R v Wbu

[2022] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

R v WBU [2022] QCA 236

PARTIES:

R
v
WBU
(appellant/applicant)

FILE NO/S:

CA No 50 of 2022
CA No 107 of 2022
DC No 27 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maroochydore – Date of Conviction: 25 February 2022; Date of Sentence: 20 May 2022 (Long SC DCJ)

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2022

JUDGES:

McMurdo and Flanagan JJA and Boddice J

ORDERS:

1.   The appeal in CA No 50 of 2022 be allowed.

2.   The convictions on Counts 1, 2, 3 and 8 be set aside.

3.   Judgment and verdicts of acquittal be entered on each of those counts.

4.   The application for leave to appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where a jury, by majority, found the appellant guilty of one count of maintaining a sexual relationship with a child (Count 1) and three counts of indecent dealing of a child under care (Counts 2, 3 and 8) – where the jury found the appellant not guilty, by majority, of one count of indecent dealing of a child under care (Count 9) and one count of rape (Count 7) – where the jury found the defendant not guilty, unanimously, of an alternative to the count of rape being unlawful carnal knowledge – where the jury was unable to reach verdicts, either unanimously or by majority, in respect of two further counts of rape (Counts 5 and 6) or alternative counts of unlawful carnal knowledge – where the jury was directed to return a verdict of not guilty of a count of indecent dealing of a child under care (Count 4) – where all offences involved the daughter of the appellant’s former partner – where the offending occurred while the complainant was in year seven at school – where the offending stopped when the complainant was in year eight – where the first incident occurred after Christmas 2017 – where the complainant was wrestling with the appellant – where the appellant touched the complainant on her chest, with two hands, on top of her clothes (Count 2) – where, after the first incident, the appellant came into the complainant’s room while the complainant was in bed and put his hand under the complainant’s underwear and indecently touched the complainant for approximately 20 seconds (Count 3) – where the appellant asked the complainant whether she knew what masturbating was and if the complainant wanted to see the appellant’s penis – where the appellant exposed his erect penis to the complainant (Count 4) – where, in 2018, the appellant came into the complainant’s room and forced his penis into the complainant’s “middle hole” (Count 5) – where, in the middle of 2018, the appellant inserted his penis into the complainant’s “middle hole” (Count 6) – where, on another occasion, the complainant was in the shower and the appellant opened the bathroom door, wearing only a towel – where the appellant removed the towel and started to touch the complainant – where the appellant grabbed the complainant’s chest and bottom before thrusting his penis into the complainant’s anus (Count 7) – where in October 2018, the complainant was sunburnt and the appellant pulled down the complainant’s pants and massaged her bottom (Count 8) – where in or about November 2018, the appellant, her mother, and the complainant went swimming – where the appellant threw the complainant up in the air – where the appellant put his thumb up the complainant’s bottom “a few times” (Count 9) – where the appellant submits that, the likely explanation for the jury’s acquittals on counts 7 and 9, taking into account the failure to reach a verdict in respect of counts 5 and 6, is an inherent concern about the complainant’s credibility – whether the acquittal in respect of Count 7 is only consistent with a conclusion that the jury rejected the complainant’s credibility generally – whether the verdict in respect of Counts 1, 2, 3 and 8, were unreasonable

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56, applied
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, applied
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, applied
TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151, considered

COUNSEL:

S C Holt KC, with C J Tessman, for the appellant/applicant
C W Wallis for the respondent

SOLICITORS: 

Brooke Winter Solicitors for the appellant/applicant
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO JA:  I agree with Boddice J.

2. FLANAGAN JA:  I agree with Boddice J.

3. BODDICE J:  On 25 February 2022, a jury, by majority, found the appellant guilty of one count of maintaining a sexual relationship with a child (Count 1) and three counts of indecent dealing of a child under care (Counts 2, 3 and 8).  Each was a domestic violence offence.

4. On the same date, the jury found the appellant not guilty, by majority, of one count of indecent dealing of a child under care (Count 9) and one count of rape (Count 7).  The jury found the appellant not guilty, unanimously, of an alternative to the count of rape, namely, unlawful carnal knowledge.  The jury was unable to reach verdicts, either unanimously or by majority, in respect of two further counts of rape (Counts 5 and 6) or alternative counts of unlawful carnal knowledge.

