asked some further questions about her evidence in relation to count 2:
Q.The last occasion that you gave evidence back in September, you mentioned there was another incident in the kitchen, when you when bent over to get a drink, but this time [the appellant] grabbed you on your bum, not slapped but grabbed; do you remember that now.
A.I can sort of remember that happening, when he grabbed me on the butt but I can’t remember that much of it.
Q.Is that something separate to the time that he slapped you in the kitchen and the time that he slapped you when he was cooking in the kitchen.
A. It’s separate to them two but I don’t know when it was.
Q.It is the case that you can remember being grabbed but you can’t remember anything else about it now.
A. Yes.

In re-examination, the complainant confirmed that by referring to him “grabbing” her bottom, this was different from slapping. She said it involved grabbing her bottom cheek, and involved “sort of like a clenching”.
The complainant concluded her re-examination by explaining that she was not really sure about the order of when the slapping in the hallway occurred, but said she was “pretty sure” all of the other incidents she mentioned happened between the slap on her bottom in the kitchen and the incident when she was scared by the appellant in G’s bedroom.
The complainant gave evidence that on all three occasions when the appellant put his hand down her pants (the whizzy incident, the couch incident and the incident in G’s bedroom) he put his hand inside her knickers. She was asked whether she recalled giving evidence at the last trial to the effect that his hand was outside her knickers in the incident in G’s bedroom. She said “yes, I was a bit confused, like before”. She said that now her memory had been jogged she agreed it was on the outside. She was asked again about the whizzy incident, and said that she thought this one was on the inside of her knickers, but because it was so long ago she was “really confused”, and so was not able to be sure. She later returned to the topic saying “I reckon I was touched on … my fanny, like inside my underwear”. When pressed again on the couch incident, she said she could not be really positive; she could not remember whether it was inside or outside her underwear. In relation to the incident in G’s bedroom, she also said she could not really remember, adding that it would have been a bit harder[7] to get his hand on the inside, and so agreeing it was more likely on the outside.
[7] In re-examination she explained that the reason it would have been harder was that she was wearing jeans that were too big for her, but knickers that were too small for her, and so “he would’ve had to move pretty fast to do it, so”.
The defence case
The appellant’s case at trial involved a complete denial of any touching by him of the complainant. He also led evidence to suggest that he had an injured back that meant he was unable to have, or at least was unlikely to have, given the complainant a whizzy (count 3) or to have lifted her onto the couch (count 4).
The appellant’s evidence
The appellant acknowledged that neighbourhood children, including the complainant, regularly came over to play at his house during the relevant periods. But they only did so when his sons were home. The children often played with an Xbox in the boys’ bedroom, or with toy cars either in the house (including in the boys’ bedroom, where a box of the cars was kept), or outside. He acknowledged that he kept a supply of juice boxes in the house, although he did not recall the complainant ever asking him for one.
The appellant denied all of the allegations of touching made by the complainant, or indeed of ever touching her. He denied ever slapping her or giving her a whizzy, saying that he would not have been able to do so because of his injured back.
In relation to his injured back, he explained that he had been on a disability pension since 2005 on account of a lower back injury that he sustained while working as a tradesman. His work had involved plastering, rendering, concreting and tiling. His injury was one that had worsened over time, resulting in him slowing down in his work until he reached the point that he could not do his job properly anymore. He said he was not able to do the lifting he needed to do for his job. He had not returned to work since 2005.
The appellant said that his back injury made household chores difficult for him. He was able to do the dishes, cleaning, making beds and mowing the lawns, but his back slowed him down and meant he often needed to take breaks. He could do the shopping, but parked close so that he did not have to carry his shopping far. When he moved into the house next door where the complainant lived, he had not been able to lift boxes. He had had help from his children, as well as some help from the complainant.
Other than an initial doctor’s appointment and some x-rays, the appellant had not otherwise sought or obtained any physiotherapy or other medical treatment for his back.
As to the suggestion that he gave the complainant a whizzy, he said he was not physically capable of this. He agreed that he probably had given his own children, and his nieces and nephews, whizzies at some earlier point in time, although he did not remember. But he said he had not given his children, his nieces and nephews, or any other children a whizzy since injuring his back. He denied that he would have been able to pick up a child the size of the complainant.
Other family members
The appellant also called evidence from 19 members of his family, being his four children, three brothers, two sisters-in-law, eight nieces and nephews, the boyfriend of one of his daughters and his ex-wife.
The appellant’s son G, gave evidence that the complainant used to come over to their house, and that they would play with his toy cars and the Xbox they had in the room he shared with his brother. He said that he had never received a whizzy from his dad, and had never seen him giving anyone else a whizzy. He denied any incident in which his father gave the complainant a whizzy and she asked him to stop. He denied there was ever an occasion that he was in the lounge room watching television with his dad when his dad had grabbed the complainant, put her on the couch and started tickling her, resulting in her calling out for him to stop. Indeed, G said he never saw his dad give the complainant a whizzy or tickle her. Nor did he remember any occasion when he left the complainant in his bedroom while getting a drink and returned to her saying that she had been frightened in some way by the appellant.
