Sladek v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0059

RICHARD SLADEK	Applicant
v
THE KING	Respondent

---

JUDGES:	EMERTON ACJ, PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2024
DATE OF JUDGMENT:	4 June 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 119
JUDGMENT APPEALED FROM:	[2023] VCC 435 (Judge Karapanagiotidis)

---

CRIMINAL LAW – Appeal – Conviction – Applicant convicted of one charge of rape and acquitted of one charge of attempted rape – Both charges arising from incident involving same complainant – At trial only issue whether complaint consented to sexual penetration – Whether jury verdicts inconsistent – Application for leave to appeal granted – Appeal allowed – Guilty verdict set aside.

Crimes Act 1958 (Vic), s 321N.

MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591; R v TK (2009) 24 NSWLR 299, considered.

---

Counsel
Applicant:		Mr C Hooper
Respondent:		Ms S Clancy
Solicitors
Applicant:	Ann Valos Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON ACJ
PRIEST JA
KAYE JA:

The applicant was charged, on indictment, with one charge of attempted rape (charge 1), and one charge of rape (charge 2). Those offences were alleged to have occurred at the applicant’s home in Harkness on 28 October 2018. The jury that was empanelled on his trial returned a verdict of not guilty on the charge of attempted rape, but guilty on the charge of rape. The applicant was sentenced, on that charge, to 5 years and 4 months’ imprisonment, with a non-parole period of 3 years and 1 month.
The applicant seeks leave to appeal against his conviction on the charge of rape on two grounds, namely:
GROUND 1 — The verdict of guilty on charge 2 cannot be reconciled logically or factually with the jury’s verdict of not guilty on charge 1, to such an extent that that [sic] it is an affront to logic and common sense which is unacceptable and strongly suggests compromise in the performance of the jury’s duty given that:
(a)The events formed part of the same incident and occurred in close temporal proximity such that there is not distinction between the evidence in respect of each charge;
(b)It was not reasonably open to the jury to find that that [sic] the complaint was consenting to the actions the subject of charge 1 but not consenting to the actions the subject of charge 2 particularly given the admissions in the record of interview and the complainant’s own account; and
(c)Given the complainant’s evidence, the verdict of not guilty on charge 1 cannot be explained merely on the basis that the jury may have found the applicant was not attempting to penetrate the complainant’s vagina.
GROUND 2 — The verdict of guilty on charge 2 is unreasonable and cannot be supported having regard to the evidence in respect of the complainant’s actions prior to, during and at the time of the acts said to constitute that charge, the evidence of Simone Sladek and given the directions given in respect of her credibility.

Background circumstances

At the time of the incident, the complainant was living with her partner, Brett McLean (‘Brett’), and their infant daughter, at the home of Brett’s uncle in Harkness. On the night of the incident, after having an argument with Brett, the complainant made her way to the applicant’s house, at which a friend of hers, Craig Bullion, had been residing. In fact, Mr Bullion had left the premises a few days previously. After she arrived there, the complainant entered the garage and had a cigarette in company with the applicant. In her evidence, the complainant alleged that, while they were in the garage, the applicant forcefully picked her up and took her to his bedroom in the house, where he first attempted to rape her (charge 1), and he then penetrated her anus with his penis (charge 2).
In his interview with the police, the applicant maintained that at all times, the complainant was a willing and consenting party to what had occurred, both in the garage and in the bedroom of his house.

