THG v The State of Western Australia - [2015] WASCA 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THG -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 50

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 9 DECEMBER 2014

DELIVERED : 17 MARCH 2015

FILE NO/S: CACR 21 of 2014

BETWEEN: THG
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :HERRON DCJ
File No  :IND 601 of 2013

Catchwords:

Criminal law - Appeal against conviction - Appellant charged with seven counts of sexual offending - Appellant convicted after trial on one count and acquitted on six counts - Whether verdict of guilty was unreasonable

Legislation:

Criminal Code (WA), s 321(2), s 321(4)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Fort Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
NCH v The State of Western Australia [2013] WASCA 29
Riley v The State of Western Australia [2007] WASCA 22
Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319
WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22
Williams v Smith [1960] HCA 22; (1960) 103 CLR 539

McLURE P: I agree with Buss JA.
BUSS JA: This is an appeal against conviction.
The appellant was charged on indictment with seven counts of sexual offending. All of the alleged offending occurred while the complainant was a child of or over the age of 13 years and under the age of 16 years.
Counts 1, 2, 4, 5, 6 and 7 concerned indecent dealing, contrary to s 321(4) of the Criminal Code (WA) (the Code). Count 3 concerned sexual penetration, contrary to s 321(2) of the Code.
Count 1 alleged that on a date unknown between 31 January 2010 and 1 May 2010, at Spearwood, the appellant indecently dealt with the complainant by kissing her on the mouth.
Count 2 alleged that on the same unknown date and at the same place as in count 1, the appellant indecently dealt with the complainant by touching her breasts.
Count 3 alleged that on the same unknown date and at the same place as in count 1, the appellant sexually penetrated the complainant by penetrating her vagina with his finger.
Count 4 alleged that on another date unknown between 31 January 2010 and 1 May 2010, at Spearwood, the appellant indecently dealt with the complainant by kissing her on the mouth.
Count 5 alleged that on the same unknown date and at the same place as in count 4, the appellant indecently dealt with the complainant by touching her breast.
Count 6 alleged that on another date unknown between 31 January 2010 and 1 May 2010, at Fremantle, the appellant indecently dealt with the complainant by kissing her on the mouth.
Count 7 alleged that on the same unknown date as in count 6, at Spearwood, the appellant indecently dealt with the complainant by touching her thigh.
The appellant pleaded not guilty to all of the counts.
On 12 December 2012, after a trial in the District Court before Herron DCJ and a jury, the appellant was convicted on count 7 but

acquitted on the other counts. The verdicts on counts 1 and 3 were by majority and the other verdicts were unanimous.

On 20 December 2013, the trial judge sentenced the appellant to a fine of $3,500 in respect of count 7.

The ground of appeal

The appellant relies on one ground of appeal. The ground, as amended at the hearing of the appeal, alleges in substance that the verdict of guilty on count 7 was unreasonable. The particulars of the ground assert that the verdict of guilty was 'inconsistent with the verdicts of not guilty' on the other counts.
On 11 May 2014, Mazza JA granted leave to appeal.