5. During the trial, the jury had been directed to find the appellant not guilty of a count of indecent dealing of a child under care (Count 4).

6. The appellant was sentenced to six years imprisonment for the maintaining count and lesser, concurrent periods of imprisonment for the remaining counts.

7. The appellant appeals his conviction and seeks leave to appeal his sentence.

8. In respect of the conviction appeal, the appellant relies on one ground, namely that the verdicts of guilty are unreasonable or cannot be supported having regard to the evidence because:

   “(i)the likely explanation for the acquittals on counts 7 and 9, taking into account the failures to reach a verdict on counts 5 and 6, is inherent concern about the complainant’s credibility;

   (ii)the remaining evidence could not rehabilitate her credit; and

   (iii)accordingly, the concern should logically have resulted in acquittals on the other charges.”

9. Should leave be granted to appeal sentence, the appellant contends the sentencing judge erroneously sentenced him on findings inconsistent with the jury’s verdicts.

   Background

10. All of the offences involved the one female complainant.  She was the daughter of the appellant’s then partner.

11. The offences were all said to have been committed when the appellant was 46 – 47 years of age.  The complainant was 12 years of age.

    Counts

12. Count 1 was committed between 26 December 2017 and 1 December 2018.  It was particularised that during that period, the appellant performed the following acts on the complainant regularly, on one or more occasions:

    ·Rubbing/grabbing her bottom and chest;

    ·Exposing his penis to her;

    ·Digital penetration of her vagina;

    ·Penile/vaginal sexual intercourse; and

    ·Penile/anal sexual intercourse.

13. Count 2 was committed between 26 December 2017 and 1 December 2018.  That count was particularised as the appellant having squeezed the complainant’s bottom and chest with his hand, over the top of her clothing.  It occurred on a couch, after they had been play wrestling in the lounge.

14. Count 3 was committed between 31 December 2017 and 1 December 2018.  That count was particularised as the appellant rubbing the complainant’s clitoris at night, in her bedroom, whilst she was wearing shorts with pineapples on them.

15. Count 8 was committed between 31 December 2017 and 1 December 2018.  That count was particularised as the appellant rubbing aloe vera on the complainant’s back, whilst she was lying on her bed, before massaging the complainant’s bottom.

16. Count 4 was alleged to have been committed between 31 December 2017 and 1 December 2018.  The Crown had particularised that count as the appellant exposing his erect penis to the complainant during the day when the complainant was in her bedroom after they had watched a movie in the loungeroom.

17. Count 5 was alleged to have been committed between 31 December 2017 and 1 December 2018.  The Crown particularised that count as the appellant having penile/vaginal intercourse with the complainant, in her bed, without her consent, on what was described by the complainant as the “first time”.

18. Count 6 was alleged to have been committed between 31 December 2017 and 1 December 2018.  The Crown particularised that count as the appellant having penile/vaginal intercourse with the complainant, in her bed, without her consent, at night, on an occasion where the complainant had an exam the next day.

19. Count 7 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that Count as the appellant having penile/anal intercourse with the complainant, in the shower, without her consent, after the appellant walked into the bathroom wearing only a towel.

20. Count 9 was alleged to have been committed between 31 December 2017 and 1 December 2018. The Crown particularised that count as the appellant putting his thumb between the complainant’s bottom cheeks when they were swimming together.

    Evidence

21. The complainant was interviewed by police on 8 May 2020. That interview was recorded and played to the jury pursuant to s 93A of the Evidence Act 1977 (Qld).

22. The complainant gave evidence on 27 April 2021.  That evidence was recorded and played to the jury pursuant to s 21AK of the Act.

23. The complainant gave evidence that her mother and father divorced when she was about seven years of age.  Soon thereafter, her mother met with the appellant.  The complainant said the appellant was very nice to her but started getting “a bit like weird” as she was going into year seven, which was January 2018.  The complainant said that the appellant would ask sexual questions and touch her in inappropriate spots when her mother was not around.  The complainant said it all happened throughout the year of year seven and just stopped in year eight.[1]

    [1]AB 421/55.