Summary of evidence

The complainant gave evidence that in October 2018, she was living with her partner, Brett, and their infant daughter, at the home of Brett’s uncle in Harkness. On 28 October 2018, she had a disagreement with Brett, during which she alleged that he had been sleeping with the applicant’s daughter, Simone Sladek. In her evidence, the complainant said that at the time of the argument, she had been drinking alcohol. Following the argument, she left the home and walked to the applicant’s house, where she understood that her friend, Mr Bullion, was then residing. She went to see Mr Bullion in order to borrow a cigarette from him.
When the complainant arrived at the applicant’s home, she knocked on the door. The applicant told her that Mr Bullion no longer lived at that address, and that he had gone back to his family. The complainant asked the applicant for a cigarette. In response, the applicant opened the roller door to the garage and, after she entered it, he gave her a cigarette. At that time, the applicant was sitting on a chair, and the complainant was leaning on a silver motor vehicle, smoking her cigarette. The applicant said to her that she had beautiful eyes, and started to walk towards her. He stood in front of the complainant and pegged her against the car. In response, the complainant tried to get the roller door button out of the applicant’s pocket. The applicant grabbed her under the arm, put his arms around her, and carried her up a hallway and into the bedroom. As he did so, the complainant was struggling and trying to get out of his grip.
After the applicant carried the complainant into his bedroom, he threw her onto the bed, as a result of which the complainant hit her head on the bedhead. The applicant said to her, ‘You know you want it’, to which the complainant responded, ‘No, I’m frightened, stop’. The complainant told the applicant that she was drunk, and she asked him to stop.
The applicant then pulled her jeans and underwear off her, and got on top of her. As he did so, he was trying to insert his penis into her vagina, but she would not let him do so, as her legs were firmly shut. In her evidence, the complainant said that the applicant was ‘poking it with … the triangle part of my lady parts’. She said that his penis was one or two centimetres from her vagina area, but she kept her legs clenched shut underneath him.
The complainant said that the applicant then flipped her so she was face-down on the mattress. Her chin was on the edge of the mattress, and his hand was on the back of her neck, as a result of which she was unable to breathe. At that point, the applicant was trying to penetrate her anus and, as he did so, she ‘bucked like a bull’, and tried to get out from under him. The applicant ended up inserting his penis into her anus, but it was hurting her. The complainant was trying to scream, and the applicant punched her on the back of her head and told her to shut up. The complainant continued to buck and kick, and to try to get out from underneath the applicant. She ended up underneath him, on her back, and was punching him until she winded him. She was then able to roll off the bed, grab her clothing, and escape into the bathroom. She closed the door, put her pants back on and sat on the toilet, with her legs on the toilet door. She said that she sat there because she was then unable to breathe.
The complainant said that while she was in the bathroom, she heard a toilet flush in the house. She left the bathroom and proceeded to leave the house through the same route by which she had entered it. She walked down the hallway, and through a doorway to the garage. At that point, the applicant returned and said, ‘You’re not going nowhere’, to which she responded, ‘Yes I am’. The complainant found the button to the roller door to the garage, exited the house, and ran along the street to where Brett’s aunt, Maxine Rover,[1] lived. When she arrived there, Ms Rover’s son, Mark, opened the door. The complainant spoke to Ms Rover, told her that she had been raped, and asked her to call the police. When the police arrived, the complainant spoke to them in the loungeroom. She then went to the hospital with Ms Rover, where she was examined by a specialist doctor.
[1]A pseudonym.
In cross-examination, the complainant agreed that, at the time of the incident, her relationship with Brett had been troubled for some time, and that she was quite angry with him when he told her that he had cheated on her. She agreed that she had taken drugs that night. She denied that, because she was angry with Brett, she wanted to get back at Ms Sladek. She said that she went to the applicant’s house to obtain cigarettes from her friend, Mr Bullion. The complainant said that after she had put her daughter to bed, she drank heavily, so that, by the time she left the house, she was drunk. The complainant reiterated that her specific purpose of going to the applicant’s house was to obtain a cigarette. Counsel then put to her that she had told her aunt, Ms Rover, that she had said to the applicant that she had left her cigarettes at home. In response, the complainant said, ‘I don’t know, I was drunk’. She then said that she was ‘very drunk and traumatised’. She agreed that after the applicant gave her a cigarette, she did not leave, although she knew that her friend, Mr Bullion, was not there. She was unable to say whether the applicant had closed the garage door while she was smoking the cigarette.
The complainant said that after the applicant had picked her up and started to take her to his bedroom, she called out to the applicant’s daughter, Ms Sladek, while she was in the hallway and also while she was in the bedroom. She agreed that she had told the police that she was ‘squealing like a pig’, because she really wanted Ms Sladek to hear her and come and help her. The complainant agreed that in her evidence-in-chief, she had said that the applicant had a hold on her for the entire time between picking her up in the garage and taking her to the bedroom. She agreed that when she spoke to the police, she said that at one point, the applicant let go of her when he was getting up the step from the garage to the kitchen, but then he got hold of her again. The complainant said that when she was in the bedroom at the end of the corridor, she continued to scream and to tell the applicant to stop.
The complainant confirmed her evidence that the incident came to an end when she continually punched the applicant so that he was winded and fell sideways, and she then made an escape into the bathroom. Counsel put to the complainant that she had told her aunt, Ms Rover, that the applicant only got off her after he had finished, and that he then went to the kitchen while she went to the bathroom. The complainant explained that discrepancy by saying that she was drunk when she spoke to Ms Rover, and that ‘I told her what I told her’. When further pressed in cross-examination, the complainant said that Ms Rover had confused what she had told her.
Counsel questioned the complainant at some length as to how she said she had entered the bathroom. He put to the complainant, and she denied, that in fact she went into the bathroom to have a shower and brush her teeth. The complainant agreed that when she left the applicant’s house, she took hold of a stick and a bag. She could not recall where she got them from, but she thought it was from the garage. Counsel then put to the complainant that she had told Detective Senior Constable Leah Paterson, the policewoman who attended Ms Rover’s place after the incident, that in the course of the incident in which the applicant assaulted her, she had snapped a piece of wood and told the applicant to let go of her.
Counsel then put to the complainant, and the complainant denied, that after she had the argument with her partner, Brett, she decided to have sex with the applicant in order to get back at Brett, and she subsequently claimed to have been raped because she did not want Brett to leave her as a result of her having cheated on him.
