BW v R

1. [1]

   SIMPSON AJA: On 26 November 2019 the applicant was arrested and charged with six counts of sexual offences against the same complainant. The offences were alleged to have been committed on 3 separate occasions between 1 January 2012 and 27 August 2018. On 26 July 2021 the applicant was arraigned in the District Court on an indictment that contained six counts, the details of which are set out below. A trial took place in July and August 2021. On Friday 30 July 2021 the jury returned unanimous verdicts of not guilty on counts 3, 4, 5 and 6. The jury was at that time unable to reach a unanimous verdict on counts 1 and 2. The trial judge gave the jury a direction in accordance with Black v The Queen (1993) 179 CLR 44; [1993] HCA 7, but the jury remained unable to reach unanimous verdicts on those counts. The trial judge then directed the jury, pursuant to s 55F of the Jury Act 1977 (NSW), that it could return majority verdicts on those counts. After 30 minutes the jury returned majority verdicts of guilty on each of counts 1 and 2.

2. [2]

   On 11 November 2021 the applicant was sentenced to an aggregate term of imprisonment for 5 years with a non-parole period of 3 years, commencing on 8 November 2021. In accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the judge indicated the sentence he would have imposed in respect of each count on which the applicant was convicted had separate sentences been imposed.

3. [3]

   The applicant now seeks leave to appeal against the verdicts of guilty. Leave is required because the grounds on which he seeks to rely involve questions of fact or questions of mixed fact and law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). He has not sought leave to appeal against the sentence imposed.

4. [4]

   I have had the advantage of reading in draft the judgment of Garling J. As I have come to a different view, it is necessary to set out, in some detail, the relevant facts and circumstances, before coming to my reasons for my conclusion that, while leave to appeal should be granted, the appeal should be dismissed.

5. [5]

   The two grounds asserted by the applicant are intertwined. The first is that the verdicts of guilty on counts 1 and 2 are unreasonable or cannot be supported by the evidence (Criminal Appeal Act, s 6(1)); the second is that the verdicts of guilty are inconsistent with the verdicts of not guilty on counts 3 to 6. To a significant extent, the basis for the contention that the verdicts are unreasonable lies in their asserted inconsistency with the acquittals.

6. [6]

   By s 578A of the Crimes Act 1900 (NSW), publication of any information that might identify the complainant is prohibited. In order to preserve the anonymity of the complainant, in what follows, all relevant witnesses will be denoted by letters of the alphabet.

Uncontroversial background facts

1. [7]

   The following I understand to be uncontroversial and is included at this point to avoid complexity in the account of the Crown case that follows.

2. [8]

   The applicant was born in August 1992. He has an older half-sister, A, who at relevant times lived in Queensland. The applicant also has a younger half-brother, Z, who was born in November 1997. The complainant is the younger sister of Z, and the half-sister of the applicant. She was born in 2003, and was therefore a little over 10 years younger than the applicant. The father of all four (including A) is GW. The mother of Z and the complainant is MJ; MJ is not the mother of A or of the applicant.

3. [9]

   MJ and GW separated in 2003 or 2004. Z and the complainant continued to live with MJ, in the Port Stephens (NSW) area. GW moved to the Orange (NSW) area for a time, where the applicant’s mother also lived. The applicant also lived in that area, dividing his time between his mother’s home and that of GW, until he obtained his own accommodation.

4. [10]

   At some time not clear in the evidence, GW moved to the Port Stephens area, where he lived in a house to which I will refer as “the Dowling Street house”. Living in separate accommodation at the same address was a friend of GW known by a nickname it is convenient to abbreviate to “S”. During this time the applicant from time to time visited GW from Orange. The applicant also stayed from time to time with MJ.

5. [11]

   From August 2008 to September 2016, MJ, Z and the complainant lived at an address in Salamander Bay. The complainant and Z had irregular, but not infrequent, contact with GW. They had bedrooms in the Dowling Street house and stayed there overnight once or twice a week, or occasionally more.

6. [12]

   From May 2017, MJ, Z and the complainant lived at an address in Corlette, where the family occupied the upstairs. Downstairs was occupied by MJ’s parents and another friend. A spare room in the upstairs section was set up with toys and electronic devices used by Z and the complainant.

The indictment

1. [13]

   As indicated above, the indictment alleged six counts. Four were of indecent assault on a child under the age of 16 years, an offence against s 61M(2) of the Crimes Act 1900 (NSW). One was of sexual intercourse with a child over the age of 10 years and under the age of 16 years, an offence against s 66C(1) of the Crimes Act; one was of sexual intercourse with a child above the age of 14 years and under the age of 16 years, an offence against s 66C(3) of the Crimes Act.

2. [14]

   The offences were alleged to have been committed in three separate episodes. The offences the subject of counts 1 and 2, of indecent assault and sexual intercourse with a child over the age of 10 and under the age of 16, were alleged to have been committed at GW’s Dowling Street house, between 1 January 2012 and 31 December 2013. The offence the subject of count 3, of indecent assault, was alleged to have been committed between 15 January 2013 and 16 January 2015, at an indeterminate location in NSW, in circumstances to be outlined below.

3. [15]

   The offences the subject of counts 4, 5 and 6, of, respectively, sexual intercourse with a child above the age of 14 and under 16 (count 4), and indecent assault (counts 5 and 6) were alleged to have been committed between 6 May 2017 and 27 August 2018, at the Corlette address at which MJ, Z and the complainant lived.

The Crown case

1. [16]

   As is usual in cases of sexual offences, the Crown case rested significantly on the evidence of the complainant. Evidence given by MJ and GW provided some context, particularly in relation to the family living arrangements. Importantly, evidence of complaint was given by MJ, and two other witnesses, OW and KI.

2. [17]

   Pursuant to the relevant provisions of the Criminal Procedure Act 1986 (NSW), the complainant’s evidence was pre-recorded and the recording played to the jury.

3. [18]

   The complainant’s evidence in respect of each alleged offence may be summarised as follows.

4. [19]

   The complainant’s evidence was that she was in her room at GW’s house watching a movie. She was 9 or 10 years of age at the time. She was on the bottom bunk of bunk beds. She was wearing pyjamas and underwear. The complainant said that the applicant asked if he could watch the movie with her. She assented. The applicant lay down with her and watched the movie. After a time the applicant put his fingers underneath the covers of the bed and started touching her on the outside of her vagina, inside her clothing. This conduct was the subject of count 1 on the indictment (indecent assault). The applicant then pulled the complainant’s pyjama shorts and underwear down to her knees and began licking her vagina. This conduct was the subject of count 2 on the indictment (sexual intercourse).

5. [20]

   The complainant said that while this was occurring the applicant asked her multiple times if she was “okay”, to which she replied that she was. Eventually the applicant stopped what he was doing and left the room.

6. [21]

   These were the counts on which the applicant was convicted.

7. [22]

   The complainant’s evidence was that she, GW, Z, the applicant and (she thought) a friend of Z’s were driving to Queensland to visit A. GW was driving. It was night time. Z’s friend occupied the front passenger seat. The complainant was sitting in the middle of the back seat between Z and the applicant. The complainant and the applicant were underneath a blanket. Z was asleep. The applicant took the complainant’s hand and placed it on his penis, which was “very hard”. The applicant asked the complainant “a couple of times” if she was “okay”. She said that she was. The complainant could not remember how old she was at the time, but the incident occurred when the family lived at Salamander Bay (that is, between August 2008 and September 2016). The applicant was acquitted on this count.

8. [23]

   The complainant’s evidence was that these offences were committed, as part of a single episode, at the Corlette home where she was then living with MJ and Z. (The family lived at Corlette from May 2017.) The complainant said that she was on a day bed in the spare room, under a blanket, playing a computer game called “Minecraft”. She was lying on her right side. The applicant came into the room and asked if he could play the game with her. She said that he could “if you find the spare controller”. He found the device and sat down and, for a time, played the game with her. The complainant said that the applicant then got under the blanket and, after a couple of minutes, began touching the outside of her vagina, initially on the outside of her underwear. He then undid the button and the zipper of her shorts, moved his hand underneath her underwear and started touching the outside of her vagina, rubbing her clitoris. He asked her, multiple times, if she was “okay”. She said that she was.

9. [24]

   The complainant said that the applicant then “stuck his fingers” into her vagina and began “fingering me”, by which she meant that he was moving his finger “in and outside of me”. This conduct was the subject of count 4 (sexual intercourse with a child between the ages of 14 and 16).

10. [25]

    The complainant said that the applicant then pulled down his pants, exposed his penis, grabbed her hand and placed it around his penis, which was hard. This alleged conduct was the subject of count 5 on the indictment (indecent assault). The complainant said that the applicant then placed his penis between her legs, rubbing it against the outside of her vagina. This was the subject of count 6 on the indictment (indecent assault). The applicant again asked the complainant if she was “okay” and she again replied that she was. Eventually, the conduct ceased and the applicant left the room.

11. [26]

    The complainant said that at the time MJ and Z were present in the house, as were the applicant’s then partner B and their two children, who were “staying over”.

12. [27]

    The complainant gave evidence of a further event, not the subject of any charge. She said that, in about January 2019, while she was at home, lying on a couch, watching a movie called "Criminal Minds”, the applicant asked if he could watch the movie with her. She said that nobody else was present in the lounge room, but MJ was in her room asleep. Also present in the house was the applicant’s partner, B, and their two children, all of whom were asleep in Z’s room. The complainant said that she had a blanket over her and the applicant also got underneath the blanket and began touching her on the vagina underneath her underwear. She said that the applicant moved his hand up to her vagina, pulled her pyjama pants and her underwear down, and started rubbing the outside of her clitoris. He asked if she was okay, to which she said that she was. She said that the applicant then “stuck his finger inside my vagina” and started “fingering me”. He again asked if she was okay and again she replied that she was. She said that he then started rubbing the outside of her clitoris, and again “stuck his fingers inside my vagina”.

13. [28]

    The complainant said that after the Minecraft incident, and before the “Criminal Minds” incident, she told her friend, OW. She did not say what she had said to OW.

14. [29]

    Evidence of complaint was given by three witnesses.

15. [30]

    OW said that about a month after they began talking, the complainant had told her “that her brother had done stuff to her”, and that he had raped her (although OW was not able to say that the complainant had used those exact words). She said that the complainant did not elaborate on what she claimed the applicant had actually done. OW said that when the complainant spoke to her of these things, she sounded “scared and upset”, and that her voice “trembled a bit”.

16. [31]

    OW said that she encouraged the complainant to tell someone of her allegations, but the complainant said that she was too scared to do so.

17. [32]

    OW also gave evidence of an occasion “around the end of 2019” when she was on the phone to the complainant, when the complainant asked her to stay on the line because her brother had turned up and she was scared that “he was going to do something else”.

18. [33]

    MJ gave evidence of the various addresses at which the family had lived in the Port Stephens area. The principal significance of this evidence was that it assisted in fixing the dates of the conduct alleged to have constituted the offences the subject of counts 4, 5 and 6 (which the complainant said were committed in the Corlette home at which the family then lived).

19. [34]

    MJ said that, for a period from late 2018 until early 2019, the applicant, his partner B, and their two children, stayed at the Corlette house “using Z’s room”.

20. [35]

    MJ also gave evidence that, following the complainant’s account to her, she contacted the applicant by telephone and confronted him with the allegations. She said that the applicant made an immediate and forceful denial; as recounted by MJ, he said:

21. [36]

    MJ said that she made a second call to the applicant on the same day, again telling him of the complainant’s allegations “that he’d touched her inappropriately”, to which he replied that he was “gobsmacked”.

22. [37]

    As mentioned above, GW is the father of both the complainant and the applicant.

23. [38]

    GW said that, after living in Orange for a time, he moved to the Port Stephens area where he lived at “the Dowling Street house”. He shared that accommodation with “S”.

24. [39]

    GW said that Z and the complainant each had a bedroom in the Dowling Street house, each of which was furnished with double bunk beds and each of which had television or DVD facilities. He said that Z and the complainant stayed at the Dowling Street house two and up to four nights each week: arrangements were flexible and cooperative. From time to time the applicant, who was living in Orange, also stayed for a couple of days at a time. He slept on a mattress in the loungeroom. All the children got on well.

25. [40]

    GW also gave evidence about his daughter A who lived in Bundaberg, Queensland. He said that he visited her intermittently, when he had the funds to do so. Z and the complainant, and, until he got older, the applicant, accompanied him on these trips. GW thought that these trips might have occurred once a year, sometimes twice, three times “if I was lucky”.

26. [41]

    Although his recollection was vague, GW thought there was one occasion when he took a friend of one of the children. He was unsure whether that was on a visit to A, or on a holiday. He thought that there was probably an occasion when a friend of Z’s accompanied the family.

27. [42]

    Cross-examination of GW focused attention on two of the family excursions to Queensland. He was first asked about a trip for A’s wedding, which was in early January 2012. GW agreed that, at the time, the applicant was living in Orange, and drove from there to the Dowling Street house, and then to Queensland, after staying overnight. He agreed that the applicant’s then partner N was present on that trip. He agreed that, at that time, the applicant was the only person in the vehicle who held a driving licence, he (GW) having been disqualified. He initially agreed with the proposition put to him that the applicant was the only person driving on that trip. However, when it was then put to him that at no point did the applicant sit in the back seat of the vehicle, he dissented, saying:

28. [43]

    GW was then asked about an earlier Queensland trip, for A’s engagement party. He agreed that he and the applicant had driven to Queensland for that function; but when it was put to him that “there certainly wasn’t one of [Z’s] friends on that trip” he answered:

29. [44]

    The final witness in the Crown case was the officer in charge of the investigation, who gave evidence of the applicant’s arrest, and said that the applicant declined to take part in an interview. He said that the applicant had no criminal convictions.