The State's case at trial

The State's case at trial was, in summary, as follows.
The State alleged that the offending occurred on three separate occasions.
Counts 1, 2 and 3 allegedly occurred on the same day and in the kitchen of a shop at Spearwood (the Kitchen incident).
Counts 4 and 5 allegedly occurred on a different day from the Kitchen incident and inside the appellant's car while it was parked in the underground car park at the Phoenix Shopping Centre in Spearwood (the Phoenix Shopping Centre incident).
Counts 6 and 7 allegedly occurred on the same day but at different times of the day with count 6 occurring at Fremantle (the Fremantle incident) and count 7 occurring at Spearwood (the Spearwood incident). Counts 6 and 7 allegedly happened on a different day from the Kitchen incident and the Phoenix Shopping Centre incident.
At all material times, the appellant was employed in a shop at Spearwood. The complainant's mother worked near the shop. The mother arranged for the complainant to have 'work experience' at the shop where the appellant was employed. The appellant was then aged 36 and the complainant was 14.
Counts 1, 2 and 3 allegedly occurred at the shop while the complainant was engaged in work experience. The complainant was in the kitchen when the appellant approached her.
The appellant kissed the complainant on the mouth and inserted his tongue into her mouth. He then moved his hands to the complainant's breasts and touched them. Next, he moved his hands into the complainant's pants and inserted his finger into her vagina.
The complainant told the appellant on numerous occasions, after the offending commenced, to stop.
The appellant left the kitchen after committing count 3. He returned with $50 and gave it to the complainant. He offered to pay her to work at the shop on future occasions.
As to counts 4 and 5, the complainant attended the shop at a later date for additional work experience. The appellant invited her to come with him while he purchased supplies for the shop. They drove in the appellant's vehicle to the Phoenix Shopping Centre. When the vehicle was parked in an underground car park at the centre the appellant kissed the complainant on the mouth and inserted his tongue into her mouth. He then moved his hands to the complainant's breasts and touched them. When the appellant attempted to move his hands into the complainant's pants she stopped him. Nothing further happened on that occasion.
As to counts 6 and 7, the complainant returned again to the shop to engage in further work experience. The appellant invited her to come with him to Fremantle while he went to a CD shop. They travelled to Fremantle in the appellant's vehicle. After the appellant had parked his vehicle he kissed the complainant on the lips. On the return journey from Fremantle to Spearwood, while his vehicle was stationary at red traffic control lights, the appellant put his hand on the complainant's thigh and ran it up to an area around her umbilicus. He stroked that area and asked, 'Can I touch it?'. The complainant refused. She understood the appellant to be referring to her vagina.

The appellant's case at trial

The appellant's case at trial was that none of the alleged offending had occurred.
The complainant worked at the shop on approximately a weekly basis between April 2009 and September 2010.
The complainant would be paid for some but not all of the occasions she worked. She would not be paid by the appellant but by one of the other staff. However, the appellant would pay her when she cleaned 'the tubes', which involved dirty and unpleasant work.
The complainant attended the shop for work experience a few times after the last of the alleged offences occurred.
Defence counsel relied on a number of alleged weaknesses in the complainant's evidence. The alleged weaknesses included inconsistencies in the complainant's various accounts of relevant interactions with the appellant in her conversations with a friend, JH, what she said in her interview with the police and what she said at the trial. For example:
(a)As to the Kitchen incident, the complainant initially asserted that she was sitting on a couch in the kitchen when the appellant began speaking to her and told her to stand. However, at the trial she said she was already standing when the incident began (ts 76).
(b)As to the Kitchen incident, the complainant gave evidence that the appellant attempted to pull down her singlet, but during her interview with the police she stated that on the day in question she was wearing a shirt and a leather jacket (ts 79).
(c)As to the Kitchen incident, the complainant gave conflicting evidence as to whether the appellant had touched her breast over her bra or on her skin (ts 79).
(d)As to the Kitchen incident, the complainant gave evidence that the appellant gave her $50 after committing counts 1, 2 and 3 in order to reward her for complying with his behaviour, but she was not given any money after the alleged commission of any of the other counts (ts 86).
(e)The complainant said in her interview with the police that the Fremantle incident (count 6) involved only a kiss and nothing else and, when reminded by the interviewer that she had previously said the appellant had attempted to touch her breasts and put his hands down her pants, she replied, 'Did I say that to the third time?' (Interview 67).
(f)Later in the interview, after asserting in the context of count 6 that the appellant had attempted to put his hands down her pants, the complainant said that was all that had occurred. She was prompted again about the appellant attempting to touch her breasts and she replied, 'Was that the third time?' (Interview 73). At the trial, the complainant gave evidence that she asked that question 'just to keep up‑to‑date with what time I said that' (ts 103).
The appellant gave sworn evidence at the trial. He denied having committed any of the alleged offences.
As to counts 6 and 7, the appellant said:
(a)On the day in question he did not drive the complainant from Spearwood to Fremantle (ts 177).
(b)He did, however, drive her from Fremantle to Spearwood (ts 177).
(c)He met the complainant at Mills Records in Fremantle (ts 177). It was not a planned meeting (ts 177).
(d)He offered her a lift in his car (ts 177). He told her where it was parked (ts 177 ‑ 178).
(e)He rejected the complainant's evidence that he had parked his vehicle in South Fremantle next to the beach. He said he always parked outside 'Old Shanghai' (ts 177 ‑ 178).
The prosecutor put to the appellant in cross‑examination that, after becoming aware of police investigations into the incidents with the complainant, he travelled from Perth to Melbourne (ts 196). The appellant denied the proposition. He maintained that he travelled to Melbourne as a result of threats he had received from an individual, the ransacking of the shop where he worked and other issues related to an outlaw motorcycle gang (ts 198 ‑ 199). The appellant denied in effect being aware of any police investigations concerning him when he left Perth: he did not become aware of them until September 2010 when he was living in Melbourne (ts 233 ‑ 234).

