RD (a pseudonym) v R

1. [1]

   MACFARLAN JA: In May 2019 the applicant stood trial in the District Court on an indictment containing 16 counts of indecent assault of a female under the age of 16, contrary to the now repealed s 76 of the Crimes Act 1900 (NSW). The assaults were alleged to have been committed against the applicant’s three daughters, referred to below in descending age order as the First, Second and Third Daughters. The issue at trial was whether the assaults occurred.

2. [2]

   At the conclusion of the trial the jury found the applicant guilty on all counts. He was subsequently sentenced by the trial judge to an aggregate sentence of 8 years imprisonment with a non-parole period of 6 years.

3. [3]

   The applicant now seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal to this Court against his convictions for 12 of the offences charged, namely Counts 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14. He contends that the convictions are “unreasonable, or cannot be supported, having regard to the evidence” (ibid s 6(1)). In the course of the hearing in this Court, he withdrew the application for leave in respect of his conviction on Count 10, resulting in his convictions on Counts 3, 4, 10, 15 and 16 being unchallenged. The challenged convictions related to four assaults (being Counts 1, 2, 13 and 14) on the First Daughter and seven (being Counts 5, 6, 7, 8, 9, 11 and 12) on the Second Daughter. Counts 15 and 16 alleged assaults on the Third Daughter but the convictions on them are not challenged.

4. [4]

   Save in relation to Counts 7 and 8, the applicant’s submission in respect of the challenged convictions is that it was not open to the jury to be satisfied beyond reasonable doubt that the complainants’ evidence of sexual misconduct by the applicant related to the acts particularised by the Crown concerning each count. He argues that the evidence instead constituted only more generalised assertions of misconduct. He puts a different argument in relation to his convictions on Counts 7 and 8, that the Second Daughter’s evidence lacked sufficient quality and consistency to permit its acceptance by the jury.

5. [5]

   The applicant accepted on appeal that, subject to the specific arguments referred to above, his convictions were not open to challenge. Furthermore, his application was conducted on both sides on the basis that the applicant’s arguments were to be addressed solely by reference to the relevant evidence in chief given by the First and Second Daughters and that nothing in their cross-examination, re-examination or the other evidence at the trial bore on those arguments.

6. [6]

   The particulars provided by the Crown to the applicant, and made available by the trial judge to the jury, were set out in a document marked at the trial as MFI 3. The particulars were as follows, subject to anonymisation of the complainants’ names. It is appropriate to set out the particulars for all of the counts relating to the First and Second Daughters, notwithstanding that the convictions on Counts 3, 4 and 10 concerning them are not challenged.

RELEVANT LEGAL PRINCIPLES

1. [7]

   The unreasonable verdict ground relied upon by the applicant invokes s 6(1) of the Criminal Appeal Act. As I said in Prasad v R [2020] NSWCCA 349 at [119] with the concurrence of Wilson and N Adams JJ, 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] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.

2. [8]

   As I also said in Prasad, at [120], in addressing this 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]) but, as stated in M v The Queen (at 494):

3. [9]

   In support of his arguments, the applicant referred to the decision of this Court in R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep) where Gleeson CJ, Smart and Dowd JJ, in dealing with a case in which the appellant had been charged with the indecent assault of his stepdaughter, said:

4. [10]

   The conviction of the appellant in that case on the only count against him on which he was convicted was quashed on appeal for a number of reasons, including the following sixth reason:

5. [11]

   The applicant in the present case also relied on the decision of the Victorian Court of Appeal in Wade v The Queen [2018] VSCA 304 where the complainant in a child sexual abuse case gave the following evidence in chief in relation to charge 2 against the applicant:

6. [12]

   In finding that the guilty verdict on charge 2 was unsafe and unsatisfactory, the Court said:

7. [13]

   The Court then referred to the absence of any distinctive features which might have assisted the complainant to recall the particular occasion that was the subject of the charge. In quashing the conviction the Court also took into account that the complainant’s description at trial of the alleged offending differed from the description she gave in her police statement, that she performed poorly in cross-examination and that there was no independent evidence which supported her allegations concerning the event the subject of charge 2.

