Lind v R

1. [1]

   KIRK JA: The applicant, Connor Lind, faced trial by jury in the District Court of five counts of a sexual nature involving two girls under the age of 16 years, CL and AR. He was found guilty of three of those counts (being three of the four which related to CL) and not guilty of two (including the one charge relating to AR). On 13 December 2024 the trial judge, Pickering DCJ, sentenced the applicant to an aggregate sentence of two years imprisonment with a non-parole period of 11 months, to commence from that date. On the same day his Honour granted appeal bail. That bail was revoked on the joint application of the parties on the day this appeal was heard.

2. [2]

   The applicant has sought leave to appeal his convictions on the following two grounds:

3. [3]

   The second ground involves an argument that the trial judge should have given an extended unanimity direction. No such direction had been sought. The applicant thus accepts that he needs leave to appeal on this ground under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

4. [4]

   Neither ground is made out. Leave to appeal should be granted with respect to the first but not the second. The appeal on ground 1 should be dismissed. I will address the two grounds in turn after first briefly setting out the context in which they arise.

Background

1. [5]

   At the time of the events in question the applicant was aged 19 and 20 years, the complainant CL was aged 14 years, and the complainant AR was aged 15 years.

2. [6]

   The complainants were close friends with each other and with the applicant’s sister, A. The applicant and the complainants were all involved with cheerleading activities at a gym in northern Sydney. The gym was owned by Kate and Ma’afu Mafoa. The applicant worked at the gym and was involved with cheerleading teams in which the complainants participated. CL, as a friend of A, sometimes stayed overnight at the home in which A and the applicant lived. In November 2020 CL and the applicant became girlfriend and boyfriend, which lasted until early May 2021. None of these matters were in dispute. The applicant, who gave evidence, maintained that nothing of a sexual nature beyond kissing and cuddling had occurred between he and CL.

3. [7]

   In March 2021 the nature of the relationship between the applicant and CL became a topic of discussion among members of the gym community. Kate Mafoa spoke to the applicant about the rumours. He denied being in a relationship with CL. CL’s mother was informed that somebody had reported an inappropriate relationship between CL and the applicant. CL’s mother spoke to CL who told her that she and the applicant were only friends.

4. [8]

   In early May 2021 one of the gym’s employees advised Ms Mafoa that the applicant and CL had been having anal sex. Ms Mafoa advised CL’s parents about this. CL’s parents spoke to their daughter. CL told her parents that there was something going on between her and the applicant but nothing physical. Over the following two days CL made further disclosures to her mother.

5. [9]

   CL was interviewed by police on 27 May 2021. The recording of that interview formed her evidence in chief at the trial. Charges were laid soon thereafter. Further evidence from CL was prerecorded in a hearing before Traill DCJ in March 2023. In May and July 2021 AR was also interviewed by police.

6. [10]

   The jury trial took place in August and September 2024.

7. [11]

   The counts on the indictment with which the applicant was charged, and the verdicts returned, were as follows:

Ground 1: claimed inconsistent verdicts

1. [12]

   There was no dispute in this matter as to the applicable principles. It is sufficient here to repeat the discussion in Barney v R [2023] NSWCCA 85:

2. [13]

   In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 Simpson J, speaking for this Court, explained:

3. [14]

   The claimed inconsistency is as between the jury’s guilty verdict on counts 3 and 4 (relating respectively to fellatio and digital penetration) as compared to the verdict of not guilty with respect to count 1 (anal intercourse). The applicant does not rely on the guilty finding with respect to count 2 (sexual touching), nor on the not guilty finding with respect to count 5 (relating to the complainant AR).

4. [15]

   In summary, the applicant’s arguments as to inconsistency were as follows:

   1. (1)

      Proof of all three relevant counts “relied on the word of CL”, having been “steadfastly denied” by the applicant. There was complaint evidence but no direct observational evidence from any other witness with respect to the three counts in question (as opposed to the position with respect to count 2).

   2. (2)

      The prosecutor said in his closing address that whether the sexual acts the subject of count 1, count 3 and count 4 took place was the “only issue” for the jury to decide, in circumstances where there was no dispute as to the age of the complainant. This point was reinforced by the trial judge’s direction that “the issue” in the trial with respect to those counts was “whether the Crown can prove factually on the evidence that those sexual intercourse allegations occurred”.

   3. (3)

      CL’s evidence with respect to count 1 was comparable to her evidence with respect to count 3 in terms of specificity and detail and was more specific and detailed than her evidence with respect to count 4. The complaint evidence is not a point of differentiation sufficient to account for the differential verdicts on the three counts.