The appellant's submissions on the ground of appeal

Counsel for the appellant submitted that:
(a)The 'entirety of the evidence going directly to the acts comprising count 7 was the complainant's testimony'.
(b)The credibility and reliability of the complainant's evidence was critical to all counts.
(c)There is 'no single factor the appellant can point to that would suggest why, other than because of compromising and looking to find him guilty of a relatively minor offence … the jury returned a verdict of guilty for count 7'.
According to counsel, the verdicts of not guilty on six of the seven counts reflects 'a view that the complainant was untruthful or unreliable' and, consequently, 'the verdicts cannot stand together'. The evidence on count 7 'was not stronger than' the evidence on any other count.
In summary, counsel for the appellant argued that the jury's verdicts were 'indicative of a compromise', the verdicts of not guilty on counts 1 ‑ 6 'could only have arisen in circumstances in which the jury had serious doubts about the credibility of the complainant' and, therefore, the jury 'could not reasonably find the appellant guilty of count 7'.

The merits of the ground of appeal

In Riley v The State of Western Australia [2007] WASCA 22 [16] ‑ [25], I examined the relevant decisions of the High Court on inconsistent verdicts. It is unnecessary to reproduce my review of the cases.
In the present case, the appellant alleges that the jury's verdicts were factually inconsistent and incompatible. It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on six counts and convict on one count.
A jury is, of course, entitled to accept part, but not all, of a witness's version of events. Also, a jury, as the tribunal of fact, is entitled to 'work out for themselves a view of the case which [does] not exactly represent what either party [has] said': Williams v Smith [1960] HCA 22; (1960) 103 CLR 539, 545 (Dixon CJ, McTiernan, Fullagar, Kitto & Menzies JJ). That statement, made in the context of civil proceedings, has been applied to criminal trials. See Stevens v The Queen [2005] HCA 65; (2005) 227 CLR 319 [29] (McHugh J); WCW v The State of Western Australia [2008] WASCA 232; (2008) 191 A Crim R 22 [14] (Buss JA).
As I noted (Martin CJ & Mazza JA agreeing) in NCH v The State of Western Australia [2013] WASCA 29 [130]:
(a)Where several offences of a sexual nature depend upon the complainant's evidence, the circumstances of the case may justify acquittal on some counts and conviction on others.
(b)Where the jury returns different verdicts, there is no general rule that they must necessarily have found the complainant generally to be untruthful or that the complainant's credibility was undermined in respect of the counts on which the offender was convicted.
In the present case, the trial judge gave the jury directions in his summing up, as follows:
(a)The jury must give separate consideration to each count in the indictment and make a decision on each count separately (ts 257).
(b)When considering each count, the jury must take into account only the evidence that is relevant to that count. The jury's duty in respect of each charge was to consider only the evidence relevant to that charge and, on the basis of that evidence, determine whether its verdict was guilty or not guilty (ts 257).
(c)The jury's verdict did not have to be the same on each count (ts 257).
(d)If the jury found the appellant guilty of one count, it did not follow that he was guilty of any other count (ts 257).
(e)Having considered all the evidence, the jury may find the appellant guilty of all charges or it may find him not guilty of all charges or it may find him guilty of some and not guilty of others. Those were matters for the jury to determine on the evidence (ts 257).
(f)The jury could not find the appellant guilty of any count 'unless direct evidence that he has committed that offence satisfies you beyond reasonable doubt that he did commit the offence' (ts 257).
(g)The jury was entitled to accept the whole of a witness's evidence, to accept part of a witness's evidence and reject part of that witness's evidence, or to reject the whole of a witness's evidence (ts 256).