The complainant was then questioned about the timing of the incident. She said that she left her house after the argument with Brett at about 9:30 pm. She agreed that it was a short walk from there to the applicant’s house. She smoked a cigarette for five to ten minutes. After the incident, she was in the bathroom for about three minutes. She agreed that Ms Rover’s house was about 500 metres from the applicant’s house. Counsel then put to the complainant that Ms Rover had said in a statement that the complainant arrived at her house at 10:30 pm. The complainant agreed that she told Ms Rover that she had not taken any drugs. She agreed that she had told Ms Rover a lie. She said she was embarrassed about her drug use and that she was in denial about it. The complainant agreed that at the committal proceeding, she had denied that she used any illegal drugs, and had said that she did not take drugs and was never on drugs. In cross-examination, she agreed that that answer, which she gave at the committal proceeding, was a lie. She also agreed that she had lied when she told Ms Rover that she had not been drinking, whereas in fact, she was very drunk. She said that she normally does not drink, and that the amount of alcohol she drank on that night was unusual for her.
Maxine Rover gave evidence that in October 2018, she was living with her partner, Scott Agnew, and her three children at Chanticleer Avenue, Harkness. At that time, her nephew, Brett McLean, was having a relationship with the complainant. Ms Rover said that on the evening in question, she was smoking a cigarette with Mr Agnew in the garage that was attached to their house. She heard a noise and then a thumping noise, and she then heard the complainant’s voice calling out to her, ‘Help me’. When Ms Rover opened the door, she noticed that the complainant had a big stick in one hand and a white plastic bag in the other hand. When asked what she wanted, the complainant said, ‘I’ve been hurt’. Ms Rover could tell by her appearance that something was wrong. The complainant’s hair was matted, she was messy and scruffy, she looked an ‘absolute mess’, and her trousers were very low on her hips.
Ms Rover told Mr Agnew to leave the garage. After he did so, the complainant told Ms Rover that she had been raped and that she wanted Ms Rover to call the police. Ms Rover noted that the complainant had difficulty sitting, and she seemed to be in discomfort when she did so. Ms Rover telephoned the police. She said that the complainant was very scared, and kept holding her arm tightly. She first thought that the complainant had been drinking or taking some kind of substance because she ‘just wasn’t herself’.
Ms Rover said that the complainant had told her what had happened. The complainant told her that she had been drinking earlier in the day, and that she and Brett had had an argument. She then walked to her friend, Mr Bullion’s house, knocked on the door and asked for Mr Bullion. The man who opened the door, and who owned the house, was older. He said Mr Bullion was no longer there. She then entered the garage and the man gave her a smoke. The man said to her, ‘You’ve got beautiful eyes’, and the complainant began to feel uncomfortable. The man then grabbed her around the body, picked her up, took her through the kitchen and threw her onto the bed. The complainant told Ms Rover that the man then ‘put it in her fanny’. The complainant confirmed that, by that, she meant her vagina. He then flipped her over and he put it ‘in her bum bum’. When he did so, he was pushing at the back of her neck really hard. The complainant told Ms Rover that at some point, the man got off and went to the kitchen. When she could hear that he was far enough away, she grabbed her jeans, went into the bathroom, and put her jeans back on. She put her foot against the toilet door to lock herself in. She then grabbed the white bag to swing it in case the man came after her. When she was outside, she found a stick, which she also took to protect herself.
Ms Rover said that when the police arrived, the complainant spoke with a female police officer. Ms Rover then accompanied the complainant to hospital in an ambulance. She stayed with the complainant at the hospital until the middle of the next day.
In cross-examination, Ms Rover said that the complainant arrived at her house on that evening between 10:30 pm and 11:30 pm. She said that the account that the complainant gave to her was in broken terms. The complainant would ‘get a little bit out’, and then ‘go off into her own little world’. Ms Rover said she could not tell whether that was a result of trauma or whether something else was affecting the complainant. Ms Rover asked her whether she had taken drugs that night, and the complainant denied having done so. She said, ‘No, Auntie [Rover], you know I don’t do drugs’. The complainant said to her that she had been drinking wine, and she said she had had a bottle and a half. She told Ms Rover that she did not normally drink. She also told Ms Rover that she needed a cigarette because she had left her cigarettes at home. She said that the reason she went to Mr Bullion’s house was because of her argument with Brett. The complainant told Ms Rover that after the applicant had taken hold of her, she had screamed out, ‘Help me’. The complainant knew that the applicant’s daughter was at home at the time, and that the daughter would have heard her calling out. Ms Rover confirmed that the complainant told her that the incident finished when the applicant went to the kitchen.
Mark Burfod gave evidence that on the evening in question, he had seen the complainant and Brett at the home of his uncle, Darren Burfod. He said that the complainant was drinking alcohol at the time. He understood that Brett and the complainant had been having some arguments. Some time later in the evening, when Mark Burfod was in bed in his own home, he saw some movement on the external cameras to the house. He went outside and saw the complainant, who looked messy, and was crying. The complainant then went into the garage. Mark Burfod subsequently saw the complainant when she was with his mother in the loungeroom. She looked very scared and sad, and she had been ‘bawling her eyes out’. She was saying that she was in pain, and that she felt disgusting and dirty.
Scott Agnew gave evidence that on an evening in October 2018, he and Maxine Rover were in the garage of their home having a cigarette together. They heard a noise outside and, as they opened the garage door, he saw the complainant. Mr Agnew said that the complainant was emotional, her hair was ruffled, and that when she saw Maxine Rover, the complainant commenced crying uncontrollably. Mr Agnew left Ms Rover to take care of the complainant and calm her down. In cross-examination, Mr Agnew said that the complainant arrived at their home late in the evening. He agreed that it could have been quite close to midnight.
The next witness called by the prosecution was Dr Kathryn Ramsay, a practising forensic medicine registrar at the Victorian Institute of Forensic Medicine.
Dr Ramsay examined the complainant at Sunshine Hospital at 9:45 am on 29 October 2018. On examination, Dr Ramsay found a number of bruises and similar injuries, which included the following: redness and swelling to the right cheekbone; scratch abrasions to the back of the neck; tenderness over the right cheekbone and over the left eyebrow; a small abrasion on the right hand, second finger, and a small bruise over the knuckle of the middle finger; a small abrasion over the right elbow, and small bruises on the outside of the right forearm; a scratch abrasion on the back of the left hand; bruising on the front of the right thigh; a small bruise on the back of the right thigh, and an area of swelling and tenderness on the outside of the thigh, below the hip; and two small bruises on the back of the left thigh.

