Z (a pseudonym) v R

[2022] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Z (a pseudonym) v R [2022] NSWCCA 8

Hearing dates:

5 November 2021

Date of orders:

2 February 2022

Decision date:

02 February 2022

Before:

Macfarlan JA at [1];
Brereton JA at [52];
Beech-Jones CJ at CL at [53]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeals – application for leave to appeal against conviction – whether verdicts unreasonable – principles to be applied – open to the jury to be satisfied beyond reasonable doubt

CRIME – appeals – application for leave to appeal against conviction – whether verdicts inconsistent – verdicts able to be reconciled on a logical and reasonable basis – acquittals not necessarily attributable only or principally to doubt about the complainant’s credibility

CRIME – statutory non-publication order on disclosure of identity of victim – s 578A Crimes Act – no appeal against convictions at trial of prescribed sexual offences

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)Crimes Act 1900 (NSW), ss 37(1), 59(1), 61, 61I, 61L, s 578A

Criminal Appeal Act 1912 (NSW), ss 5, 6

Criminal Procedure Act 1986 (NSW), ss 3, 290

Cases Cited:

BF v R [2019] NSWCCA 321

DS v R [2021] NSWCCA 52

Holloway v R [2017] NSWCCA 17

JC v R [2021] NSWCCA 254

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

MG v R [2017] NSWCCA 14

Nguyen v R [2017] NSWCCA 145

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Prasad v R [2020] NSWCCA 349

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290

R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151

RD (a pseudonym) v R [2021] NSWCCA 94

Vasilevski v R [2019] NSWCCA 277

Category:

Principal judgment

Parties:

Z (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
M Smith (Applicant)
G Newton / C Akthar (Respondent)

Solicitors:
McGirr & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/324404

Publication restriction:

Statutory non-publication order on the identity of the complainant under s 578A Crimes Act 1900 (NSW)

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 March 2020

Before:

Flannery SC DCJ

File Number(s):

2018/324404

Judgment

1. MACFARLAN JA: The applicant seeks leave under s 5 of the Criminal Appeal Act 1912 (NSW) to appeal against two of his three convictions of domestic violence offences following a trial before a judge and jury in the District Court of New South Wales.

2. The applicant was charged with a number of offences alleged to have occurred during his relationship of more than 20 years with his ex-wife. Count 1 was an historical allegation of sexual assault occurring in 2008. The remaining counts were alleged to have occurred in the context of the breakdown of the relationship between November 2017 and February 2018.

3. The applicant was arraigned on eight counts (one being in the alternative) alleging that he committed offences as follows:

Count 1: on or about 8 March 2008, that he had sexual intercourse with the complainant without her consent (section 61I Crimes Act 1900 (NSW) (“the Crimes Act”));

Count 2: between 10 November 2017 and 13 November 2017, that he intentionally choked the complainant so as to render her incapable of resistance and at the time was reckless as to rendering her incapable of resistance (section 37(1) Crimes Act);

Count 3: in the alternative to Count 2, between 10 November 2017 and 13 November 2017, that he assaulted the complainant, thereby occasioning actual bodily harm to her (section 59(1) Crimes Act);

Count 4: between 12 November 2017 and 14 November 2017, that he intimidated the complainant intending her to fear physical or mental harm (section 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the Domestic Violence Act”));

Count 5: on 1 January 2018, that he assaulted the complainant (section 61 Crimes Act);

Count 6: between 18 January 2018 and 26 January 2018, that he assaulted the complainant, and at the time of the assault committed an act of indecency on her (section 61L Crimes Act);

Count 7: between 1 January 2018 and 13 February 2018, that he intimidated the complainant intending her to fear physical or mental harm (section 13(1) Domestic Violence Act); and

Count 8: on or about 12 February 2018, that he assaulted the complainant (section 61 Crimes Act).

4. The jury returned verdicts of not guilty on Counts 1, 2, 5, 6 and 8 and verdicts of guilty on Counts 3, 4 and 7. The applicant seeks leave to appeal against his convictions on Counts 3 and 7 on the sole ground that “the verdict of guilty is unreasonable and cannot be supported by the evidence” (s 6 of the Criminal Appeal Act 1912 (NSW)). There is no application for leave to appeal against his conviction on Count 4.