DISPOSITION OF THE APPLICATION FOR LEAVE TO APPEAL

1. [14]

   Consideration of the proposed appeal in the present case must necessarily turn upon a close examination of the evidence in chief of the First and Second Daughters in relation to the counts on which the applicant’s convictions are challenged. The question to be answered in relation to each challenged conviction is whether, having made proper allowance for the jury’s advantage over this Court in seeing and hearing the relevant complainant give evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the particular charge made against him. In this respect the evidence needs to have been specific to the particular charges and not merely have constituted “generalised assertions” (see KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [14]) of misconduct by the applicant. To assist in assessing the evidence, I have added emphasis to various parts of the passages quoted from the First and Second Daughters’ evidence.

Counts 1 to 4 – an occasion in the applicant’s bedroom alone with the First Daughter (the First Daughter’s evidence)

1. [15]

   The First Daughter’s evidence in chief in relation to these counts, which all concerned assaults on her, was as follows. As noted earlier, the applicant’s convictions on Counts 3 and 4 are not challenged.

2. [16]

   As the Crown submitted on appeal, the latter part of this evidence, dealing with Counts 3 and 4, was in a conventional form. It recounted the First Daughter’s actual memory of what occurred, namely, that this was the first occasion on which the applicant ejaculated in her mouth and the first occasion on which he forced her “to do the sixty-niner, oral sex” in which she performed oral sex on him and he performed it on her. This part of the evidence, if accepted, readily established Counts 3 and 4. It is unsurprising that the applicant did not challenge his convictions on these counts.

3. [17]

   That evidence however stood in contrast to the earlier part of the evidence, which the Crown relied upon in support of Counts 1 and 2. Although the First Daughter gave the evidence in response to a question asking her for her “first specific recollection” of a sexual assault occurring when she was alone with the applicant, her evidence was expressed in terms of what habitually occurred, characterised by her frequent use of the word “would”, or an abbreviation of it.

4. [18]

   It is possible that the witness specifically recalled Counts 1 and 2 occurring on a particular occasion, rather than conflating the events she described with other occasions when there may have been a similar pattern of behaviour, but in my view she did not clearly express that to be the case. The observations which I have quoted from R v AM and Wade v The Queen in [9]-[12] above are relevant in this regard. It was open to the Crown to ask the First Daughter to give evidence of what did occur rather than what would have occurred, but it did not do so. In these circumstances, it was not in my view open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the acts charged in Counts 1 and 2. His convictions on those counts should accordingly be quashed.

5. [19]

   The Crown submitted on appeal that Counts 1 to 4 were “clearly linked in time, place, and by reference to a specific memory” of a particular occasion. It submitted that it would be “artificial to divorce” the evidence in relation to Counts 1 and 2 from that concerning Counts 3 and 4.

6. [20]

   There is however in my view a clear distinction in the evidence. That concerning Counts 1 and 2 is in a general form, not appearing to address a specific occasion. The witness then turned to address a particular occasion and gave evidence in support of Counts 3 and 4.

Count 13 – in the shower with the three daughters (the First Daughter’s evidence)

1. [21]

   The First Daughter gave the following evidence in chief relevant to this count.

2. [22]

   I have reached a different conclusion in relation to the evidence concerning Count 13 to that which I reached concerning Counts 1 and 2. In respect of Count 13, the evidence read as a whole in my view indicates that the First Daughter recalled a specific occasion and the occurrence of the two acts particularised in relation to the Count, namely, the First Daughter performing oral sex on the applicant and her sisters being asked to touch each other.

3. [23]

   The witness started by giving evidence of what regularly happened but then commenced to describe “one particular time that I’m thinking of”. Certainly, she uses the word “would” a number of times but what follows indicates a specific recollection of acts occurring on the occasion to which she referred. Thus she says that she “was on one end of the bathtub on my knees with my father standing in front of me, where he could also see [Second Daughter] and [Third Daughter], instructing them to touch each other, which they did”. She uses the word “would” again but then says “I saw him put his penis in her mouth, just as my sisters the same for me” and that she could “see him forcing his penis into [Third Daughter’s] mouth, in and out”. Her statement that she did not know whether the applicant ejaculated or not (on that occasion) and that “I think he did” indicates that she was recounting her memory of what occurred.