The appellant’s older son, A, also gave evidence. He recalled that neighbourhood children, including the complainant, would come over to play at their house. This included playing with the Xbox he and G had in their shared bedroom, and playing outside. The complainant mainly played with his younger brother, G.
A said that his dad, the appellant, had had a back injury for as long as he could recall. This affected his dad’s ability to do things like lifting boxes, doing the dishes, carrying in the shopping and mowing the lawn. He sometimes helped his dad with these tasks. A did not recall seeing his dad ever giving anyone a whizzy. He did not recall any occasion when his father gave the complainant a whizzy in their backyard. He said that he and his brother would sometimes play fight with their father. He did not recall his father ever tickling him, adding that he was not really ticklish. But he did recall his father tickling G.
The appellant’s older daughter, S, gave evidence. She recalled being given whizzies by her father when she was about five years of age, albeit whizzies of the type where he held her by the arms. But she said that she was not aware of him giving her, or anyone else, a whizzy since he injured his back. She described how his back injury meant he was often in pain and struggled with household tasks.
The appellant’s older daughter also gave evidence. However she was an extremely anxious witness whose evidence was confined to saying that she did not know whether she had ever received a whizzy from her dad.
The boyfriend of the appellant’s daughter, S, gave evidence that he had regularly visited the appellant’s house during the six years that he had been with S. He recalled visiting at the premises where the offending was said to have taken place, and recalled seeing neighbourhood children there. He was aware that the appellant had a bad back, and that the appellant struggled with some movements. On some days he had a bit of a limp and his posture was affected, but he seemed to have good days and bad days. He observed the appellant’s children helping him with tasks such as doing the dishes, tidying and cleaning. He never saw the appellant give anyone a whizzy.
The appellant’s ex-wife, H, gave evidence that they had been married for about 20 years until they separated in 2010. She said the appellant had a back injury which commenced in around 2002 or 2003, and progressed to the point where he received a disability pension from about 2005. She said the injury meant that he was unable to do things such as heaving lifting. He did not help her with the household chores. She said that she had seen him give whizzies to children when he was fit and healthy, but that she had not seen him do so since he had injured his back.
The appellant’s three brothers and two sisters-in-law also gave evidence. Their evidence was to similar effect. They variously said that they used to see the appellant between about two and six times per year, usually at family events or gatherings. Most of them could remember one or two such occasions at the premises where the offending was alleged to have occurred. They were aware that the appellant had a back injury that affected him to some extent. None of them had seen him give anyone a whizzy in the preceding 10 to 12 years.
The evidence of the appellant’s eight nieces or nephews was also to similar effect. They ranged in age from 13 years of age to 27 years of age. They all said that they used to see the appellant about two or three times per year. They said that they had never seen him give anyone a whizzy, or in the case of the older nieces and nephews, had not seen him do so for 10 to 12 years.
Summing up
As no complaint has been made about the trial judge’s summing up, it is not necessary to consider the directions that his Honour gave in any detail. However, given the nature of the grounds of appeal, it is relevant to observe that the trial judge gave a standard “separate consideration” direction, instructing the jury to consider each of the five counts separately by reference to the evidence relevant to each, and that they were thus permitted to return different verdicts on different counts. They were also told that they were entitled to accept some parts but reject other parts of the evidence of any witness, including the complainant.
The trial judge also gave what is sometimes referred to as a Markuleski direction[8] in which he explained to the jury that while the counts did not therefore stand or fall together, nevertheless if they did happen to doubt the complainant’s honesty or reliability in relation to any one count (or even an uncharged act), then they “must as a matter of common sense take that doubt into account when you come to determine whether you are prepared to act on her evidence in relation to the remaining charged counts when you consider them”.
[8] Taking its name from the decision in R v Markuleski (2001) 52 NSWLR 82.
Verdicts unreasonable or cannot be supported having regard to the evidence
In contending that the jury’s verdicts of guilty on counts 1, 4 and 5 were unreasonable or not able to be supported having regard to the evidence,[9] the appellant relies upon the inconsistencies in the complainant’s evidence as to the number, sequence and nature of the various incidents about which she gave evidence, and the other evidence suggesting that the appellant, including by reason of his back injury, would have been unable, or at the very least unlikely, to have performed the physical manoeuvres attributed to him in count 3 (the whizzy incident) or count 4 (the couch incident). While the jury was unable to reach a verdict in relation to count 3, the appellant contended that the complainant’s evidence in relation to this account was not able to be quarantined, and was so obviously unreliable that it ought to have given rise to a reasonable doubt about the complainant’s evidence more generally.
[9] Under s 353(1) of the Criminal Law Consolidation Act 1935 (SA).
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] In particular, 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]
[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].
[11] Libke v The Queen (2007) 230 CLR 559 at [113].
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.
The issue in this case was not the sufficiency of the evidence, but rather the credibility and reliability of the complainant’s evidence, assessed in light of the balance of the evidence, including that of the appellant. 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.
As mentioned, the appellant relied upon the inconsistencies in the complainant’s evidence as to the number, sequence and nature of the incidents that she recounted.
