Xiao v R

[2019] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Walker v R [2019] NSWCCA 4
Hearing dates:	19 November 2018
Decision date:	01 February 2019
Before:	Hoeben CJ at CL at [1]; Rothman J at [138]; Price J at [142]
Decision:	(1)   Leave to appeal granted. (2)   Appeal against conviction dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – sixteen counts alleging sexual misconduct against an underage complainant – six alleged incidents between 1986 and 1989 – jury trial – not guilty verdicts returned on eleven matters and guilty verdicts on five matters – applicant contends verdicts inconsistent – evidence principally that of applicant and complainant – pretext phone call – whether verdicts capable of standing together – verdicts not inconsistent – leave to appeal granted but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 61D, 66C, 112
Cases Cited:	Darby v R [2016] NSWCCA 164 Jafary v R [2018] NSWCCA 243 Mackenzie v The Queen [1996] HCA 35; 190 CLR 348 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 MFA v The Queen [2002] HCA 53; 213 CLR 606 ML v R [2015] NSWCCA 27 Miller v R [2014] NSWCCA 34 Stanford v R [2018] NSWCCA 249 Still v R [2010] NSWCCA 131 TK v R [2009] NSWCCA 151; 74 NSWLR 299 Tsaccounis v R [2016] NSWCCA 163
Category:	Principal judgment
Parties:	Robert Walker – Applicant Regina – Respondent Crown
Representation:	Counsel: S Pararajasingham – Applicant BK Baker – Respondent Crown   Solicitors: B Wrench – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/335561
Publication restriction:	Non-publication order re: name of the complainant
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 23 June 2016 Before: Frearson SC DCJ File Number(s): 2014/335561

1. HOEBEN CJ at CL:

Nature of proceedings

Between 22 February and 7 March 2016 the applicant stood trial before his Honour Judge Frearson SC and a jury in the District Court of the New South Wales at Griffith.

2. The indictment contained sixteen counts, all of them alleging sexual misconduct against a single complainant. The 16 counts arose from six alleged incidents between 1 June 1985 and 18 August 1989. The complainant was born in February 1973.

3. At the conclusion of the trial, the jury returned verdicts of not guilty to counts 3, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 and verdicts of guilty on counts 1, 2, 6, 15 and 16.

4. On 23 June 2016 his Honour imposed an aggregate sentence of imprisonment with a non-parole period of 5 years commencing 7 March 2016 and expiring 6 March 2021 with an additional term of 4 years expiring 6 March 2025.

5. The applicant relies on one ground of appeal:

The verdicts of the jury in relation to counts 1, 2, 6, 15 and 16 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of the jury of not guilty on counts 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14.

6. Several counts on the indictment were amended after the commencement of the trial so that the indictment which was relied upon by the Crown was in the following form:

Count 1 – Between 1 June 1985 and 31 December 1986 at Merungle Hill in the State of New South Wales did unlawfully carnally know BM, a girl above the age of 10 years and under 16 years, namely 12 or 13 years.

Count 2 – Between 1 June 1985 and 31 December 1986 at Merungle Hill in the State of New South Wales did unlawfully carnally know BM, a girl above the age of 10 years and under 16 years, namely 12 or 13 years.

Count 3 – Between 1 September 1985 and 31 December 1986 at Narrandera in the State of New South Wales did unlawfully carnally know BM, a girl above the age of 10 years and under 16 years, namely 12 or 13 years.

Count 4 – Between 1 September 1985 and 31 December 1986 at Narrandera in the State of New South Wales did unlawfully carnally know BM, a girl above the age of 10 years and under 16 years, namely 12 or 13 years.

Count 5 – Between 1 January 1987 and 31 December 1987 at Yanco in the State of New South Wales did have sexual intercourse with BM without her consent knowing that she was not consenting.

Count 6 – In the alternative to Count 5, between 1 January 1987 and 31 December 1987 at Yanco in the State of New South Wales did have sexual intercourse with BM, a child above the age of 10 years and under 16 years, namely 13 or 14 years.

Count 7 ­ – Between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM, a child above the age of 10 years and under 16 years, namely 15 years.

Count 8 – Between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM without her consent knowing she was not consenting.

Count 9 – In the alternative to Count 8, between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM a child above the age of 10 years and under 16 years, namely 15 years.

Count 10 – Between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM without her consent knowing she was not consenting.

Count 11 – In the alternative to Count 10, between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM, a child above the age of 10 years and under 16 years, namely 15 years.

Count 12 – Between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM, without her consent knowing she was not consenting.

Count 13 – In the alternative to Count 12, between 1 January 1989 and 31 January 1989 at Leeton in the State of New South Wales did have sexual intercourse with BM, a child above the age of 10 years and under 16 years, namely 15 years.

Count 14 – Between 1 April 1989 and 31 May 1989 at Yanco in the State of New South Wales did break and enter the dwelling house of BM and did commit a felony, namely sexual intercourse with BM without her consent knowing she was not consenting in the said dwelling house.

Count 15 – In the alternative to Count 14, between 1 April 1989 and 31 May 1989 at Yanco in the State of New South Wales did have sexual intercourse with BM without her consent knowing she was not consenting.

Count 16 – On or about 18 August 1989 at Merungle Hill in the State of New South Wales did have sexual intercourse with BM without her consent knowing she was not consenting.

Issues at trial

7. The proceedings were unusual in that the applicant conceded in his evidence, not only that he had had a sexual relationship with the complainant, but also that that relationship had commenced when she was under 16 years of age.

8. The applicant accepted that he had had sexual intercourse with her in some, but not all, of the places alleged by her. In respect of those counts, the applicant disputed the timing of the allegation and aspects of the complainant’s account of what happened. In respect of other counts, the applicant denied that the intercourse alleged occurred at all. No count on the indictment related to the offending conduct admitted to by the applicant.

9. The Crown relied almost exclusively on the evidence of the complainant. The other evidence called included complaint evidence and a recording of a pretext call between the complainant and the applicant.

10. The applicant gave evidence in the trial. The case for the applicant was that he and the complainant did commence a sexual relationship, but not until she was 15 years of age. The relationship continued until after the last count alleged on the indictment. The applicant maintained that at all times any sexual contact between him and the complainant was consensual.

11. The Crown case originally asserted that the first sexual encounter between the applicant and the complainant was when she was aged 12. During the trial, the Crown applied for and was granted leave to amend the indictment to widen the date range to cover when the complainant was 13 years of age. It became clear that the assertion that the sexual intercourse commenced when the complainant was aged 12 was incorrect. The Crown case shifted to directly asserting that she was 13 years of age at the time of counts 1 and 2.

12. Although lack of consent was not an element of all the offences on the indictment, it was a central issue of dispute in some as set out in the wording of the count.