4. [24]

   In these circumstances it was in my view open to the jury to rely upon this evidence to be satisfied beyond reasonable doubt that the applicant was guilty of the charge in Count 13.

Count 14 – watching television incident (the First Daughter’s evidence)

1. [25]

   The First Daughter’s evidence in chief concerning this count was as follows:

2. [26]

   As in relation to Count 13, it was in my view open to the jury to be satisfied beyond reasonable doubt that the First Daughter’s evidence established the applicant’s guilt on Count 14. Taken as a whole, I consider it clear that the First Daughter gave evidence of her recollection of a specific occasion as particularised in relation to Count 14 when she performed oral sex on the applicant and he told her sisters to touch each other.

3. [27]

   She was asked about “specific recollections” and referred to a weekend on which the family was watching television, identifying the program concerned. She used the word “would” (or a contraction of it) a number of times but interspersed that with language indicating that she was recounting her recollection of a specific occasion. For example, she said “he got up”, “he told us”, “which we did”, (again) “he told us”, “he took”. The lapse into use of the word “would” did not deprive the evidence of its character of a recollection of what occurred on a particular occasion.

4. [28]

   Whilst the view taken in other cases concerning evidence given in them is of limited relevance, it may be useful to note the following features that distinguish the present case, so far as it relates to Count 14, from Wade v The Queen to which I have referred in [11]-[13] above.

   1. (1)

      The evidence in Wade was of a more general nature than in the present case as the complainant in Wade referred to the accused’s acts as following the “same pattern”, “same progression” and “same course”.

   2. (2)

      In quashing the conviction in Wade, the court took into account a number of factors referred to in [13] above that were not relied upon in the appeal in the present case.

   3. (3)

      The complainant in Wade conceded that some of her memories were “blended” and were “blurred together”.

   4. (4)

      In Wade there was, as I point out in [13] above, an absence of distinctive features which might have assisted the complainant to recall the particular occasion which was the subject of the charge. As noted in [27] above, that was not however the case here.

Counts 5 and 6 – home alone with the applicant (the Second Daughter’s evidence)

1. [29]

   The Second Daughter’s evidence in chief relevant to these counts was as follows:

2. [30]

   Read as a whole it is in my view clear that the witness was professing an actual recollection of an occasion in 1973 when the acts particularised in relation to Counts 5 and 6 occurred. These were that the applicant took her hand and put it on his erect penis and that the witness performed oral sex on the applicant. The witness did not say in terms that the applicant “took her hand and put it on his erect penis”, as stated in the particulars, but her evidence to the effect that he got his daughters to touch his penis was materially the same.

3. [31]

   The witness was asked about her first specific memory and then said that she could remember the applicant touching her but used the word “would” to describe further acts. When she was directed back to the particular occasion she said “I don’t remember a lot of the incidents surrounding it, I remember the act of what he was doing … all those fine details I can’t remember. I can just remember what he did to me or what he made me do”. Her evidence lapsed into use of the word “would” at times but it did so in a context which made it clear that she was recounting what occurred on the particular occasion, with the applicant’s ejaculation in her mouth for the first time being a stark reason for remembering it. For example, her statement that she remembered, after the applicant ejaculated in her mouth, “spitting it out into my hand and … being worried about it getting on to the floor” indicates that she was recalling a particular incident.

4. [32]

   In these circumstances, the challenges in relation to convictions on Counts 5 and 6 should be rejected.

Counts 7 and 8 – in the shower (the Second Daughter’s evidence)

1. [33]

   The applicant’s challenge to his convictions on these counts is based on a different submission to that applicable to his convictions on the other counts. The applicant contends that the convictions on Counts 7 and 8 were unreasonable because the evidence given by the Second Daughter on this topic was “quite clearly poor and inconsistent”, resulting in the evidence lacking credibility. He based this contention on the evidence referred to below which was also the basis of the Crown’s response to the contention.