In her April 2015 police interview the complainant said there were five incidents, which she said occurred in the following sequence:
·    The slap on her bottom in the kitchen (count 1), which she said occurred about two months, or five or more weeks, after the appellant’s family moved into the house next door.
·    The grab on her bottom in the kitchen (count 2), which she said occurred about three months later, and two days before the end of school for the year.
·    The touching on her private part during a whizzy (count 3), which she said occurred on the Friday or Saturday before school resumed the next year.
·    The touching on her private part while being tickled on the couch in the lounge room (count 4), which she said occurred about two or two and a half months after the whizzy incident.
·    The touching on her private part when she dropped an item in G’s bedroom (count 5), which she said occurred on the weekend before the police interview, and so in late March 2015.
However, when the complainant came to give evidence in September 2016 (the second trial) and June 2017 (the third trial), she not only identified some additional incidents, but also became somewhat confused about the timing and sequence of the five incidents she had earlier identified.
For example, in addition to the five incidents the subject of her police interview, the complainant mentioned an incident involving a slap on her bottom in the hallway; she mentioned a further slap on her bottom in the kitchen; and she suggested that there may have been two incidents in the boys’ bedroom, one involving the Xbox remote and a slap on her bottom and the other involving a toy car and a hand down her pants. While the complainant thus potentially identified up to nine incidents, it may be that she only ultimately intended to describe six or seven incidents. As mentioned in the summary of her evidence above, the complainant acknowledged that the additional incident in the kitchen may have been the same as the count 2 incident. And it would appear that one of the two “additional” incidents in the boys’ bedroom (the one involving a hand down her pants) was the count 5 incident, with the other one (involving a slap on the bottom) occurring much earlier.
While the complainant’s evidence remained generally consistent as to the sequence of the five charged incidents (as opposed to the “additional” incidents), she did provide quite varied estimates of the times when they occurred, or at least the timeframes between them. For example, in relation to the conduct the subject of count 1, she said in the interview that this occurred about two months (or five weeks or more) after the appellant had moved in. But by the time of the second trial she said it was only two weeks after he moved in.
There were also some inconsistencies, or at the very least some confusion, in the detail the complainant provided of the various incidents. For example, in relation to the three incidents when the appellant touched her private part (counts 3, 4 and 5), she initially described the first two as involving touching inside her knickers and the third as involving touching outside her knickers. However, during cross-examination she at one point suggested that all three involved touching inside her knickers, before acknowledging that she was having difficulty in remembering and appearing to revert to her earlier position that she thought the first two involved touching inside her knickers and the third involved touching outside her knickers.
Further, in relation to count 5, there was the apparent confusion associated with her identification of two incidents in the boys’ room. In her interview, she described this incident as involving a hand down her pants when she dropped the Xbox remote, whereas she later described two separate incidents in the boys’ room, one involving her being slapped on the bottom after dropping the Xbox remote, and the other involving a hand down her pants after dropping a toy car. However, given the other aspects of the complainant’s description of the latter of these two incidents (that is, the reason for G leaving the room, and the exchange with him upon his return), and the complainant’s later clarification that she could not recall what she had dropped on that second occasion, there was not ultimately any inconsistency or significant variation in her evidence in relation to this incident.

In assessing the significance of the various criticisms of the complainant’s evidence made by the appellant, it is necessary to take into account the age of the complainant, the timing of her various versions of events and the nature of the incidents. She was only nine or 10 years of age at the time of the incidents, 10 years of age when interviewed, 11 years of age at the second trial and 12 years of age at the third trial. While her young age was a reason for the jury to be careful in assessing her evidence, it would also have been open to the jury to take the view that it was perhaps not unexpected that a child of her age might experience some difficulties in being accurate as to the timing and sequence of the various incidents, particularly bearing in mind the number of incidents and the similarities between some of them.
Further, it is noteworthy in my view that at the time of the police interview, when the events were most fresh in the complainant’s mind, she was clear as to their timing and sequence. It was only when she was twice cross-examined about the events – approximately 18 months and then over two years later respectively – that the variations and confusion emerged. It was to be expected that the complainant’s recollection might have been less clear by the time she was cross-examined, with the consequence that there might be some variation and confusion in her recounting of the relevant events.
While it is appropriate to acknowledge that the very reason for cross-examination is to provide the appellant with an opportunity to test the complainant’s version, and hence expose inconsistencies and other difficulties in the evidence which might impact its reliability, that does not mean that in assessing the significance of those matters the jury could not take account of considerations such as the timing of the cross-examination (both relative to the relevant events, and relative to the earlier interview or evidence), and the likely confusing and stressful experience that cross-examination would often represent for a child of the complainant’s age. To the contrary, these are precisely the sort of matters a jury would be expected to take into account in forming their own view as to the credibility and reliability of the complainant.
In addition to the inconsistencies and variations in the complainant’s evidence, the appellant also relied upon the asserted difficulty, if not impossibility, of the appellant performing the manoeuvres attributed to him in the complainant’s descriptions of counts 3 (the whizzy incident) and 4 (the couch incident).