Summary of evidence

Circumstances in which the complainant met the applicant

13. The complainant was the youngest of four siblings. She recalled that her family moved from Leeton to a house in Yanco (a country town in New South Wales) where her parents purchased a house after her grandmother died, leaving an inheritance. The complainant said that her parents renovated the house and that she thought that they moved “around the middle of 1985”. The complainant’s mother gave evidence that she thought they had moved in late 1985 or early 1986.

14. When the complainant moved to Yanco, she started catching the bus to her high school in Leeton. The complainant said that she first met the applicant when she started catching the bus to school. The applicant’s father owned a bus and a taxi company in Yanco. The complainant said that she believed that she first met the applicant when she was in year 7, when she was 12 years old.

15. The applicant would regularly walk past the complainant while she was waiting for the school bus. The applicant struck up a conversation. Within a few weeks of meeting the applicant, he offered her a job cleaning out the buses after school. The complainant wore her school uniform while doing the cleaning. The applicant would pay the complainant about $10 a week.

16. The complainant said that in about October or November in 1985, the relationship between her and the applicant changed on one Saturday morning when he took her to see the farm at Merungle Hill. At the farm the applicant started kissing and cuddling her. She then went home. The complainant said that the kiss with the applicant “was like a passionate kiss where he stuck his tongue in my mouth”. She did not tell anyone about kissing the applicant. The applicant told her that it had to be “our secret”. The complainant said she was 12 at this point in time. The complainant said that she was not close to her parents and could not confide in her mother because her mother would tell her friends and she would be “humiliated”.

17. The applicant denied that he first met the complainant in 1985. He said that the house at Merungle Hill was not built until February/March 1986 and that his family did not buy the bus and taxi company until June 1986. Documents demonstrating the transfer of various taxis to the applicant’s father in mid-1986 were admitted as exhibits 4, 5 and 6. The applicant’s father also gave evidence that the house in Merungle Hill was not built until 1986. Documents relating to the installation of a septic tank and air-conditioner in early 1986 were tendered as Exhibits 22, 23, 24 and 25.

18. The applicant said that he first met the complainant in August 1986 when he was re-fuelling a bus. He said that he could not “exactly remember when” his sexual relationship with the complainant commenced but that it was about 12 months after they met. He said that it “may have been in 88”.

19. The applicant denied that he ever gave the complainant a job sweeping buses. The applicant said that when the sexual relationship between the complainant and him began, she did not spend more time at the business. This was because he was very busy and would be away a lot.

20. The applicant agreed that he had sexual intercourse with the complainant when she was aged 15 and did so 10 or 15 times before she turned 16.

21. Naomi Zrno, a friend of the complainant’s, gave evidence that the complainant told her in 1987 that she was in an existing sexual relationship with the applicant The complainant's sister, SK, gave evidence that she saw the applicant passionately kissing the complainant in a bus when the complainant was “quite young, probably 12 or 13”. The applicant denied that he had ever kissed the complainant in a bus.

Counts 1 and 2 – (the incident at the lookout)

22. The complainant gave evidence that on a Saturday “a few weeks” after the occasion where the applicant had kissed her at the farm, he picked her up in his car and drove her to a “lookout at Merungle Hill”. It was quite dark. The applicant started kissing her in the car and said that he wanted to “take the next step” and have sex with her. The complainant said that she was scared, but that the applicant reassured her and said that it would be okay. The complainant said that the applicant put his penis inside her, before pulling out and ejaculating on her stomach. The complainant was scared and uncomfortable because she had a tampon in. Shortly after this, he re-entered her again pulling out and ejaculating on her stomach. The applicant used an “old smelly towel” to wipe the complainant and himself. He then drove the complainant home. She did not tell anyone what had happened because she did not want to get the applicant into trouble.

23. The complaint said that when the applicant said ‘goodbye’ it was “like it was nothing had happened really for him”. The complainant was confused. The applicant told her that she “was his special girl and that I couldn’t tell anyone”. The complainant felt “loyal to him”. The applicant made her “feel special and no-one else did”.

24. The applicant said that his first sexual encounter with the complainant occurred “sometime in 1988”. They were in his orange taxi. He had driven the car to a lookout. He and the complainant kissed each other. He said that the complainant then “pushed herself across over onto the top of me. That’s how the first time happened”. The applicant said that the complainant was “very quick at removing her clothes and didn’t appear to me to be very shy about it, which caused me a great deal of concern”. The applicant said that the complainant had a “bad habit of removing clothes” and that the first time she did, he “couldn’t breathe, couldn’t believe it”. The applicant said that they only had sexual intercourse once on that occasion.

25. The applicant was charged with two counts of sexual intercourse with a child in respect of this incident (counts 1 and 2).

26. After the applicant gave his evidence, the prosecution was granted leave to amend the dates alleged in counts 1 – 2 to allege (over objection) that those counts had occurred between 1 June 1985 and 31 December 1986 (previously the indictment had alleged that those counts occurred between 1 June 1985 and 31 December 1985).

27. The jury found the applicant guilty of both counts.

Counts 3 and 4 (the incident by the river)

28. The complainant said that the applicant had sexual intercourse, including oral intercourse, with her on a number of occasions after the incident at the lookout.

29. The complainant said that the incident by the river occurred probably the next year, maybe 1986 sometime. She was not sure if it was the beginning or the end of 1986, she just knew that it was summertime because it was hot. The applicant drove her down a road at the back of Yanco Weir or on the back of Narrandera Road. He parked the car and they swam across the river to the beach on the other side. There was a backwater place in an isolated area. When they were on the beach, the applicant said “All right, I think we should go skinny dipping”. The complainant was self-conscious and did not want to go skinny dipping but she “didn’t want to make him annoyed with me or didn’t want to go home yet so I did”. The complainant said that when they were skinny dipping, the applicant wanted to have sex with her and “said it would be all right if he stayed inside me while he reached orgasm and then I would be able to suck water into my vagina and wash the semen out”. This was what the applicant did. The complainant was terrified of getting pregnant.

30. When the complainant got out of the water, the applicant pulled her back down by her ankle. He laid her on her back and had sex with her again on the beach. On this occasion, he withdrew his penis before ejaculating. He then washed his semen off the complainant. After this, the applicant took the complainant’s swimmers and swam away from her. The complainant had to swim back across the river with no clothes. She was bitten by mosquitos.

31. The applicant agreed that he had sexual intercourse with the complainant by the river. However, he said that this occurred in 1990 or 1991, when the complainant was at TAFE. He denied swimming away with the complainant’s clothes at any time.