The defence case

1. [45]

   The applicant gave evidence.

2. [46]

   Prior to the empanelling of the jury, defence counsel told the trial judge that the applicant had “what can be described as a cognitive impairment”. Apart from saying that the applicant’s “attention is quite limited” he did not elaborate on the nature of the cognitive impairment, or its effect on the applicant. It is fair to observe that no cognitive impairment is apparent in the transcript of the trial.

3. [47]

   The applicant expressly denied each of the allegations made by the complainant.

4. [48]

   With respect to counts 1 and 2 (offences alleged to have been committed at the Dowling Street house occupied by GW) the applicant said that the complainant did not visit the house very often, because GW liked to drink with his mates and brought them home from the pub, that the house was “in disrepair and needed a lot of work to be liveable” and that MJ did not like the children (the complainant and Z) to go to the house because of its state of disrepair and GW’s lifestyle. The applicant said that he stayed overnight at the Dowling Street house on three occasions only, twice alone and once with his then partner N. He said that in 2012 he visited “not very often at all”, about three or four times per year, when he stayed with the mother (AA) of a friend (BA). There was only one occasion when he stayed at the Dowling Street house at the same time as the complainant. He said that that was when he (the applicant) went to pick up GW to travel to A’s wedding in Queensland in January 2012. The applicant said that N was with him at the time. He said that he, GW, N, and Z travelled together in the applicant’s car and that he was the only driver because GW did not at that time have a licence and that he (the applicant) was not prepared to risk his licence by allowing an unlicensed driver to drive his car. He said that GW did not drive at all.

5. [49]

   With specific respect to Count 3, the applicant said that he had never travelled to Queensland with one of Z’s friends. His evidence was that the last of the occasions on which he travelled to Queensland was for A’s wedding and that there was no friend of Z’s in the party.

6. [50]

   Prior to the trip to Queensland for A’s wedding, the applicant had travelled to Queensland on one occasion, for A’s engagement party, about a year or two earlier. In that party were GW, the applicant, the complainant, Z and the applicant’s friend JA. They travelled in GW’s car. Between those two events, he had not travelled to Queensland at all.

7. [51]

   B is the partner of the applicant. She said that they had known each other since they were children, and had attended the same school. They commenced a relationship on 21 April 2013 and began living together 3 days later. Initially they lived in Orange. Shortly after the relationship commenced B became pregnant and gave birth to their first daughter on 4 March 2014. At that time they were living in Old Junee.

8. [52]

   B gave evidence of the circumstances of herself and the applicant thereafter. She said that the second daughter was born on 27 March 2017 and a third on 11 November 2018. The third daughter had serious medical complications and subsequently died. On New Year’s Eve 2018 the family moved to the Corlette house, where they lived with MJ and her family for a time.

9. [53]

   The import of B’s evidence was to raise issues about opportunity in the applicant to commit the offences the complainant alleged he had committed.

The grounds of appeal

1. [54]

   The grounds of appeal are pleaded as follows:

2. [55]

   The test to be applied by an appellate court addressing a ground of appeal that a verdict of guilty is “unreasonable or cannot be support having regard to the evidence” was laid down in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and has been repeatedly reaffirmed in numerous cases, including SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; and Dansie v The Queen [2022] HCA 25. Although the salient passages in the judgment of Mason CJ, Deane, Dawson and Toohey JJ in M have been reproduced at length in countless judgments of the High Court and this and other appellate courts, they are worth repeating for the purposes of this appeal. Their Honours said:

3. [56]

   In Baden-Clay significant emphasis was placed upon the constitutional role of the jury in determining questions of guilt. In a joint judgment the Court said:

4. [57]

   The present was a case in which the jury had the advantage of observing both the complainant and the applicant give evidence. That advantage must be given full weight. Notwithstanding that, there are cases in which, even accepting that the jury has assessed the evidence of a complainant as “thoroughly credible and reliable” the verdicts of guilty have been held to be unreasonable: see, for example, Pell.

5. [58]

   Perhaps most recently, in Dansie, in a joint judgment, the court said:

6. [59]

   Put shortly, the task of this Court is to make its own independent assessment of the evidence relied on by the Crown in support of the two counts on which the applicant was convicted, bearing in mind at all times the advantage enjoyed by the jury in seeing and hearing the evidence as it was given. In this case it should also not be overlooked that, in respect of four counts, the jury was not satisfied that the applicant had been shown to be guilty.

7. [60]

   In written submissions on behalf of the applicant in support of ground 1, what were said to be “some unusual features” of the complainant’s evidence were identified. It seems that these were suggested to cast doubt on the complainant’s evidence. To do justice to the applicant’s argument it is necessary to deal with each asserted “unusual feature”.

8. [61]

   The first and second were:

9. [62]

   These propositions were derived from the complainant’s evidence in cross-examination, in which the complainant agreed that, until the time that the applicant and B moved into the Corlette house in 2018, she really didn’t have much to do with the applicant, and she saw him “maybe three or four times a year”.

10. [63]

    I find nothing unusual about this evidence. As is clear from the uncontroversial circumstances outlined above, the applicant is 10 years older than the complainant. The evidence was that he was closer to Z than he was to the complainant. At the times relevant to counts 1 and 2 he lived in Orange and visited GW “from time to time”, and stayed on occasions in MJ’s home.

11. [64]

    The third asserted “unusual feature” was that the complainant gave no evidence of grooming by the applicant. Again, I do not find this unusual. The offences, as described by the complainant, have the hallmarks of opportunistic, rather than planned, offences. Similarly, the fourth feature said to be unusual was that there was no threat made by the applicant to encourage the complainant’s silence. While threats to encourage silence, particularly in the case of very young children, are not uncommon, it is also not unusual for there to be no such threats.

12. [65]

    The fifth “unusual feature” was that the incident the subject of counts 1 and 2 occurred in a room that did not have a door. This somewhat overstates the evidence. The complainant was asked in cross-examination if she were allowed to have the door to her bedroom closed; she replied that she thought the room may not have had a door. In any event, again, the spontaneous and opportunistic nature of the incident as described by the complainant would not suggest that the absence of a door would have deterred the applicant.

13. [66]

    The sixth “unusual feature” concerned evidence given by the complainant that her memory had got “a tiny bit better” over time. This was a reference to the identification of the movie the complainant said she had been watching at the time of the applicant’s entry into the bedroom. It was put to the complainant that she had not, in her statement to police, identified the movie, and in cross-examination she had done so. In fact, the complainant said, in answer to a question about what the movie was:

14. [67]

    I find nothing unusual about the complainant failing to identify the movie in her initial statement. It is far from apparent that she was at that time asked. Nor would it be surprising if her recollection in that respect had improved, she having had the opportunity to give it some thought.

15. [68]

    The final “unusual feature” upon which reliance was placed was that the complainant could not remember the applicant having a girl friend called “N”. Again, I find nothing unusual about this in the circumstances of this case.

16. [69]

    I reject the proposition that these “unusual features”, either alone, considered collectively, or considered in conjunction with the matters addressed below, of the complainant’s evidence cast doubt upon her credibility.

17. [70]

    The second aspect of the submissions was a contention that the complainant’s evidence was internally inconsistent. Six instances of alleged inconsistency were cited.

18. [71]

    The first of these was that GW did not live at the Dowling Street house “at least from 11 August 2012”. It was said that the complainant’s evidence was that she had “guessed” that detail.

19. [72]

    In fact, the complainant said that the first incident occurred when she was “maybe 9 or 10” and living at Salamander Bay. That accounts for the time frames in the indictment (1 January 2012-31 December 2013, the complainant having been born in January 2003). There was some evidence that, from August 2012, GW lived at a different address. It was put to the complainant, and apparently accepted by her, that, in her statement to police, she had said that the incident in the car (the subject of count 3) occurred when she was “about 11 years old”; the complainant would have been 11 from January 2014, after GW had moved from the Dowling Street house. The complainant said that, when asked by police where the incident the subject of count 3 occurred, she:

20. [73]

    There is no inconsistency as asserted.

21. [74]

    It was also asserted that the complainant’s evidence concerning the positioning of herself and the applicant changed. This appears to be a reference to the evidence of the complainant in respect of the uncharged act, when, on the complainant’s account, she was watching the film “Criminal Minds”. Although it is not easy to follow, it appears that the complainant had initially said, in her police statement, that she was lying on her left hand side, and subsequently, having been shown a photograph of the couch on which she said she had been lying, accepted that she must have been lying on her right hand side. The complainant’s response was that she often confused her left and right hands, and that, being shown the photograph, she accepted that she must have been lying on her right side. This anomaly casts no light on the accuracy of the complainant’s evidence in relation to counts 1 and 2.

22. [75]

    The next asserted inconsistency was said to be that the complainant’s evidence that she was watching a movie in her room at the time of the offences the subject of counts 1 and 2 was not supported by the evidence of GW. This assertion was not further particularised. However, GW’s evidence was that the complainant had a television or DVD player in her room so that she could watch movies. When asked if the applicant ever watched movies in the complainant’s room GW said:

23. [76]

    GW was then asked if he recalled at any time seeing the applicant in the complainant’s room watching a movie, to which he replied:

24. [77]

    The final suggestions of inconsistency are all concerned with the complaint evidence. First, it was said that the complaint to OW was only that the complainant was “having stuff done to her”. That understates OW’s evidence, who said that the complainant told her that she had been “raped” (although OW was not sure that that term had been used).

25. [78]

    It was then said that the complainant’s complaint to MJ was only of “inappropriate touching”, as was the complaint to KI (although the complainant denied making any complaint to KI). It is true that the evidence of MJ in this respect was limited to saying that the complainant had told her that the applicant had “touched her, like, in the wrong places”. What cannot be omitted from consideration is that MJ also said that she (MJ) “clammed up” and rang KI because “I was just a mess and didn’t know how to swallow what she’d told me”. The following evidence is pertinent:

26. [79]

    In these circumstances it is hardly surprising (and certainly not inconsistent) that the complainant did not elaborate further to MJ.

27. [80]

    It is also incorrect to say that the complainant’s complaint to KI was merely of “inappropriate touching”. The transcript records the following evidence of KI:

28. [81]

    I do not accept that any of what are asserted to be inconsistencies in the complainant’s evidence cast doubt on her assertions with respect to the first episode, the subject of counts 1 and 2. The verdicts of guilty are not, for this reason, unreasonable within the meaning of s 6(1) of the Criminal Appeal Act.

29. [82]

    It has become commonplace, when a jury returns a mix of verdicts of guilty and not guilty of a number of counts on an indictment, to assert that the verdicts of not guilty demonstrate that the jury did not accept the complainant as a truthful witness, and that the verdicts of guilty are therefore inconsistent with that assessment. That proposition derives from the decision of the High Court in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56. It has long since been disavowed: see, for example, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Ganiji v R [2019] NSWCCA 208; Cullen v R [2022] NSWCCA 63. In MFA the High Court declined an invitation to hold that Markuleski was wrongly decided (see [32]).

30. [83]

    There are many reasons why a jury may be cautious about convicting an accused person on all counts on an indictment without discarding the evidence of the complainant as credit worthy.

31. [84]

    A ground of appeal asserting miscarriage of justice by reason of what is said to be inconsistent verdicts arising out of a mixture of guilty and not guilty verdicts is, essentially, a complaint that the verdict or verdicts of guilty is or are unreasonable and cannot be supported having regard to the evidence: MacKenzie v The Queen (1996) 190 CLR 348 at 365; [1996] HCA 35; Cullen at [35]. Where inconsistency is said to invalidate a verdict or verdicts of guilty, the enquiry is as to the logic and reasonableness of those verdicts; MacKenzie. Unreasonableness in the case of a verdict or verdicts by reason of inconsistency with another or others must be said to derive from incompatibility of the guilty verdict with the not guilty verdicts. The test is therefore, as set out above, that stated in M. In Ganiji, Basten JA said:

32. [85]

    Juries are routinely directed that they must consider each count on the indictment individually, with attention to the evidence that supports that count. It is worth stating yet again the passage from the joint judgment of Gleeson CJ, Hayne and Callinan JJ in MFA:

33. [86]

    In this case, the starting point is that, in respect of counts 1 and 2, the jury accepted the complainant’s evidence in the face of the applicant’s denials. The verdicts of not guilty on the remaining counts must be seen in the context of the trial. There is no doubt that there were, in the complainant’s evidence, many instances of uncertainty as to detail, principally concerning timing. For example, with respect to count 3, the complainant’s evidence was that the offence was committed during a car trip to Queensland to visit A. The complainant could not remember how old she was at the time, but thought that “maybe” she was in year six at school.

34. [87]

    The jury were directed that it was “an essential fact” that the Crown needed to prove that the offence was committed between 15 January 2013 and 15 January 2016, as specified in the indictment.

35. [88]

    Cross-examination of the complainant, and the applicant’s evidence, concentrated on one family trip to Queensland. That was for A’s wedding, which, the applicant said, was in January 2012. A’s engagement party had been “a couple of years earlier”. Those dates are outside the range of dates specified in count 3. Much was also made of the applicant’s denial of ever having travelled to Queensland with a friend of Z in the car. GW acknowledged the possibility that, on one trip, a friend of Z was a member of the party.