In relation to the couch incident, the appellant contends that his back injury meant that he was unlikely to have been inclined to, or even able to, lift the complainant in the manner described.
In relation to the whizzy incident – which was the focus of the appellant’s submissions in this respect – the appellant went further, contending not only that his back injury meant he would have been unlikely to, if not unable to, give the complainant a whizzy of the type described, but also that it would have been impossible for him to have put his hand down her pants while doing so. The appellant contended that the centrifugal force resulting from him spinning her around would have made it impossible for him to keep hold of her with one arm. The appellant relied upon his relatively slight build. He also relied upon the evidence from his family members to the effect that none of them had seen him give anyone a whizzy for the approximately 10 to 12 years since he had injured his back.
In my view, while the appellant’s back injury and the complainant’s description of the mechanics of counts 3 and 4 were clearly relevant considerations, the appellant’s submissions attribute too great a significance to the evidence in several respects.
First, the evidence as to the appellant’s back injury was very general. There was no dispute that the appellant did have some form of back injury that had led to him being off work and on a disability pension from about 2005. Further, there was evidence from several witnesses to the effect that the appellant experienced some level of impairment of his ability to engage in tasks that involved lifting or otherwise placed stress on his back. However, there was no detailed or precise evidence about the nature and extent of the appellant’s injury or impairment. The evidence went little further than the terms of the summary I have set out above. There was no expert medical evidence. Indeed, the appellant said he had not received any physiotherapy, or medical advice or treatment, since commencing to receive his disability pension.
Against this background, while it can be said that the jury ought to have accepted, and taken into account, some level of back injury and impairment on the part of the appellant, I do not agree that they must have entertained doubt about his ability to lift the complainant so as to put her on the couch or to give her a whizzy.
The former involved a relatively simple manoeuvre. And while it involved him bearing some weight, the jury was entitled to take into account that the complainant was only nine or 10 years of age at the time and, gauging by her appearance in the video recording of her interview and evidence, had an average to slight build.
I accept that the whizzy involved a more difficult manoeuvre on the part of the appellant. It would have placed some quite considerable stress on the appellant’s back. That said, without a more precise understanding of how the appellant held her, and most likely without some form of expert assistance, I do not think it can be said the evidence was such that a jury must have entertained doubt about the appellant’s ability to give the complainant a whizzy in the manner described, or to have been able to put his hand in her pants while doing so. On the complainant’s evidence, the whizzy only lasted a matter of seconds; and if he had held her close to his body, the level of load on the appellant’s back may not have been beyond his capability. And even on the complainant’s account, the incident concluded after a matter of seconds when the appellant began to lose his balance and had to put her down.
It is one thing to say that the jury might have entertained doubt the complainant’s account of the whizzy incident. Indeed, as the inability of the jury to reach a verdict on count 3 indicates, some members of the jury did entertain such doubt. However, it is another thing altogether to say that the jury must have entertained such doubt. In my view, particularly in light of the very general evidence as to the nature and extent of the appellant’s back injury, it cannot be said that jury must have entertained doubt about the appellant’s ability to perform the movements attributed to him in either the whizzy or couch incidents.
Nor, in my view, does the evidence of the appellant’s family members, even when considered in combination with the above, go as far as to require doubt about the version of events given by the complainant.
In relation to the family members who gave evidence, their evidence was relevant in a general way as supporting the appellant’s evidence that he had a back injury and had not given a whizzy for 10 or 12 years. But it went no further than this. It was not clear from their evidence, or the evidence of the complainant, that any of them were present at the appellant’s house on the occasion of the whizzy, let alone that they would necessarily have seen the appellant giving whizzies in the backyard even if they had been present at the house that day.
The potential exceptions to this are the appellant’s sons G and A, whom the complainant did say were present at the house on the occasion of the whizzy incident. While it might be expected, on the complainant’s version of events, that they would have seen their dad giving children a whizzy on that day, the evidence stops short of placing G or A in a position where they must have seen the whizzy. Indeed, when asked, the complainant said that she was not sure where G and A were when she was given the whizzy. The other children who the complainant named as having received a whizzy, or as being present when the whizzies were given, were not called to give evidence. And the evidence did not identify which adults were present on the relevant day. It did not establish that any of the family members who gave evidence were present that day, let alone in a position where they would necessarily have seen any whizzies given by the appellant.
While relevant, the evidence of family members (to the effect that the appellant had a back injury and had not given whizzies for a number of years) was not sufficient to require doubt as to the complainant’s evidence about the whizzy incident, let alone more generally.
Turning to G’s evidence, he gave evidence to the effect that he did not recall anything resembling the whizzy incident (count 3), the couch incident (count 4) or the incident in the boys’ bedroom (count 5). I have already addressed the whizzy incident, but G’s evidence as to the latter two incidents is also relevant. On the complainant’s evidence, while it was not suggested that G saw the appellant place his hand down the complainant’s pants, it was suggested that he was present, and would have heard or seen some aspects of the incidents or their aftermath. In the case of the couch incident, on the complainant’s evidence, G would have seen her being tickled by the appellant and have heard her asking the appellant to stop before then intervening himself to stop the tickling. In the case of the incident in the boys’ bedroom, G would have seen the complainant immediately after she had been indecently assaulted, was told that she had been frightened by his father, and asked his father why he had done that – to which the appellant responded that they were just playing around.