THE EVIDENCE AT THE TRIAL

5. The applicant and complainant’s relationship commenced in about 1995, they had a child together in 2006 and 2008 and were married in about 2010. Their relationship ended in 2018.

6. The Crown alleged that Count 1 (sexual intercourse without consent) occurred on 8 March 2008, soon after the complainant’s discharge from hospital following the birth of the second child of the complainant and the applicant. The complainant gave evidence that at that time the applicant forced her to have oral/penile intercourse. She said that she told a friend about the incident several years later, that is in about July or August 2017. The friend (“RV”) gave evidence corroborating that complaint.

7. As to Counts 2 and 3 (Count 3 being an alternative), the complainant gave evidence that on an afternoon in November 2017, when she and the applicant were arguing at their home, the applicant became very angry and pushed the complainant, placing both of his hands around her neck. The incident ended when a client (“BB”) of the complainant, who worked from home as a beautician, arrived at her door. BB gave evidence that the complainant was unusually quiet during the appointment. After it, the complainant went to the home of her friend (“MB”) and told MB about the incident. MB gave evidence of the complaint and RV also gave evidence that the complainant told her about the incident. As well, the complainant made a note about it in her diary.

8. The Count 4 offence was alleged to have occurred on the evening of the same day. The complainant said that during an argument with the applicant concerning the events of that afternoon, the applicant knocked the complainant’s phone from her hand and threatened to “shove” the phone down her throat. She said that she told the applicant that she wanted to leave and that the applicant said “nobody’s going anywhere” and that he would kill her and the children. She said that the applicant leaned over her with a pillow and threatened to smother her to death.

9. MB and RV both gave evidence that the complainant told them about this incident shortly after it occurred. As well, the complainant made a diary note recording that the applicant said to her “I’m going to take that pillow and smother you to death”.

10. A neighbour (“BD”) gave evidence that the applicant later admitted to him that he had threatened to kill the complainant and the applicant himself gave evidence that included a concession that he had said to the complainant “I’ll kill you and the kids”.

11. As to Count 5, the complainant gave evidence that on another occasion the applicant threw his bunch of keys at the complainant, striking her in the face. BD gave evidence that on this occasion he encountered the complainant in the carpark of the building where they lived and that she was very upset but did not mention any assault.

12. The offence alleged in Count 6 was said to have occurred on 20 January 2018 when the applicant grabbed the complainant’s hand and forced her to masturbate him until he ejaculated. The complainant’s diary note said that she had “complied… completely against my will”. RV gave evidence that the complainant said in relation to the incident that “she felt forced”.

13. Count 7 related to an incident that the complainant said occurred in early 2018 when the applicant said to her “…take off your pants & show them to me. Unless you have blood in your pants we are having sex tonight”. The complainant made a diary note in these terms. MB gave evidence that the complainant made a complaint to her to this effect and that the complainant was hysterical, hyperventilating, shaking and barely able to speak.

14. The offence alleged in Count 8 was said to have occurred in the course of an argument between the complainant and the applicant around 12 February 2018. The complainant said that the applicant pushed her, threatened to bite off her nose, threw concert tickets at her face and spat in her face. Her diary recorded that the applicant pushed her and said “I’ll bite off your nose because I paid for your surgery”. It also referred to the throwing of the tickets at her face but made no mention of the applicant spitting in her face.

The applicant’s evidence

15. The applicant denied that the alleged incident the subject of Count 1 occurred and was found not guilty on that count.

16. As to Counts 2 and 3, the applicant denied choking the complainant and said that during the course of an argument on the relevant day, the complainant attacked him. He tendered photos that he had taken of injuries, namely scratches, that he said that the complainant had caused to him. He denied ever causing injury to himself and said that whatever physical actions he took toward the complainant were in self-defence. He was acquitted on Count 2 but found guilty on the alternative count, Count 3.

17. In relation to Count 4 (on which the applicant was found guilty) the applicant accepted that he threatened to kill the complainant and their children, although not by smothering them with the pillow. He said that he did not intend to carry out that threat.

18. In relation to Count 5 (on which he was found not guilty) the applicant said that he had slammed the keys down on a bench, as opposed to throwing them at the complainant’s face. He said that the keys were heavy (some 600g) and that the complainant would have suffered some injury if they had hit her, which they did not.

19. In relation to Count 6 (on which he was found not guilty), the applicant gave evidence that, although not “necessarily excited about the prospect”, the complainant had consented to the act.