Dr Ramsay also undertook a genital examination, in which she examined the perianal area. She noted three small splits to the skin, which were superficial, in the perianal area. They were not actively bleeding, but they were very tender on examination. Dr Ramsay said that she was not able to age the bruises, which she noted. In respect of the injury to the perianal area, Dr Ramsay said that the injury was quite superficial. It was consistent with something penetrating the anus with a degree of force. She also said that, in cases of penetration of the anus, it is quite common to see no detectable injury, regardless of whether the penetration was consensual or non-consensual.
In cross-examination, Dr Ramsay agreed that it was not possible to determine whether the injury to the anus was a result of intercourse. It could also have been the result of other causes, including the day-to-day passage of bowel actions. Accordingly, Dr Ramsay was unable to determine whether the injuries were the result of the intercourse that had occurred on the previous evening.
The prosecution also called the applicant’s daughter, Ms Sladek, to give evidence. Ms Sladek said that in October 2018, she and her eight-year-old daughter were living with the applicant in his premises in Oak Park Drive, Harkness. Mr Bullion had been living there, but he had departed a couple of days before the evening in question.
On the evening in question, Ms Sladek was in bed, sick with the flu, and she was asleep. She said that she had gotten up during the night on a couple of occasions to go to the bathroom. She also said that she was having a light sleep. She said that she did not hear anything during the night, and that she did not hear anyone come and go. In particular, she did not hear the complainant calling out to her for help. In answer to a question by the prosecutor as to whether she was saying that (in her evidence) because she chose not to get involved, Ms Sladek responded, ‘No, I would have got involved’.
In cross-examination, Ms Sladek said that the garage was about five to eight metres from her bedroom, and it was about ten metres from her father’s bedroom. Her bedroom was at the back of the house, and it was not necessary to walk past it in order to go from the garage to her father’s bedroom. She said that the doors in the house were hollow and not solid, and that they were quite thin. She said that noise carried in the house, and that noise in the garage does echo around the house.
Ms Sladek denied that she had ever had sex with Brett McLean, and she said she had not had a relationship with him. She said that on one occasion, before the evening of 28 October 2018, the complainant had driven past her house and screamed abuse at her. Ms Sladek also said that her daughter was a very light sleeper. She again said that she did not hear anyone screaming or crying for help during the night of the incident.
Brett McLean gave brief evidence that in October 2018, he and the complainant were living with his uncle, Darren Burfod. On the evening in question, Brett had a conversation with the complainant, in which she asked him if anything had gone on between him and Ms Sladek, to which Brett responded in the affirmative. As a result, the complainant was not happy. She went to visit a mutual friend, Mr Bullion, who lived nearby, in order to have a cigarette. After she left, Brett fell asleep on the couch. When he woke the next day, the complainant was not home. Later on that day, Mark Burfod asked him to go to Maxine Rover’s house.
The final two witnesses called on behalf of the prosecution were investigating police members.
In October 2018, Detective Senior Constable Leah Paterson was stationed at the Melton Police Station. She gave evidence that at 10:57 pm on 28 October 2018, she received a request to attend premises in Chanticleer Avenue, Harkness. On her arrival there, a number of male police members were already present. Detective Senior Constable Paterson noted that there was a female seated on a couch who was visibly upset. She was clinging on to Maxine Rover, was trembling, and her voice was shaking. She gave Detective Senior Constable Paterson some brief information about what had occurred. An ambulance had already been summoned. The complainant was complaining of pain to the right hand side of her face, and a red mark had become visible underneath the right eye. In cross-examination, Detective Senior Constable Paterson said that the complainant told her that she had snapped a piece of timber over her legs at the applicant’s address.
The final witness was Detective Senior Constable Beatrice Liptak, who was then working in the Brimbank Sexual Offences and Child Abuse Investigation Team (SOCIT), located at Sunshine Police Station. Detective Senior Constable Liptak took over the investigation at 7:00 am on 29 October 2018. She arranged for a forensic medical officer to attend Sunshine Hospital to examine the complainant. Detective Senior Constable Liptak and other police officers then attended the applicant’s address in Harkness, where he was arrested and the premises were searched. A floor plan of the premises was also prepared and tendered in evidence. The applicant was then conveyed to Melton Police Station, where a record of interview was undertaken with him. A recording of the interview was tendered in evidence.
In that interview, the applicant stated that on the evening in question, there was a knock on the door between 8:00 pm and 9:00 pm. When he opened the door, he saw the complainant. She was a bit upset and said that her boyfriend had just told her that he had had sex with the applicant’s daughter. The applicant then opened the garage door further and invited her to come in. He asked her if she was drunk, to which she answered in the affirmative. The applicant told the complainant that his daughter would not have been involved in such conduct, and the complainant asked if she could talk to his daughter. The applicant responded that his daughter was in bed, asleep. He and the complainant then talked for a while, and as they were doing so, he gave her a cuddle, and then it progressed further. The applicant asked the complainant if she wanted to come into the bedroom, and the complainant said, ‘Yes’. So, they then went into the bedroom and had consensual sex. The applicant said that he could not achieve a complete erection, but the complainant kept trying to put it into her vagina and to put it ‘up her bum’, but in the end, they gave up, ‘and that was it’. The complainant then went to the bathroom, had a shower and went home. In answer to further questions, the applicant outlined, in some detail, the circumstances in which the complainant attended his premises, they became friendly in the garage, proceeded to the bedroom, and attempted to have consensual intercourse together.