24. The complainant said prior to the appellant engaging in that behaviour with her, things had started to get weird between the appellant and her mother.  The appellant would have sex with her very intoxicated mother, after she had passed out.  She described that event as having occurred on Christmas Eve 2017.  The complainant said there were other occasions.

25. The complainant said the first occasion the applicant touched her occurred after Christmas 2017.  The complainant was play wrestling with the appellant when the appellant started to grab her on her bottom.  The complainant said the appellant then touched her on the chest, using two hands, on the top of her clothes (Count 2).  The complainant said it was “pretty quick” and the appellant was “kind of just like laughing”.[2]

    [2]AB 426/40.

26. The complainant said that either the same evening or the next night, the appellant came into her room whilst the complainant was in bed.  The appellant put his hand under her underwear before touching her private part for approximately 20 seconds (Count 3).  The complainant was wearing pineapple shorts at the time.  The appellant moved his hand around on her “clit”.[3]  The complainant said that after the appellant touched her private part for 20 seconds, he said goodnight and left the bedroom.  The next day the appellant said she should try it herself.[4]

    [3]AB 431/21.

    [4]AB 431/57.

27. The complainant said on another occasion when the appellant and the complainant were sitting on the couch, the appellant started asking the complainant whether she knew what masturbating was and had she done it.  He also asked did she want to see his private part.  The complainant said after she left the couch and went to bed, the appellant walked into her bedroom wearing board shorts.  He pulled them down and asked if she wanted to “try it with me”.[5]  The appellant pulled his penis out.  It was erect (Count 4).  The appellant laughed and left the room.  The complainant estimated that event occurred a few days after the first incident.  In cross-examination, the complainant described the appellant as wearing pyjamas at the time.

    [5]AB 437/58.

28. The complainant said the first incident of intercourse with the appellant occurred after she had commenced grade seven, in 2018.  The appellant came into the complainant’s bedroom.  He was wearing boxers.  He went under the blankets, took his penis out and forced it into her “middle hole”[6] (Count 5).  The complainant said it was “the one that the baby comes out of”.[7]  The appellant kept thrusting before taking his penis out and ejaculating in his hand.  The appellant then kissed the complainant good night and left the room.  The complainant said she did not feel any pain.  In cross-examination, the complainant agreed she did not call out for help.  She estimated intercourse lasted for about five minutes.

    [6]AB 443/5.

    [7]AB 443/10.

29. The complainant said on another occasion of intercourse she asked the appellant to stop because she had school the next day.  The appellant replied, “no … I’ll be quick”.[8]  Again, the appellant inserted his penis into “the middle hole”[9] (Count 6).  This episode occurred in the middle of 2018, in the early hours of the morning.

    [8]AB 457/3.

    [9]AB 457/30.

30. The complainant said on another occasion, she was in the shower when the appellant opened the bathroom door.  He was wearing only a towel.  The appellant dropped the towel and started touching her.  He grabbed the complainant’s bottom and chest before thrusting his penis into her anus (Count 7).  The complainant said she could obviously feel it going in when it first started but “half the time it just kind of felt nothing”.[10]  The appellant ejaculated and then left the shower.[11]  This event occurred in the day time, in 2018, a few weeks after the first occasion of intercourse.  In cross-examination, the complainant accepted it was “a bit uncomfortable” but said “it wasn’t extremely painful”.  The complainant agreed she did not tell her mother about it.

    [10]AB 455/23.

    [11]AB 455/30 – 456/19.

31. The complainant said in October 2018, she told the appellant that it needed to stop.  Thereafter, “actual like sex stuff stopped”.[12]  However, a few days later the appellant came in with some aloe vera and started putting it on the complainant who had a bad sunburn.  No one else was home at the time.  The appellant pulled down the complainant’s pants and touched and massaged her bottom (Count 8).  The complainant pulled her pants back up.

    [12]AB 446/33.

32. The complainant said, in or about November 2018, whilst the complainant was swimming with the appellant and her mother in a pool and the appellant was throwing the complainant up in the air, he put his thumb up her bottom “a few times”[13] (Count 9).  The complainant said the appellant laughed and that his thumb stayed on the outside of her bikini so that it did not go “that far”[14] up her bottom.  The complainant did not say anything to the appellant at the time and did not call out.  The complainant said she did not want to cause a scene.