(h)The State's case depended to a significant extent upon an acceptance of the complainant's evidence, and the jury would need to scrutinise her evidence carefully for its truthfulness and reliability (ts 255).
(i)It was the evidence, and only the evidence, that the jury must take into account in making its findings of fact (ts 255).
(j)The burden of proving the charges was on the State. The appellant was presumed innocent and did not have to prove anything. The standard of proof was beyond reasonable doubt. The jury could not convict the appellant on a count unless the State satisfied it beyond reasonable doubt that the appellant was guilty of that count. If the jury had a reasonable doubt as to whether the appellant was guilty on any count then it was its duty to acquit on that count (ts 257 ‑ 259).
(k)If the jury believed the appellant's evidence, it must find him not guilty. If the jury found difficulty in accepting the appellant's evidence but thought that it might be true, then the jury must acquit. If the jury did not believe the appellant's evidence then it should put his evidence to one side and consider whether, on the evidence that the jury did accept, the State had proved his guilt beyond reasonable doubt (ts 259).
(l)As to the complainant's evidence, his Honour instructed the jury:
I [stress] to you the necessity to be satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of the evidence of the complainant … She is the only witness asserting the commission of the crime. Her evidence must be scrutinised by you with great care before a conclusion is arrived at that a verdict of guilty should be brought in. You can only find the [appellant] guilty of the charge you are considering if you accept beyond reasonable doubt the complainant's evidence in respect of that charge. If not so satisfied, of course, the proper verdict would be one of not guilty. The [appellant] denies all acts of impropriety and you may think that the issue is whether you are satisfied beyond reasonable doubt that the events outlined by the complainant in fact occurred (ts 265).
In his summing up, his Honour noted defence counsel's submissions that there were numerous inconsistencies in the complainant's accounts of the alleged incidents. His Honour summarised the relevant inconsistencies for the jury (ts 265 ‑ 267).
Before this court, counsel for the appellant did not complain about any of the trial judge's directions or any other aspect of his Honour's summing up.
The jury retired to consider its verdicts at 11.08 am on 12 December 2013. At 2.24 pm his Honour received a note from the jury requesting that it be permitted to listen to the complainant's original statement about the Kitchen incident (counts 1, 2 and 3). At 2.31 pm the jury returned and his Honour read relevant passages from the transcript of the complainant's interview with the police. At 3.13 pm the jury retired again to consider its verdicts. At 4.07 pm his Honour received a note from the jury to the effect that it had been able to reach a verdict on some counts but not others. The jury was 'deadlocked' on the other counts (ts 306). At 4.09 pm the jury returned and his Honour gave it a majority verdict direction. At 4.12 pm the jury retired again to consider its verdicts. At 4.42 pm the jury returned and delivered its verdicts on all of the counts.
It is true that the credibility and reliability of the complainant's evidence was critical to all counts on the indictment, including count 7. That is not an unusual feature of criminal trials involving alleged sex offending. The critical importance of the complainant's evidence was highlighted by the trial judge on two separate occasions in his summing up. His Honour directed the jury that the complainant's evidence must be scrutinised with great care. Also, his Honour instructed the jury that it must be satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of the complainant's evidence in relation to a count before it could convict on that count.