2. [34]

   The Second Daughter’s initial evidence on this topic was as follows:

3. [35]

   The trial judge subsequently suggested to the Crown, in the absence of the jury, that “some of those incidents … may require some more focused questions and failing that, perhaps s 32” (referring to s 32 of the Evidence Act 1995 (NSW) permitting a document to be used to revive a witness’s memory in certain circumstances). After that, the Second Daughter gave the following further evidence:

4. [36]

   The Crown was then given leave under s 32 to attempt to revive the Second Daughter’s memory by having her read part of a statement she had given to police. That having occurred, the Second Daughter gave the following further evidence:

5. [37]

   It is then necessary to set out in full the evidence that the Second Daughter later gave on this topic:

6. [38]

   The effect of this evidence of the Second Daughter so far as it was arguably capable of supporting Counts 7 and 8 was as follows:

   1. (1)

      She first clearly described an occasion when the applicant came into the bathroom while she was showering, looked at her then-developing breasts and smirked disgustingly at her. She was able to say that this occurred when she was about 10 years of age because it was then that her breasts started developing.

   2. (2)

      Both initially and later in her evidence, she said clearly that the applicant put his fingers in her vagina on this occasion. This conformed with the allegation in Count 7, as particularised.

   3. (3)

      In her initial evidence on this topic, the witness also said that the applicant “pushed my head down towards him, again, to perform oral sex on him”. She did not, at least in terms, say that the oral sex which was the act particularised in respect of Count 8 was actually performed.

   4. (4)

      In that initial evidence, the witness went on to say that “there was another time when he got me to suck his penis … that was another time that he did that”. This tended to confirm that she had not earlier been saying in relation to the shower incident that oral sex had occurred. When asked by the questioner whether she was talking about the same day or a different day when she said “there was another time”, the witness responded, “[d]ifferent day”. This doubt is increased by the witness’s statement near the end of her initial evidence that “he wanted me to put my hand on his penis and then he ended up coming as well, that time as well” without suggesting, at least in terms, that oral sex occurred. On the other hand, almost immediately after, when the questioner referred to the shower incident during which the applicant placed his fingers in the witness’s vagina and said “you then went on to say something about another time he had you suck his penis”, the witness corrected the question and said “[n]o, that was the same time in the bathroom”. This contradicted her other evidence to which I have referred.

7. [39]

   Whilst I consider that it was open to the jury to convict the applicant on Count 7, I do not consider that the witness gave evidence in support of Count 8 that was reasonably capable of acceptance. As the applicant submitted, the Second Daughter’s evidence did not contain any clear support for that count and lacked sufficient quality and consistency to permit its acceptance. In my view the jury ought to have had at least a reasonable doubt as to whether the applicant committed the act alleged in Count 8. His conviction on that count should accordingly be quashed.

Count 9 – 1974 horror movie night (the Second Daughter’s evidence)

1. [40]

   The Second Daughter gave the following evidence concerning the incident the subject of this count:

2. [41]

   As particularised, this count involved the applicant placing his hand on the Second Daughter’s groin and inserting his fingers in her vagina. It was in my view well open to the jury to find that the Second Daughter’s evidence established that this occurred.

3. [42]

   The witness professed to recall a particular occasion which she was able to identify, even to the point of recalling how long was left of the movie when the rest of the family left her and the applicant together. The witness then spoke in definitive language of what occurred: “he came over to me”, “one thing led to another”. She then said that “another incident happened like where dad would fondle me, or I’d have to fondle him”. In its context, the reference to “another incident” referred to something that happened (that is, an “incident”) on the occasion that she recalled. Her explanation of her “fondling” reference indicated that it did not just occur on this occasion but it was clear that she was giving evidence that, irrespective of whenever else it also occurred, it did happen on this occasion and that it involved the acts particularised in relation to Count 9.

4. [43]

   The applicant’s challenge to his conviction on Count 9 should accordingly be rejected.

Counts 10, 11 and 12 – sisters together in applicant’s bedroom (the Second Daughter’s evidence)

1. [44]

   The Second Daughter gave the following evidence relevant to these counts. As noted above, at the hearing before this Court, the applicant withdrew his challenge to the conviction on Count 10.