20. As to Count 7 (on which he was found guilty), the applicant said that he did not use the words alleged. He also said that the complainant would not have refused to have sex on the basis that she was menstruating because the complainant did not have a problem with having sex during menstruation, although the applicant did.

21. As to Count 8 (on which he was found not guilty) the applicant denied throwing the tickets in the complainant’s face, threatening to bite off her nose or spitting on her.

RELEVANT LEGAL PRINCIPLES

22. In RD (a pseudonym) v R [2021] NSWCCA 94, with the concurrence of Walton and Hamill JJ, at [7] and [8] I summarised as follows the basic principles referable to an unreasonable verdict ground of appeal.

23. The unreasonable verdict ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW). The question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

24. In addressing an unreasonable verdict ground the appellate court must make its own independent assessment of the evidence. As well, in a jury trial it must have particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence (M v The Queen at 493; Baden-Clay at [65]) although, as stated in M v The Queen (at 494):

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

25. In JC v R [2021] NSWCCA 254 at [60] and [61], with the concurrence of R A Hulme and Wright JJ, I referred to my review in Nguyen v R [2017] NSWCCA 145 at [34]-[48] of relevant authorities concerning the principles applicable to an unreasonable verdict ground of appeal where the ground is sought to be supported by a contention that there is an inconsistency between verdicts returned at trial (see MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151; MG v R [2017] NSWCCA 14 and Holloway v R [2017] NSWCCA 17). I stated in Nguyen the following conclusions (at [48]):

“These authorities establish that a complaint of inconsistency between verdicts will fail if the verdicts can be reconciled (see [MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35]…), that is, if there is ‘a logical and reasonable basis for sustaining the differentiation that the jury drew’ (see [MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53]…). Such a basis may exist if the quality of the complainant’s evidence in a case involving sexual offences varied between counts (compare [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12]…). There are many reasons why this may occur. One is that in some respects a complainant may have resorted ‘to a degree of exaggeration in order to reinforce his or her account’ (see [R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290]…; [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151]…). Alternatively, the complainant’s account of events concerning a particular count may be implausible because of the nature of the events described (see [MG v R [2017] NSWCCA 14]…). Further, if parts of a complainant’s evidence are corroborated by other evidence, this may give the jury greater confidence in the reliability of that part of the complainant’s evidence as compared to other parts (see MG…). Such considerations may lead the court to the conclusion that a jury’s differential verdicts are the product of its conscientious attention to the trial judge’s directions and to the evidence applicable to each count (see [Holloway v R [2017] NSWCCA 17]…).”

See also BF v R [2019] NSWCCA 321 at [9] and [10].

26. Further elaboration of these principles is to be found in this Court’s judgment in Vasilevski v R [2019] NSWCCA 277 at [115] and [117] as follows:

“In [R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151], Simpson J (as her Honour then was), with whom McClellan CJ at CL and Latham J agreed, described the approach to be taken as follows. At [128] and [130], she said:

‘…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… [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… The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant’s credibility’ (emphasis in original).

…

Finally, a verdict of acquittal on one or more counts involving the same complainant does not mandate a conclusion that the jury regarded the complainant as untruthful generally. As explained in MFA v R (2002) 213 CLR 606; [2002] HCA 53 at [34]:

‘…In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant’s evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others…’”

See also DS v R [2021] NSWCCA 52 at [23]-[24].

DISPOSITION OF THE APPLICATION FOR LEAVE TO APPEAL

27. As earlier noted, the applicant was convicted of three of the offences alleged in the indictment, namely those in Counts 3, 4 and 7. The applicant’s written submissions in this Court indicate that no application was made for leave to appeal against the conviction on Count 4 because of the applicant’s admission in his evidence that he had uttered words to the effect of those founding that charge.