32. The applicant was charged with two counts of sexual intercourse with a child in respect of this incident. At the conclusion of the complainant’s evidence in chief, the trial judge granted leave to amend the indictment to extend the period to December 1986 (previously, the indictment had alleged that those counts occurred between 1 September 1985 and 31 May 1986). No objection was made to these amendments.

33. The jury found the applicant not guilty of both counts.

Count 5 – in the alternative count 6 (the anal sex incident)

34. The fifth count related to an incident which occurred in the applicant’s car. The complainant said that she thought that this occurred in 1987 when she was in year 9. She said that they had family staying, which was quite rare. The applicant picked the complainant up in his orange taxi and they went on the Barellan-Narrandera Road to “where it's quite shielded”. BM thought that the applicant wanted to have sex “just like all the other times”, i.e. the “same usual vaginal intercourse”. The applicant wound the seat down and asked the complainant to take off her pants. The complainant found it odd as the applicant had lubricant which he never had before. The applicant asked the complainant to lie on her stomach. The complainant “expected it just to be vaginal sex and he penetrated me anally on that day and I found it excruciatingly painful and I screamed for him to stop”. He did not stop, the applicant kept saying “just relax and it won’t hurt so much”. The complainant kept pleading “please stop, please stop its hurting”.

35. The complainant said that when the applicant reached orgasm he withdrew and there was “blood and poo all over the place”. The complaint felt humiliated.

36. The applicant gave evidence that he had had anal intercourse with the complainant “probably only once”. He thought that this “may have happened in 1991”. The applicant said “[I]t was awful”. He said that they both agreed that it was not a good idea. He said that that the complainant said “We'd better – stop. Don’t do this”. The applicant said he did not want to do it anyway “It wasn’t right”.

37. In respect of this incident, the applicant was charged with an offence of sexual intercourse without consent (count 5) with a further charge of having sexual intercourse with a child (count 6) in the alternative.

38. The jury found the applicant not guilty of count 5, but guilty of the alternative, count 6.

Counts 7 – 13 – (the incident at Cherry Avenue)

39. The complainant said that in January 1989, the applicant was renting a flat in Cherry Avenue, Leeton for about six weeks. He asked the complainant to visit him at Cherry Avenue one night. The complainant sneaked out of her house at night and walked to the applicant’s house. When she arrived, the applicant said that he had a surprise for her, which was to have sexual intercourse in a bed instead of a car.

40. The applicant and the complainant cuddled and kissed. The complainant and the applicant then had penile-vaginal intercourse (count 7). The applicant tied the complainant’s arms and legs to the corners of the bed. When the complainant asked what he was doing he said “Oh, I'm just going to have a bit of fun” and he went into the kitchen.

41. He came back from the kitchen with some fruit and vegetables, including a carrot and a banana. The applicant inserted the carrot in the complainant’s vagina (counts 8/9). He then inserted the banana in the complainant’s vagina (counts 10/11).

39. When the complainant told the applicant she did not want him to insert the banana and carrot, he would take it out and put his penis inside her instead (counts 12/13). This continued for a long time until it started to get light. The applicant drove the complainant near to her home so she could go to school.

40. The complainant said that she believed that this incident occurred in January 1989, because she had just returned from a holiday by the river, water-skiing with her family. She said that on that holiday, she had an accident on a rope swing and had suffered a rope burn to her arm. She said that she remembered that her arm was still sore when this incident happened.

41. The applicant denied this incident. He gave evidence that he did not rent a flat in Cherry Avenue until January 1991. He said that he was away from the Yanco area for three weeks in January 1989. He said that a couple of days before 9 January 1989, he flew to his uncle’s property in Rockhampton, Queensland to help his uncle put up fences on his uncle’s new property. He flew back from Queensland on about 27 January 1989. The applicant’s father and uncle each gave evidence that the applicant was in Queensland at this time.

42. The applicant also gave evidence that when he rented the flat in 1991, he did not have a framed bed, but only slept on a mattress on the floor. He said that he did have sexual intercourse with the complainant at this address, but he did not ever have non-consensual sexual intercourse with her. He denied ever tying the complainant to a bed or penetrating her with a banana or a carrot.

43. The complainant’s mother recalled that the complainant had suffered a rope burn while on holidays. She could not be sure, but thought that this might have happened around the time that she discovered that her husband was having an affair which was in 1991. The complainant’s friend, Ms Zrno, also recalled the complainant suffering from a rope burn on a camping trip by the river. Ms Zrno thought that this happened after she and the complainant made their debut in 1989.

44. The applicant was charged with three counts of having sexual intercourse with a child without consent (counts 8, 10 and 12) and four counts of having sexual intercourse with a child (counts 7, 9, 11 and 13) in respect of this incident. Counts 9, 10 and 13 were alternatives to counts 8, 10 and 12. The indictment alleged that each of these offences was committed between 1 January 1989 and 31 January 1989.

45. The jury found the applicant not guilty of each of these counts.

Count 14 – (in the alternative Count 15) (break and enter incident)

49. The complainant gave evidence that in either April or May 1989, when her mother was away and her father was at the hotel, she woke up to find the applicant sitting on her bed. When she asked the applicant what he was doing there and how he got in, he said “I used the spare key”. (There was a spare key that was kept on the back veranda which the applicant had seen the complainant use when he drove her home.)

50. The applicant told the complainant that he wanted to have sex. The complainant replied that she did not want to. The applicant said “You don’t say no to me, you belong to me”. The applicant then pushed the complainant back on the bed and put his penis in her vagina. The applicant was “quite forceful”. He did not have a further conversation with the complainant, he just had sex and left. The complainant said that normally the applicant would withdraw before he reached orgasm, but on this occasion he did not.

51. The applicant denied that this incident occurred. He said that he had been to the complainant’s house at night, but that he had never broken into her house and did not recall ever having used a key to get in. He said that the complainant sometimes begged him to come and see her at night. When the applicant went to the complainant’s bedroom, he would tap on the window and the complainant would open the window and let him in.

52. The applicant was charged with one count of break, enter and commit a felony (namely, sexual intercourse without consent) contrary to s 112 of the Crimes Act (count 14) and with an alternative count of sexual intercourse without consent contrary to s 61D of the Crimes Act (count 15). The jury found the applicant not guilty of count 14, but guilty of the alternative, count 15.

The complainant’s abortion

53. A few weeks after this incident, the complainant started to feel sick and feared that she was pregnant. She used a pregnancy test kit which came back positive. She went to see Dr Geddier, a general practitioner in Leeton, who told her that she was three months pregnant.

54. The night after the test, the complainant told the applicant that she was pregnant. The applicant was furious and called her a “liar” and a “slut”. He said that she was trying to use him to get away from her family. The applicant left her by the side of the road and she walked home by herself in the dark.