36. [89]

    It was not necessarily the Crown case, on the complainant’s evidence, that the trip on which conduct the subject of count 3 took place was either for A’s engagement party or for her wedding, but that was the direction in which the cross-examination and the applicant’s evidence went. The applicant said that he had never, after the wedding, travelled to Queensland to see A. In that he was significantly supported by his partner B. If that evidence were accepted by the jury, even as a reasonable proposition, Crown could not establish that that offence took place within the dates specified within the indictment. In my opinion uncertainty about the dates – which the jury were expressly told were essential to the Crown case – explains the verdict on count 3.

37. [90]

    I am equally satisfied that the verdicts of not guilty on counts 4, 5 and 6 do not signify rejection of the complainant’s essential allegations so much as doubt about the surrounding circumstances. As I have said, the jury were directed to:

38. [91]

    The verdicts of not guilty on these counts do not persuade me that the complainant’s evidence in respect of counts 1 and 2 cannot be accepted.

39. [92]

    That, however, is not the end of the task for this Court. To discharge the function required by this Court it is necessary to make an independent assessment of the whole of the evidence.

40. [93]

    There were, plainly, aspects of the complainant’s evidence with respect to counts 3-6 that displayed “uncertainty as to matters of detail”, or on which the complainant has been shown to have had a faulty recollection on some matters. A reading of the transcript suggests that she was at times confused and her evidence was less than satisfactory. She had a poor recollection of the times at which she said certain events occurred. On the critical events, however, she was firm.

41. [94]

    A compelling aspect of the complainant’s evidence is to be found in the evidence of complaint, particularly the evidence given by OW and KI. Both recalled the complainant being distressed. OW recalled at least the gist of her complaint as being of rape, consistent with the allegation in count 2; KI said that the complainant told her that she had been assaulted with fingers, pointing to her crotch area. Those accounts are essentially consistent with the complainant’s account of the events the subject of Counts 1 and 2.

42. [95]

    Having made a close examination of the whole of the evidence I am satisfied both that it was open to the jury to convict on counts 1 and 2 and that the Crown established the guilt of the applicant on both counts.

43. [96]

    I would therefore grant leave to appeal but dismiss the appeal.

44. [97]

    GARLING J: The applicant applies for leave to appeal in respect of convictions on two of the six counts on an Indictment upon which he was tried by a jury in July and August 2021 before Williams ADCJ in the District Court at Newcastle.

Course of the Trial

1. [98]

   The summing up of the Judge commenced and concluded on 29 July 2021. The jury first retired to consider its verdict at around 3.20pm on that day. After the jury returned for a few minutes for a very short redirection, it again retired until the proceedings were adjourned for the day. The jury continued its deliberations on the following day.

2. [99]

   In the course of those deliberations, the jury informed the trial Judge that they had reached a unanimous verdict on Counts 3, 4, 5 and 6. The jury was asked to return to Court shortly after 2pm, when not guilty verdicts were taken from the jury in respect of those four counts.

3. [100]

   The jury retired to consider the remaining two counts. At the end of the second day, the jury informed the Court, by a note, that it had been unable to reach a unanimous decision on the remaining two counts. His Honour adjourned the proceedings with the jury to return on the following Monday morning, 2 August 2021.

4. [101]

   Shortly after proceedings resumed, the Court was informed that the jury were unable to reach a unanimous verdict with respect to Counts 1 and 2. The jury returned to Court at the invitation of the Judge at about 10.25am. The Judge then gave a Black direction and the jury again retired. Shortly after 2pm, the jury sent a further note to the Court indicating that they were still unable to come to a unanimous verdict. After consulting with counsel, the Judge gave a majority verdict direction to the jury.

5. [102]

   Approximately 30 minutes later, the jury returned to Court with a majority verdict of guilty to the first two counts.

6. [103]

   It is convenient to here set out the six counts. I note that the victim in each case was the same individual, whose identity is, by statute, suppressed. In order to avoid any inadvertent disclosure of information which may identify the complainant, I will use the same pseudonyms which Simpson AJA has used in her judgment.

7. [104]

   On 11 November 2021, the applicant was sentenced to a term of imprisonment of 5 years to date from 8 November 2021 with a non-parole period of 3 years to expire on 7 November 2024.

Grounds of Appeal

1. [105]

   If granted leave to appeal, the applicant relies upon two grounds, namely that:

   1. (1)

      the verdicts are unreasonable or cannot be supported having regard to the evidence; and

   2. (2)

      the verdicts of guilty on Counts 1 and 2 are inconsistent with the verdicts of not guilty on Counts 3, 4, 5, and 6.

2. [106]

   There is no application for leave to appeal against sentence.

The Crown Case

1. [107]

   Given the grounds of appeal, it is appropriate to set out the Crown case before the jury.

2. [108]

   The complainant’s father and mother were separated. The addresses at which the complainant and her father and her mother were each residing, and the time periods they were there residing, were important to the Crown case.

3. [109]

   The complainant was born in January 2003 and her mother and father separated after she was born. She had an older brother, Z, who was born a little over five years previously.

4. [110]

   The applicant was the complainant’s half-brother. She also had other half‑siblings. The complainant lived in the Port Stephens area as did her mother and father, although in separate residences. She generally lived with her mother, but would visit her father, and on occasions, would stay with him overnight. She attended the local primary school and then a local high school.

5. [111]

   During her primary school years, the complainant, her mother and her brother, Z, lived at a house in Foreshore Drive, Salamander Bay. Her mother’s evidence was that they lived at Salamander Bay from August 2008 until September 2016 (being the period during which the offences in Counts 1 to 3 were alleged to have occurred).

6. [112]

   The complainant’s evidence was that when she was in Year 8 at high school, she moved to an address at Anna Bay. This would have been in 2016. She lived there with her grandparents and a friend of her mother’s. The complainant, her mother, her grandparents, her mother’s friend and her brother, Z, all then moved to a house at Sandy Point Road, Corlette. The complainant’s mother said that this move occurred on 6 May 2017. The complainant said that it happened when she was in Year 10 (which would have been 2018).

7. [113]

   Except for a period of about two months whilst the complainant was living at Anna Bay, the applicant and his then partner did not at any time live in the same house as the complainant. However, they did have occasional contact, either when she and her brother, Z, and her father would go to Orange to see the applicant, or when the applicant would visit the Port Stephens area.

8. [114]

   When the applicant visited the Port Stephens area, it was the Crown case that the applicant would mostly stay over at the house in which the complainant was living, although occasionally he would stay at his father’s house. The complainant said that at no time whilst she was staying overnight at her father’s house did the applicant stay there.

9. [115]

   After the complainant went to high school, she said that whenever the applicant would visit and stay with her family, he was in the company of his girlfriend, B.

10. [116]

    The complainant’s evidence with respect to Counts 1 and 2 was that the conduct occurred at her father’s house. She was unsure of the address of that house but gave evidence that she remembered that a friend of her father’s, ”S”, lived out the back. She said that at that time, she was still living with her mother and brother at Salamander Bay. As earlier noted, the evidence fixed the time the complainant was living at Salamander Bay as being between 8 August 2008 and September 2016.

11. [117]

    The complainant’s mother was uncertain as to the years when the complainant’s father was living in the house where “S also lived, which was at Dowling Street in Nelson Bay, but said that she thought the complainant was in “maybe Year 2 or 3, so probably about 7 or 8”. The complainant would have been in Year 2 in 2010 and Year 3 in 2011.

12. [118]

    The complainant’s father, GW, gave evidence that he lived at the Nelson Bay house for approximately two years. Other evidence which he gave established that he had left the Nelson Bay house and was living elsewhere no later than 11 August 2012. This evidence suggests that he was living at Dowling Street for part of 2010, throughout 2011 and for a little over half of 2012.

13. [119]

    The Crown’s case on Count 1 was that the complainant and the applicant were together at the Nelson Bay house during which time they watched a movie on a TV located in the complainant’s bedroom. In that room, there were two bunk beds. The lower bunk comprised a double bed and the upper bunk comprised a single bed. It was clear from the evidence, and not in dispute, that the complainant had a TV and DVD player in her room at Nelson Bay.

14. [120]

    The complainant’s evidence was that whilst the complainant and applicant were watching the movie, the applicant put his hand under the bed covers and started touching the complainant on her vagina. At that time, the complainant was wearing pyjamas and underwear. The touching alleged was on the inside of the complainant’s clothes and on the outside of her vagina. The Crown’s case was that the applicant played with the complainant’s vagina for a while and touched her clitoris.

15. [121]

    In her evidence, the complainant said that this incident occurred when she was “… maybe nine or ten …”, which would suggest that it occurred between January 2012 (when the complainant turned 9) and January 2014 (when she turned 11 years old).

16. [122]

    Count 1 was constituted by this conduct as amounting to an indecent assault on a child under 16. The jury found the applicant guilty of this offence.

17. [123]

    The complainant’s evidence was that this interaction continued with the applicant pulling down the complainant’s pyjamas and underwear to her knees. She said that the applicant started licking her vagina and then, after some time, stopped and left the room. The complainant’s evidence was that after the applicant left the room, she continued to watch the movie, which she thought might have been called “Fern Gully”. The complainant did not tell anyone about this interaction. It was this conduct which the Crown relied upon to constitute Count 2 on the Indictment, namely of having sexual intercourse with a child over the age of 10 and below the age of 14. The jury found the applicant guilty of this offence.

18. [124]

    It is to be observed that for a significant part of the period contained on the Indictment, the complainant was under (and not above) the age of 10 years. To the extent there was any uncertainty about the date or the complainant’s age, the Crown relied on s 80AF of the Crimes Act.

19. [125]

    The Crown’s case on Count 3 was that it occurred at a different time and in different circumstances to the offending conduct in Counts 1 and 2.

20. [126]

    The Crown’s case on Count 3, which was a charge of indecent assault, contrary to s 61M(2) of the Crimes Act, was that it occurred between 15 January 2013 and 16 January 2015 during a family car trip from the Nelson Bay area to Bundaberg in Queensland.

21. [127]

    The complainant’s evidence in chief was that she and the applicant were travelling in the back of the vehicle and that whilst that was occurring, the applicant placed her hand on his erect penis. It was the complainant’s evidence that the family was driving in her father’s car to Queensland to visit her older sister, A, and that in the car was her father, GW, the applicant and herself together with her brother, Z, and one of her brother’s friends. Her father was driving. She said she was seated in the middle in the backseat, between the applicant and her brother, Z. She said Z’s friend was sitting in the front seat. She said that what occurred happened under a blanket. The conduct occurred during night-time. The complainant could not remember how old she was or when this conduct occurred. She said that she thought she may have been in Year 6 at school, at which time she would have been 11 years old. This would have been 2014. She said that the applicant asked her a couple of times if she was OK and she had responded “Yes”. The conduct came to an end after the car hit a bump in the road and her hand slipped off the applicant’s penis.

22. [128]

    In cross-examination, the complainant agreed that one trip to Queensland occurred in September 2011 when, together with her father, the applicant and her brother, Z, she travelled to Queensland to see A. It was initially suggested that another adult, JA, to was in the car and that, because her father was disqualified from driving, he (JA) drove for the whole trip. She agreed with those facts. The complainant agreed that this trip was to visit A and to celebrate her engagement. A’s engagement occurred in 2011.

23. [129]

    She agreed that in January 2012 there was a further trip to Bundaberg for the purpose of attending her sister A’s wedding and that her father and the applicant were present in the car. She was asked if JA may have been present. She agreed. She was asked if the applicant had driven, and she said that she could not remember. She did not nominate her brother, Z, or his friend as being in the car for that trip.

24. [130]

    She agreed that there were no further trips to see A in Bundaberg after March 2014 when the applicant’s first child with his partner, B, was born. B gave evidence that she had formed a relationship with the applicant on 22 April 2013 when, after a few days, they moved in together. There was no suggestion that any trip to Bundaberg took place at any time after she became the applicant’s partner.

25. [131]

    The applicant gave evidence in which he denied that he had at any time engaged in the conduct which the complainant alleged on a car trip to Bundaberg, or at any time at all. The applicant’s evidence was that he had driven to Bundaberg on one occasion with his father, his then girlfriend and the complainant and her brother, Z. He said that the trip occurred in his car and that he drove the whole way. He said that was because his father did not have a license and was unable to drive. He denied that he had ever been on a car trip to Queensland with one of Z’s friends. He also denied that there had been any car trip to Bundaberg at any time after the car trip in January 2012 to attend A’s wedding. He also denied having been to Queensland at all since travelling there for A’s wedding.

26. [132]

    The jury returned a verdict of not guilty on this Count.

27. [133]

    It is convenient to describe the Crown’s case with respect to Counts 4, 5 and 6 together. They are said to have occurred on the one day at the one location, namely at the house at Corlette where the complainant lived with her mother and family.

28. [134]

    The complainant’s evidence was that her mother and her brother, Z, were also in the house, as was the applicant’s partner, B, and their two young children who were staying over at the house rather than just visiting for a day.

29. [135]

    The complainant said that she was in a spare room under either a blanket or a doona whilst she played an electronic game called Minecraft. She was lying on a daybed on her righthand side. Her evidence was that the applicant came in and asked if he could join in the game. She told him that he could, so long as he could find a spare controller. He did so, and then played Minecraft with the complainant for a while. The room they were in was a spare room which the complainant also called a toy room.