It was for the jury to assess G’s evidence to the effect that he did not see or hear the things that the complainant’s evidence suggested he would have, and to consider it in light of, and weigh it against, the evidence of the complainant. The jury might not have believed G’s evidence; they might have taken the view that he tailored his evidence to help his father. Alternatively, and perhaps more likely, they might have taken the view that whatever he did see or hear would at the time have been inconsequential (from G’s perspective) such that he was honestly not able to recall the incidents. Either way, I am not satisfied that G’s evidence was such as to require that the jury entertain doubt about any of the counts.
In summary, the matters relied upon by the appellant are not sufficient, either individually or in combination, to warrant a conclusion that the jury must have, as distinct from might have, entertained a doubt about the guilty verdicts on counts 1, 4 and 5. While there were aspects of the evidence that required careful consideration, and might well have justified doubt about some or all of the counts – as demonstrated by the jury’s inability to reach a verdict on counts 2 and 3 – they were matters that the jury’s advantage (in seeing and hearing the witnesses give their evidence in the context of the trial as a whole) was capable of enabling them to resolve any doubt in favour of the complainant’s version of events as to counts 1, 4 and 5. The matters identified by the appellant were mere “inconsistencies or discordances in the evidence”[13] that were capable of being resolved, and which did not individually or cumulatively suffice to render the verdicts on counts 1, 4 or 5 unreasonable or unable to be supported having regard to the evidence.
[13] R v C, CN (2013) 117 SASR 64 at [71].
Verdicts inconsistent with jury’s inability to reach verdicts on other counts
The appellant contended that even if the inconsistencies and other difficulties with the complainant’s evidence did not of themselves render the jury’s verdicts of guilty on counts 1, 4 and 5 unreasonable, nevertheless those verdicts were unreasonable on account of them being inconsistent with the jury’s inability to reach a verdict on counts 2 and 3. The appellant’s contention was one of factual inconsistency rather than legal or technical inconsistency; a contention that the jurors’ doubt in relation to counts 2 and 3 ought logically to have led them to entertain similar doubt in relation to counts 1, 4 and 5.
General principles governing inconsistency
In MacKenzie v The Queen,[14] Gaudron, Gummow and Kirby JJ commenced their consideration of the circumstances in which an appellate court will intervene on account of inconsistent verdicts by recognising that there was a need to reconcile conflicting objectives: on the one hand, affording due respect to the constitutional role of the jury as the tribunal of fact and the general inscrutability of its reasoning; and, on the other hand, acknowledging the potential injustice arising from the doubt that might exist about a particular verdict by reason of an insight into the jury’s thinking that might be obtained from a consideration of other verdicts. Their Honours explained:[15]
Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions. This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision. The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law.
On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx, sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly. If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.
[14] MacKenzie v The Queen (1996) 190 CLR 348.
[15] MacKenzie v The Queen (1996) 190 CLR 348 at 365 (omitting citations).
Their Honours also identified a distinction between cases of legal or technically inconsistency and cases of factual inconsistency. The former arise in circumstances where there are two verdicts that in law cannot stand together (for example, when an accused is convicted of both an attempt to commit an offence and the completed offence). The latter might arise either by reason of different verdicts affecting the same accused or different verdicts affecting co-accused.
Their Honours described the Court’s approach to factual inconsistency between verdicts in the following terms: [16]
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.
[16] MacKenzie v The Queen (1996) 190 CLR 348 at 366-367 (omitting citations).
Gaudron, Gummow and Kirby JJ continued:[17]
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.’
[17] MacKenzie v The Queen (1996) 190 CLR 348 at 368 (omitting citations).
In Osland v The Queen,[18] McHugh J said the following as to the circumstances in which there might be factual inconsistency warranting appellate intervention:[19]
When an appellate court sets aside a jury’s verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that they jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given.
[18] Osland v The Queen (1998) 197 CLR 316.
[19] Osland v The Queen (1998) 197 CLR 316 at [116] (omitting citations).
However, there is a well-recognised need for caution on the part of the appellate courts. As Gleeson CJ, Hayne and Callinan JJ explained in MFA v The Queen,[20] there are a number of considerations that might rationally explain differing 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.
[20] MFA v The Queen (2002) 213 CLR 606 at [34].

I also consider that authority of this Court supports that approach. While the Court in R v R, GJ went no further than declining to rule the possibility out, the possibility of appellate intervention was expressly acknowledged in R v Russo.
As to the decisions of the other intermediate appellate courts that I have surveyed, while they do not all speak with one voice, I consider that the weight of authority supports the applicability of the principles of inconsistency to cases involving a jury’s inability to agree, at least in the context of an appeal on the ground that a verdict is unreasonable.
The applicability of these principles was expressly acknowledged by the Victorian Court of Appeal in both Pillay v R and Tukuafu v R.