55. The next day, the applicant came to the complainant’s bedroom window and asked for proof of the pregnancy. He drove her to Dr Geddier’s office. The complainant got her results from the doctor and a referral to an abortion clinic in Potts Point. The applicant said she had to “get rid of the baby or [she’d] get him into trouble and it would ruin him”. The applicant denied this.

56. At this time, the complainant was studying at Leeton TAFE. In the beginning of August 1989, the complainant went to see the TAFE counsellor who gave her a referral to a clinic in Leichhardt which the counsellor said was more reputable than the Potts Point clinic.

Count 16 – incident following the abortion on or about 18 August 1989

57. The complainant gave evidence that on or about 18 August 1989, the applicant took her to the clinic in Leichhardt where she had a termination of the pregnancy, which the applicant paid for. Medical records confirmed that the termination occurred on 18 August 1989. The complainant told her parents she was going to a bus show overnight with the applicant.

58. After the abortion, the complainant was told she could leave. At this point in time she did not know where the applicant was. She waited on the front steps of the clinic for “about an hour” before the applicant arrived. They took a train to Cootamundra and then a bus home from there. When the complainant and the applicant got back to Yanco they went to the applicant’s house because his parents were away. Immigration records demonstrate that the applicant’s parents were overseas at this time.

59. The applicant ran a bath for the complainant. The complainant had been in the bath for ten to fifteen minutes when the applicant came into the bathroom. He was not wearing clothes and got into the bath on top of the complainant and started having sex with her. The complainant asked him to stop and said “I’m not allowed to have sex for ten days”. The applicant did not listen and had sex with her in the bath. After this the applicant got up and went to his room to sleep. The complainant lay in the bath until the water went cold. The complainant testified that the bath was full of “blood-stained water”.

60. The applicant denied the events described by the complainant. He agreed that he went with the complainant to a termination clinic in Sydney. He said that they travelled to Sydney on the afternoon train. He said that he never left the complainant by herself for a significant period. After the procedure, they left the clinic and walked to get a taxi. They caught an overnight bus back from Sydney, arriving at Yanco at about 6.30am. He said that the complainant walked away after they arrived home. The applicant did not know where she went. The applicant went home in the taxi. The complainant did not go to his house at Merungle Hill that night. The applicant denied having sexual intercourse with the complainant in the bath. He said that the bath was too small. Photographs of the bath were admitted as Ex 18.

Events following the final incident

61. After the incident in the bath, the complainant realised that she had become a “plaything” for the applicant. She became quite depressed and in August 1990 she wanted to end her life. She did not see “any other way out of that relationship” with the applicant.

62. The complainant’s sister was married on 4 August 1990. The complainant planned to kill herself on the night of the wedding “because it would be less inconvenient for the relatives to come back for a funeral”. At the reception at the Yanco Club, Minister Peters had a conversation with her. He told her if she needed to talk about anything, she should come and see him. She subsequently became close to the Minister and his wife. The complainant did not tell anyone what had happened to her at this point. However, when she became closer to Mrs Peters, she did tell her about the abortion. She said that this was in late 1990 or early 1991.

63. In 1992 , the complainant decided to end her relationship with the applicant. She felt that the only way she could get away from him was to go far away. In June 1992, the complainant enrolled in a youth workers course in Victoria. When the complainant told the applicant that she wanted to break up with him, he became angry and told her that she “would never be free of him” because she “belonged to him”.

64. In 1992, the complainant moved to Sale in Victoria and then in 1993, she moved to Clayton in Melbourne where she remained for 10 years.

65. In 1994, when she was visiting her mother in Yanco, the applicant spoke to her in a shop. She was doing a youth work course at the time and thought that she should show him forgiveness. The applicant drove the complainant around town. During the drive, the applicant talked about the abortion and said that “it was the worst mistake of his life”. The applicant said to the complainant “Oh do you remember when I used to do this to you” and he touched her on the breast. The complainant froze. She said that she “kind of felt like I had a hand over my mouth and couldn’t speak and just felt really powerless, just like I had the other times”. The applicant lay on top of the complainant and had sex with her. She said “I don't want to do this” and she got out of the car and ran inside.

66. After the complainant returned to Melbourne, she received two letters from the applicant to the post office box of her work address. In the letters the applicant told the complainant that he wanted her back and asked her to contact him. The complainant got a friend to post one letter back to “Return to Sender”. The applicant kept the other letter which she later gave to police.

67. In 1999, when the complainant returned home from work, she found a large bunch of flowers with a note containing a single word “hello”. The complainant contacted the florist, who told her that the applicant had sent them. The complainant was scared. She then received 10 hang-up telephone calls and two messages. In the messages (which were played to the court) the applicant said “Was there the vaguest possibility you’ve run for cover [the complainant’s name] because it’s not going to work … I’m gonna find you because we gotta talk. I don’t care how long it takes. By the way … the flat’s nice”. The complainant was terrified. The phone rang again and the complainant answered it. They spoke but the complainant cut him off and said “You must have the wrong person, I don’t know anyone called Robert”.

68. That night the complainant stayed at a friend’s house. The next morning, the complainant and her friend drove past the complainant’s house and saw the applicant’s silver Mazda RX7 car outside her unit. The complainant was also told by a neighbor that the applicant had been asking questions about her work routine and when she would be home. When the complainant eventually returned home, she found a note on the front door from the applicant which said “Everyone is worried about you” and “It was hard to find you, well done”.

69. The complainant continued to receive items from the applicant, including regular bunches of flowers and cards. The complainant moved out of her home and moved in with friends to get away from the applicant. She reported each of the incidents to Victorian Police.

70. After the complainant moved to her new address, she continued to receive cards and flowers from the applicant. She was terrified. She realised she could not keep moving house and went to the Magistrates’ Court in Dandenong to apply for an Apprehended Violence Order. The applicant attended court unrepresented to contest the order. The Magistrate asked the applicant why he kept pursuing the complainant. The applicant said he wanted to know if the baby was his or not. An Intervention Order was granted on 19 March 2003.

71. The applicant did not send any more flowers or cards. However, in 2014 he sent a “friend request” to the complainant via Facebook. On 3 January 2014, the applicant sent the complainant a Facebook message which had a picture of a doll. The complainant said that the doll was a present that the applicant had given to her on either her fourteenth or fifteenth birthday.

72. The applicant also approached the complainant when she was eating lunch with her father at the Yanco Club. He said “It's been a long time since the Pinnacle of Terror”. The complainant later realised that she was in a newspaper article a few years earlier about a high ropes program she had taken children on, called the Pinnacle of Terror and that the applicant must have Googled her name and found the information.

73. In his evidence, the applicant agreed that he had taken the complainant for a drive in December 1994 but denied having sexual intercourse with her. The applicant said that after the complainant left Yanco, he hired a private detective to find out where she was.