Ground 1 — submissions

In support of ground 1, counsel for the applicant submitted that the case against the applicant, on both charges, rested entirely on the credibility of the complainant. Further, there was no basis, on the complainant’s evidence, for there to be any prospect that the applicant could have believed that she was consenting to vaginal penetration. On the complainant’s account, she resisted any attempt at penetration by the applicant, whether it was vaginal or anal. Accordingly, it was submitted, based on the complainant’s evidence, it was not open to the jury to conclude that the complainant might have consented to an attempt to penetrate her vagina, but did not consent to anal penetration.
Counsel further submitted that there was no rational basis upon which the jury could have found that the applicant, by his alleged conduct, was not intentionally attempting to penetrate the complainant’s vagina. Counsel noted that the complainant’s evidence, on that aspect, was clear and unequivocal. Further, in his record of interview, the applicant admitted that he had attempted to have sexual intercourse with the complainant, but said it had occurred with her consent. Indeed, the applicant further admitted to penetrating the complainant’s vagina with his finger.
Thus, counsel submitted, as the evidence in respect of each charge arose from the same incident, there were no facts that would be sufficient to explain the different verdicts returned by the jury in respect of them. It was therefore submitted that the verdict of guilty on charge 2, and the verdict of acquittal on charge 1, demonstrated an inconsistency in the verdicts of the jury, and indicated that the jury had reached a compromised verdict on charge 2.
In response, counsel for the respondent submitted that the acquittal of the applicant on charge 1 did not mean that the jury had disbelieved the complainant or rejected her account. Rather, it demonstrated that the jury had a reasonable doubt about at least one of the elements of that offence.
It was submitted by the respondent that the verdicts of the jury may be reconciled for three reasons. First, it was submitted, the jury might have had a doubt about whether the applicant was attempting to intentionally penetrate the complainant’s vagina. In that respect, it was submitted, the account given by the complainant, in relation to the alleged attempted penetration, lacked precision about what the applicant was attempting to do. The description given by the complainant may well have given rise to such a doubt in the minds of the jury. Further, the attempted penetration was fleeting. The complainant said that that activity lasted for a couple of seconds before the applicant flipped her over and penetrated her anus. In addition, counsel noted that the evidence of Maxine Rover was that the complainant told her that the applicant did penetrate her vagina, as well as her anus. Counsel contended that those aspects of the complainant’s evidence could have raised a doubt in the minds of the jury as to precisely what the applicant was doing at that point of the incident, and whether he in fact intended to attempt to penetrate the complainant’s vagina.
Counsel submitted that a second way in which the verdicts of the jury might be reconciled is that there was a much greater degree of support for the complainant’s claim of anal penetration than her description of the attempted vaginal penetration. In particular, the complainant was observed by Maxine Rover to suffer significant pain and discomfort when sitting immediately after the incident, and the forensic medical examination, conducted by Dr Ramsay on the next morning, noted three superficial splits, which were consistent with penetration. It was submitted that that evidence supported the credibility and reliability of the account given by the complainant in respect of the offence the subject of charge 2, whereas, by contrast, her account in respect of the attempt by the applicant to penetrate her vagina (charge 1) was not supported by any such evidence.
Counsel further submitted that a third way in which the verdicts of the jury might be reconciled is that the jury might have felt that justice did not require a conviction on charge 1. Since the alleged attempted vaginal penetration only lasted a couple of seconds, was unsuccessful, and was followed immediately by the more significant act of anal penetration, the jury might have regarded the two acts as a single transaction and thus, considered that a conviction on charge 2 sufficiently met the needs of justice in the case.
For those reasons, it was submitted that the applicant had failed to demonstrate the requisite inconsistency between the verdicts of the jury.