The decision of the Australian Capital Territory Court of Appeal in GW v The Queen is to similar effect, albeit with an emphasis upon appellate intervention on the grounds of inconsistency in such cases being considered under the rubric of appellate intervention on the more general ground of unreasonableness.
In my view, that is also the position ultimately reached by the New South Wales Court of Appeal. That Court applied the principles of inconsistency without discussion of the point of principle in R v James and R v AG. In PA v R, Hoeben CJ at CL (with whom Johnson J agreed) cast doubt upon the correctness of Pillay v R and R v Formhals, reasoning that they involved a departure from the reasons of Callinan J in Osland v The Queen and the line of Queensland decisions commencing with R v DAL.[103] However, Hoeben CJ at CL went on to add that it was possible to reconcile the approaches in Victoria and Queensland given that the principles of inconsistency could be applied as an aspect of appellate intervention on the grounds of unreasonableness. The other member of the Court in PA v R, Hamill J, was inclined to prefer the approach of the Victorian Court in Tukuafu v R, but in any event would also have supported Hoeben CJ at CL’s reconciliation of the Queensland and Victorian authorities. This reconciliation of the Queensland and Victorian authorities was also supported by the New South Wales Court of Appeal in Darby v R.
[103] I have explained elsewhere what I consider to be the qualified significance of the reasons of Callinan J in Osland v The Queen and the said Queensland decisions.
As to the line of Queensland authority commencing with R v DAL, it is true that those decisions emphasise the distinction between a verdict of acquittal and a jury’s inability to reach a verdict. In so doing, they draw heavily upon the reasons of Callinan J in Osland v The Queen. However, in my view, upon close analysis, the ultimate effect and significance of the Queensland authorities, like the reasons of Callinan J in Osland v The Queen, stops short of excluding the possibility of appellate intervention in appropriate, albeit rare, cases.
In R v DAL, Keane JA (with whom McMurdo P agreed) certainly emphasised the difference between a verdict of acquittal and a jury’s inability to agree, and hence the difference in what may be inferred as to the jury’s reasoning in each case. His Honour’s reference to the possibility of jury disagreement being a reflection of the eccentric view of one juror, and the inability to draw any implication that the “jury as a whole” entertained reasonable doubt, is capable of being interpreted as a suggestion that in the absence of an inconsistency between the approach of the jury as a whole to different counts, there can be no inconsistency warranting appellate intervention. However, I do not consider that Keane JA’s reasons go quite this far. In my view, his Honour was merely reflecting the different nature of the insight gleaned from a jury’s failure to agree as opposed to verdict of acquittal. I do not consider that his Honour’s reasons go as far as to suggest that there could never be a relevant inconsistency in the case of a jury’s inability to agree a verdict. To the contrary, his Honour’s quite detailed explanation of how the differing outcomes in that case might be reconciled implicitly supports the application of the principles of inconsistency to such a case – even if they will only rarely warrant intervention. At the very least, his Honour’s reasons must be understood as acknowledging the possibility of appellate intervention in such cases under the rubric of “unreasonableness”. McPherson JA’s reasons were to a similar effect. While his Honour made it plain that there could be no inconsistency at common law in the absence of a verdict of acquittal, his Honour appears to have accepted that with the introduction of a statutory basis for appellate intervention on the grounds of unreasonableness came the possibility of intervention in cases of inconsistency based upon a jury’s mere inability to agree, albeit only in limited circumstances.
The subsequent decisions of the Queensland Court of Appeal in R v JK, R v Kahu, R v CX, R v Garrett, and R v CBF have taken a similar approach. While they have repeated the R v DAL emphasis upon the distinction between a verdict of acquittal and a jury’s inability to agree, they appear to accept the possibility of appellate intervention on the grounds of inconsistency (at least as a form of unreasonableness) even in a case involving a jury’s inability to agree. This is not only implicit in the Courts’ apparent acceptance of the need to explain or rationalise the differing outcomes in those various cases, but also express in the reasoning of some of these Queensland cases.
I acknowledge that the most recent of the Queensland cases, R v Graham, appears to reject the possibility of appellate intervention on the grounds of inconsistency in cases involving a jury’s inability to agree. However, this conclusion was simply stated without any explanation or reasoning. While footnoted reference was made to the reasons of Callinan J in Osland v The Queen and the reasons of McPherson and Keane JJA in R v DAL, there was no discussion of the point of principle. And for the reasons I have set out, I consider that this conclusion overstates the effect of the reasons to which reference was made.
Finally, the decision of the Western Australian Court of Appeal in Millar v R also involved a rejection of the possibility of appellate intervention on the grounds of inconsistency in the case of a jury’s inability to agree. However, that decision pre-dates most of the decisions referred to above, and again did not involve any discussion of the point of principle.
As well as the weight of authority supporting the applicability of the principles of inconsistency in a case such as the present, I consider this to be the correct, or at least preferable, approach as a matter of principle.
It is true that a verdict of acquittal and a jury’s inability to agree cannot be equated. They are different as a matter of form and substance. They have very different consequences, for example, in determining whether or not the accused may be retried for the same offence. It is also true that in the case of a jury’s inability to agree, there is no verdict. It follows that there cannot be inconsistent verdicts in the strict or literal sense. However, I do not consider that that is the end of the matter. Even if these considerations render inapplicable any common law or independent basis for appellate intervention, I do not consider that they present a barrier to intervention on the more general ground of unreasonableness.