74. The applicant agreed that he sent letters, flowers and notes to the complainant after 1997. The applicant did this because he believed that “with the pregnancy, I was set up and used. I don’t believe I got this young lady pregnant. I was very angry about the way she came into our business and our lives and I pleaded with her to leave us alone as a family”. He agreed that by the 2000s the complainant had made no effort to contact him, but that he was contacting her. The applicant said that he loved her and that he still had feelings for her.

75. The applicant agreed that in 2012 he approached the complainant in the Yanco Club and that he thought it would be a “bit of fun” to make a comment about the Pinnacle of Terror. The applicant could see that the complainant “wasn’t over the moon to talk” to him so he backed away.

Pretext call

76. In July 2014 the complainant participated in a “pretext telephone conversation” with the applicant which was recorded by police. In the call, the complainant said to the applicant “I got your Facebook message. I just wanted to talk to you”. Later, the complainant said to the applicant “I was only 12 when you started having sex with me. Why did you do that?” In response the applicant said “I remember you said to me, I said “I don’t know why you’re here”. You said to me, “While I'm with you I’m safe”. And I went, oh, because then it’s when I, I, I’d give in to you and just put my arms around you and hold you”.

77. Later in the call, the complainant said “You damaged me. I was a kid”. The applicant responded “Yeah but you … you didn’t have to be there”. The complainant said “I was 12 … how does a 12 year old decide when I am already damaged at the beginning, how does a 12 year old decide that?” The applicant responded “I don’t know”. The complainant said “Did you ever think about that?” The applicant responded “I do. Okay I’m not stupid [complainant’s name]”. When the complainant asked the applicant whether she was old enough to make a decision to be in that kind of relationship, the applicant replied “Well I don’t know why. I remember seeing you with not much on the first time. And I said to you “school uniform and all” and you just shrugged your shoulder. You didn’t give a stuff. And I thought “My God”.”

78. The applicant said that he could not remember when he first had sexual intercourse with the complainant.

79. The complainant also raised the incident of anal sex with the applicant. She said that she remembered being in a “back road out near Vance Estate and [the applicant] wanted to have anal sex”. The applicant initially responded “not really” but then added “Yeah, yeah, it did, it did happen, yeah that did happen. It did happen, didn’t it. I know it did and I’m not …”. He denied that he ever said “relax it won’t hurt”.

80. In cross-examination it was put to the applicant that the complainant said in the proceedings for the Intervention Order on 19 March 2003, that he had had sex with her when she was aged 12. The applicant agreed that he did not challenge her when this was said and did not deny the accusation.

81. The applicant was also cross-examined in relation to the pretext call. On that issue, the following exchange took place:

“CROWN PROSECUTOR

Q. At the bottom of the page [the complainant] says to you, “Robert, I was only 12 when you had – when you started having sex with me”, and you said, “Oh”. She said over the next page, “I was 12 years old. Why did you do that?” You didn’t challenge her about what she said, did you?

A. I was actually shocked at her saying that, just shocked. [The complainant] was not 12 years old when I met [complainant’s name]. No way.

HIS HONOUR

Q. Did you think of saying to her, “That’s not true. You weren’t 12”? Did you think of saying that to her?

A. I try to be polite and diplomatic.

HIS HONOUR: You were being polite.

CROWN PROSECUTOR

Q. You challenged her on something. You said, “Now hold the bus. I remember. I remember I said to you. I said, ‘I don’t know why you do this’." But you just said to me – sorry. You said to me just – you said to me, “[complainant’s name]”. And you said to me, “I don’t know why.” Sorry. I remember you said to me and then you said, “I said I don’t know why you’re here”, and you said to me, “While I’m with you I’m safe”, and you said, “I’d give into you and just my arms around you and hold you every time”.

A. And I’ve said that before and I’ll say it again she said to me, “While I’m with you I am safe. The others can’t get me”, and I would put my arm round her and I’d say, “It’s all right. You’re with me”. (T.330.49-331.25)

82. The effect of the applicant’s answers under cross-examination was that the complainant was the aggressor and it was she who was “stalking” him and it was she who was offering sex and that he did not know how to handle the situation.

Search warrant

83. On 13 November 2014, police executed a search warrant at the applicant’s house. At the execution of that warrant, the applicant was asked how old the complainant was when he first met her. He responded “I think – I’m nearly sure she was about 14 and she used to literally throw herself at me and she always used to say to me “When I’m with you I’m safe” and I said to her “Kid, you don’t have to be here”. The applicant was asked whether he had sex with the complainant and responded “Well she literally climbed on top of me quite often”. When asked whether he had sexual intercourse with her on those occasions, he replied “Oh she’d strip quite regularly. She’d strip all the time”. The applicant told police “I actually had thought of taking her to the police station. I had thought of that a hundred times but my emotion beat me”.

The appeal

84. The applicant relied upon the approach endorsed by this Court (Leeming JA, Walton and Wilson JJ) in Jafary v R [2018] NSWCCA 243 at [32], [37] as apposite to the current case. In accordance with that authority, the applicant submitted that the starting point for considering whether the jury verdicts could be reconciled is whether there exists any rational explanation for the acquittals other than doubts about the complainant’s credibility.

85. The applicant also relied upon the observations of Simpson AJA (with whom Walton J agreed) in Stanford v R [2018] NSWCCA 249 at [47], [57]-[60] to the effect that a complainant’s credibility is to be understood as also encompassing the complainant’s reliability. By reference to the facts of this case, the applicant submitted that the acquittals reflected the jury’s doubts about the complainant’s credibility and reliability.

84. The applicant submitted that the fact of the acquittals raised considerable doubts about the guilty verdicts. He submitted that the quality of the evidence for the conviction counts was not of a higher standard than that adduced for the acquittal counts. Put another way, there was nothing that permitted the jury to be satisfied of the convictions counts, as distinct from the acquittal counts. The applicant submitted that when that circumstance is considered with other factors in the case, the rational conclusion is that the verdicts in relation to the conviction counts were not only inconsistent but unreasonable.

85. The applicant submitted that the acquittal counts could only have been arrived at because the jury had doubts about the complainant’s credibility. This was because it was the defence case at trial that the complainant was lying about all of the counts in the indictment. The applicant submitted that notwithstanding his admission that he had engaged in a sexual relationship with the complainant, the defence position at all times was to contest the counts in the indictment and the complainant was squarely challenged as to the occurrence of the specific conduct alleged.

Counts 7 to 13 – the Cherry Avenue incident

88. The applicant submitted that the evidence concerning those counts was sourced entirely from the complainant. He submitted that the allegations had an air of implausibility and her cross-examination on these counts was directed towards undermining her version of events by reference to the objective evidence. The complainant had confirmed in evidence that the incident occurred in January 1989.