    [13]AB 448/44.

    [14]AB 449/32.

33. The circumstances of those individual counts were relied upon by the Crown in support of Count 1.  In addition, the Crown relied on uncharged acts.  The complainant gave evidence of an incident in which she had observed the appellant naked in the house, while she was pegging out the washing.  The appellant thrust his penis towards her.  This happened after she had commenced year seven, in 2018.  The complainant also gave evidence that the appellant would, on occasions, put his fingers in her vagina.  The only time he put his fingers in her anus was the occasion the subject of count nine.  The complainant estimated the appellant had rubbed her clitoris three or four times and had put his finger in her “middle hole” a similar amount of times.

34. The complainant gave evidence that acts of intercourse happened “heaps of times”.  They occurred really late at night and it did not matter what the complainant said to the appellant.  The appellant would stay until he was satisfied.  Sometimes the complainant would be half asleep, but the appellant would still do it.  The complainant estimated the appellant had intercourse with her about 50 times in total.  Sometimes it was every night for a week.  The complainant said on a number of occasions, she told the appellant to stop but usually she would not say anything to the appellant.  On some occasions, the appellant would put his penis into her bottom.  On other occasions, he would put it into the middle hole, her vagina.  On occasions, the appellant would put his penis in her vagina and after ejaculating, put his penis in her anus.

35. The complainant said the appellant, on occasions, told her not to tell anyone.  The appellant also said he would go to jail and commit suicide.  The complainant said in November 2018, she attended a sleepover birthday party.  She “kind of told everyone”.[15]  The complainant told people at the party that the appellant touched her and had sex with her.  The complainant said she had also told her father and brother that the appellant did things to her.[16]

    [15]AB 450/29.

    [16]AB 460/2.

36. In her pre-recorded evidence, the complainant said that the appellant would close the door when he came into her bedroom.  She estimated that the appellant came into her bedroom and had sex with her every week of her year seven, with it occurring three to four times over a week.  The appellant put his penis in her bottom when she was in the shower on three to four occasions.

37. In cross-examination, the complainant said that Count 2 occurred after Christmas Eve but before New Year.  The appellant used two hands on her bottom but only one hand on her chest.  He was touching her nipples for about 10 seconds.

38. The complainant accepted that her mother was probably home at the time.  She did not call out because she was confused as to what was happening and did not want to cause a scene.  She also thought that her mother may not believe her.

39. The complainant estimated that when the appellant came into her bedroom, he moved his hand around her private part for about 20 seconds.  It was not a fleeting or glancing touch.  She did not tell her mother what had happened because she was worried that she would not believe her and the complainant did not know what to do.  The complainant said it was not easy to just go and tell someone.  The complainant also accepted that she did not call out for help from her mother on the first occasion that the appellant put his penis into her vagina.  She agreed her mother was home that night.  The complainant said she was too upset to tell her mother, she just lay there.  The complainant said she was not sure what would happen if she told her mother or if she would even believe the complainant.  The complainant accepted that her mother was present in the pool when she said the appellant put his thumb in her bottom.  She did not tell her mother because she did not want to cause a scene.  The complainant said it was not easy to just say it out loud.  The pool incident happened before the birthday party with her friends.  The complainant agreed that the sexual incidents had ended by that time.  There was no more touching or penetration after the birthday party.

40. The complainant said on the occasion the appellant came into the shower and put his penis into her backside, it was “a bit uncomfortable but it wasn’t extremely painful”.[17]  He had his penis in her backside for possibly a couple of minutes.  He did not ejaculate whilst his penis was in her backside.  The complainant said her mother was not home at the time.  The complainant agreed it was a shocking incident but said she did not tell her mother because it was not that easy.  She said the incident in the shower did not cause her any pain.

    [17]AB 196/22.

1. The complainant also accepted that after her mother found something on a phone claiming the complainant had been sexually abused, the complainant had denied it.  The complainant said the appellant told her she was going to have to say she had made it up; if people found out, he would kill himself.[18]  Her mother found the message after the November birthday party.[19]

   [18]AB 204/25.

   [19]AB 216/45.