   4. (4)

      There was no objective evidence for any of the three counts, yet the jury were prepared to accept the word of the complainant on two of the three. There was nothing to suggest that her evidence was more reliable with respect to counts 3 and 4 compared to count 1; she had actually expressed some uncertainty in her recollection about count 4. There is no rational explanation for the acquittal on count 1 other than doubts about CL’s credibility. The jury should have given the benefit of that doubt to the applicant with respect to counts 3 and 4.

5. [16]

   The Crown made various arguments in response to the case put by the applicant. It is sufficient to focus just on matters relating to timing. Each of counts 3 and 4 – along with count 2 – identified conduct occurring on one particular night, as was set out in the indictment. In contrast, count 1 alleged that the conduct occurred “between 1 December 2020 and 7 February 2021”. Those dates were consistent with CL having said in her police interview that anal intercourse occurred in the summer school holidays.

6. [17]

   Counts 3 and 4 – again, alike with count 2 – were each tied to the charged dates by other identified events. Count 3 occurred on a night when CL was staying at the applicant’s home having been out to see a particular movie with A. CL’s mother gave evidence that she had dropped CL off to see the movie on that night, and her memory was supported by having checked her phone messages. Count 4 occurred on a night which was memorable for two reasons: it was the last sleepover that CL had at that house before events blew up (and CL’s mother had text messages relating to the sleepover having occurred); and on that night CL, A and the applicant had gone to Manly, but the applicant’s mother texted them to leave as there had been a stabbing in that area that night, which was an event that they all recalled.

7. [18]

   CL could also tie count 2 to a particular night because she had a dated photo which showed her, A and their friend ES together which reminded her of the occasion.

8. [19]

   In contrast, in her police interview she said this as to the timing of the anal intercourse (which she said had only occurred on one occasion):

9. [20]

   Shortly after that there was the following exchange in the interview with respect to this event:

10. [21]

    CL had earlier told police that “the first time anything like happened [between her and the applicant] was the 6th of November”, and “he like asked me to be his girlfriend on the 28th” of November. The school holidays presumably commenced sometime in early to mid December 2020.

11. [22]

    CL said she had told her friend AR the next time she saw her that she had had anal sex with the applicant. AR also told the police that CL had told her this, saying she thought the conversation had occurred in the holidays, and adding “I think it was before term 1 started”. CL also eventually told her mother in May 2021 that the applicant and she had had anal intercourse, although she did not say when.

12. [23]

    There was thus evidence from CL and from AR that the alleged occasion of anal intercourse took place over the summer holidays. However, CL did express some uncertainty as to timing: “I think it was in school holidays”; “that's just like um, like when we spent like the most time together, so I'm just, I'm just guessing”; “I don't remember [when this happened]”; “I don't remember this occasion”.

13. [24]

    Counsel for the applicant at the trial began her closing address by reference to count 1. She gave four reasons the jury should have a doubt about that count. The third was as follows (emphasis added):

14. [25]

    Thus the applicant’s counsel made a clear attack on the Crown case on count 1 – in terms which might readily be considered persuasive – which focused upon the particular dates identified in the indictment.

15. [26]

    In this Court counsel for the applicant submitted that no direction had been sought or given that time was of the essence. The Crown fairly said in response that “there was no legal discussion about time being of the essence, which is what one might expect if it was to become an element that had to be proved beyond reasonable doubt”. That no such direction was sought or given meant that the Crown did not have to prove that the offence had occurred within the particular time frame alleged in this case: note Criminal Procedure Act 1986 (NSW), s 16(1)(g); R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198 at [20]-[21]; Williamson v Betterlay Brick and Block Laying Pty Ltd (2020) 3 QR 594; [2020] QCA 52 at [83]-[84]. But there is no reason to infer that the jury knew that technical legal point. The fact remains that one of the four key reasons for having a doubt about count 1 that was given by the applicant’s counsel depended upon taking a strict approach to the dates identified in the indictment.

16. [27]

    The trial judge provided the jury with a written directions document which identified the elements of the offences. It said of the sexual intercourse offences that there were two elements, the first of which was said to be: “That, at the time and place alleged, the accused had sexual intercourse with the complainant”. The document then expanded on the elements, reiterating the point with respect to the first element: “To satisfy this element, the Crown must prove beyond a reasonable doubt that at the time and place alleged, the accused had sexual intercourse with the complainant”. The point was reiterated – again, twice – in his Honour’s summing up. And when his Honour was summarising the submissions of the two sides he reminded the jury that counsel for the applicant had submitted in relation to count 1 that “you’d also be really concerned about the dating of that, whether it could have even logistically occurred within the concept of the timing of that relationship”.