Ground 1 — analysis and conclusions

The principles relating to the inconsistency of verdicts have been considered in a number of authorities, including the decisions of the High Court in MacKenzie v The Queen[2] and MFA v The Queen.[3]
[2](1996) 190 CLR 348; [1996] HCA 35 (‘MacKenzie’).
[3](2002) 213 CLR 606; [2002] HCA 53 (‘MFA’).
Where the inconsistency is said to be based on jury verdicts on different counts, the test is essentially one of logic and reasonableness. The applicant must demonstrate that no reasonable jury, which had applied its minds properly to the facts of the case, could have arrived at the conclusion reflected by those verdicts.[4] In determining that question, it must be borne in mind that, where the accused has been indicted on separate charges, the jury is ordinarily directed that it must give separate consideration to each charge. In this State, that direction is regularly accompanied by a specific direction, that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection or non-acceptance of a particular aspect of a witness’ evidence does not necessarily mean that the jury must accept or reject the whole of that witness’ evidence.[5] In the present case, the trial judge gave such a direction to the jury.
[4]MacKenzie (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ), citing R v Stone (UK Court of Criminal Appeal, Devlin J, 13 December 1954).
[5]MFA (2002) 213 CLR 606, 617 [34] (Gleeson CJ, Hayne and Callinan JJ). See also Jury Directions Act 2015, s 44F.
In considering whether the verdicts of the jury are inconsistent in the sense discussed above, it must be borne in mind that, in a criminal trial, particular emphasis is placed on the onus of proof borne by the prosecution, so that an acquittal by a jury on a charge on the indictment does not necessarily mean that the jury found that the relevant witness’ evidence, in respect of that charge, was unsatisfactory, untruthful or unreliable.
In MFA, Gleeson CJ, Hayne and Callinan JJ stated:
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.[6]
[6]MFA (2002) 213 CLR 606, 617 [34].
In addition, it has been recognised that, in a case in which an accused faces a number of charges, a jury may take a merciful view of the facts on a particular charge, and consider that justice is met by convicting the accused on only one or some of the charges on the indictment.[7] In that respect, in MFA,[8] and in MacKenzie,[9] the High Court approved the following observations by King CJ in R v Kirkman:
Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.[10]
[7]Ibid.
[8]Ibid.
[9](1996) 190 CLR 348, 367.
[10]R v Kirkman (1987) 44 SASR 591, 593 (King CJ, Olsson J agreeing at 593, O’Loughlin J agreeing at 593).
The authorities make it clear that appellate courts should approach a claim of inconsistent verdicts with caution. If there is a rational explanation for different verdicts by the jury on separate charges, that explanation should be preferred to one that suggests that the jury might have been impermissibly compromised and, in doing so, acted contrary to their oaths or affirmations of office.[11] In essence, taking into account the matters to which we have referred, in order to succeed on the ground of inconsistency of verdicts, the appellant must demonstrate that the different verdicts returned by the jury represent ‘an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.[12]
[11]Avery (a Pseudonym) v The Queen [2014] VSCA 86, [114] (Weinberg JA); Pillay v The Queen (2014) 43 VR 327, 331 [26] (Maxwell P, Weinberg and Santamaria JJA); [2014] VSCA 249 (‘Pillay’). Cf Conolly (a Pseudonym) v The Queen [2019] VSCA 125, [84] (Priest, Beach and Kyrou JJA).
[12]MacKenzie (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ) (citations omitted).
The question, then, is whether, applying those principles, there is a reasonable or proper explanation, based on the evidence, which could explain the different verdicts reached by the jury on the two charges that were under consideration.
In the context of the case that was put to the jury by each side, the critical issue, in respect of each charge, was whether the prosecution had proven, beyond reasonable doubt, that the complainant did not consent to the intended act, or actual act, of sexual penetration of her by the applicant.
As the judge instructed the jury, it was necessary for the prosecution to establish three elements in respect of each of the two offences. The second and third elements related to the question of consent, including as to whether the applicant reasonably understood the complainant to be consenting to the actual act or intended act of sexual penetration of her.
In respect of charge 1, the jury was directed that, to convict the applicant, it must be satisfied, beyond reasonable doubt, first, that the applicant attempted to intentionally sexually penetrate the complainant, secondly, that the complainant did not consent to the intended sexual penetration of her, and, thirdly, that the applicant did not reasonably believe that the complainant would consent to the sexual penetration of her.
In respect of the offence that was the subject of the second charge, the judge instructed the jury that to convict the applicant of that charge, the prosecution must prove, beyond reasonable doubt, first, that the applicant intentionally sexually penetrated the complainant in the way alleged, secondly, that the complainant did not consent to that sexual penetration of her, and, thirdly, that the applicant did not reasonably believe that the complainant consented to that act of sexual penetration of her.
It is quite clear from the evidence that the offences, that were the subject of the two charges were each alleged to have been committed in the course of the same, uninterrupted incident. There was no basis in the evidence on which the jury could have concluded that it was satisfied, beyond reasonable doubt, of the second and third elements of the second charge, but that it was not satisfied, beyond reasonable doubt, of one or both of the second and third elements of the first charge.
In her evidence, the complainant was unequivocal in asserting that throughout the whole incident, she did not consent to either of the two intended acts of sexual penetration of her, and that she made her lack of consent quite clear and evident to the applicant. By contrast, in his recorded interview with the police, the applicant’s consistent position was that, at all times, from their initial meeting in the garage, the complainant was fully consenting, and indeed a willing party, to the acts or attempted acts of sexual penetration of her that occurred in the bedroom. On neither account could the jury have reached different conclusions on the second or third elements of the two charges.