2. Preliminary complaint evidence was led from four of the complainant’s friends who had attended the sleepover party in November 2018.

3. TM spoke to police on 23 June 2020.  She said the complainant was crying and said “he assaulted her” and he “done that to her”.  The complainant did not say who “he” was but “we knew”.  TM said his first name was WBU.[20]  TM also spoke to the complainant at school.  In that conversation, the complainant said the appellant had sex with her at their house and she was scared that if she told someone, they would have nowhere to live.

   [20]AB 473/32.

4. PCH spoke to police on 23 July 2020.  She said it was her birthday party.  The complainant was crying at the party.  She said her mother’s boyfriend had raped her multiple times, too many times to remember.  It started at the commencement of grade seven.  The complainant said he came into her room at night.  At first, he touched her legs “and tits”.[21]  The following morning the complainant told PCH that the person who did this to her was named WBU.

   [21]AB 490/48.

5. EM spoke to police on 1 September 2020.  She said that at the party, the complainant told her someone had been sleeping with her multiple times since she finished grade six, started year seven.  The complainant said she had not reported it because the person said if she told anyone he would kill himself.[22]  The complainant initially spoke about touching.  On subsequent occasions, maybe three or four, the complainant made similar allegations.  She also told them the person was her mother’s boyfriend, WBU.

   [22]AB 514/57.

6. ZS spoke to police on 31 August 2020.  She said the complainant was crying at the party and saying that over an extended period someone was coming to her room and touching her.  The complainant said it had not happened for a while.  ZS said the complainant was referring to her mum’s boyfriend, WBU.  On a subsequent occasion, at school in term two or three of year eight, the complainant told ZS that it had not happened “for a long time” but it happened “the other night”.  The complainant said it was hard for her to be at home because she was getting flashbacks.

7. The complainant’s younger brother also gave preliminary complaint evidence.  He spoke to police on 8 May 2020.  The brother said a few weeks prior, the complainant told him that when she was pegging out washing, when she was in year five or six, the appellant was naked and moved forward “in a weird like action”.[23]  The complainant also said the appellant came into her room “like nearly every night” in year seven and raped her “like he did to their mum”.[24]  She also said the appellant bribed her by offering to buy her a phone[25] and that he once hopped into the shower naked.[26]

   [23]AB 502/9.

   [24]AB 506/35.

   [25]AB 506/13.

   [26]AB 507/50.

8. The complainant’s father said that on 4 May 2020, the complainant told him that when she was pegging out washing the appellant stood in the bedroom window naked and pushed his groin at her.  On the following day, he asked the complainant if the appellant had done anything sexual with her.  The complainant paused and said “no” when he asked, “He has hasn’t he?”.  The complainant did not respond.

9. The complainant’s mother said she commenced a relationship with the appellant in 2015.  In 2018 she located a message on the complainant’s iPad referring to the complainant having had things done to her.  The mother telephoned the appellant.  He looked at the message on his return home.  The mother said she was concerned the complainant was not going to trust her as she had been snooping through her stuff.  The appellant said, “Well, maybe it’s best if I talk to her about it.”[27]  The mother said the appellant went for a drive with the complainant.  They were away for an hour or more.  Upon his return, the appellant told the complainant’s mother that he had spoken to the complainant and “It’s just young girls.  It’s nothing.  Yeah, nothing has happened to her”.[28]  The appellant said her friends had kept asking why she always looked sad and she had made it up so there was a reason why she did not look happy.  The complainant later apologised to her mother “for upsetting you”.[29]

   [27]AB 317/40.

   [28]AB 318/15.

   [29]AB 318/30.

   Directed Verdict

10. At the conclusion of the Crown case, the trial judge directed an acquittal on count four on the basis that a mere exposure of the appellant’s penis could not constitute an indecent dealing under s 210(1)(a) of the Code.  Notwithstanding that directed acquittal, it was agreed by the parties that that allegation could still found a sexual offence for the purpose of proving the maintaining charge because the allegation could potentially amount to an offence of wilful and unlawful exposure to an indecent act under s 210(1)(d) of the Code.

    Appellant’s submissions

11. The appellant submits that the jury’s acquittal on Count 7, including an acquittal of the alternative count of unlawful carnal knowledge, is only consistent with the conclusion that the jury rejected the appellant’s account of that event.  The rejection could only have been on the basis the jury found the complainant lacked credibility in respect of that incident.