28. Before making particular submissions concerning the convictions on Counts 3 and 7, the applicant made general submissions concerning the complainant’s credibility. He submitted that acceptance of the complainant’s evidence was fundamental to the jury’s ability to be satisfied beyond reasonable doubt of the applicant’s guilt on these counts and that “the problems with the Complainant’s general credibility were so overwhelming that it was not open to the jury to accept her evidence to the requisite standard in relation to counts 3 and 7”. The applicant said that these problems were as follows:

“i. The Complainant maintained in evidence that she had been choked by the Applicant despite her complete failure to complain about a choking at multiple points when she made other complaints including a family law affidavit that she swore on 27 August 2018. [See Counts 2 and 3.]

ii. The Complainant gave evidence of an allegation of sexual assault despite the fact that no mention of such an allegation is made in the family law affidavit sworn 27 August 2018, nor was there ever a contemporaneous complaint. [See Count 1.]

iii. The Complainant’s evidence given under oath that… she was ‘raped every day’ was demonstrably an example of hyperbole at a time when she was under an obligation to tell the truth.

iv. The Complainant’s evidence that she ‘forgot’ about the sexual assault in 2008 only to later remember it is also evidence that seriously damaged the Complainant’s reliability. [See Count 1 again.]

v. The Complainant’s evidence that the Applicant used to smash his own face when he was arguing and then take photos of his own injuries was plainly absurd.

vi. The Complainant was a witness who gave evidence under oath that she had been spoken to by her dead grandfather through a clairvoyant.” (Footnotes omitted.)

29. I do not accept that individually or collectively these points (nor those under the headings Counts 3 and 7 below) render the jury’s verdict unreasonable. As a general response to the points, it should be emphasised that, in general, matters of credibility are for the jury to determine and only in an unusual case will it be able to be said that the complainant’s credibility has been so damaged that it was not open to the jury to accept his or her evidence. Even taken at face value, these points do not put the present case into that category. In addition, the following particular responses can be given.

30. As to points (i), (ii) and (iv), the complainant referred in a number of parts of her evidence to the effect of trauma on her memory and also to the circumstances under which her various police statements and family court affidavits were made. For example, the complainant gave evidence describing her memory as “repressed” and that she had been advised by her psychologist that she had “shelved” away the traumatic incidents in her “trauma brain”. She also gave evidence that when she provided a police statement in her apartment the applicant “was also there lingering” and that, as she was “scared”, she didn’t feel comfortable giving a detailed account. It was open to the jury to accept these explanations and conclude that, whilst the complainant may well have had deficiencies in or lapses of memory, she was an honest witness. As envisioned in MFA (see [26] above), in these circumstances the jury might nevertheless have wanted “something additional” to her evidence before accepting that the prosecution’s case was established beyond reasonable doubt.

31. Point (iii) contains an inaccurate reference to the complainant’s evidence. In fact, she said that she had been raped “every week”, referring to a “contract” with the applicant whereby she was expected to have sex with him every Monday (which was his day off work). Furthermore, in re-examination she said that “rape” was a poor choice of word and that what she meant to say was that he was “persistent and nagging and insistent that I have sex with him every Monday night”.

32. Contrary to the applicant’s submission, the evidence referred to in point (v) cannot be described as “plainly absurd”. As the Crown submitted on appeal, it was open to the jury to reject the applicant’s denials that he engaged in such conduct, particularly in light of his admitted conduct in relation to Count 4 (threatening to kill the complainant and his own children).

33. The evidence referred to in point (vi) was not related to any of the charges and it was open to the jury to consider that the complainant genuinely believed what she said, however much members of the jury might have thought her beliefs fanciful.

Count 3

34. Count 2, on which the applicant was acquitted, alleged that he intentionally choked the complainant so as to render her incapable of resistance and at the time was reckless as to rendering her incapable of resistance. A possible and reasonable explanation for the jury’s acquittal of the applicant on this count but conviction of him on the alternative count (Count 3: assaulting the complainant, thereby occasioning actual bodily harm to her) is that the jury was not satisfied beyond reasonable doubt that the complainant was rendered incapable of resistance or that the applicant was reckless as to that occurring. The acquittal did not therefore necessarily indicate that the complainant was disbelieved on her account, which was, to the following effect, of the incident relevant to Counts 2 and 3.

35. Her evidence in chief included the following:

“Q. He’s pushing you and how are you reacting to him pushing you?