The critical question, then, is whether the verdicts of the jury could be rationally explained on the basis that the jury was not satisfied, beyond reasonable doubt, that the acts performed by the applicant, in the first part of the incident in the bedroom, were sufficient to constitute an intentional attempt to commit the offence of rape.
Section 321N(1) defines the conduct that is necessary to constitute an attempt to commit an offence under s 321M. Section 321N is in the following terms:
Conduct constituting attempt
(1)A person is not guilty of attempting to commit an offence unless the conduct of the person is—
(a)more than merely preparatory to the commission of the offence; and
(b)immediately and not remotely connected with the commission of the offence.
That section substantially reflects the principles that were developed at common law concerning the requisite elements of an attempt to commit a particular crime.[13]
[13]See, eg, DPP v Stonehouse [1978] AC 55, 68 (Lord Diplock), 71 (Viscount Dilhorne), 76–7 (Lord Salmon), 87–8 (Lord Edmund-Davies); Britten v Alpogut [1987] VR 929, 935–6 (Murphy J); R v Mai (1992) 26 NSWLR 371, 381–2 (Hunt CJ at CL).
In accordance with those principles, the judge instructed the jury that, in order to be satisfied of the first element of charge 1, the jury must be satisfied, beyond reasonable doubt, that the accused man attempted to intentionally sexually penetrate the complainant. In respect of that element, the judge instructed the jury in the following terms:
•For a person to be guilty of attempting to commit a crime, the jury must be satisfied that the accused did something that was more than mere preparation of the commission of the offence but was immediately and not remotely connected with its commission.
•The judge noted that the complainant said that the applicant was ‘poking the triangle part above her vagina, underneath her belly’, so that it was argued by the prosecution that the jury should accept that the applicant’s intention was to insert his penis into her vagina and that he ‘got very close to doing so’.
•The judge noted that the complainant’s version of events was disputed by the defence, and that the applicant said that, with the complainant’s consent, they tried a number of sexual positions, but he had some difficulties with his erection.
The judge concluded her directions on the first element of the first charge by instructing the jury that, to be satisfied of that element, it would have to be satisfied, beyond reasonable doubt, that the events occurred in the way described by the complainant, that is, that the applicant ‘came close to penetrating her vagina as she describes’. The judge directed the jury that if it was not satisfied beyond reasonable doubt of the account given by the complainant, then the jury would not find that element to be proven.
It was in the context of those directions that the jury was required to give consideration to the description given by the complainant concerning the part of the incident that was the basis of charge 1 on the indictment.
In her evidence, having described how the applicant forced her into the bedroom and removed her jeans and underwear, the complainant was then asked to describe what the applicant then did, to which she responded:
He was trying to put his doodle in my vagina, but I wouldn’t let him, as my legs were firmly shut, and he was getting – and like poking it with the triangle, the triangle part of my lady parts.
The complainant was then asked to explain where the applicant’s penis went, when the applicant was trying to do that. The complainant responded:
Um, not in my vagina, above it, – but underneath my belly, it’s hard to explain … it’s like the, you know, underneath there’s this area like a triangle and then you have the vagina part, it’s on the skin part.
She then responded to a series of questions, directed to that issue, as follows:
All right. So how close was it to your vagina area, vagina?---Very close.
Are you able to estimate roughly?---Oh, a centimetre, 2 centimetres off.
And you mentioned that you - - -?---Perhaps (indistinct).
- - - wouldn’t let him, and something to do with your legs, can you just explain what you were doing?---Yeah, I had ‘em clenched shut underneath him. And – and as I was struggling he rolled me over, like flipped me and I ended up like my neck attached to – like on the mattress.
We’ll get to that part in a minute, I just want to ask you a couple more questions about when you say he was trying to put his penis in your vagina?---Okay.
Could you feel his penis?---Yeah, I could feel it on the top of it, not down below.
Yes, all right. And what was - - -?---And up – on my stomach sort of.
Following that series of questions and answers, having been asked questions as to the position of the applicant’s hands, she was asked the following question:
What could you feel his penis doing?---Touching me on the top part of my vagina and my top.
And about how long did that – I know it’s hard to estimate, but how long did that happen?---Yeah, a couple of seconds, a couple of seconds and then he realised …
In this context, it is relevant to note that Ms Rover in her evidence said that the complainant told her that the applicant had picked her up, taken her through the kitchen, thrown her onto the bed, and put ‘it’ in her vagina.
The description given by the applicant in his police interview, as to that specific aspect of the case, did not differ substantially from that provided by the complainant in her evidence. In the interview, the applicant said that he could not achieve a complete erection, but the complainant kept trying to put his penis into her vagina and she then kept trying to put it in her anus. Later in the interview, the applicant said that the complainant put some lubrication on her, that she just jumped straight on top of him, and that ‘we were doing it, but it – it – my penis kept coming out’.
In final address, neither side sought to make any submissions to the jury concerning the first element of charge 1, namely, as to whether, on the evidence, the prosecution had established that the applicant had attempted to intentionally sexually penetrate the complainant’s vagina. Specifically, counsel for the applicant did not submit that the jury should not be satisfied that applicant’s actions were such as to constitute an intentional attempt to sexually penetrate the complainant’s vagina for the purposes of the first element of charge 1. Indeed, the prosecutor, at an early point in her final address, noted that the complainant had said that the applicant attempted to penetrate her vagina, and that the applicant, in his police interview, had said that he actually did penetrate her vagina with his penis.