17. [28]

    It is true that the Crown Prosecutor said in closing, having noted that there was no dispute about the complainants’ ages, that: “The only issue is did the sexual acts take place”. That statement was not sufficient to tell the jury that the specific timing of any anal intercourse did not matter. And, of course, that statement was made prior to what was said by counsel for the applicant and prior to his Honour’s summing up.

18. [29]

    The trial judge did also say this in explaining the first element of the sexual intercourse counts: “Of course, the issue in this trial is not whether as a matter of law sexual intercourse occurred, it’s whether the crown can prove factually on the evidence that those sexual intercourse allegations occurred.” That was said in a context where he was addressing what was “sexual intercourse at law”. It was made just after the statements he had made about proving the time and place of the intercourse beyond reasonable doubt. In context, it cannot be understood as communicating that the time identified in the indictment did not matter.

19. [30]

    In this setting it would have been eminently reasonable for the jury to consider that it did matter whether any anal intercourse had occurred in the summer holiday period identified in the indictment. As noted, the evidence of CL on the point was somewhat equivocal. And the timing issue for count 1 was in marked contrast to the evidence relating to counts 2, 3 and 4. Each of those charges related to particular nights when CL stayed at the applicant’s home where the fact that she had done so on those nights was established by reference to other events. Count 1 related to a period of over two months, not tied to any other particular event or occurrence, and where CL said she was “just guessing” as to the timing.

20. [31]

    Naturally enough, the trial judge also gave the usual directions about considering each count separately and not compromising or negotiating as to the different counts.

21. [32]

    In the context outlined it is entirely plausible that the jury in fact believed CL’s evidence about the anal intercourse but considered that they should acquit the applicant on count 1 on the basis that they were not satisfied – given CL’s own evidence – that it occurred in the period identified in the indictment. There is thus a rational explanation for the acquittal on count 1 and the guilty verdicts on counts 3 and 4. It is not the case that the acquittal is attributable only, or principally, to doubt about CL’s credibility. Ground 1 is not made out.

Ground 2: claimed need for a unanimity direction

1. [33]

   Count 2 related to an allegation that the applicant had engaged in sexual touching of CL on an occasion whilst she was lying back against his chest on the couch, watching a movie on television, at the applicant’s home. CL’s friends A and ES were also in the room. A’s evidence was that she had fallen asleep on the couch whilst watching the movie. A friend of the applicant, Nathan, was also there for at least some of the time. He did not give evidence.

2. [34]

   The applicant’s complaint is that an extended unanimity direction should have been sought by his representative below, and should have been given in any event by the trial judge, given the difference in the accounts given by CL and ES with respect to the event which was the subject of count 2.

3. [35]

   The applicant’s written submissions on this issue were concise:

4. [36]

   The argument focuses on the fact that CL’s evidence was that the applicant had touched above her vagina but that his finger did not go inside her vagina, whilst ES’s evidence was that the applicant had been “fingering” CL. The applicant’s own evidence was that his hand would have been around the middle part of her stomach, “like, on the belly button”; that his hand had been sliding down in the direction of CL’s vagina, and that he pulled it back up; and that he never touched her vagina, nor had his hand down her pants.

5. [37]

   As to the version the applicant gave, counsel for the applicant suggested that some jurors might have regarded that version as sufficient to make out the count. However, as he accepted, no suggestion was made at the trial that that account was enough of itself to lead to a finding of guilt. On the contrary, as the Crown pointed out, the trial judge gave a Liberato direction, which included his Honour saying that “if you believe [the applicant] was a truthful and reliable witness then that would be the end of these proceedings”. That account can therefore be set aside.

6. [38]

   The applicant’s argument about the somewhat differing accounts of CL and ES is unpersuasive. An extended unanimity direction was not required. The issue was discussed in some detail in AKB v R [2024] NSWCCA 169 at [57]-[80] (Gleeson JA) and [124]-[130] (Dhanji J). Both parties here relied on the frequently cited summary of principle, distinguishing two types of case, expressed by Phillips and Buchanan JJ, with the agreement of Ormiston JA, in R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (emphasis added):

7. [39]

   Further, in Zandipour v The Queen (2017) 53 VR 256; [2017] VSCA 179 the Victorian Court of Appeal said that:

8. [40]

   In Ribbon v The Queen (2019) 134 SASR 328; [2019] SASCFC 130 at [260]-[261], Doyle J (with the agreement of Parker J) similarly said this:

9. [41]

   This case was not one where the Crown relied on discrete acts, proof of any one of which independently would entitle the jury to convict. The Crown relied on one act – of the same nature, but more confined than, the sort of continuous episode or conduct discussed in the two passages just quoted. The fact that there was somewhat different evidence between the witnesses as to precisely what occurred in the course of that act is a not uncommon occurrence in the course of a trial. This was not a case where the slightly different evidence involved alternative bases that were “mutually destructive”: cf R v McCarthy (2015) 124 SASR 190; [2015] SASCFC 177 at [3]-[5] (Kourakis CJ) and [306] (Peek J). Nor, given the nature of the single charge the applicant faced with respect to this event, is this a case where there were “materially different issues or consequences” depending on which version was accepted (quoting Walsh at [57]). If the acts had occurred as alleged by ES that was enough to establish the sexual touching charge, as the applicant accepted. That conclusion is not altered by the fact that on ES’s version the more serious offence of sexual intercourse – not charged by the Crown – would have been committed.