In the context of unreasonableness, while it remains important to bear in mind the difference between a verdict of acquittal and a jury’s inability to agree, I consider that analogous considerations apply in respect of both forms of outcome. There is no reason in my view to confine intervention in the way that it might have been confined under the common law or traditional approach to cases of inconsistent verdicts in the strict or literal sense.
As was explained in the passages from Darby v R and TK v R extracted earlier in these reasons, when the circumstance (or one of the circumstances) said to give rise to unreasonableness is inconsistency, consideration of all of the relevant facts and circumstances includes consideration of not only the evidence in the case but also whatever can be discerned as to the explanation for the verdicts, and whatever insight can be gleaned into the jury’s thinking and reasoning. In my view, there is no reason to confine this approach to the insight that can be gleaned from a jury’s verdict, as opposed to a jury’s inability to agree.
While there is a difference between a verdict of acquittal and an inability to agree, that does not mean that the latter provides no insight into the jury’s reasoning. To the contrary, just as one can infer from a verdict of acquittal that all jurors (or at least a statutory majority of jurors) entertained doubt about the accused’s guilt, so too one can infer from a jury’s inability to agree a verdict that some jurors (more than two, but less than ten) entertained doubt about the accused’s guilt.
Similarly, just as there is no necessary inconsistency between all jurors entertaining doubt and hence acquitting on one count and yet convicting on another, there is also no necessary inconsistency between some jurors entertaining doubt on one count but convicting on another. There will, for example, often be differences in the evidence and circumstances relating to each count which provide a rational explanation for the differing outcomes in both categories of case. Indeed, in the latter category of case, the very fact that the jury was split may be an indication that the jurors were playing close attention to the differences in the evidence and applying their instruction to give separate consideration to the various counts. The mere fact that some jurors held that the differences were significant enough to warrant different verdicts, while other jurors did not, does not demonstrate inconsistency. To the contrary, it may be the product of a perfectly regular process of jury reasoning, with all jurors faithfully carrying out their role in a manner consistent with the judge’s directions. For these reasons, the cautious approach that the authorities require when considering a contention of inconsistency is particularly apposite in the case of inconsistency said to arise from a jury’s inability to agree.
However, just as there will be some cases in the former category where there is no rational explanation for the differing verdicts, so too there will some cases in the latter category where there is no rational explanation for the differing outcomes. I consider Pillay v R to be an example. In that case, there was an inconsistency in some jurors entertaining doubt about consent in respect of two counts while at the same time being prepared to convict in respect of one other count arising out of the same incident and giving rise to a similar issue of consent. It is apparent that some jurors had acted either illogically or with a view to achieving some form of compromise. In my view an inconsistency in the approach of a subset of the jurors which has the effect of determining the outcome of the trial on particular charges is just as significant as an inconsistency in the approach of all jurors (or a statutory majority of jurors). If an irrational approach by all members of the jury (or a statutory majority of jurors) warrants appellate intervention, then I see no reason why the courts should not also intervene where the circumstances warrant a conclusion that some members of the jury (at least three, and perhaps as many as nine) have taken an irrational approach. The potential injustice to the accused is the equivalent in each case.
While it is true that the differing outcomes might reflect merely the eccentric or illogical views of as few as three jurors in respect of the count the subject of jury disagreement, the reality is that it cannot be known with any confidence how many jurors acted in this way, or indeed which of the outcomes was affected.
I have said that, as a matter of logic, insight can be gleaned as to the jury’s thinking and reasoning even when they have been unable to reach a verdict. I should add that I see no difficulty as a matter of principle in having regard to this insight when considering whether a verdict of guilty on some other count is unreasonable. There is a hint in some of the authorities that the law should only have regard to what can be inferred from a decision of the jury “as a whole”. It might be said that to draw an inference from the position of some subset of the jury might in some way undermine the law’s usual regard for the constitutional role of the jury as the tribunal of fact, and as aspects of this role, its status as a collective body and the general inscrutability of its decision making process. While these are undoubtedly important considerations, I do not think that they justify confining intervention on the grounds of inconsistency to cases involving inconsistent verdicts as opposed to inconsistent outcomes more generally.
It is significant in this respect that the application of the principles of inconsistency in the former category of case already involves some level of compromise in the law’s usual respect for the constitutional role of the jury and the general inscrutability of its reasoning. Gaudron, Gummow and Kirby JJ said as much in the passage from their Honours’ reasons in MacKenzie v The Queen extracted earlier. There is a compromise in that even in the case of inconsistent verdicts in the strict sense, the courts engage in a process of considering the insight that might be gleaned as to the jury’s reasoning. But an appropriate balance between respecting the jury’s constitutional role and responding to the potential for injustice is struck by maintaining the cautious approach to intervention mandated by the High Court in MFA v The Queen. In my view, no significantly greater intrusion or entrenchment upon the jury’s constitutional role would be occasioned by undertaking a similar process, and considering the insight that might be gleaned, in the case of a jury disagreement. There will remain no need or occasion to delve into the actual deliberations of the jury or any of its individual members; the process will remain one of what can legitimately be inferred from the outcome of the jury’s deliberations.