In those circumstances, the only inference that was reasonably open to the jury, from the evidence given by the complainant, was that after the applicant had carried her into the bedroom and placed her, face up, on the bed, he then intentionally attempted to penetrate her vagina with his penis. That aspect of the case was not in issue in the trial and, as we have noted, was specifically admitted by the applicant in his police interview. Based on the clear instructions given by the judge on that aspect of the case, the jury could not have reached any other rational conclusion than that the first element of charge 1 was satisfied, namely, that the applicant had attempted to intentionally penetrate the complainant’s vagina.
It follows, therefore, that the first basis, proffered by the respondent, to account for the different verdicts by the jury on charges 1 and 2 respectively, does not constitute a rational explanation of those verdicts.
Further, we are not persuaded that the second basis, contended for by the respondent, does constitute such a sufficient explanation of the two verdicts.
There was no issue in the trial that the applicant did penetrate the complainant’s anus. There was a difference in the accounts, given by the complainant and the applicant, concerning the circumstances in which the penetration occurred, and the effect of it. In particular, the complainant said that the penetration was painful, whereas in the police interview, the applicant said that the complainant did not appear to suffer any discomfort. In that respect, the evidence of Maxine Rover and Dr Ramsay supported that aspect of the complainant’s evidence.
However, that difference in the accounts given by the complainant and the applicant respectively could not rationally account for nor explain why the jury convicted the applicant on charge 2, but acquitted him on charge 1. At the risk of repetition, both the applicant and the complainant said that the applicant did penetrate the complainant’s anus, that act constituting the first element of charge 2. Likewise, both the applicant and the complainant said that the applicant did intentionally attempt to penetrate the complainant’s vagina (and, indeed, the applicant admitted that he had achieved such penetration) so that the first element of charge 1 was entirely uncontroversial. The additional evidence of Maxine Rover and Dr Ramsay as to the discomfort suffered by the complainant in her anus might have reinforced the complainant’s account in relation to the act that was the subject of charge 2, but the performance by the applicant of that act was not in issue, and was admitted by the applicant. The absence of corresponding evidence as to the first element of charge 1 could not logically have made any difference to the jury’s determination of charge 1, as the first element was clearly proven by the evidence of the complainant and was not in issue in the trial.
The third explanation relied on by the respondent is that the jury might have acquitted the applicant on charge 1 by taking a merciful view of the facts in the case, and by considering that, out of an innate sense of fairness and justice, it was sufficient to convict the applicant on charge 2. In respect of that proposed explanation, counsel for the respondent placed some reliance on the evidence given by the complainant, that the attempted vaginal penetration only took a couple of seconds.
That aspect of the complainant’s evidence must be viewed in its proper context. It is quite clear that the intentional attempt by the applicant to penetrate the complainant’s vagina took more than a couple of seconds and, on the complainant’s account, involved quite egregious conduct by the applicant.
Specifically, the complainant said that after she had been taken into the bedroom, she was thrown on the bed so that her head hit the bedhead. She said that while she resisted, the applicant removed her jeans and underwear, that while he was doing so, she tried to stop him, and that she tried to pull her feet up to do so. The complainant then said that the applicant was ‘trying to put his doodle in my vagina’, but that she would not permit him to do so, and she kept her legs firmly shut for that purpose. In the passage of the evidence that we have earlier quoted, the complainant described, in some detail, the attempt made by the applicant to penetrate her vagina. The complainant then described the circumstances in which she said that the applicant turned her onto her stomach and, while she resisted, he attempted to penetrate her anus, and then succeeded in doing so.
In that way, based on the evidence of the complainant, the actions of the applicant were substantial instances of each of the two offences committed by him against the complainant, notwithstanding that they occurred in the course of the one continuous incident. It could not be rationally considered, in a case such as this, that the jury, out of some innate sense of justice and mercy, nevertheless acquitted the applicant on charge 1, notwithstanding that based on the description given by the complainant, the actions of the applicant that constituted the offence that was the subject of that charge, were, as we have noted, indisputably reprehensible.
It follows from the foregoing that the verdict of the jury on charge 2 was irreconcilably inconsistent with its verdict on charge 1.
It is not possible to determine how or why the jury came to such inconsistent verdicts on the two charges. It is possible that the jury, having regard to a number of the issues raised in respect of the credibility and reliability of the evidence given by the complainant, sought to accommodate those issues by reaching a compromise in its conclusions concerning the two charges.
In R v TK,[14] Simpson J expressed the view that if the favoured explanation for an inconsistency in verdicts is that the jury compromised, the appropriate course is to set aside the jury’s verdict and order a new trial on the count on which the jury convicted the appellant.[15] However, for the reasons that we have discussed, on the facts of the present case, the jury’s acquittal of the applicant on charge 1 necessarily and unequivocally contradicts a finding of guilt against him on charge 2. In those circumstances, it is appropriate that the conviction of the applicant on charge 2 should be set aside and, in lieu, there should be a judgment and verdict of acquittal on that charge.[16]
[14](2009) 74 NSWLR 299; [2009] NSWCCA 151.
[15]Ibid 323 [137] (McClellan CJ at CL agreeing at 300 [1], Latham J agreeing at 332 [204]).
[16]Cf R v JA [2008] VSCA 169, [70] (Vincent, Dodds-Streeton and Weinberg JJA); Pillay (2014) 43 VR 327, 333–4 [30]–[32] (Maxwell P, Weinberg and Santamaria JJA); [2014] VSCA 249; Wade (a Pseudonym) v The Queen [2018] VSCA 304, [126]–[127] (Kyrou and T Forrest JJA and Taylor AJA).
Accordingly, for the foregoing reasons, we grant the application for leave to appeal, and allow the appeal, on ground 1. The conviction of the applicant on charge 2 shall be set aside, and, in lieu, there should be entered a judgment and verdict of acquittal on that charge.
In view of those conclusions, it is unnecessary to consider and determine ground 2.

---

[2024] VSCA 119

4 June 2024