It is necessary, in considering the ground of appeal, to take into account all of the facts and circumstances of the case. An inability to identify with precision a single factor or a combination of factors which affirmatively explains why a jury acquitted on one or more counts and convicted on one or more counts does not necessarily impugn the integrity of the conviction or convictions.
In my opinion, there is a proper way in which the verdicts of the jury may be reconciled.
The reliability of the complainant's evidence was a very significant issue at the trial. However, almost all of the inconsistencies in the complainant's accounts of the alleged incidents related to the Kitchen incident (that is, counts 1, 2 and 3).
Although counts 6 and 7 allegedly occurred on the same day, each allegedly occurred at a different time and a different place. Count 6 allegedly happened at Fremantle and count 7 allegedly happened at Spearwood.
As to count 6, the complainant said that while she was engaged in work experience at the shop, the appellant asked her to drive with him to Fremantle for the purpose of visiting a store which sold CDs. The complainant said she agreed. They travelled in the appellant's car from the shop in Spearwood to a car park at the Fremantle foreshore. According to the complainant, it was at this location that the appellant indecently dealt with her by kissing her on the mouth.
The complainant's account about count 7 in her interview with the police was as follows:
Q. Okay. And whereabouts were you when ‑ ‑ did anything else happen on that day?
A. Not ‑ ‑ not that I can remember.
Q. Okay. Cos you've told us about how he's tried playing with your boobs and putting his hands down your pants and things.
A. Did I say that to the third time?
Q. Mm, hm.
A. Oh.
Q. Yeah.
KATIE:
Q. That's when you spoke about how you ‑ ‑ you had a discussion about your period and you were saying how you get it abnormally and stuff like that, cos he was questioning it.
A. Oh yeah, yeah, yeah.
Q. Yeah.
A. Yeah. Yeah. It's come back to me now.
ANNA:
Q. So whereabouts were you when this happened?
A. Driving back.
Q. Driving back ‑ ‑
A. Yeah.
Q. ‑ ‑ from the CD shop? Okay. So ‑ ‑
A. Like he actually asked me if he could like put his hand down my pants.
Q. Okay.
…
A. And I was like, 'Nuh'.
Q. So just so we're clear and we ‑ ‑ we are on that day ‑ ‑
A. Yeah.
Q. ‑ ‑ so you've gone to the cd shop and left?
A. Yeah.
Q. Yeah. And so whereabouts were you when something else happened with [the appellant]?
A. We were driving off and we were like stopped at the lights, um, up on, um ‑ ‑ I think it was Phoenix Road or something.
Q. So you were stopped at traffic lights?
A. Yeah.
Q. On Phoenix Road?
A. Yeah.
Q. And what happened when you were stopped at the lights?
A. Oh, we, um ‑ ‑ we stopped and that's actually when - - like he didn't try and kiss me though, I must have got that mixed up with one of the other times.
Q. Mm hm.
A. Um, yeah, he actually tried to put his hands down my pants but like he didn't get in there but he actually asked if he could, and I was like, 'No, I've got my - - got my period still'.
Q. Okay.
A. And then he said, 'Why do you have it so long?'
Q. Okay.
A. Yeah.
Q. So when he asked if he could do it, was that before or after he's tried to do it?
A. That was, um, after.
Q. After he's tried to do it?
A. Yeah.
Q. So the first thing was that he tried to put his hands down?
A. Yeah.
Q. Okay. So when you were parked at the lights, describe for Katie and I how he's trying to do this?
A. Well, he like - - cos we were pretty far away from the stop lights, about probably four or five cars away.
Q. Yeah.
A. And, um there was like heaps of cars … (indistinct) … along the intersection thing. So he just like looked at me and he was just like talking to me and then like, you know, it's hell seductive stare, like you know ‑ ‑
Q. Mm hm.
A. ‑ ‑ how people do. And then like he just like ‑ ‑ he just like looked at how far the traffic was going like across, like if there was still heaps of cars to go. And then he moved his hand over, like first he touched my thigh and then he moved up to it.
Q. So first he's touched your thigh and then you said he's 'moved up to it'. Then what happened?
A. Then he like ‑ ‑ he got his hand probably to about just under my stomach.
Q. Mm hm.
A. And then he asked if he could.
Q. Okay. So when you said he's tried to put his hand down your pants, did his hand go anywhere near ‑ ‑
A. The ‑ ‑ it wasn't like in to my pants, it was like sort of, um, like where you get your period pain sort of thing.
Q. Mm hm. Okay.
A. Yeah.
Q. So his ‑ ‑ his hand has touched your thigh and it's moved up to the area ‑ ‑
A. Yeah.
Q. ‑ ‑ where you get your period pain. Do you know what area of the body that's called?
A. No. I don't know, between ‑ ‑ oh ‑ I don't know, like ‑ ‑
Q. Where in relation to your belly button?
A. Oh just under it probably.
Q. Just under your belly button?
A. Yeah. Yeah.
Q. Okay. And when he was touching you, what was his hand doing?