A. I’m trying to grab his wrists to - like, this, to keep, to keep his hands off me, so I was trying to stop him with my wrists. Then he went from pushing me to putting his hands around my neck. As soon as he did that, I decided that I should stay very still, because I felt that if I moved, I would get more hurt, and I—

Q. Were both hands around your neck?

A. Yes.

Q. Are you able to describe what his hands were doing when they were around your neck?

A. He was just slowly squeezing them into my neck.

Q. How long were his hands around your neck?

A. Maybe five seconds, maybe ten. I - yeah, maybe around that amount of time.”

36. The complainant said that after the altercation her throat was sore and that she “felt constricted in [her] throat”.

37. In cross-examination she said that she was trying to push him away from her and “…that’s when I would have scratched him by trying to push him off me, yes”. When asked whether he in effect strangled her she said that the applicant squeezed her throat and that she said “there’s a lot of levels of choking and, and it was enough to constrict my breathing and it was enough to leave marks on my neck, yes”.

38. Her diary note is cryptic in form and does not in terms refer to choking but says “I grab his forearms to protect myself & hold him backwards”.

39. The complainant’s friend MB gave evidence in chief that the complainant told her that the applicant had his hands “around the top of her shoulders, around the base of her neck”. MB noticed a “very visible red mark” on the complainant’s neck. In this Court, the applicant accepted that there was a red mark on the complainant’s neck and that this was the “actual bodily harm” to which Counts 2 and 3 related.

40. Although the applicant submitted that MB’s evidence “amounted to an attempt to buttress the version given by the Complainant” and that MB “gave evidence of matters that were not in her statement and her reliability was such that [she] could not be said to be a truly independent and reliable witness”, the Court’s attention was not drawn to any matter of significance apparent from the transcript that rendered it not open to the jury to accept MB’s evidence.

41. The complainant’s account clearly indicated that the applicant was the aggressor and did not therefore act in self-defence. On the other hand the applicant asserted in his evidence that he “got attacked” and denied that he put his hands around the complainant’s neck or throat, or squeezed her neck. Particularly with the corroboration of MB and the existence of the red mark on the complainant’s neck, which was not explained by the applicant’s evidence, it was well open to the jury to accept the complainant’s evidence and conclude beyond reasonable doubt that the applicant caused the complainant actual bodily harm and that he did not act in self-defence.

Count 7

42. In this Court the applicant accepted that the complainant’s evidence relating to this Count was corroborated by her contemporaneous complaint to MB and a diary note but submitted that MB’s evidence provided only “very limited support” for the Crown’s case because the complainant’s distressed demeanour “was the culmination of a series of events as distinct from anything that had happened at night”. MB’s evidence however went beyond her observation of the complainant’s demeanour to depose that the complainant told her that the applicant had said to her words to the effect of those the subject of Count 7. Moreover the applicant’s utterance of the words was corroborated by the complainant’s diary note. The applicant’s response in this Court to the diary entry was simply to assert that its utility was limited because the complainant had made a misleading entry in relation to the Count 3 incident. It was open to the jury however to take the view that the Count 3 diary entry was not misleading but simply cryptic and not intended to provide a full description of what had occurred.

Whether verdicts inconsistent

43. Finally, the applicant submitted in effect that the jury’s verdicts were inconsistent in that the jury’s verdict of acquittal on counts other than Counts 3, 4 and 7 indicated that it must have had doubts about the complainant’s credibility, with the result that those doubts should also have led to the applicant’s acquittal on Counts 3 and 7, the convictions on those counts being the subject of the present application for leave to appeal.

44. As indicated in paragraph [25] above, such a submission cannot be accepted if it is apparent that there is “a logical and reasonable basis for sustaining the differentiation that the jury drew” other than that it had doubts about the complainant’s credibility. I refer therefore as follows to the counts on which the applicant was acquitted.

45. Count 1 was said to have occurred in 2008. Unlike the counts on which the applicant was convicted, there was no contemporaneous complaint (only a complaint many years after), no diary note of the incident was made by the complainant and there was an adamant general denial by the applicant that the alleged incident occurred, as distinct from a denial of particular features of it. In these circumstances, the difference in verdicts is reasonably capable of explanation by the jury seeking “something additional [to the complainant’s evidence] before reaching a conclusion beyond reasonable doubt” (see MFA v The Queen cited in [26] above). The differences in the verdicts do not therefore indicate that the jury must have had doubts about the complainant’s credibility but are consistent with the jury paying “conscientious attention to the trial judge’s directions and to the evidence applicable to each count” (see [25] above).