10. [42]

    The case falls within the first broad category identified in Walsh and not the second. The jury was not required to be unanimous as to the precise evidentiary route or pathway by which they concluded that the applicant had intentionally engaged in touching where that touching was sexual.

11. [43]

    In any event, the Crown made it clear that it was only relying on CL’s version as the basis for the charge, expressly recognising that ES’s account involved a more serious allegation which it was not making. The charge was summarised in the written directions document as being an allegation that the applicant “sexually touched the complainant by putting his hand on her stomach and inner thigh and his hand was going underneath her underwear (the lounge room incident)”. The Crown said in closing address that count 2 was a sexual touching and not a sexual intercourse charge, saying:

12. [44]

    The applicant’s argument focused on the fact that the Crown had said that CL’s account should be preferred to that of ES, but the trial judge had said only that the “primary basis” on which the Crown put its case was the account given by CL in her police interview. The applicant in effect argued that that direction implied that CL’s account was not the only basis on which count 2 might be made out. Yet his Honour then went on to say the following, which reiterated the way in which the Crown put its case:

13. [45]

    As was said in Walsh, and many other such cases, in this area much depends on the precise nature of the charge, of the parties’ respective cases, and what are the live issues at the conclusion of the evidence. Issues of fact and degree may arise. An objection could have been made if the direction of the trial judge was seen as unfair by giving rise to overly broad or uncertain means of finding guilt. No such objection was made nor was any extended unanimity direction sought. The applicant therefore needs leave to appeal under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. This Court said the following in Al-Sheikh v R [2025] NSWCCA 205 at [113] with respect to that rule:

14. [46]

    The lack of objection here does not appear to have manifested a choice made for some forensic advantage. But that is not the only consideration relevant to r 4.15. The transcript suggests that the applicant was well represented at the trial. The applicant’s counsel now appearing did not suggest otherwise. He did argue that whether or not to seek an extended unanimity direction was a “nuanced issue that arises on the facts of particular cases where one has to have an eye for it when it comes up”. Yet it is apparent that the parties and the trial judge fully appreciated that that the accounts of CL and ES were somewhat different and that the Crown was putting its case in a particular way, relying on CL’s version. If the trial judge’s remark about “primary basis” had unduly muddied the waters about the case being put, that would not have been a subtle issue which might readily have been overlooked. In all the circumstances, there is no reason to conclude that there was an injustice to the applicant in the atmosphere of the trial.

15. [47]

    Leave to appeal on ground 2 should be refused pursuant to r 4.15.

Conclusion and orders

1. [48]

   Leave to appeal should be granted on ground 1 but not ground 2. The appeal should be dismissed.

2. [49]

   The trial judge noted in his sentencing judgment that the applicant had served no time in custody with respect to the three counts in question as at the day of sentencing (13 December 2024) and thus ordered that the applicant’s term of imprisonment was to commence on that day. As noted above, appeal bail was granted by the trial judge on the same day the applicant’s sentence was imposed. The appeal bail was revoked on the day this appeal was heard (9 March 2026) on, in effect, the mutual application of the parties. Reasons for that decision were delivered on the day. That application was made because the applicant had been arrested on other charges subsequent to the appeal bail being granted and bail had been refused on those charges. The effect of revoking the appeal bail was that the applicant immediately began serving the sentence that had been imposed.

3. [50]

   In these circumstances, it is appropriate to make orders directed to the dates of the applicant’s sentence. The sentence imposed was an aggregate sentence of two years imprisonment with a non-parole period of 11 months. The orders of the Court should be as follows:

   1. (1)

      Grant leave to appeal on ground 1.

   2. (2)

      Refuse leave to appeal on ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   3. (3)

      Appeal dismissed.

   4. (4)

      The two year term of imprisonment imposed by the District Court on 13 December 2024, with a non-parole period of 11 months, is taken to have commenced on 9 March 2026 such that the applicant will be eligible for parole on 8 February 2027.

4. [51]

   McNAUGHTON J: I agree with Kirk JA.

5. [52]

   McGUIRE J: I agree with Kirk JA.