89. The applicant submitted that his denial of the conduct alleged against him in these counts was supported not only by his own evidence that he did not rent the flat at Cherry Avenue until January 1991 but was supported by the evidence of his father and uncle to the effect that for three weeks in January 1989 he was in Queensland.

90. The applicant submitted that the only rational explanation for the acquittals on those counts was that the jury must have had doubts about the complainant’s credibility. He submitted that to conclude that the complainant was only mistaken as to the timing of these events, as distinct from their occurrence, was contrary to the way the specific charges were defended and not a reasonable conclusion in the light of the status of the evidence at trial. The applicant noted that a doubt about the reliability of the complainant’s recollection of “when” an incident occurred was still a doubt affecting her credit.

Counts 3 and 4 – the skinny dipping incident

91. The applicant noted that defence counsel had cross-examined the complainant to the effect that the specific conduct asserted in those counts did not occur. The applicant did agree that he had sexual intercourse with the complainant at the river but that this occurred in 1990/1991. His description of what happened, however, did not in any respect match the description provided by the complainant.

92. The applicant submitted that the only rational explanation for the verdicts of acquittal on these counts was that the jury must have had doubts about the reliability of the complainant’s evidence. The applicant submitted that to argue that the only problem with the complainant’s recollection was the timing of the conduct, was contrary to the effect of the cross-examination and the manner in which the trial was conducted.

Count 5 – the car event

93. The applicant submitted that the complainant was cross-examined on the improbability of her version of events, both in relation to count 5 and its alternative, count 6. The applicant stressed one line of questioning, which highlighted the implausibility of the complainant’s evidence. This was the fact that she continued to rehearse with him for her debut in circumstances where, on her version of events, the applicant had sexually assaulted her anally. The applicant noted that alternatively it was put to the complainant that there was a single unrelated instance of consensual anal sex at a later date. The applicant submitted that the obvious purpose of adducing that evidence was to challenge the complainant’s version of events and therefore her credit.

94. The applicant submitted that it was clear that the defence case at all times was that neither count occurred. He noted that the Crown case in relation to these counts relied entirely on the evidence of the complainant. He submitted that the fact that the jury returned a not guilty verdict in relation to count 5 can only be explained by their doubt as to the complainant’s version of events with respect to that charge. He submitted that this made the jury’s finding of guilt in relation to count 6 inexplicable.

Count 14 – the Short Street event

95. The applicant submitted that the only inference to be drawn from the complainant’s account of the allegation in Count 14 was that the applicant had entered her home without her consent. The applicant submitted that in addition, she was cross-examined about the reliability of her recollection as to the surrounding circumstances. In particular, he submitted that the complainant was cross-examined as to the implausibility of her allegations in circumstances where on her account her siblings may have been in the bedroom next to her. The applicant noted that it was put squarely to the complainant that the conduct alleged in counts 14 and 15 did not occur.

96. In relation to the acquittal counts generally, the applicant relied upon the matters raised by his counsel in his closing address, i.e. that there was a grain of truth in most of the allegations which the complainant then used to fabricate her evidence. In particular, the applicant relied upon the following from his counsel’s closing address:

“… but what I would say to you is, if you find [the complainant’s] credit to be in doubt, if you have concerns about her credibility, with respect to other counts, then you are entitled to take that into account, with respect to 14 and 15.” (T.394-395).

97. The applicant submitted that the doubts entertained by the jury which led to them acquitting him of some counts ought to have resulted in acquittals for all counts. This was because the quality of the evidence for the conviction counts was no stronger than that adduced in respect of the acquittal counts.

98. The applicant identified what he submitted were particular deficiencies in the evidence relating to those counts upon which he was convicted. He submitted that in respect of counts 1 and 2 (the Lookout incident) the complainant adhered to her evidence that this incident occurred in 1985, despite the clear evidence that if the incident occurred, it must have been in 1986. This was conceded by the Crown. The applicant submitted that little support was provided by the evidence of the complainant’s sister in relation to the complainant’s age when the complainant was observed kissing the applicant. The applicant noted that that evidence was “I would have been 15, 14½, 15 to 16, I’d – I can’t remember exactly” (T.193.6). The applicant submitted that because the complainant’s sister was born in September 1971 it was possible that he first met her in 1987. The applicant made similar observations in relation to the evidence of Ms Zrno.

99. The applicant submitted that in relation to counts 6 and 15, which were the alternative counts to 5 and 14, there was nothing to distinguish the nature and quality of the evidence supporting those alternative counts which warranted a finding of guilt beyond reasonable doubt. There was nothing particularly compelling about the complainant’s evidence with respect to these counts and it did not differ materially from the substance of the acquittal counts.

100. In relation to count 16, the bathtub incident, the applicant relied upon the photograph and dimensions of the bath where the offence was said to have occurred and submitted that it was unlikely that non-consensual sexual intercourse could take place there in the manner described by the complainant.

101. In conclusion, the applicant submitted that the defence case at all times was to dispute the specific allegations in the indictment and launch a wholesale challenge to the complainant’s credibility and reliability on the basis of the implausibility of the allegations and the inconsistencies with the objective evidence. The applicant submitted that the acquittal counts reflected the jury’s rejection of the complainant’s evidence. The applicant submitted that it was not reasonable to explain the not guilty verdicts on the basis that the jury were not satisfied as timing and dates. The applicant submitted that those doubts ought to have impacted the jury’s verdicts with respect to the conviction counts, together with the deficiencies within the evidence concerning those counts.

Consideration

Legal principles

102. Although the ground of appeal was framed in terms of the jury verdicts being unreasonable and not supported by the evidence, the applicant’s submission was that the guilty verdicts were unreasonable because they were inconsistent with the not guilty verdicts. The appeal was conducted on that basis.

103. There was no dispute between the parties as to the legal principles to be applied. The test when considering whether inconsistent verdicts were handed down by a jury is one of logic and reasonableness (Mackenzie v The Queen [1996] HCA 35; 190 CLR 348). Those principles were recently restated in Jafary v R. In order to succeed, the applicant “must satisfy the court that the verdicts cannot stand together”, i.e. that “no reasonable jury who applied their minds properly to the facts of the case could have arrived at that conclusion” (Mackenzie at [366]). If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury properly performed their functions, that conclusion will generally be accepted (Mackenzie at [366], Jafary at [31]).

104. There is no general rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which they have returned guilty verdicts: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [35] and [89].

105. The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point where intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]; Tsaccounis v R [2016] NSWCCA 163 at [116]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury’s role in that system (MFA at [34]).