At one level, a jury’s inability to agree is just as much a decision of the jury as whole, or at least an outcome of the deliberations of the jury as a whole, as a verdict of acquittal. While the inference that may be drawn from each differs in the sense that an inability to agree involves an inference about a subset of the jury, I note that even in the case of a verdict of acquittal, the inference may (in the case of a majority verdict) be one that relates to a subset of the jurors rather than the jury as a whole. While accepting that the situation of a majority verdict is a product of statutory intervention, I do not consider that having regard to the insight gained from a jury disagreement represents a significantly greater entrenchment upon the constitutional role of the jury. To the extent that it does involve some greater entrenchment, I consider it to be relatively minor, and appropriate in cases where there is a sufficient risk of injustice. As I have mentioned, a difference in the outcome of a trial that is the product of some jurors acting irrationally is just as productive of injustice to an accused as a difference in the outcome that is the product of all jurors (or a statutory majority of jurors).
Similarly, to the extent that a verdict of acquittal represents an outcome that is reflected “on the public record” (to use the language of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen),[104] whereas an inability to agree does not, I do not consider this difference to have any significance in the context of an appeal on the grounds of unreasonableness. While there is a formal difference between the two, they both reflect the practical outcome of the trial on a particular charge, and hence are both capable in my view of giving rise to an inconsistency that might establish that a verdict of guilty on some other charge is unreasonable.
[104] MacKenzie v The Queen (1996) 190 CLR 348 at 365, extracted at [142] of these reasons.
For all of these reasons, I consider it appropriate to have regard to the principles of inconsistency in cases involving not only differing verdicts in the strict sense, but also differing outcomes more generally – and hence including cases involving a jury’s inability to agree. Those principles will inform the appellate court’s consideration of whether the jury’s verdict of guilty was unreasonable. But the caution with which those principles are to be applied will be particularly apposite in the case of asserted inconsistency arising from a jury’s inability to agree.
Application to the present case
Here, it can be said from the outcome of the trial that some jurors entertained reasonable doubt about the appellant’s guilt of counts 2 and 3, but did not entertain reasonable doubt about his guilt of counts 1, 4 and 5. But in my view there is ample basis for reconciling these differing outcomes in the context of the evidence as a whole. In my view, this is a case in which the outcomes can be reconciled on the basis that the relevant jurors may well have considered the complainant’s evidence to be honest and generally reliable, but have required something more before being prepared to reach a conclusion beyond reasonable doubt as to counts 2 and 3.
In relation to count 2, this caution, or doubt about the reliability of the relevant part of the complainant’s evidence, might have been based upon the complainant’s failure to recall the incident underpinning count 2 during her evidence in the third trial until she was reminded of her earlier reference to it. It might also have been based upon the complainant’s apparent confusion at times as to the number and timing of the incidents in the kitchen (and in particular, whether there was one or two incidents while the appellant was cooking), and which one, if any, involved the appellant grabbing, as opposed to slapping, her bottom.
In relation to count 3, the caution or doubt as to the reliability of the relevant part of the complainant’s evidence might have arisen from the complainant’s uncertainty at times in her evidence as to whether this incident involved her being touched inside or outside her underwear. It might have arisen from some uncertainty as to the precise mechanics of the manoeuvre attributed to the appellant in this incident. It might have arisen from the evidence to the effect that the appellant’s back injury would have made it difficult for him to do what was alleged in this incident. It might have arisen from the body of evidence to the effect that the members of his extended family had not seen him give anyone a whizzy since he injured his back, and the absence of any evidence from a witness who purported to have seen the whizzies that the complainant said the appellant gave on the day of the whizzy incident that underpinned count 3. It may have arisen from some combination of one or more of the above.
Importantly, it is my view that there is ample basis for reconciling the existence of doubt as to counts 2 and 3 with the absence of doubt as to counts 1, 4 and 5. Doubt as to the former does not in the circumstances of this case necessarily bespeak a rejection of either the complainant’s honesty, or the reliability of her evidence more generally. The counts were each the subject of entirely separate incidents, and there were obvious and potentially significant differences as to the nature and quality of the evidence in respect of each. It was logically open to the jury to reach different outcomes in relation to counts 1, 4 and 5, as opposed to counts 2 and 3. For them to have done so would have been consistent with the trial judge’s “separate consideration” direction, and not necessarily inconsistent with the trial judge’s Markuleski direction. Given the differences in the evidence in relation to the various counts, reasonable doubt about the occurrence of the events the subject of counts 2 and 3 did not logically require the rejection of the complainant’s evidence more generally. Nor did it logically require acceptance of the appellant’s evidence or the existence of reasonable doubt about counts 1, 4 and 5.

It follows that the verdicts of guilty in relation to counts 1, 4 and 5 are not inconsistent with the jury’s inability to reach a verdict in relation to counts 2 and 3.
Orders
I would dismiss the appeal.