2. [45]

   Later, the Second Daughter gave the following further evidence:

3. [46]

   It was for good reason that the applicant withdrew his challenge to his conviction under Count 10. The Second Daughter gave clear evidence to establish that count, as particularised. Thus, she recalled that on the occasion which she was able to identify because it was the first time the three sisters had been assaulted at the same time, the applicant called them to his bedroom and told them to touch each other. The Second Daughter recalled that he took her hand and placed it on the vaginas of her sisters. To the extent that the witness used the word “would” in her description of the events it was clear from the context of her frequent use of the past tense that she was recounting what occurred on the identified occasion.

4. [47]

   Count 11 was particularised as the applicant’s insertion of his fingers into the Second Daughter’s vagina on the same occasion. The witness first referred to this act as what the applicant “would” do but it immediately followed her statement that “he also touched us with his fingers”. In context, it is clear that she was explaining that the touching of which she gave evidence in the past tense included the applicant putting his fingers in her vagina. The Crown’s follow-up, leading, question referred to that act as something which the witness did recall. The jury was in a much better position than this Court to determine what the witness’s response of “Mm-hm” signified. Its verdict was consistent with it understanding it as assent. When the Crown later asked the witness to confirm that the applicant put his fingers in her vagina, she answered “yes”. No objection was taken to the question. She then followed this statement up by explaining that “it just hurt a little bit when he did that”.

5. [48]

   In these circumstances, it was in my view well open to the jury to find that Count 11 had been established.

6. [49]

   Count 12 was particularised as an act of the Second Daughter performing oral sex on the applicant. In her initial evidence of the occasion, she referred to the applicant masturbating himself but made no reference to oral sex. Her reference to the applicant ejaculating on the sisters was consistent with her reference to him masturbating and did not suggest that there must have been oral sex. Moreover, at the conclusion of the passage of evidence (see the end of [44] above), the witness answered “no” when asked whether the applicant made her and her sisters do anything else.

7. [50]

   When the witness later gave evidence about the same occasion, she again referred to the applicant having ejaculated. When asked “what were the circumstances of him ejaculating”, she referred to him masturbating, not to oral sex (see the end of [45] above). When then asked whether the applicant did anything else with his penis apart from masturbating, the witness replied “[h]e would make us put it in our mouth for oral sex with him” (emphasis added). When asked in the next question whether he ejaculated on that occasion in any of the sisters’ mouths, the witness said “[n]o, I don’t think he did that time, no. I can’t recall, no”.

8. [51]

   This did not in my view amount to evidence reasonably capable of establishing Count 12. The witness was given by the questioner opportunities to say that oral sex had occurred but, significantly, refrained from stating that it had. The highest her evidence rose on this issue was a generalised assertion as to what the applicant “would” do. In relation to this count, that evidence, even when considered in its context, could not reasonably be understood as evidencing a recollection of the witness that oral sex had occurred on this occasion. The applicant’s conviction on Count 12 should accordingly be quashed.

CONCLUSIONS AND ORDERS

1. [52]

   For the reasons I have given, I have upheld the applicant’s challenges in respect of Counts 1, 2, 8 and 12 but rejected his challenges to his convictions on the remaining counts the subject of his application for leave to appeal.

2. [53]

   In these circumstances, his convictions on Counts 1, 2, 8 and 12 should be quashed and verdicts of acquittal entered. Notwithstanding submissions by the Crown to the contrary, verdicts of acquittal, rather than orders for new trials, are appropriate. At least in the absence of special circumstances (which are not present here), the Crown should not be permitted to attempt to obtain convictions at a further trial by improving its case. (See R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51]-[52]; and more recently, R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [84]-[85]). To achieve convictions, the Crown’s case would need improvement because, as I have held, it was not open to the jury on the evidence that was adduced to return verdicts of guilty on Counts 1, 2, 8 and 12.

3. [54]

   As the aggregate sentence that the trial judge imposed on the applicant related inter alia to the four counts on which the applicant is entitled to an acquittal, the sentence should be quashed. As this Court does not have evidence as to the applicant’s current circumstances and the parties have not addressed submissions to it concerning resentence, the proceedings should be remitted to the District Court for the applicant to be resentenced.