30. [136]

    The complainant’s evidence was that after she and the applicant had played Minecraft for a while, the applicant got underneath the blanket. After a couple of minutes, he started touching the outside of her vagina. At the time, she was wearing denim shorts and a top. First, the applicant was touching her from beneath her shorts but outside her underwear. The applicant used his left hand and undid the button and the zip on her shorts. After initially touching her over her underwear, the applicant then moved his hand beneath the applicant’s underwear and started touching the outside of her vagina. She described what occurred in this way:

31. [137]

    The complainant then said that the applicant continued moving his finger inside and outside of her vagina. The applicant was lying down behind her whilst these events were occurring, propping himself up using his arm. On the Crown case, this conduct constituted the offence in Count 4 of sexual intercourse with a child between 14 years and 16 years of age.

32. [138]

    The complainant was unable to say for how long this conduct continued, but it stopped. A short time later the applicant, according to the complainant, pulled out his penis, grabbed the complainant’s hand and put it around his penis so that she was holding it. After a little while the complainant’s evidence was that the applicant put his penis between her legs and rubbed it up against her vagina. He did so from behind. At that stage, the applicant let his penis remain in place from behind her and the two of them continued to play Minecraft. As they did so, according to the complainant, the applicant’s penis moved back and forth rubbing against her vagina. This conduct stopped at some point, but the complainant was unable to remember how it stopped.

33. [139]

    The applicant left and the complainant continued playing Minecraft. She stood up from the daybed and rearranged her clothes.

34. [140]

    It was this conduct that constituted Counts 5 and 6 of the Indictment being offences of indecent assault of a child under 16 years of age.

35. [141]

    The applicant was acquitted of Counts 4, 5 and 6.

Other Features of the Crown Case

1. [142]

   A further feature of the Crown case was that the Crown led evidence of an uncharged act which was said to have occurred at a point in time after Counts 4, 5 and 6. According to the complainant, the act occurred in January 2019, when she was lying on a couch in the lounge room watching a television show called Criminal Minds, when she saw the applicant walking out from the kitchen. She said that the applicant and his partner B and their two children were asleep in the house, as was her mother. She gave evidence that the applicant joined her on the couch to watch the movie. She had a blanket over her which the applicant lifted over himself, and after a while, he started touching her vagina under her pyjama shorts and underwear.

2. [143]

   During this conduct, the complainant said that the applicant also inserted his finger inside her vagina and then moved his finger or fingers in and out of her vagina. The complainant said nothing to the applicant. She was unsure for how long it lasted. At one point the applicant stopped and removed his fingers from inside the complainant’s vagina and asked if she was OK. He then continued rubbing her both inside and outside of her vagina. The applicant then re‑arranged her clothes by pulling them back up. He then got up and went to bed. This was referred to in evidence as the “Criminal Minds conduct” or the “Criminal Minds incident”.

3. [144]

   Another feature in the Crown case was the complainant’s evidence of making a complaint on a number of occasions. The complainant said that the first occasion on which she complained was to a friend, OW. She said that it was about two months after the Minecraft incident (the conduct constituting Counts 4, 5 and 6) that she sent a message to OW. She said it was before the Criminal Minds incident in January 2019. She communicated with OW by messaging her over Snapchat. According to the complainant’s evidence, she told OW that her brother had “… been inappropriately touching me”.

4. [145]

   OW gave evidence that she commenced communicating with the complainant initially on Askip and then on Snapchat in January 2019. She said that on a number of occasions, probably around February 2019, she messaged or spoke with the complainant, who told her that “… her brother had done stuff to her …”, “… that he had raped her …”, and that “… it made her scared to be around … him”. OW was not certain that the complainant used the word “raped” and said that she did not remember what words the complainant had actually used.

5. [146]

   OW also gave evidence of a conversation with the complainant around the end of 2019, probably in November or December, when the complainant told her that she was scared of her brother who had just arrived at the house where she was then living. This communication she said occurred after the first complaint was made to her, and about “say, six months” before she made her police statement in April 2020.

6. [147]

   In chief, the complainant did not give any evidence at all about this communication. When asked about it in cross-examination, she said that she had lost contact with OW by 2019, but she also said that it was possible that she had had such a communication with OW at the end of 2019. She also said when pressed further that she had such a conversation with OW at the start of 2018. There was no re-examination on this issue.

7. [148]

   The complainant gave evidence that she spoke with a boy at her school, although she did not give any details of what she had said to this school friend. He was not called to give evidence. This interaction was not relied upon as a complaint by the Crown.

8. [149]

   The complainant also gave evidence that on 23 August 2019, she spoke to her mother whilst they were together in the loungeroom at the house at Corlette. She described their conversation in this way:

9. [150]

   She didn’t give her mother any further details about how she alleged the applicant had been inappropriately touching her. According to the complainant, her mother’s friend, KI was telephoned by her mother and came over to her house. The complainant then spoke with KI. A couple of days later the complainant spoke with police officers.

10. [151]

    Her mother’s evidence was that at the time this complaint was made to her, the complainant was upset and that she was quiet. She said that when KI came to the house, KI and the complainant sat in the loungeroom. She was not present during that conversation, nor did she hear what had occurred.

11. [152]

    KI gave evidence that she arrived at the complainant’s house at about 7pm and spoke to the complainant alone. She observed that the complainant was very quiet, was very upset, was red in the face and had been crying. KI asked the complainant to tell her what had happened. The complainant responded by saying she had been assaulted with “fingers” in her crotch area, described as “down there”. She was asked how long it had been going on and the complainant told KI that it had been happening since she was about 10. She identified her brother, the applicant, as the person who had been assaulting her. She added that “it stopped last summer”. KI understood that to be the summer of 2019.

12. [153]

    A couple of days after this conversation, the complainant spoke with the police. It was separately established that the applicant first spoke with police in August 2019.

Case for the Applicant

1. [154]

   The applicant gave evidence at the trial and denied that he had engaged in any of the conduct alleged against him.

2. [155]

   The applicant gave evidence that up until January 2013 he had a partner, N. He said that during 2012, he lived with N in Orange. Except for a period of about a month in January 2013, he lived in Orange in 2013.

3. [156]

   The applicant said that the house in which he lived with his father for about a month in January 2013 was at Marsh Road in the Bobs Farm area of Port Stephens. It was next to a go kart track.

4. [157]

   The applicant in his evidence-in-chief said that he had only stayed on three occasions overnight at the Nelson Bay house where his father lived. The visits where he stayed overnight only happened whilst he was in a relationship with N. On two of those occasions, he was there alone, and on the third occasion he was with N.

5. [158]

   With respect to the occasions on which he stayed at the Nelson Bay house, he said that there was only one occasion when the complainant also stayed the night. He said that that was on the evening before the family drove to Bundaberg in January 2012 to attend his sister’s wedding. On that evening his partner N stayed in the house. The following day, the applicant said that he drove in his car with his father, his partner N, the complainant and the complainant’s brother Z to Bundaberg. The reason he drove was that his father did not have a license. For the whole of the trip, he was the driver and occupied the driver’s seat.

6. [159]

   On that evening, when he stayed at his father’s house, he and N slept in the complainant’s bedroom. He was uncertain where the complainant slept, but it was not in her bedroom.

7. [160]

   During his evidence-in-chief, he was asked about the description of the offending in Count 3. He said that he had never been on a car trip to Queensland with a friend of Z’s. He said that he had not been to Queensland since the trip to Bundaberg for his sister’s wedding in January 2012. Prior to that he said that he had driven up to Queensland to attend his sister’s engagement party. That was a trip he took when his father was living in a house in Nelson Bay. He said that he took that trip with his father, the complainant and her brother Z and his friend JA. They travelled on that occasion in his father’s car. He also denied travelling by car to Queensland at any time between the trip to attend his sister’s engagement party and the trip to attend her wedding.

8. [161]

   The applicant was then asked about the offences which were encapsulated in Counts 4, 5 and 6. He said that the first occasion when he went to at the Corlette house was on a particular games night which he attended with his then partner, B, and their two children. He said that his sister A and her three children also attended. A and her children had travelled down from Bundaberg. The applicant said that on that evening, the complainant stayed with her mother and not in her father’s house where he was staying. He said that on the following day there were a number of other people who attended aa barbeque in a park across the road from his father’s house at Lemon Tree Passage.

9. [162]

   By reference to a photograph which had been posted to Facebook, he identified the date of the games night as being 1 July 2017. He also relied upon the appearance of one of his children who had been born about three or four months before.

10. [163]

    He gave evidence that he returned a few weeks later to his father’s house on 17 July 2017, when he purchased a car from his grandfather who lived in Redhead, a suburb of Newcastle. He identified the date of the purchase of the vehicle by reference to a post which had been made to Facebook. He also produced evidence from his bank account of the date when he withdrew the money to pay his grandfather.

11. [164]

    That occasion was a single overnight trip. Having purchased the vehicle on that day, he went up to see the complainant, her mother, and her brother, Z, who were at their home at Corlette. His evidence was that at no time between the games night on 1 July 2017 and the visit on the occasion of purchasing his grandfather’s car on 17 July 2017, had he visited the house at Corlette. He also said when he visited on the second occasion, he purchased with his credit card a subscription which enabled an Xbox to be played online. He did so at the complainant’s request.

12. [165]

    The date of the relevant transaction was shown on his bank account statement as being 18 July 2017.

13. [166]

    Prior to this occasion, the applicant’s evidence was that the complainant had a game called Minecraft, but that it did not have an online component to it and, accordingly, that the complainant could not play the game online.

14. [167]

    His evidence was that the next occasion on which he visited the house at Corlette was when he moved to Corlette at the start of 2019 with his partner and children. He lived there at the house for about eight weeks or so. He said that he did not return to the Port Stephens area at any time between the second of the two visits in July 2017, and when he went there in late December 2018 and remained during the early part of 2019. He and his partner, B, had lost their third child.

15. [168]

    The applicant denied the offending the subject of Counts 4, 5 and 6 and he denied the Criminal Minds incident which constituted the uncharged acts.

16. [169]

    The applicant said that he had not returned to the house at Corlette at any time after his eight-week stay there at the start of 2019.

17. [170]

    In the course of his evidence in answer to a variety of questions, the applicant gave evidence to the effect that he was closer in age to the complainant’s brother Z and had more interests in common with Z than he did with the complainant.

18. [171]

    He was asked about whether he ever visited the complainant’s room which she used whilst staying with her father at the Nelson Bay house. He said there was only one occasion when that occurred, when he spent the night there and used the bed in the complainant’s bedroom. He denied ever going into her room at any other time. The conduct constituting the offences in Counts 1 and 2 was put to the applicant and he denied it. He also denied having any sexual interest in the complainant.

19. [172]

    The offending conduct constituting Count 3 was put to the applicant and he denied it.

20. [173]

    The applicant was then cross-examined about the conduct constituting Counts 4, 5 and 6. His evidence was that he only visited the Corlette home on two occasions which were in 2017 which are more fully described above at [161]‑[165] prior to the time he had lived there for eight weeks or so in January 2019.

21. [174]

    During a phone call with the complainant’s mother, he denied to her that he had engaged in the conduct which the complainant alleged. It was put to the applicant in cross-examination that this denial was a lie, and he was responding in that way to protect himself. He denied this assertion.

22. [175]

    During cross-examination, the substance of the conduct described by the complainant was put to the accused by the Crown prosecutor. The accused denied the conduct. If as just noted, it was a lie for the accused to respond as he did to the complainant’s mother in the phone call, then the denial by the accused in the witness box in cross-examination that he had not engaged in the conduct charged must also have been a lie. After all, the offending conduct was of a deliberate and intentional kind. It would not have been forgotten. However, the Crown prosecutor did not, as might have been expected, confront the accused with any such suggestion. Nor did the Crown prosecutor submit to the jury that they ought disbelieve the evidence of the accused on the basis of falsity.

23. [176]

    As earlier noted, in addition to the evidence of the applicant, the applicant’s current partner, B, gave evidence. B’s evidence in broad terms corroborated the applicant’s evidence. Her evidence included that she and the applicant had moved out of the Corlette house on 13 February 2019. Although she was cross-examined, it was not put to her by the Crown that any of her evidence was incorrect, although she was asked questions about the frequency of trips to the Port Stephens area and who was present on those various trips.

Summing Up

1. [177]

   The trial Judge delivered a summing up which was brief.

2. [178]

   At a point very close to the start of the summing up, the Judge isolated an issue for the jury about which they needed to be satisfied. He said this:

3. [179]

   His Honour reminded the jury that they needed to make an assessment of each of the witnesses and their evidence. He told the jury that they had to determine whether a witness was, in their view, reliable, accurate or consistent and noted that they could put differing weight on different witnesses’ evidence depending on how they assessed that witness.

4. [180]

   His Honour also told the jury that they were not obliged to accept the whole of any witnesses’ evidence, but that they could choose to accept some parts of the evidence and reject other parts of the evidence.