12. The appellant submits that a conclusion that the jury found the complainant lacked credibility in respect of a specific act of intercourse without consent, fundamentally undermined the overall credibility of the complainant, such that findings of guilt in respect of counts are unreasonable.  Such a conclusion is supported by the jury’s verdict, by majority, of not guilty on Count 9.

    Respondent’s submissions

13. The respondent submits that the verdicts of acquittal reflect no more than a jury not being satisfied of a particular count beyond a reasonable doubt.  That lack of satisfaction does not support a conclusion that the jury necessarily rejected the complainant as lacking credibility in respect of those incidents.

14. The complainant consistently gave accounts of multiple acts of penetration without consent, over an extended period of time.  The jury verdicts of not guilty are consistent with accepting that account but not being satisfied beyond reasonable doubt of the individual charged acts of penetration.  Accordingly, the verdicts of guilty of Counts 1, 2, 3 and 8 were not unreasonable.

    Conclusion

15. The determination of a ground of appeal that a verdict is unreasonable requires the Court to undertake an independent assessment of the evidence to determine whether it was open to the jury, on a consideration of the evidence as a whole, to be satisfied of the appellant’s guilt of each offence beyond a reasonable doubt.[30]

    [30]Pell v The Queen (2020) 268 CLR 123.

16. However, a verdict might be unreasonable for reasons apart from whether it was open to the jury to be satisfied of the appellant’s guilt to the requisite standard,[31] where a consideration of the record supports a conclusion that the jury’s acquittal on one count must have involved an actual rejection of the complainant’s evidence.[32]  That factor, in conjunction with other factors may result in verdicts of guilty of other counts being unreasonable.

    [31]M v The Queen (1994) 181 CLR 487, 493.

    [32]Jones v The Queen (1997) 191 CLR 439, 453-454.

17. In TK v The Queen, Simpson J (with whom McClellan CJ at CL and Latham J agreed) said:

    “…where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open “upon the whole of the evidence”. It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury’s thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant’s veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris).”[33]

    [33](2009) 74 NSWLR 299, [135].

18. Whilst the complainant gave general evidence of multiple occasions of digital and penile penetration throughout the period of the maintaining count, the allegations in Count 7 related to a specific instance of anal penetration without consent.  The complainant’s evidence in respect of those allegations was detailed and did not materially vary under cross-examination.  The jury’s acquittal, by majority, of the appellant of that count and, unanimously, of the alternate count of unlawful carnal knowledge, is only consistent with a conclusion that the jury did not believe the complainant’s evidence as to the occurrence of that event.  The acquittal is not explicable on a ground such as a failure to be satisfied beyond reasonable doubt as to a lack of consent.

19. Further, and contrary to the submission of the respondents, the appellant’s acquittal on Count 7 is not consistent with the jury having a doubt about anal penetration.  Nothing in the complainant’s account gave a reasonable basis for penetration itself to be an issue.  The complainant was specific and consistent as to the fact of penetration of her anus by the appellant’s penis.

20. For the same reason, the failure of the complainant to complain of pain, in the context of an act of anal intercourse said to involve not insignificant thrusting, also does not give rise to a reasonable basis for the jury to have a reasonable doubt of penetration.

21. The specificity of that count and its significance as being different to the multiple occasions of penile and digital penetration supports a conclusion that the jury’s rejection of the complainant’s evidence in respect of that count went to the complainant’s credibility, generally.

22. When regard is had to that significant impact on the complainant’s credibility, generally, together with the fact that the jury by majority also found the appellant not guilty of Count 9, the jury’s verdicts of guilty by majority of Counts 1, 2, 3 and 8, were unreasonable.

23. This conclusion renders it unnecessary to consider the appellant’s application for leave to appeal against sentence.

    Orders

24. I would order:

    1.The appeal in CA No 50 of 2022 be allowed.

    2.The convictions on Counts 1, 2, 3 and 8 be set aside.

    3.Judgment and verdicts of acquittal be entered on each of those counts.

    4.The application for leave to appeal against sentence be dismissed.