A. It was like sort of like just going like that sort of like stroking across and ‑ ‑
Q. Yeah.
A. ‑ ‑ then he asked.
Q. Okay. So how long was it stroking across before he asked if he could ‑ ‑ if he could do that?
A. Um, probably not long, like less than a minute.
Q. Okay. And how did you feel when he was doing this?
A. A bit awkward.
Q. Yeah. And what were you wearing on this day?
A. I'm pretty sure I was wearing tights and my white Ed Hardy shirt.
Q. And your white Ed Hardy shirt, has that ‑ ‑ what's that got on it?
A. I think it's - - that's - - I've got two white Ed Hardy shirts. Um, I think it was on my other Bali ones that I got from the Salvos. Um, I'm pretty sure that one's just got a rose on it and a banner that doesn't say anything.
Q. And were you wearing anything under your clothes?
A. Yeah, undies and a bra.
Q. And what sort of undies and bra were you wearing?
A. I think I was wearing my Bonds and bra, would've been my pink one, cos that was my favourite up until a few weeks ago.
ANNA: Katie, have you got any questions on clothing?
KATIE: No, no questions.
ANNA: Okay.
Q. And, um, you said it felt really awkward when he was ‑ ‑
A. Yeah.
Q. ‑ ‑ touching you like this? Okay. So then you said that he's asked if he can touch you ‑ ‑
A. Yeah.
Q. So just what words did he use when he asked?
A. Like 'Can I touch it?'
Q. He said, 'Can I touch it?'?
A. Yeah.
Q. What did you think he was referring to?
A. Well, my vagina.
Q. Mm. Did he say anything else to you?
A. No.
Q. Did you say anything to him?
A. I said, 'Nah, because I've still got my period'. And he's like, 'Why do you have it for so long?', and I was like, 'I've had it like this since I first got it, it's really weird'.
Q. Okay. So what did his - - what did he do with his hands when you were having that conversation with him about can I touch it?
A. He took his hands away and he put them back on the wheel.
Q. Yeah.
A. Yeah.
Q. Okay.
A. And then we stopped talking until we got to the … shop (Interview 67 ‑ 72).
The appellant gave evidence at the trial denying that he had either offered to drive or had driven the complainant from Spearwood to Fremantle on the day in question:
Did you drive [the complainant] to Fremantle [that] day … ‑‑‑No, from Fremantle.
So where did you meet [the complainant]---I meet her … inside the Mills Records.
Had you planned to meet her---Not at all because like I said, that's my routine going to the Mills Records to drop the CD and to pick up a CD and come home or go back to the [shop] straightaway.
Did you talk to her when you met her---Yes, because that's when she starting sort of like I see her frequently and at the [shop] and her mum coming into the [shop] and … so I get to know them so I told her, 'What are you doing hanging out in here?'.
Yes---And she told me like, 'You know, things that what we do, you know, like in our age' so I said, 'Well, you know, your mum's going to be worried' cos she's doing it while school time. 'Why don't you - you know, what are you going to do?' and she said to me, 'I'll come home later' so 'Come with me then if you want? You can go into my car'. My car is never locked. They are in the middle of the car park in the - right in front of the market.
Yes. So what did you tell [the complainant] about your car---'It's unlocked. You can go into my car'.
Did you tell her where your car was---Yes, at the same place all the time.
…
Okay. What - what did you tell [the complainant] about where your car was--- … 'My car's in the Old Shanghai, right across the road of the - the market'.
Okay. And what------In the open car park.
All right. And------'It's like not locked. Just go in there. Why don't you go there but just don't smoke in there'.
Okay. What did [the complainant] do after that? What did you see her do after you told her that---She go into my car and I'm doing the things what I do in the record label.
Okay. And at some stage, did you go to your car---Yes. From there, we're going back … to the [shop].
Okay. And who was in your car when you went back to the [shop]‑‑‑Just me and her.
And her is [the complainant], is that correct---Yes (ts 177 ‑ 178).
It was open to the jury to acquit the appellant on count 6, having regard to his evidence that he did not drive the complainant from Spearwood to Fremantle on the day in question and the directions of the trial judge to which I have referred. It is apparent that the jury was unwilling to accept that the State had proved the appellant's guilt on count 6 to the criminal standard.
The appellant's evidence that he did not drive the complainant from Spearwood to Fremantle, but he did drive her from Fremantle to Spearwood, on the day in question was significant. The appellant's admission that he had driven her from Fremantle to Spearwood, and that no‑one else had been in the vehicle, corroborated the complainant's evidence in relation to count 7 that they had undertaken that journey alone in his car, and established that the appellant had an opportunity to commit the offence as alleged by the complainant. By contrast, the complainant accepted that there were other people in the vicinity when the appellant allegedly committed counts 1 ‑ 6.