5. [181]

   His Honour identified the elements of each of the charges which the Crown was required to prove beyond reasonable doubt. He drew attention to the fact that the complainant’s evidence did not need to be corroborated. He noted that corroboration of a complainant’s evidence in circumstances where a sexual assault is alleged to have occurred would be an unlikely occurrence. However, the Judge did go on to say:

6. [182]

   In the course of the summing up, the Judge set out what he described as the essential elements of each of the Counts. It is only necessary here to set out what he described as the essential elements of Counts 1 and 2. Of Count 1, he said:

7. [183]

   Referring to Count 2, his Honour said this:

8. [184]

   He did point out to the jury that there was no dispute at the trial that if, as alleged for the purposes of Count 2, the applicant had licked the complainant’s vagina, it would constitute sexual assault.

9. [185]

   The Judge reminded the jury that they had to consider each of the Counts separately and determine whether they were satisfied, in respect of each Count, that the charge has been established. He then added this:

10. [186]

    A direction as to the use of good character which the applicant called in aid was also given.

11. [187]

    After submissions, a slightly adjusted direction was given to which neither party ultimately took exception. His Honour also added these remarks:

12. [188]

    The Judge gave a somewhat unorthodox direction about the effect of any lack of satisfaction of the jury in respect of some Counts, when they considered the other Counts. He said this:

13. [189]

    The Judge then moved on to briefly refer to the submissions of counsel. His summary included this:

14. [190]

    After the jury retired to consider its verdict, it returned after a very short period and the Judge gave a direction, which was sought, under the rubric “a Liberato direction”. What he said was this:

15. [191]

    Ultimately, as indicated earlier, unanimous verdicts of not guilty were delivered on Counts 3, 4, 5 and 6. The jury, after further directions, delivered a majority verdict of guilty on Counts 1 and 2.

Legal Principles

1. [192]

   In considering whether a conviction was unreasonable or cannot be supported having regard to the evidence, this Court must make its own independent assessment of the evidence. It then determines whether, although there may be evidence upon which a jury might convict, it concludes that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Filippas v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen [2020] 268 CLR 123; [2020] HCA 12; and Dansie v The Queen [2022] HCA 25. In so doing, it makes full allowance for the advantages enjoyed by the jury.

2. [193]

   In Dansie, the High Court emphasised that in answering the question as to whether it was open to the jury to be satisfied that the accused was guilty, this Court must neither disregard nor discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt of an accused and, further, the consideration that the jury has had the benefit of having seen and heard the witnesses.

3. [194]

   In Dansie at [9], the High Court called attention to and re-emphasised the following passage in M at 494:

4. [195]

   In Slattery v R [2023] NSWCCA 117, Bell CJ (with whom Ward P and Wilson J agreed) set out the principles to be drawn from Dansie and Filippou as to the appropriate approach for an appellate court to follow. At [113], the Chief Justice said:

5. [196]

   At [114], the Chief Justice drew attention to an extract from the judgment of the High Court in Pell. At [39] of that judgment, the High Court said:

6. [197]

   I observe that these authorities require that an appellate court make its assessment on the whole of the evidence which in this case includes the sworn evidence of the applicant, and that of his partner B. It also includes the evidence, although in the Crown case, which tended to establish his good character.

7. [198]

   One aspect of the submissions on this application is that the applicant contends that the convictions on Counts 1 and 2 are inconsistent with the acquittals on Counts 3, 4, 5 and 6. In considering this ground, the applicant must satisfy the Court that the verdicts cannot stand together: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35.

8. [199]

   In a case such as this where the charges rest substantially on the evidence of one witness, conviction on one charge and an acquittal on the other does not, of itself, demonstrate inconsistency: see R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290; Keen v The Queen [2020] NSWCCA 59; Cullen v R [2022] NSWCCA 63.

9. [200]

   In TK v The Queen (2009) 74 NSWLR 299; [2009] NSWCCA 151, Simpson J (as her Honour then was) (with whom McLellan CJ at CL and Latham J agreed) said:

10. [201]

    In Ganiji v The Queen [2019] NSWCCA 208, Basten JA (with whom Button J and Lonergan J agreed) said at [13]:

11. [202]

    I do not read the decision in Ganiji as doubting the principle expressed by Simpson J in TK. On the contrary, it invites attention to both the acquittals and the convictions. TK does not exclude attention being given to the convictions, but emphasises the importance of the identification of any explanation, leaving aside the credibility of the complainant for the verdicts which were returned. Nor did Simpson J suggest in TK that an appellate court would not look to matters contained in the evidence of a complainant as well the surrounding circumstances: see Saunders v R [2022] NSWCCA 273 per Simpson AJA at [101]ff; Hamill J at [113]ff.

12. [203]

    It is also necessary to keep in mind when considering the ground of inconsistency what McLellan CJ at CL said in TK at [7]:

13. [204]

    Finally, in Dansie, which was a case involving a trial by judge alone, the Court said at [16]:

14. [205]

    The Court noted that that advantage might well vary from case to case having regard to the nature of the case in question.

15. [206]

    It is necessary now to consider the submissions of the parties in light of those principles and the nature of the case which the Crown sought to make at trial.

Applicant’s Submissions

1. [207]

   The thrust of the applicant’s submissions both in writing and orally was that as the Judge had told the jury at the outset of his summing up, the issue was whether or not any of the conduct against the applicant in fact occurred. The applicant submitted that the only witness who implicated the applicant was the complainant.

2. [208]

   He submitted that the jury must have had a reasonable doubt about the accuracy and reliability of the complainant’s evidence with respect to Counts 3 to 6 inclusive. In those circumstances, he submitted, the Court should have a similar doubt about that reliability in the evidence about the offending Counts 1 and 2, and, accordingly, the convictions on those Counts ought not stand.

3. [209]

   In his written submissions, the applicant pointed to various deficiencies or inconsistencies in the complainant’s evidence with respect to Counts 1 and 2. In particular, he noted that the complainant’s evidence was that the room in which the conduct was alleged to have occurred did not have a door on it, and hence the conduct could be discovered by an occupant of the house walking past.

4. [210]

   The applicant’s submissions on Count 3 noted that there was significant difficulty with the complainant’s evidence about Count 3, being the car trip to Queensland. The applicant submitted that it was clear that the complainant was uncertain about when the trip occurred. The applicant pointed to the fact that the defence case, which was put to the complainant, was that there was no car trip to Queensland where any friend of her brother, Z, had been present. The applicant’s case, to which attention was drawn, was also that the complainant’s father was disqualified from driving and that, in fact, it was the applicant, or else JA, who had driven to Queensland on at least one of the two relevant occasions. It followed, the applicant submitted, that the complainant’s evidence on Count 3 was completely unreliable. It was not simply a matter of dates.

5. [211]

   The applicant emphasised the fact that the evidence about the trip to Queensland and what occurred during the trip – including who was present, and who was driving – must not have been accepted by the jury. The applicant pointed to the fact that he gave evidence which was entirely reliable about the number of times and when he went on trips to Queensland, including providing evidence that he had driven in circumstances which were explicable by the fact that his father did not have a license.

6. [212]

   With respect to Counts 4, 5, and 6, the applicant drew attention to the time period during which the relevant conduct was alleged to have occurred, the infrequency of the applicant’s visits and other discrepancies in the evidence.

7. [213]

   The applicant pointed to similarities in the facts involving Counts 1 and 2 with Counts 4, 5 and 6. He submitted that they both involved alleged offending inside a room when others were at the house, underneath a doona or blanket and whilst the applicant was using a TV – either to watch a movie or to play a game. The applicant noted that no-one witnessed any of the alleged offending and that it occurred in circumstances where it could easily have been discovered. The applicant noted that all of these Counts involved offending that could be described as brazen, with a high risk of detection, and in close proximity to others.

8. [214]

   The applicant noted that Counts 4, 5 and 6 were temporally closer to the times at which the evidence suggested the complainant made a complaint either to her friend, OW, or to KI. The applicant noted that the complaints which were made were more consistent with the offending in Counts 4, 5 and 6 than the offending in Count 2, which involved cunnilingus. There was no complaint made about cunnilingus having occurred.

9. [215]

   The applicant also pointed to the unsatisfactory nature of the evidence as a whole from the complainant. He submitted that the complainant gave no evidence that there was any threat to encourage the complainant’s silence. In respect of all Counts (other than Count 3), there was no obvious explanation for why each incident ended somewhat suddenly. Ultimately, the applicant submitted that the jury must have entertained a doubt about the honesty and reliability of the complainant’s account sufficient to have acquitted the applicant on Counts 3, 4, 5 and 6. He submitted that this was the only rational explanation for those acquittal. In those circumstances, the applicant submitted that such a doubt must also have been held with respect to Counts 1 and 2 which were earlier in point of time, and at a time when the applicant was much younger than on the later occasions.

Crown Submissions

1. [216]

   The Crown, both in writing and orally, submitted that there was no inconsistency in the verdicts, and that the jury was not obliged to have a doubt about the credibility or reliability of the complainant’s evidence of the offending the subject of Counts 1 and 2.

2. [217]

   The Crown accepted the jury must have had a doubt about the offending in Count 3. The Crown submitted that the doubt could have arisen by reason of the dates when it was alleged that the trip occurred which, it was submitted, were put before the jury as elements of the offence, rather than having any doubt about whether the complainant’s evidence that the conduct occurred was accepted. The Crown pointed to the fact that the applicant gave evidence that there were car trips to Queensland before and during January 2012, but not afterwards. Accordingly, the Crown submitted that the acquittal on this Count did most likely reflect a doubt about the timeframe specified on the Indictment which was from January 2013 to January 2015.

3. [218]

   Ultimately, the Crown’s submissions pointed to reasons why the jury might have thought that the applicant’s evidence about dates was incorrect, particularly with respect to Counts 4, 5 and 6.

4. [219]

   As well, the Crown pointed to the undoubted principle that a jury was entitled to accept a part of a witness’s evidence and not the entirety of it, even though it had a doubt about that part which it did not accept.

Discernment

1. [220]

   It is convenient to start with Count 3. The circumstances of Count 3 were quite different from those of the other Counts. That was because the offence was alleged to have occurred in a car in which there were five people and whilst they were travelling to Queensland to see the applicant’s sister, A, who lived in Bundaberg. The trip, according to the complainant, included a passenger who was a friend of the complainant’s brother, Z. And, as the complainant’s evidence was that the applicant was sitting in the back seat with her, that meant that someone other than the applicant was driving.

2. [221]

   The complainant’s evidence was that whilst she said that the car trip occurred when she was 11 years old (i.e. sometime after January 2014), that was a “guestimate”. The time period in the Indictment for the Court was a two year period with January 2014 as the centre point of it.

3. [222]

   The complainant’s father gave evidence that he took trips to Queensland, both for the purpose of seeing his daughter and her children, and also for the purpose of going to the Gold Coast with his younger children (not including the applicant) to go to the “water parks”. He was vague in his evidence about various details, but he certainly did not give evidence that there was any occasion when he travelled with a friend of Z’s whilst the applicant was also present in the car.

4. [223]

   He also gave evidence that on many occasions the complainant would “shotgun” the front seat. That is, she would choose to sit in the front next to the driver in preference to anyone else who was travelling.

5. [224]

   In light of the absolute denial by the applicant, which was corroborated by his partner, B, that he had at any time after her wedding in January 2012, travelled to Queensland by car to see his sister A, and given that the complainant could only guestimate the time of the trip during which the offending conduct had taken place, there were a number of reasons why the jury may have found the applicant not guilty of Count 3.

6. [225]

   Those reasons may have been that they did not accept the complainant as a reliable witness on the issue of the sexual assault, that there was no trip to Queensland when a friend of Z’s was in the car at the same time as the accused, that the dates may have been wrong, that they may have thought that the applicant’s evidence that he had not taken a trip with a friend of his brother Z in the car to Queensland to have been true or else a reasonable possibility, they could have doubted that the complainant’s father had driven the vehicle, and also that they may have regarded the description of the offending as highly unlikely in the particular circumstances which placed people in close proximity to both the applicant and the complainant when the complainant said the offence took place. As well, the jury may have had a reasonable doubt about the fact that the applicant would, in that close proximity, have spoken to the complainant in the way she alleged.

7. [226]

   It is not possible to discern one particular reason why the jury may have acquitted the applicant of this Count. On the contrary, there were many explanations for this acquittal, but centrally to those explanations, the jury must have doubted the reliability of the complainant’s evidence that the conduct took place, as she had recounted to police and in Court.

8. [227]

   The acquittal on Counts 4, 5 and 6, considering that those Counts referred to a point in time more proximate to when the complainant said she made a complaint – both to her friend OW and to KI – can, in my opinion, only be explained by the jury not accepting the complainant’s evidence as a reliable account of the suggested conduct.

9. [228]

   The dates on the Indictment for Counts 4, 5 and 6 were 6 May 2017 to 27 August 2018. The starting date could be reasonably accurately fixed by reference to the fact that it represented the time when the complainant moved to and lived with her mother and her family at the house at Corlette.

10. [229]

    The Crown’s contention that it was open to the jury to believe the complainant that the offences occurred, but to find that they fell outside of the time period on the Indictment, is unconvincing. The first date on the Indictment is the date on which the family moved into the house at Corlette. It follows that since the offence occurred at that house, it could not have occurred before that date.

11. [230]

    When the complainant gave her evidence, she agreed in cross-examination that she gave her first police statement on 27 August 2019. She also agreed that in that police statement she told the police that the conduct the subject of Counts 4, 5 and 6, which she described as the Minecraft incident, happened “… about two years ago”. The Crown submits that by selecting the end date of 27 August 2018, the date range was a conservative one based upon what she told police in her statement. I agree, because the date range extended to a date about 12 months after the time nominated by the complainant to the police, and reaffirmed in her evidence.