46. The verdict of acquittal on Count 2 but of guilt on the alternative to the count (Count 3) is explicable by the requirements for guilt of the Count 2 offence that the complainant was rendered incapable of resistance and that the applicant was reckless as to that occurring. The complainant’s evidence did not clearly establish those elements of the offence whereas it was open to the jury to conclude that the elements of Count 3 were established. In particular, the complainant’s evidence (see [37] above) arguably did not assert that she was restrained to the point that she was incapable of resistance, this being necessary to be proved for the applicant to be convicted on Count 2.

47. As to Count 5, the jury may well have seen some force in the applicant’s case that, because of the weight of the keys that he was alleged to have thrown at the complainant, they would have been likely to leave some mark if they had struck her in the face, the neighbour BD not having observed a mark when he saw the complainant immediately after the incident. The verdict of not guilty is consistent with the jury taking “a cautious approach to the discharge of a heavy responsibility” referred to in MFA (see [26] above). Further, unlike the counts on which the applicant was convicted, the complainant’s evidence was not corroborated by a contemporaneous complaint, BD having given evidence that the complainant did not mention an assault to him.

48. In relation to Count 6, the complainant’s diary note recorded that she “complied… completely against my will”. The applicant on the other hand said that the complainant consented but that she “wasn’t necessarily excited about the prospect”. In the absence of additional evidence, such as was present with the counts on which convictions occurred, the jury may have had a reasonable doubt as to whether the applicant knew that the complainant was not consenting to the act, or was reckless in that regard.

49. As to Count 8, the jury, acting cautiously, may well not have been prepared to accept beyond reasonable doubt that the complainant’s evidence on this count was reliable in the absence of any contemporaneous complaint by the complainant to a third party and in the absence of a reference to spitting in her diary note.

Conclusion and orders

50. For these reasons, the jury’s verdicts on Counts 3 and 7 were not unreasonable and were capable of support by reference to the evidence. Although the applicant’s application for leave to appeal should be granted, his appeal should therefore be rejected.

51. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

52. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Macfarlan JA. I agree with the orders his Honour proposes, and with his Honour’s reasons. I also agree with the observations of Beech-Jones CJ at CL in respect of the application of s 578A(2) of the Crimes Act 1900.

53. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Macfarlan JA. I adopt his Honour’s summary of the principles concerning a challenge to a verdict on the basis that it is unreasonable and cannot be supported by the evidence. To that discussion I would only add that, in this context, to refer to whether it was “open” to a jury to find the accused guilty or that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45]).

54. I have reviewed the record of the trial in accordance with those principles. For the reasons given by Macfarlan JA I would grant leave to appeal but dismiss the appeal.

55. One matter that arose at the hearing concerned the operation of s 578A(2) of the Crimes Act 1900 which prohibits a person from publishing any matter “which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant”. “Prescribed sexual offence” is defined by reference to the meaning of that phrase in section 3 of the Criminal Procedure Act 1986 (Crimes Act, s 578A(1)). It includes an offence under s 61I of the Crimes Act 1900 which was one of the offences the applicant was acquitted of by the jury. Curiously the phrase “prescribed sexual offences proceedings” is not defined in either the Crimes Act or the Criminal Procedure Act. Division 1 of Part 5 of Chapter 6 of the Criminal Procedure Act which concerns evidence in certain sexual offence proceedings applies to “proceedings in respect of a prescribed sexual offence” including proceedings in which a person stands charged with a “prescribed sexual offence” (s 290(1) and (2)).

56. The applicant’s trial in the District Court was clearly a “prescribed sexual offence proceeding” as it concerned, inter alia, a charge under s 61I of the Crimes Act. As such the prohibition in s 578A(2) of the Crimes Act was engaged and does not cease merely because that trial has concluded (s 578A(3)). However, there is some doubt as to whether this appeal answers the description “prescribed sexual offence proceedings” as the charge under s 61I of the Crimes Act is not the subject of appeal (although the facts and circumstances of the offending are relevant to the subject matter of the appeal). Nevertheless, even if this appeal is not a “prescribed sexual offence proceeding”, the prohibition in s 578A(2) still operates on any reporting of this appeal to the extent that the publication of the identity of the victim of the crimes the subject of this appeal would identify her as the complainant of the proceedings in the District Court. The applicant obtains the (indirect) benefit of this prohibition in that an identification of him would result in the identification of his ex-wife. Consistent with this I agree that it is appropriate to refer to both the applicant and the victim by a pseudonym.

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Decision last updated: 02 February 2022