As to counts 1, 2 and 3, the appellant gave evidence that the offences did not, and could not, have occurred:
All right. Now, [the complainant] gave evidence that [K] was in the [shop] with a customer and you and her were alone in the kitchen that day. What do you say about that---No, it doesn't make sense.
Well, were you alone in the kitchen that day with [the complainant]---Not at all. We all in the kitchen, we playing very loud music. It's the nature of us, you know, like we - we like to joke around, we like to kicking each other in the arse, we like to you know, playing the song. We - we play as the actor - actor in the movie, we played acting in the - like the song play, so if the song talk about love story, we acting like a love story. You know, like I explain before I do a lot of music. I love music. Everything I do is about music so - - -
Just - [the complainant] also said that day that you pulled down her singlet and moved her bra and touched her on the breast, what do you say about that---It doesn't make sense. I was eating my chilli chicken in there.
Did you do that---Not at all.
And [the complainant] also said that you put your hand down her leggings and you rubbed her vagina and you put a finger in her vagina. What do you say about that---No.
Did you do that---It's actually the conversation I remember now. We talking about how toxicated she had at the party that night before.
Did you do that? Did you put your hand down her leggings---Not at all.
Did you put your finger in her vagina---Not at all (ts 169).
It is not surprising that the jury, having regard to that evidence and the directions of the trial judge to which I have referred, was unwilling to accept that the State had proved the appellant's guilt on counts 1, 2 and 3 to the criminal standard.
As to counts 4 and 5, this offending allegedly occurred when the appellant drove the complainant to the Phoenix Shopping Centre in his vehicle. Upon arriving at the centre, the appellant allegedly parked in the underground car park, kissed the complainant on the lips and touched her breasts. The complainant gave evidence that the appellant drove her to the Phoenix Shopping Centre in a maroon‑coloured Holden sedan (ts 91, 104, 105). She denied having travelled to the centre in the appellant's green‑coloured car (ts 105).
The appellant gave evidence about these allegations as follows:
Do you remember seeing yesterday [the complainant] saying that you drove her in a maroon Holden sedan to the Phoenix shops---No, not at all.
What do you say about that ‑ ‑ ‑ Not at all.
Okay. Did you ever drive [the complainant] to the Phoenix shops---No, I am the boss in there. Why should I driving around for anyone.
Okay. So - and I'm asking you about 2010; what car did you use yourself to get yourself to and from the [shop]---The green car. The green car is sort of like a symbol of me so if the people - my customers see the car parking in the front it's meaning I'm in the - and otherwise most of the customer doesn't want to come into the [shop] because they don't really like [F] because [F] used to punch people in the Janjibar Nightclub.
…
Okay. So this time in 2010, did your partner have a car---Yes, she did because we have a little girl so - and at the same time she going to university in - in Bunbury so she had to drive then in and out to - - -
What sort of a car in 2010 - - ----Is a - is a maroon car, is a station wagon.
…
And did you use that car to get yourself to the [shop] in 2010---No, that's not I'll be looking cool.
Okay. I want to ask you about your green car, the - I think it's a 1977 Falcon, I think you said---Yes.
Is that correct---Yes, indeed.
…
Was there anything in - any places you would not like to take the car to‑‑‑Underground car park for starters.
Why not---Because it's difficult to parking in there and not safe. The second one; I don't even drive that to McDonald or Hungry Jack because they're way too small for this day's car.
…
Was there anything else about the car that made you concerned about taking it to underground car parks---Yes, I never lock it. I don't have any key for it.
Did you ever drive [the complainant] to the Phoenix shops---Not at all.
In any car---Not at all.
Did you ever go with [the complainant] to the Phoenix shops---Yes, plenty of time. We walked to the Phoenix Shopping Centre by just - get the lunch or have a look around and we come back again but always we accompanied by somebody else.
And who would that other person be---[B]. He's like my left-hand side.
…
You remember seeing [the complainant's] evidence yesterday when she says you and her were parked in the underground car park at Phoenix shops and you kissed her on the mouth---Not at all; it doesn't make sense.
Did you do that---No, I'm too busy to doing that.
Did you also hear her evidence yesterday that she says after you kissed her that you touched her on the breast---Not at all.
Did you do that---Not at all (ts 171 ‑ 175).