12. [231]

    The Crown submits that it was open to the jury to find that the offences occurred at some time after 27 August 2018, perhaps during the period in January and February 2019 when the applicant, his partner B and their children, moved into the Corlette house and stayed for a period of some weeks.

13. [232]

    If this were so, then the incident would have occurred no more than six months before the complainant had made her police statement rather than about two years before, as she told the police.

14. [233]

    I do not accept the Crown’s submission. First, if the fact was that the offences occurred, as the Crown submitted, about six months before the police statement, then that would serve to emphasise the unreliability of the complainant’s evidence. That is, because she was significantly unreliable with respect to whether the offences occurred only six months before or about two years before.

15. [234]

    Secondly, the timing would be inconsistent with the evidence of OW, who said that she received a complaint in January 2019 from the complainant whilst they were communicating over Snapchat, telling her that the applicant “had raped her”, and “had done stuff to her” and that her impression was that this conduct had happened a couple of years ago.

16. [235]

    Thirdly, the Crown also submitted that the complainant may have been confused about dates as to when she was living at Corlette. However, such confusion bore no relevance to the date range, and in particular the end date on the Indictment, because the complainant was still living at Corlette at the time she gave her statement to police in August 2018.

17. [236]

    I have reached the conclusion that with respect to Counts 4, 5 and 6, the acquittals are only capable of being explained on the basis that the jury did not accept the reliability and accuracy of the evidence of the complainant.

18. [237]

    I approach the consideration of Counts 1 and 2 with the conclusion I have just reached in [236] above, about the acquittal of the applicant on Counts 4, 5 and 6, and also my conclusion at [226] above about the central feature underlying the various possible explanations for the acquittal of the applicant on Count 3.

19. [238]

    Turning now to the issue of Counts 1 and 2, these earlier incidents are alleged to have occurred at the house in Nelson Bay. The time period when the complainant’s father lived there, and when the complainant visited him, is fixed by reference to events the subject of evidence from the complainant’s father and mother.

20. [239]

    The offences are said to have occurred in the years 2012 and 2013 when the complainant was 9 or 10 years old. Since the complainant’s father moved out of the house in Nelson Bay around the middle of 2012, and had certainly left the house by August 2012, there was no reason to doubt the date range was adequate to cover the period during which the complainant said that the offences occurred. There was no evidence of a particular occasion when the applicant visited that house prior to January 2012, which could have led the jury to doubt that the offending took place at a time outside the date range on the indictment. For example, there was no evidence which entitled the jury to believe that the offending may have occurred prior to 1 January 2012, and that the complainant had simply been mistaken about the date.

21. [240]

    There are similarities in the offending between Counts 1 and 2 on the one hand and Counts 4, 5 and 6 on the other, namely, that they occurred in a room in a house with which the complainant was familiar, underneath a blanket, with other people in the house and at a time when either a movie was being watched or a computer game was being played using the existing TV screen in the room. The description of the offending conduct, although not entirely, also bears a marked similarity to the Criminal Minds incident.

22. [241]

    A majority of the jury must have found that the evidence of the complainant on Counts 1 and 2 was sufficiently reliable and accurate to satisfy them beyond reasonable doubt that the offending conduct had occurred. In that way, and to that extent, the convictions and acquittals are inconsistent one with the other. That is to say, evidence with respect to some counts was reliable and accurate but not with respect to other counts.

23. [242]

    However, as such inconsistency can be readily understood in that way and having regard to the fact that as the jury was correctly directed that they needed to carefully consider each count separately, there is no inconsistency of a kind which would of itself warrant a finding that the verdicts of guilty on Counts 1 and 2 were thereby unreasonable and ought be quashed on appeal.

24. [243]

    However, whilst that conclusion leads to a rejection of the second proposed ground of appeal, it is now necessary to consider the first ground, namely whether the verdicts were unreasonable or else unsupported by the evidence. In considering this ground, it is necessary to conduct the analysis having regard to the principles set out at [192]-[197] above.

25. [244]

    The analysis on inconsistent verdicts was undertaken without regard to the evidence which the applicant gave, in which he denied that he had participated in any of the offending conduct at all. He had also led evidence that he had no previous criminal convictions. The trial Judge gave the appropriate good character direction.

26. [245]

    As well, the evidence led by the defence from the applicant’s partner, B, corroborates, at least in part, the evidence of the applicant, and to some extent, was consistent with the evidence of the applicant.

27. [246]

    In undertaking the analysis of this ground, it is appropriate to note that the obligation of the appellate court is to recognise that the jury has had the benefit of seeing the witnesses give their evidence, and that it is the body entrusted with the primary responsibility of determining the guilt of an accused.

28. [247]

    The judgment in Liberato v The Queen (1985) 159 CLR 507, when applied in a case such as this, has the consequence that if the evidence of the applicant is believed, the jury must acquit the applicant. Further, if the evidence of the applicant, even if not accepted, was a reasonably possible version of the facts, then the applicant was entitled to be acquitted. The basis of those two conclusions is that in either case the jury must have had a reasonable doubt about the applicant’s guilt.

29. [248]

    On an appeal, this Court when considering a ground of unreasonable conviction must approach its consideration on the same basis. Namely, it must consider whether, making the allowances referred to above at [246], the applicant’s evidence, together with such corroboration as existed in the evidence, is a reasonably possible version of the facts. During that exercise, the Court would have regard to the good character direction, namely that such good character can be taken into account on the issue of the applicant’s credibility.

30. [249]

    Having carefully read the transcript of the applicant’s evidence and considering it in the context of all of the evidence at the trial, I am unable to conclude that it was not a reasonably possible version of the facts. There are a number of reasons for this.

31. [250]

    First, the answers which he gave in cross-examination were directly responsive to the questions asked and were not characterised by generalities or evasion. He gave answers which were not necessarily in his interest.

32. [251]

    Secondly, there was no answer which he gave which suggested any inconsistencies in his evidence. He was not confronted by the prosecution with any evidentiary inconsistencies in his own account.

33. [252]

    Thirdly, whilst the description of the facts given by the complainant was put to the applicant, it was denied by him, and at no time was it directly suggested to him that those denials were false or inaccurate, nor was any reason suggested to him as to why he would give evidence which must have been, having regard to the conduct being alleged, knowingly false. I leave aside the question of whether there was an obligation falling on the prosecution so to do, but the absence of such cross-examination results in a more favourable view of the evidence of the applicant than might otherwise have been the case.

34. [253]

    Even if I had been minded to disregard the applicant’s evidence in its entirety and had simply concentrated on all of the evidence adduced by the Crown, I would still have been left with a reasonable doubt about the accuracy and reliability of the complainant’s evidence with respect to Counts 1 and 2. There are a number of reasons for this conclusion.

35. [254]

    First, the doubts which the jury had and which I share about the accuracy and reliability of her evidence on Counts 3 to 6 (inclusive), would lead me to likewise have doubts about the accuracy and reliability of her evidence on Counts 1 and 2.

36. [255]

    Secondly, to the extent that the complainant’s reports to her friend, OW, to her mother and to KI of what the applicant had done to her amounted to corroboration, as they can do, that corroboration for Counts 1 and 2, as opposed to the other Counts, was more distant in time, and contained no direct or indirect reference to the applicant performing cunnilingus upon her, which I would not expect the complainant to have overlooked or forgotten.

37. [256]

    Thirdly, the complainant’s evidence about what happened at the time just before the conduct in Counts 1 and 2 occurred is noteworthy. The complainant’s evidence was that the applicant asked if he could watch a movie with her which her father then put on for them, and that the applicant lay on her bed to watch the movie. The applicant at that time was old enough to operate the equipment to start the movie. It makes little sense for her father to be needed to start the movie. The complainant’s father, GW, did not give any evidence about an occasion when he started the movie for the complainant and the applicant to watch together, at night, when the complainant was in her pyjamas and in bed. Given the nature of the charges, it is surprising that GW was not asked about any recollection which he may have had about that description of the events.

38. [257]

    In summary, I have been persuaded by the applicant that his conviction on Counts 1 and 2, although they may have been capable of being supported by the evidence, were unreasonable. That is because, as I have just explained, I have a reasonable doubt about his guilt on those counts. The doubt which I have is one which, in my assessment, the jury ought to have had, even after I make all proper allowance for the advantage which the jury had of seeing and hearing the witness giving their evidence.

39. [258]

    For all of these reasons, I am of the view that the convictions on Counts 1 and 2 were unreasonable.

Orders

1. [259]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Uphold the appeal.

   3. (3)

      Set aside the convictions entered on 2 August 2021 in respect of Counts 1 and 2 on the Indictment presented against the applicant.

   4. (4)

      Direct that an acquittal be entered on each Count.

2. [260]

   IERACE J: I have had the considerable advantage of reading the draft judgments of Simpson AJA and Garling J. Having reviewed the evidence, the parties’ closing addresses to the jury and the trial judge’s summing up and directions, I would agree with the orders proposed by Simpson AJA. These are my reasons.

3. [261]

   There is a degree of overlap between the two grounds. Ground 1, that the convictions are unreasonable or cannot be supported having regard to the evidence, is advanced on two bases. The first is that the evidence that directly concerned counts 1 and 2 should have left the jury with a reasonable doubt. The second is effectively a restatement of ground 2, which is expressed by the applicant to be an inconsistency between the verdicts of acquittal and guilty but, as developed, is that the acquittals must have reflected an adverse assessment by the jury as to the complainant’s credibility that should have carried over to their deliberations in respect of the first two counts. Since the Crown case for those counts rested exclusively upon the complainant’s contested evidence, it is submitted that the jury should have had a reasonable doubt about them as well, so that the verdicts of guilty were “not logical, nor reasonable”.

4. [262]

   The test to be applied in assessing whether a verdict is unreasonable or cannot be supported, having regard to the evidence, is set out in the judgment of Simpson AJA at [55] and, as to a miscarriage revealed by inconsistent verdicts, at [82]–[85]. An analysis of the evidence in the context of the parties’ submissions and the trial judge’s directions is necessary in order to apply those tests and determine whether this Court is independently satisfied that the guilty verdicts were open to the jury.

5. [263]

   The six counts arise from three alleged incidents, alleged to have occurred, in terms of the indictment periods, when the complainant was aged between nine and 15 years old. The Crown additionally relies on a fourth incident that is alleged to have occurred in January 2019, at which time the complainant was aged either 15 or 16 years old, as tendency evidence.

6. [264]

   In what follows I have summarised the evidence, closing addresses to the jury by the parties and the summing up to the extent necessary for a consideration of the grounds. In relation to the second incident which gave rise to count 3 (the car trip to Bundaberg), I have only referred to the material that is relevant to when the incident allegedly occurred. In my view, there is a clear evidentiary pathway to the acquittal on count 3 that does not reflect adversely on the complainant’s credibility. Accordingly, that acquittal does not assist the applicant’s submissions and it is unnecessary to further canvass the evidence concerning it. I have come to a similar view in respect of the third incident, but it is necessary to canvass more of the evidence concerning it.

7. [265]

   The complainant gave pre-trial evidence in mid-May 2021, which was recorded and tendered in the trial. She was called in the trial to give some brief additional evidence, exclusively in relation to the second incident, involving count 3.

The evidence concerning the first incident (counts 1 and 2)

1. [266]

   The complainant’s evidence was that at the time of the first incident, her parents were separated. She and her brother, who was five years older than her (who I will also refer to by the pseudonym Z), resided primarily with their mother but would periodically spend time with their father, who lived nearby in Dowling Street, Nelson Bay (Dowling Street), with a friend known as “Squishy” who lived at the back of the house. The foundational incident for the first two counts occurred at that residence. The complainant and her brother had their own bedrooms in that house. Her bedroom had a double bed with a single bunk bed above it, and a television.

2. [267]

   The applicant is the complainant’s half-brother (they have the same father) and is ten years older than her. At that time, he resided in the central west of New South Wales.

3. [268]

   Although the indictment period was between 1 January 2012 and 31 December 2013, it was not contested by the Crown that a Facebook post made on 11 August 2012, that included an image taken at the address he moved to from Dowling Street, established that the applicant had moved by that date, which reduced the period of opportunity to the first seven months of 2012. The complainant’s father did not recall when he had moved into, or out of, Dowling Street. The applicant appeared in a photograph in the post. He said his father had moved into that address “a few months” before it was captured. In his closing address, counsel for the applicant submitted to the jury that they would be satisfied by that evidence that their father had moved out of Dowling Street no later than June 2012.

4. [269]

   The complainant’s evidence was that the incident occurred when she and the applicant were both staying overnight at Dowling Street. In her evidence in chief, she said that it was night-time and she was in her bedroom, wearing underpants and pyjamas. The applicant asked her if he could come into her room and watch a movie. She agreed, their father put a movie on for them and the applicant “laid down” to watch it. She said that while they were watching the movie, the applicant put his hand “underneath the covers” and inside her clothes, and touched her on her clitoris. She said: “He played with my vagina for a bit, then he got underneath the doona and started licking my vagina.” He pulled her pants down to her knees. She said: “I can’t remember what happened when he stopped, but he eventually stopped and went out of the room”. She continued watching the movie. On multiple occasions through the incident, the applicant asked her if she was “okay”, and each time she replied “Yeah”. She could not recall if anything else was said. She thought the movie might have been called “Fern Gully”. She said that she “would’ve been maybe nine or ten”, which would suggest that the incident occurred in 2012 or 2013 (the complainant’s date of birth was 16 January 2003).