4. [55]

   For these reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal in respect of the applicant’s convictions on Counts 1, 2, 5, 6, 7, 8, 9, 11, 12, 13 and 14.

   2. (2)

      Allow the appeal in relation to the applicant’s convictions on Counts 1, 2, 8 and 12 charged in the Indictment dated 22 May 2019.

   3. (3)

      Quash the convictions on those Counts numbered 1, 2, 8 and 12.

   4. (4)

      Direct a verdict of acquittal on those Counts.

   5. (5)

      Quash the aggregate sentence imposed on the applicant on 16 July 2019.

   6. (6)

      Remit the proceedings to the District Court to resentence the applicant in respect of his convictions on Counts 3-7, 9-11 and 13-16 inclusive.

   7. (7)

      Otherwise dismiss the appeal.

   8. (8)

      Pursuant to Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 5.10, applicant to be detained in custody until his resentencing has concluded.

   9. (9)

      List the matter for mention in the District Court at the Sydney Downing Centre in the arraignment list at 9.30am on Friday 21 May 2021.

5. [56]

   WALTON J: I agree with the orders proposed by Macfarlan JA for the reasons given by his Honour.

6. [57]

   HAMILL J: I have the advantage of having read the draft reasons circulated by Macfarlan JA. I have reviewed the record of the trial and considered the ground of appeal by reference to the principles enunciated by the High Court in cases such as M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 and reiterated and applied more recently in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394. I agree with the orders proposed by Macfarlan JA and with his Honour’s reasons for favouring those orders.

7. [58]

   I agree with the presiding Judge that the form in which the evidence said to support counts 1, 2, 8 and 12 was given, and the substance of that evidence, is such that the jury ought to have entertained a reasonable doubt as to the applicant’s guilt. The verdicts on those counts were unreasonable and unable to be supported having regard to the generalised evidence relied on by the prosecution at trial. There was no specific evidence capable of supporting those counts and, had an application been made at the conclusion of the prosecution case, the jury ought to have been directed to return verdicts of acquittal.

8. [59]

   I also agree with Macfarlan JA’s analysis in relation to the remaining counts. The failure of the Prosecutor at trial to steer the complainants away from the use of the expression “would have” (or similar) was unfortunate but in relation to counts 5, 6, 7, 9, 11, 13 and 14 the evidence established that the respective complainants were bringing to mind, and testifying to, specific and particular occasions and sexual acts.

9. [60]

   I do not accept that the inconsistencies and ambiguities surrounding counts 7 and 8 – the incident or incidents in the shower alleged by the Second Daughter – gave rise to a reasonable doubt in relation to count 7. However, I agree with Macfarlan JA, for the reasons articulated by his Honour, that count 8 cannot be permitted to stand. It is not clear in relation to that count that the complainant was giving evidence of a specific occasion or speaking either in terms of a general pattern of behaviour or of some other occasion. The evidence was incapable of sustaining a finding of guilt, beyond reasonable doubt, in relation to count 8.

10. [61]

    The verdicts of the jury establish that the complainants were accepted by the jury as honest and reliable witnesses: cf Pell v the Queen at [39]. My review of the evidence satisfies me that this acceptance was not only open, it was correct. I do not entertain a reasonable doubt as to the applicant’s guilt in relation to count 5, 6, 7, 9, 10, 11, 13 or 14 or the remaining counts as to which no arguments were advanced. The verdicts on those counts were not unreasonable or unable to be supported having regard to the evidence. In reaching those conclusions, I have taken into account the things said in the cases of Wade v the Queen [2018] VSCA 304 and R v AM (Court of Criminal Appeal (NSW), 2 April 1998, unrep). As the judgment of Macfarlan JA shows, the extent to which the matters discussed in those judgments will result in the quashing of a verdict will depend on a careful analysis of the evidence relating to the individual counts.

11. [62]

    I agree with, and respectfully adopt, the careful analysis of the evidence and arguments advanced on appeal undertaken by Macfarlan JA and join in the orders his Honour proposes.