106. The significance of verdicts of not guilty on some counts on an indictment must be considered in the light of the particular circumstances of the case. As Gleeson CJ, Hayne and Callinan JJ observed in MFA at [34], it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part.

107. It should also be borne in mind that the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require “some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant” (MFA at [34]). As their Honours observed:

“34   … [a finding of guilt] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. …”

(See similarly R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [8], [34] and [219]-[221]).

108. Their Honours also observed that other factors that “might cause a jury to draw back from reaching a conclusion beyond reasonable doubt” in respect of a particular count may include “where 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” (at [34]).

109. It is necessary for the court to scrutinize the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment the court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record: MFA at [23]; ML v R [2015] NSWCCA 27 at [46].

110. As the applicant rightly submitted, on appeal the correct starting point for considering whether verdicts can be reconciled is not the convictions, but the acquittals. This is to follow the approach stated by Simpson J in TK v R [2009] NSWCCA 151; 74 NSWLR 299 (with whom McClellan CJ at CL and Latham J agreed) at [128] where her Honour said:

“128   … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. … :

Her Honour went on at [130] to stress that:

130   … [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. …”

Acquittal on counts 3 and 4 – the skinny dipping incident

111. In order to understand the likely basis for the jury’s acquittal of the applicant on these counts, it is necessary to look at the evidence relating to counts 1 and 2 (the lookout incident). As the Crown accepted, the complainant’s evidence that the lookout incident occurred in 1985 was clearly wrong. Apart from the error relating to the date, there were a number of factors which supported the complainant’s evidence as to what happened.

112. The lookout incident was the first time she and the applicant had had sexual intercourse. That being so, the detail surrounding what happened was likely to be prominent in the complainant’s recollection. In those circumstances, it was open to the jury to find that the complainant was mistaken about the date, but not the other details. It did not necessarily follow that the complainant was not a truthful witness. In accordance with the trial judge’s instructions, the jury were entitled to accept the evidence of the complainant as to what happened but find that her recollection of the date of the incident was incorrect and that the incident had in fact occurred in 1986.

113. There was other evidence which supported that of the complainant and that the incident occurred no later than 31 December 1986 (i.e. when the complainant was aged 13). The complainant’s sister, SK, gave evidence that she saw the complainant passionately kissing the applicant when the complainant was “quite young; about 12 or 13 years old”. Taken together with the complainant’s evidence, SK’s evidence provided a basis for the jury to conclude that the first incident of sexual intercourse occurred within the time alleged in the amended indictment.

114. It was also well open to the jury to reject the applicant’s evidence that the incident in the car at the lookout occurred in 1988 (when the complainant was aged 15). The complainant’s friend, Ms Zrno, gave evidence that the complainant had told her in 1987 that she was in an existing sexual relationship with the applicant.

115. Moreover, in the proceedings for an AVO before the magistrate in Victoria, the complainant asserted that she and the applicant had first had sexual intercourse when she was aged 12. Despite being given the opportunity to respond to or challenge that assertion, the applicant did not do so. When cross-examined about why he made no response, his reply was unconvincing (T.272.6-.35, T.273.27-.50).

116. Similarly, in the pretext phone call, the applicant did not demur when the complainant said that he had first had sexual intercourse with her when she was aged 12. It was open to the jury to consider that the applicant would not challenge a description of their sexual relationship commencing when she was aged 12 as opposed to 13, but that he would do so if the complainant was in fact aged 15 at the time. In that regard, it is significant to note that in the pretext call, the applicant did object to other things said by the complainant which he regarded as incorrect.

117. The jury had the benefit of seeing and hearing the evidence of the applicant and the complainant. They were entitled to reject the applicant’s evidence as to the timing of the commencement of sexual intercourse as designed to minimise the extent of his offending.

118. If that were the reasoning of the jury, then it is relatively easy to understand why the jury entered verdicts of acquittal in relation to counts 3 and 4.

119. In his summing up, the trial judge said:

“Perhaps that might be an appropriate time to talk about the elements. I do not think there is much contention about what the elements of the offences are. True it is in the circumstances of this case you need to be satisfied that the incident that the Crown relies upon took place, in the time frame mentioned in the indictment. You need to be satisfied of that beyond reasonable doubt.” (SU 7.6)

120. The complainant’s evidence concerning the timing of the incident by the river was no more specific than it was “probably the next year [after the incident] maybe 1986 sometimes.” (T.37.22) In other words, the complainant’s evidence was that the incident by the river was not contemporaneous with the incident at the Lookout and that the two events were separated in time by about a year. If the jury accepted that the incident at the Lookout occurred between June and December 1986, it would follow that the incident by the river occurred some time in 1987 which was outside the dates alleged in the indictment.

121. Accordingly, the effect of the trial judge’s direction concerning the “timeframe in the indictment” was to convey to the jury that they needed to be satisfied beyond reasonable doubt that these incidents occurred within the charged period before a finding of guilt could be made.

Count 5 – the anal sex incident

122. The charge of anal intercourse in the car (count 5) required an element of consent. Accordingly, it was well open to the jury not to be satisfied beyond reasonable doubt that there was no consent but to nevertheless have been satisfied beyond reasonable doubt that the incident of anal intercourse in the car did take place, so that the requirements of count 6 were satisfied.

123. In respect of the timing of counts 5 and 6, the incident differed from the skinny dipping incident in that it was not simply a case of adding a year to the complainant’s previous incorrect date. Her evidence was that she was in a particular year of school and that she had family friends visiting at the time. Although there was no objective evidence about when the family friends were visiting, because the complainant linked the incident to a different timing event, it was open to the jury to distinguish the timing of that incident from the timing of the incident in the river.

122. It was also an element of an offence contrary to s 66C of the Crimes Act 1900 (NSW) that the complainant was under the age of 16 years at the time of the intercourse. Accordingly, it was open to the jury to have been satisfied that count 6 occurred before the complainant’s sixteenth birthday in February 1989. Importantly, this charge was particularised as having occurred in 1987. In circumstances where there was evidence that the applicant was in a sexual relationship with the complainant in 1987 and where a significant event (namely the abortion) had occurred in 1989, it was open to the jury to accept the complainant’s account that this event occurred in 1987 and to reject the applicant’s evidence that the event occurred in 1991 (i.e. well after the abortion).

123. The applicant maintained in his evidence that the anal intercourse incident occurred in Cherry Avenue in 1991. In the pretext telephone call, when the complainant spoke about having anal sex “in some back road out near Vance Hill”, the applicant having ruminated briefly said “Yeah, yeah it did, it did happen, yeah, that did happen. It did happen didn’t it. I know it did” (AB 193.5).

124. That exchange constituted important corroboration of the complainant’s evidence that anal sex occurred and that it occurred in the place which she described in her oral evidence and not in the place nominated by the applicant, namely the house in Cherry Avenue.