It was open to the jury to acquit the appellant on counts 4 and 5 in view of his evidence that he only ever walked to the Phoenix Shopping Centre from the shop; when he walked there with the complainant another person was always present; at the material time he was driving a green‑coloured car and not a maroon‑coloured vehicle; and he had a practice of not parking in underground facilities.
I am satisfied that the jury's decision to acquit on counts 1 ‑ 6 did not relevantly undermine the complainant's credibility on count 7 and does not indicate that the verdict of conviction on count 7 is inconsistent, in the relevant sense, with the other verdicts. It merely shows that the jury was cautious and conscientious in reviewing the evidence and discharging its heavy responsibility. It may also be that the jury took a 'merciful' view of the facts on some of the counts on which it acquitted, this being a function which, as Gaudron, Gummow and Kirby JJ pointed out in MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 ‑ 368, has always been open to, and often exercised by, juries.
The questions asked by the jury, the length of time the jury deliberated, and the majority verdicts on two of the seven counts indicate that the jury properly discharged its duties and followed the trial judge's directions. The matters to which I have referred strongly militate against the appellant's suggestion that the verdict of guilty on count 7 was 'indicative of a compromise'.
The jury's verdicts are not factually inconsistent or incompatible. The differences in the verdicts are not illogical or an affront to common sense.
The ground of appeal fails.

Conclusion

I would dismiss the appeal.
MAZZA JA: I agree with Buss JA.