5. [270]

   In cross-examination, the complainant said that she could not recall if her brother Z was staying at Dowling Street that night, or whether Squishy was home. She was asked if she recalled whether the applicant was staying there with a girlfriend, who was named, and responded that she did not remember that person at all.

6. [271]

   It was put to the complainant in cross-examination that when she was aged nine or ten, her father was not residing in Dowling Street. She answered: “I don’t remember”. (I note that this question is somewhat surprising, since the uncontradicted evidence was that the complainant was aged nine in all but two weeks of that part of the indictment period, during which the complainant’s father was agreed to have been living at Dowling Street). It was put to her that in a police statement she said she was in year four or five when her father was living in Dowling Streets. She responded: “I guessed that. I’m not 100 per cent sure”. I note that the complainant’s mother gave evidence that at the time that her father was living in Dowling Street, she thought the complainant was aged seven or eight when she was in school years three or four, although she could not be sure. It follows that when the complainant was aged eight and nine years old, she would have been in years four or five.

7. [272]

   It was put to the complainant that in her police statement she stated that she and the applicant spoke for about five minutes about the movie before he put his hand under the doona. She agreed that they had spoken before the movie commenced and that it was possible they spoke during the movie. She agreed that in her statement she did not name the movie, because she did not recall it then, but now she did. She agreed that in her statement she had said that the applicant came and sat next to her and that in saying in evidence in chief that he came in and lay down next to her, she was wrong. She said that, at that time, she was not allowed to have her door closed, but she did not think that room had a door.

8. [273]

   The applicant gave evidence to the effect that in 2012, he stayed overnight at Dowling Street on three occasions and the complainant stayed there on only one of those nights, which was the night before a family road trip to Queensland, and when he was accompanied by his girlfriend, Nikita, at the time. He and Nikita slept in the complainant’s bedroom.

9. [274]

   The applicant said he did not recall where the complainant slept that night and that he had never watched a movie in the complainant’s bedroom. He said that he broke up with his girlfriend in January 2013 and “around the beginning” of 2013 he moved in with his father at the address to which his father had moved from Dowling Street.

10. [275]

    The complainant’s father gave evidence that the complainant and her brother Z would regularly stay overnight at Dowling Street, in their own bedrooms. He confirmed the complainant’s description of the beds and the presence of a television and a DVD player or VHS machine, with which she could watch movies.

11. [276]

    The complainant’s father said that the applicant would visit him there “from time to time”, on occasions staying overnight, sometimes for “a couple of days”, and would usually sleep in the lounge room. He was asked if the applicant’s then-girlfriend stayed overnight at Dowling Street the night before they all drove to Queensland. He said he did not recall, but when shown images of the wedding which showed the applicant’s girlfriend to be present, he said it was “more than likely” that she had stayed the night at Dowling Street before the drive to Queensland, and it was “more than likely” they stayed in the complainant’s bedroom and she slept elsewhere in the house.

12. [277]

    The complainant’s father rejected a proposition put in cross-examination that there was only one occasion when the applicant and complainant were both staying at Dowling Street:

13. [278]

    He was asked if he recalled seeing the applicant and complainant watching a movie together in her bedroom. He replied:

14. [279]

    In his closing address concerning counts 1 and 2, the Crown Prosecutor referred to instances of corroboration of the complainant’s account by her parents of peripheral matters such as the visiting arrangements concerning her and her brother with their father at Dowling Street and the detail of her bedroom. He referred to the support in their father’s evidence for opportunity, in the form of multiple overnight stays by the applicant and complainant at the same time.

15. [280]

    Counsel for the defence submitted that by admitting that he stayed overnight at Dowling Street at the same time as the complainant in early January 2012, the applicant demonstrated his commitment to giving honest evidence when it was tactically adverse to his interests. He submitted that the jury would conclude this was the only night in the indictment period that the applicant and complainant both stayed there and therefore the applicant could not have committed the offence, because his girlfriend was also there and they were staying in the complainant’s bedroom. Counsel for the defence also stressed the unlikelihood of the applicant performing cunnilingus while there were others in the house and either there was no bedroom door or, if there was, it was open.

16. [281]

    The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the offences occurred in the indictment period. His Honour reminded the jury that counsel for the defence had drawn their attention to the “fairly small” window of opportunity within the indictment period. His Honour informed the jury they had to be satisfied of the elements of each offence but not of the “myriad of other facts” that they had heard evidence of, surrounding the incident.

The evidence concerning the second incident (count 3)

1. [282]

   Count 3 is an indecent assault which the complainant alleged the applicant committed upon her during a family car trip from Nelson Bay to Bundaberg. In my view, the evidence as to whether the alleged incident occurred in the indictment period, in the context of the trial judge’s direction in that regard, was sufficient in itself to account for the acquittal. My summary of the evidence is confined accordingly.

2. [283]

   The indictment period for count 3 was between 15 January 2013 and 16 January 2015, that is, from the day before the complainant’s tenth birthday to the date of her twelfth birthday, so essentially, when she was either 10 or 11 years old.

3. [284]

   When the complainant was asked in her evidence in chief how old she was when this incident occurred, she replied: “I don’t remember”. She was asked if she recalled what school year she was in, and replied: “I think, maybe six”. There was not specific evidence as to how old the complainant was when she was in school year six, but her mother gave evidence on an unrelated issue that the complainant was aged seven or eight when in school years two or three, which suggests that when she was in year six, she was 11 years old. In cross-examination, she was questioned about her age at the time, as recorded in a police statement:

4. [285]

   In cross-examination, the complainant agreed that there were car trips to Queensland with the applicant, their father and Z to attend the engagement in September 2011 and wedding in January 2012 of the complainant’s half-sister (she and the complainant had the same father).

5. [286]

   The complainant was asked if the applicant commenced a relationship with a woman who he later married in April 2013, to which she responded “possibly”. It was put to her that there were no trips to Queensland after that relationship commenced, to which she again replied “possibly”. She agreed that she did not go on a trip to Queensland with the applicant after his first child was born, which was on 4 March 2014.

6. [287]

   The applicant’s wife gave evidence. She said that their relationship began on 22 April 2013. They started living together three days later and their first child was born on 4 March 2014. Since the start of their relationship, they had not been apart for “a period of one night, two nights or more” and since that time, the applicant had not been to Queensland.

7. [288]

   The Crown Prosecutor touched upon the evidence as to the complainant’s age at the time of the trip and did not address the evidence as to when the trip occurred. Counsel for the defence submitted that the evidence of the applicant’s wife effectively narrowed the opportunity for the offence to occur to the period between the commencement of the indictment period, 15 January 2013, and 22 April 2013, that is, when the complainant was aged ten years.

8. [289]

   The trial judge directed the jury that the Crown needed to prove that the offence occurred in the indictment period; it was one of the “essential facts”.

9. [290]

   In my view, the analysis of the evidence concerning the opportunity for the offence to have been committed, considered in light of the trial judge’s direction that the indictment period was an “essential fact” of which they had to be satisfied beyond reasonable doubt, reveals a pathway for the jury to an acquittal that does not reflect adversely on the complainant’s credibility, other than as to her uncertainty as to her age at the time.

The evidence concerning the third incident (counts 4, 5 and 6)

1. [291]

   Counts 4, 5 and 6 were alleged to have arisen from an incident that occurred between 6 May 2017 and 27 August 2018, that is, when the complainant was between about 14 years and 4 months and 15 years and 7 months old, at her family’s residence at Sandy Point Road, Corlette (the Corlette house). The complainant’s mother gave evidence that they moved into the Corlette house on 6 May 2017. It was a two-storey house, which included a spare room in which there was a day bed, a television and an Xbox. At the time, the complainant’s mother and Z, amongst others, were living there.

2. [292]

   The complainant said, in her evidence in chief, that the applicant and his wife and their two children were visiting them and staying over. She did not recall where in the house they were sleeping. The incident occurred in the spare room. She was lying on her right side on the bed playing a computer game (Minecraft) on a television screen. She was wearing denim shorts and a top. The applicant entered and asked her if he could play too. She responded, “If you can find the spare controller”. He found it, sat on the bed and played the game with her.

3. [293]

   She said that he lay down alongside and behind her, on his right side. They played Minecraft for a while, then he got “underneath the blanket, I think, and after a couple of minutes, he started touching the outside of my vagina”. She said that he undid the button and zip on her shorts. At first, he touched her inside her shorts and on the outside of her underpants. He then moved underneath her underpants and started touching the outside of her vagina. She said: “He asked me if I was okay, multiple times … I said, Yeah, I’m okay”. She said that he rubbed her clitoris and inserted a finger into her vagina. He then pulled down his pants, grabbed one of her hands so that she was holding his penis, which she felt to be erect. He then removed her hand and placed his penis between her legs, “behind my butt”. He had pulled her shorts halfway down her legs. As he continued to lie on his right side behind her, propped up on his right arm, he rubbed his penis back and forth against her vagina as they played the computer game. At some point this activity stopped; she did not recall why. The applicant left and she heard the toilet flush. She pulled up her clothes and continued to play Minecraft.

4. [294]

   She said that at the time the applicant entered the room, she was underneath a doona. She was not sure where it was when he was touching her vagina, but did not think she was still under it. They were under it when her hand was on his penis. She was not sure where it was when he was rubbing his penis against her vagina. The applicant was not playing Minecraft when he was touching her vagina. She was playing Minecraft when he was rubbing his penis against her vagina.

5. [295]

   In cross-examination, the complainant agreed that in her police statement, which was dated 27 August 2019, she stated that the incident occurred about two years earlier. She was asked if the applicant closed the door; she said he did, and agreed that detail was not in her police statement. She agreed that in her statement she said that the applicant rolled her onto her side at one point. When asked if that happened, she said “I don’t know”.

6. [296]

   The applicant gave evidence that in 2017, he and his family were living at Old Junee. He said that the first time he went to the Corlette house was on the occasion of a family “games night”. He was there with his partner, his two children, his sister from Queensland and her three children. He and his family stayed the night at his father’s house, in Lemon Tree Passage. He was able to fix the date of the games night as about 1 July 2017, from an image on a Facebook post taken on that date at the Corlette house of him holding his younger child, who was about three months old. That image was tendered into evidence. The complainant’s mother was shown the exhibit and agreed that it was taken at the Corlette house.

7. [297]

   The applicant said that he was in the Nelson Bay area on that trip for three or four days. He slept each night at his father’s residence. On 17 July 2017, he returned to the area to purchase a vehicle from his paternal grandfather. An image of him with the vehicle in his grandfather’s driveway on a Facebook post, dated 17 July 2017, was tendered. He said he posted the image a day or two after the purchase. A bank statement recording a transfer on 17 July 2017 in an amount that matched his evidence of the purchase price was tendered. He said that on that trip, he stayed with his father.

8. [298]

   The next day, the applicant visited the complainant and her family at the Corlette house. An image on a Facebook post, dated 17 July 2017, of the car he purchased, parked in the driveway at the Corlette house, was tendered. The applicant said that during that visit, the complainant asked him to go for a walk up Mount Tomaree (which I note was about 9.5km away). The complainant’s mother refused permission, saying that the applicant had a long drive back home that day. Instead, he agreed to a request made by the complainant to take her to an EB Games shop to buy an “Xbox Live” card, so that she could play online with the applicant and Z. The shop did not have one in stock. They returned to the Corlette house and he entered his card details in the Xbox to buy the Xbox Live facility. He said there was “a day bed” in the room. The transaction appeared on his bank statement, with the date 18 July 2017. He left the spare room without playing a computer game with the complainant, spent half an hour with Z and departed to drive to Old Junee. He did not visit the Corlette house again until late December 2018.

9. [299]

   The applicant’s partner gave evidence that the only time she visited the Corlette house before December 2018 was for the games night in 2017. On that visit they stayed overnight at her father in law’s residence. The effect of her evidence was that she did not stay overnight at the Corlette house in the indictment period for counts 4, 5 and 6.

10. [300]

    The applicant’s version was put to the complainant in cross-examination. She agreed that “very shortly” after she moved into the Corlette House, there was a games night there and that the applicant, his wife, their children and other family members attended. She also agreed that this was the first time that the applicant had been to the Corlette house and that he, his wife and their children did not stay the night. It was put to her that the next time he visited the Corlette house was “a few weeks later”, he stayed at their father’s house and the next day he called into the Corlette house on his way back home to Junee. She responded “possibly”, in response to each of those propositions. It was put that she wanted the applicant to take her up Mount Tomaree, but her mother told her she should not do that, because the applicant had to drive to Junee. She did not remember any of those propositions. She was asked if she remembered that she and the applicant went to an EB Games shop to buy an Xbox Live pass, but the shop did not have any cards. She replied, “Possibly”. She remembered that the applicant entered his credit card details into her Xbox system. It was put to her that after he did that, she purchased Minecraft; she replied “Possibly”. It was put to her that this occurred on 17 July 2017; she replied “possibly”. Counsel corrected the date to 18 July 2017 and she replied, “I don’t remember”. She was asked whether she recalled that after the game was purchased, the applicant did not play it with her; she replied, “I don’t remember”.

11. [301]

    This exchange occurred:

12. [302]

    She agreed that it was “very rare” for the applicant to visit in 2017.