125. Given the consensual nature of the sexual relationship between the applicant and the complainant at that time and the applicant’s denial in the pretext telephone conversation that he said “relax it won’t hurt”, it was open to the jury to form the view that while they generally considered the complainant to be a truthful witness, nonetheless they had a doubt about whether or not the Crown had proved beyond reasonable doubt that the applicant knew that she was not consenting.

Count 7 – 13 – the incident at Cherry Avenue

128. The incident at the Cherry Avenue house was particularised in the indictment as having occurred within a narrow date range – namely 1 January 1989 to 31 January 1989. There was evidence from the applicant’s father and uncle that the applicant was living in Queensland at that time. The narrow time-frame in relation to those counts needs to be considered with the strong direction given by the trial judge to find the applicant guilty only if it was proved beyond reasonable doubt the offences occurred within the time-frame specified in the indictment.

129. There is other evidence indicating that the applicant’s timing of these events was wrong. The complainant linked the timing of that incident in her memory as being associated with a rope burn that she had received at a family holiday by the river a couple of weeks before the incident. There was evidence from the complainant’s friend and mother that suggested that she might have had the timing of that rope burn out by a year or two. In those circumstances, where there was clear evidence that the complainant may have got the timing wrong, it was well open to the jury to reject the entire incident simply based on doubts about the timing. This would be in accordance with the strong direction given by his Honour without the acquittal suggesting any doubt on the part of the jury as to whether or not those events occurred. Accordingly, the Cherry Avenue offences can be readily explained by the jury concluding that the complainant’s recollection as to the timing was faulty but without necessarily rejecting her as not being a witness of truth.

Count 14 – break and enter incident

130. The complainant’s evidence was that the applicant came to her house in the middle of the night, used a spare key to let himself in and that once he let himself in, there was a conversation in which the complainant said she did not want to have sexual intercourse with him that night. Despite that refusal, the applicant proceeded to have sexual intercourse with her against her will. If one accepts the complainant about the lack of consent, her evidence is clear and unequivocal. The inconsistency relied upon by the applicant is the acquittal for the break and enter aspect of the offence.

131. There are a number of explanations for that. The most obvious is that a lawyer may understand that using the spare key without express permission could in some circumstances amount to a break and enter, but against a background of what up to that point in time had been a consensual sexual relationship, the jury may well have considered that that element of the offending had not been made out. Such an approach by the jury is supported by the evidence that on other occasions the applicant had sometimes knocked on the window and been let in by the complainant to have consensual sexual intercourse. Alternatively, it was entirely open to the jury to give the applicant the benefit of the doubt on that issue, i.e. using the spare key when he knew where that spare key was and that he was not breaking into the house. Again in the alternative, the jury may have found that he had done that without an intent to commit an indictable offence, i.e. to have sexual intercourse without consent. The jury may well have considered that all that the applicant was doing was entering the house as he had done on numerous occasions before to engage in what he hoped at the time would be sexual intercourse with consent. The jury may well have considered that it was only after the complainant had indicated clearly that she did not want to have sexual intercourse with him that an offence had occurred.

132. That line of thinking provides an explanation for why the jury could have acquitted the applicant of count 14 but convicted him of count 15. Another consideration is that although the complainant had indicated that she did not want to have sexual intercourse with him, she did not indicate at any time that he should not be there. The jury may have had no appreciation that the applicant was there without her consent. It was only once she said “no” that the offence of sexual intercourse without consent become operative so that the jury was not satisfied beyond reasonable doubt that the “break and enter” offence had occurred.

133. Accordingly, it does not follow from the jury’s verdict of not guilty on count 14 that the jury found that the complainant was not a truthful witness. Against the background of the prior consensual sexual relationship, it was open to the jury to hold a reasonable doubt as to the element of breaking and entering.

134. There do not appear to be any problems with timing in relation to counts 14 and 15. This is because of the connection to the abortion which followed as a result of that incident. This appears to have been the only time that the applicant ejaculated inside her and it was shortly after that incident that she found out that she was pregnant, thereby leading to the need to have an abortion. Accordingly, counts 14 and 15 had corroboration for timing that was not found in the earlier incidents by the river and at Cherry Street. The corroboration for the date of the abortion consisted of medical records which were not disputed by the applicant.

135. Despite the dimensions of the bath, the jury clearly accepted the applicant’s version of the events which followed the abortion. This was a finding which it was well open to the jury to make beyond reasonable doubt, given the complainant’s evidence. The fact that the jury did make such a finding, strongly suggests that the applicant’s key premise that the verdicts of acquittal were entered because of the jury’s rejection of the applicant as a witness of truth, is not made out.

136. The line of reasoning set out above in respect of the acquittal verdicts is not far fetched or improbable. Rather, it fits neatly within the evidence generally and enables the guilty verdicts and acquittal verdicts to be reconciled. On that analysis, it cannot be said that the jury’s conviction verdicts were unreasonable and not supported by the evidence.

137. It follows that the applicant has not made out his ground of appeal. The order which I propose are:

1. Leave to appeal is granted.

2. The appeal against conviction is dismissed.

138. ROTHMAN J: I agree with the orders proposed by Hoeben CJ at CL and, generally, with the reasons therefor.

139. As this Court determined in Darby v R [2016] NSWCCA 164 (Rothman J, Leeming JA and Bellew J agreeing), the long-standing principles associated with inconsistent verdict need some explanation in light of the principles applying to "unreasonable verdicts". The inconsistent verdict principles apply without qualification.

140. However, in determining whether a verdict of guilty is unreasonable, the Court must independently determine on the whole of the evidence whether any reasonable doubt exists. Where there have been not-guilty verdicts (or, in some cases, an inability to reach a verdict) on some charges and guilty verdicts on others, the Court is required to factor the not-guilty verdicts (or the inability to conclude) into the existence of doubt in determining the reasonableness of the guilty verdict: see Darby v R, supra, at [136] - [151]. At [151], the Court in Darby v R said:

"[151]   Thus, in those circumstances, the Court is required not only to determine whether there is or should have been a reasonable doubt on the whole of the evidence, the Court must also determine whether there is a rational distinction that could have been made between the guilty verdicts, on the one hand, and those results that are said to be inconsistent, on the other. Either one of those questions decided in favour of the Appellant (or applicant for leave to appeal) in an appeal, will result in the setting aside of the guilty verdicts. This is so because the inconsistency in the verdicts demonstrates that 'no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts'." (Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 (per McHugh J at [120]).)

141. I reiterate my agreement otherwise with Hoeben CJ at CL.

142. PRICE J: I agree with the proposed order and reasons of Hoeben CJ at CL.

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Decision last updated: 01 February 2019