13. [303]

    In her evidence in chief, the complainant’s mother said she was “pretty sure” that when she first moved into the Corlette house, the applicant and his wife and children would come and stay. She was also “pretty sure” that he would play the Xbox in the spare room, “with his brother and stuff, and his sister”.

14. [304]

    The complainant’s mother gave evidence to the effect that there was a games night and, when shown the image from the Facebook post on 1 July 2017, agreed it was about that time. It was put to her that it was the first time that the applicant had been to the Corlette house; she replied “Yeah, probably ‘cause I’d only just moved in”. She did not recall if the applicant returned to the Corlette house about two weeks later or discussion about the complainant and the applicant walking up Mount Tomaree but did recall him taking the complainant to the shops.

15. [305]

    The Crown Prosecutor suggested to the jury that the incident occurred on 18 July 2017, when the applicant entered his credit card details into the Xbox console:

16. [306]

    Counsel for the defence submitted that the complainant’s account of what occurred on the bed was implausible, for example, in terms of them lying on their side and the applicant being able to pull down her shorts, and the complainant being able to hold the applicant’s penis if the applicant was lying behind her.

17. [307]

    Counsel referred to the conflict between the complainant’s evidence in chief that the applicant and his family were staying the night when the incident occurred and the evidence of the applicant and his wife that they did not stay overnight at the Corlette house on any occasion before late December 2018.

18. [308]

    As with the other counts, the trial judge directed the jury that the Crown had to prove beyond reasonable doubt that the offences were committed between the dates in the indictment.

The ‘Criminal Minds incident’

1. [309]

   The complainant gave evidence that in January 2019, while she was living with her family in the Corlette house, she was again sexually assaulted by the applicant. The applicant and his family were staying with them at the time (there was no dispute between the parties that the applicant, his wife and two children resided with the complainant and her family in their residence for the first few months of 2019). The complainant was by herself in the lounge room, lying on her left side propped up by a pillow, on a couch with a blanket over her, watching a series on the television (Criminal Minds). She was wearing underpants, pyjama shorts and a top.

2. [310]

   Her evidence was that it was night-time. Her mother, the applicant’s wife and their two children were asleep elsewhere in the house. The applicant walked out into the kitchen and then came into the lounge room and asked the complainant what she was watching. He said he loved that show and asked if he could watch it with her. He sat down at the end of her legs. After a while, he lifted her legs and got underneath the blanket. He pulled her underpants and pyjama pants down and rubbed the outside of her clitoris. He asked her if she was okay, and she replied “Yeah”. He stuck a finger inside her vagina and started “fingering me”. He again asked if she was okay, and she again replied “Yeah”. At one point it hurt her, and he stopped for a while, saying “Okay. Are you okay?” She said “Yeah”. He then resumed rubbing her clitoris and again stuck his fingers into her vagina. After a while, she told him she wanted to go to bed and he stopped. She pulled up her pants and went to bed.

3. [311]

   In cross-examination, the complainant agreed that she was lying diagonally on the couch. She agreed that she made two statements to police. In the first, she said that the applicant sat down on her left side. When police showed her a photograph of the couch, she changed her account, stating he was sitting at her feet. She said that she changed her version because she realised she was mistaken, that if he had been sitting on her left, he could not have reached across her head to her thigh. She agreed that in the first statement, she did not mention that when the applicant had his finger in her vagina, she told him it hurt, and he stopped. It was in her second statement, which was made seven months after the first statement.

4. [312]

   In his evidence, the applicant denied that the ‘Criminal Minds incident’ occurred, stating that he was not around in the evenings “most of the time” and except for New Year’s Eve, his wife was there with him every night that they were staying at the Corlette house.

Evidence of complaint

1. [313]

   When the complainant gave evidence in mid-May 2021, she said she last saw the applicant “Two years ago in January”. She said that “maybe two months” after the third incident and before the ‘Criminal Minds incident’, she told a female friend (who she named and who I will also refer to as OW), via texting on Snapchat, that her brother had been “inappropriately touching me”. She also told a male friend who she named, and who I will refer to as RS. She made a complaint to her mother that the applicant had been “inappropriately touching me”; there was no dispute that she did so, and that the complaint occurred on 23 August 2019. That same evening, she made a complaint to a female friend of her mother’s, who I will also refer to as KI. She was interviewed by police for the first time on 25 August 2019.

2. [314]

   Witness OW gave evidence that she met the complainant through an App around January 2019. After about a week, they transferred across to communicating on Snapchat in the same month. Their communications were by text and by calling each other. About a month after they started communicating, the complainant told her that her brother had “done stuff” to her, but did not tell her specifically what he had done. These conversations were over a period of days. The complainant sounded “scared and upset”. Her voice “trembled a bit”. Witness OW said she advised the complainant to “tell someone”, but she responded that she was too scared. She said that during one phone call, the complainant wanted witness OW to stay on the phone, because her brother had turned up and she was scared that he was going to “do something else”. She was asked when this conversation occurred, and said “Around the end of 2019, I think … Probably around November, December”. She was asked if she recalled that, or whether it was just her best guess, to which she replied, “Just my best guess”. She said they drifted apart around the beginning of 2020. In cross-examination, she agreed that in her statement to police, which was dated 1 April 2020, she had said that the conversation in which the complainant said her brother had arrived, was “around the end of last year”.

3. [315]

   The complainant’s mother said that in August 2019, the complainant told her that the applicant had “touched her, like, in the wrong places for – over the past”. She said she cut the complainant off and “snapped” with anger and phoned witness KI, who came over. A few days later she phoned the applicant twice and told him what the complainant had said. He denied the allegation, sounding surprised and angry.

4. [316]

   Witness KI said that she received a call from the complainant’s mother on 23 August 2019 and went to their house, where she spoke to the complainant, who told her she had been assaulted “with fingers … down there”, pointing to her crotch area. Witness KI asked her how long this had been going on, and she replied: “Since I was about 10”. She said that the applicant had done it. She said, “It stopped last summer”, meaning the summer of 2019. In cross-examination, she agreed that in her statement she stated that the complainant said to her: “He told me it was our little secret”. She agreed the complainant said those words.

5. [317]

   RS was not called to give evidence. There was no explanation to the jury as to why he was not called.

6. [318]

   It was suggested to the complainant in cross-examination that in a phone call with witness OW in late 2019, she had said: “My brother is here and I’m scared he’s going to do stuff to me again”. She responded that she did say that, but it was in a conversation at the start of 2019. It was also suggested that in her statements to police she had not alleged that the applicant said to her “It’s our little secret”; she agreed. She was asked: “And that’s because he didn’t ever say anything like that”, to which she replied “No”.

7. [319]

   The trial judge directed the jury as to how they were to approach their consideration of the multiple counts:

8. [320]

   As to the complainant’s credibility, his Honour said:

9. [321]

   His Honour gave the jury a direction in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 per Spigelman CJ at [186]-[191]:

10. [322]

    The trial judge directed the jury in relation to a tendency that the Crown alleged against the applicant, of a sexual interest in the complainant and that he was prepared to act on that interest. His Honour noted that the Crown sought to establish that tendency through the evidence of the six indicted counts and the ‘Criminal Minds incident’. His Honour said:

Ground 1: The verdicts are unreasonable or cannot be supported having regard to the evidence

1. [323]

   In relation to the first basis of ground 1, namely, that on the evidence that exclusively concerned that ground the jury should have had a reasonable doubt, the applicant submits that the complainant’s allegation in relation to the first incident had features that render it unlikely to have occurred. The complainant had little contact at that time with the applicant, she did not allege that she was groomed, or threatened with consequences if she complained, the allegation was that it occurred in a room that did not have a door, she could not explain why the incident ended, she recalled the name of the movie when giving evidence but did not at the time of her statement to police, and she did not recollect that the applicant had a girlfriend at the time or her name.

2. [324]

   It was submitted that their father’s evidence did not support the complainant’s contention that she and the applicant watched a movie together in her bedroom, that she had “guessed” her age at the time, and that her complaint to Witness OW, her mother and witness KI did not include an allegation of cunnilingus.

3. [325]

   The applicant’s evidence was that there was a limited window of opportunity for the offences to occur, since their father had moved out of Dowling Street by August 2012. His partner at the time was present on two of the three occasions that he had stayed at Dowling Street, including the only time that he and the complainant were both there overnight.

4. [326]

   In my view, the jury were entitled to be satisfied beyond reasonable doubt by the complainant’s evidence that the applicant committed the offences and, by applying their everyday life experience, to conclude that he did so opportunistically and with a significant element of risk-taking. Grooming and an established relationship are, of course, not essential prerequisites to committing a child sexual assault. The absence of evidence of a threat is consistent with the complainant’s version that suggests that the applicant believed that what he was doing was consensual, by his repeated inquiries as to whether she was “okay”, and her assurances to him that she was. There is an obvious explanation as to why the activity stopped, namely that the applicant did not want to take the sexual activity with the complainant further than he did.

5. [327]

   The suggestion that it was a matter of concern as to the complainant’s credibility that she did not recall the applicant’s girlfriend at the time, presumes that she should have, but it was only the applicant’s evidence (uncorroborated by the complainant and their father) that on one occasion his girlfriend stayed at Dowling Street at the same time as the complainant. That the complainant did not refer to an act of cunnilingus in her first complaints of the offending behaviour to witnesses OW, her mother or witness KI, is not, in my view, of any weight at all. The essence of her first expression of complaint was physical sexual connection rather than detail as to the type, frequency and circumstances of the assaults. It was not suggested that she had not included that allegation in her statement to police two days after her complaint to her mother and witness KI, on 25 August 2019. Witness KI’s evidence was that the complainant said that the offending sexual behaviour started when she was “about 10”, which encompasses the timeframe of first incident.

6. [328]

   Their father’s evidence, as excerpted at [277] above, although not to the effect that he recalled seeing them watching a movie together in her bedroom, equally was not contradictory of that proposition. The complainant’s evidence as to her age at the time of the first incident was consistent.

7. [329]

   Having regard to the evidence that exclusively concerns the first incident, I am satisfied that the jury’s verdicts on counts 1 and 2 are capable of being supported by the evidence. I move then to the second ground.

Ground 2: The verdicts of guilty on counts 1 and 2 are inconsistent with the verdicts of not guilty on counts 4, 5 and 6

1. [330]

   The applicant submitted that the incident that led to counts 1 and 2 (the first incident) was factually similar to the incident that was the foundation for counts 4, 5 and 6 (the third incident). Both incidents involved an allegation that the applicant entered a bedroom where the complainant was sitting or lying down under a doona or blanket watching a television; a movie in the first incident and playing Minecraft in the other. The applicant sat or lay down next to the complainant to watch the movie or participated in the game, moved under the blanket or doona and sexually assaulted her. At the time of both incidents there were others elsewhere in the home, so there was a risk of discovery.

2. [331]

   The applicant submitted that there was “no rational basis” for the jury to have distinguished between the counts arising from the two incidents. The temporal proximity of the first complaint to the third incident, and the significantly longer period of time after the first incident, rendered the evidence in respect of the counts arising from the third incident stronger than the evidence concerning the counts arising from the first incident.

3. [332]

   The nature of the two incidents is similar. Indeed, there are shared features with the second incident and the ‘Criminal Minds incident’, as well. All four alleged incidents involve the applicant, at night, in proximity to other family members, sexually touching or penetrating the complainant under a covering; either a blanket or doona.

4. [333]

   The complainant’s evidence in chief that the applicant and his family were “staying over” in the house at the time of the incident was contradicted by the applicant and his wife, who said there was no occasion that they did so in the indictment period; although they did stay there for some months from the beginning of 2019, which was four months after the indictment period. Although the complainant later expressed uncertainty about that aspect of her evidence, in my view the jury were entitled to take it into account when applying the trial judge’s direction that they had to be satisfied beyond reasonable doubt that the counts, if otherwise established, occurred within the indictment period.

5. [334]

   The complainant agreed that the applicant had not been to the Corlette house before the games night and that the applicant and his family did not stay overnight on that occasion. The Crown Prosecutor’s submission to the jury that the offences occurred on about 18 July 2017, immediately after the applicant entered the details of his credit card into the Xbox so that the interactive version of Minecraft could be played, had the difficulty that it was not the complainant’s version of events. Although she recalled that there was a time when the applicant entered those details into the Xbox, she could not recall if, having done so, he then played a game with her. It was not her evidence that he entered those details on the same date as the sexual assaults which, in any event, she said occurred in the night-time.

6. [335]

   Accordingly, acquittals by the jury on counts 4, 5 and 6 do not necessarily involve a rejection or concern as to the credibility of the complainant in relation to the alleged offences themselves. As with count 3, there is a pathway to acquittals that reflects only on the complainant’s recollection of when the assaults occurred. There is no reason to conclude that the jury did not carry out their deliberations in accordance with the trial judge’s directions that are extracted at [318]–[321] above. As observed in the joint judgment in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in a complainant. In my view, this is such a case.

7. [336]

   The fact that there are such pathways does not dispose of the application. I have not had the advantage of viewing the complainant’s pre-trial evidence (the Court was not invited by the applicant to do so) or the jury’s advantage of witnessing her viva voce evidence and the evidence of the applicant and other witnesses. However, based on my reading of the transcript, the complainant was convincing in her evidence. The discrepancies between her police statements and her evidence concerning the first and third incidents were readily admitted by the complainant and inconsequential. There was no dent of any significance to her credibility.

8. [337]

   I agree with the orders proposed by Simpson AJA.