PT v R

1. [1]

   WRIGHT J: By a notice of appeal filed on 16 April 2025, the applicant, PT, [1] seeks to appeal against his conviction on 13 counts of sexual offending against a child.

Background

1. [2]

   One complainant, HE, made an initial complaint to police concerning the applicant in 2009 and he participated in a Joint Investigation and Response Team interview on 19 May 2009 (the JIRT interview). The matter did not, however, proceed to charges being laid at that time. Subsequently, in early 2021, HE revived his complaint and provided a written statement to police which included, inter alia, allegations not specifically mentioned in the JIRT interview. There was also another complainant, CL, who made similar allegations against the applicant.

2. [3]

   A trial in this matter commenced earlier in September 2023 and HE gave oral evidence. However, for reasons which are not relevant to this appeal, the jury in that trial was discharged before delivering their verdicts.

3. [4]

   A second trial took place between 27 September 2023 and 12 October 2023, before Turnbull SC DCJ and a jury in the District Court at Sydney. The indictment contained 24 counts. The first 16 counts related to the complainant, HE, and the remaining counts related to complainant, CL. The applicant was found guilty of 13 of the counts relating to HE and not guilty of the remaining 3 counts. The applicant was found not guilty of 2 counts involving CL and the jury was unable to reach a verdict in relation to the other 6 counts relating to CL.

4. [5]

   This appeal concerns only the 16 counts involving HE. These counts (and the verdicts) are summarised in the table below. The counts have been divided into the six discrete incidents as referred to during the trial.

5. [6]

   As the appeal does not relate to any of counts relating to the complainant CL, it is not necessary to refer to any of the evidence concerning CL.

6. [7]

   As to the counts relating to HE, since there were no other witnesses to what occurred between HE and the applicant, the only direct evidence in the Crown case in relation to each of the 16 counts was the evidence of the complainant. HE’s evidence in the second trial commenced on 29 September 2023 and was given by way of two video recordings:

   1. (1)

      a video of HE’s oral examination in chief, cross examination and re-examination on 19 and 20 September 2023 in the first trial before the jury was discharged (the recorded evidence) which was played at the second trial; and

   2. (2)

      a video of the JIRT interview given in May 2009, which had been played during the recorded evidence and was played again at the second trial.

7. [8]

   HE’s evidence can be summarised as follows.

8. [9]

   The recorded evidence began with HE’s familial relationship with the applicant. HE said that when he was young and in his teens he moved around a lot. In 2000, he lived at a specified address in Bradbury with his mother. In 2002, HE moved to Queensland to live with his father for “quite a few years” but he sometimes came to Sydney during holidays. There was a period when HE returned to New South Wales when he was going into year 7 at High School. The evidence then concerned HE giving the JIRT interview in May 2009 when he was 15 years old.

9. [10]

   The video of the JIRT interview was then played. In the JIRT interview, HE gave evidence that he was born in 1993. HE was first asked about the last time the applicant “had sex” with HE and he said this was in January 2009. He described what was referred to at trial as the fourth incident, which he said occurred in January 2009 at the applicant’s residence in Ingleburn after HE had had a shower there, and then said that there was one more time after that.

10. [11]

    Returning to the fourth incident, HE said that he had just come down from Queensland for the holidays and gave a quite detailed account of the events prior to the fourth incident. HE drew a sketch of the layout of the various rooms in the applicant’s Ingleburn residence. HE described the applicant masturbating him at various times during the incident (count 10). HE said that the applicant penetrated HE’s anus with his penis going about half way in (count 8) and “It started to hurt, ‘cause he had never done that before”. It can be noted here that later in the JIRT interview, HE said that the fourth incident occurred after Christmas “around the teens, the thirteens or something” of January and he described the activity in the fourth incident that was the subject of count 9. HE’s description of the various activities and circumstances of the fourth incident was elicited in some detail at various points during the JIRT interview.

11. [12]

    HE was asked in the JIRT interview whether he could tell the interviewer “when the first time something like this happened with [the applicant]”. In response, HE said he was about 7 or 8 and he was living at a specified address in Bradbury, across the road from the applicant who was living with his parents. He said he went across the road to the applicant’s house and then into his room and he was playing a video game. HE described the applicant touching him on the penis with his clothes on and then pulling HE’s pants and underpants down and rubbing his penis between HE’s buttocks without penetrating him (count 4). HE thought it occurred after school one day. The rubbing between the buttocks was identified as having occurred during the second incident. The touching on the penis did not appear to be the subject of any count in the indictment.

12. [13]

    HE was then asked about the “last time that this happened” and clarified that the incident HE had already talked about in detail, the fourth incident, was the second last time. Later in the JIRT interview HE said that the last time, the fifth and sixth incidents, occurred a couple, three or four days after the fourth incident.

13. [14]

    HE’s account of what was described as “the last time” involved the fifth incident at the applicant’s residence in Ingleburn before driving to Mount Pritchard and the sixth incident at Ingleburn after returning that same day from Mount Pritchard. In relation to the fifth incident, HE described the activities which constituted counts 11, 12 and 13. As to the sixth incident, HE described what gave rise to counts 14, 15 and 16.

14. [15]

    During his account of the fifth and sixth incidents, HE was asked questions concerning his penetrating the applicant’s anus and when this occurred, and HE said “I think it was the last two times and it happened a few times throughout the couple of years”. In addition, HE gave evidence at various points during the JIRT interview of making complaints to a relative concerning the applicant’s conduct. In the JIRT interview, there was no specific mention of an incident in about 2004 to 2006, referred to during the trial as the third incident.

15. [16]

    After the video of the JIRT interview ended, HE’s evidence continued by way of the video of the recorded evidence. In that recorded evidence, it was noted that after giving the JIRT interview, nothing further was done concerning HE’s complaints against the applicant until he contacted police a couple of weeks before he gave a statement to police on 12 March 2021.

16. [17]

    HE’s recorded evidence then addressed “when was the first time that anything of a sexual nature occurred between you and the [applicant]”. He said he was about 6 or 7 years of age, living at the address in Bradbury which had been previously specified and the applicant was living with his parents across the road from that address. HE said that he went across the road and into the applicant’s bedroom to play PlayStation with him. At one point, the applicant engaged in the conduct involved in count 1. It was confirmed that this was “the first time anything like this had happened”. HE’s evidence was that next the applicant engaged in the activity in count 2 and at the same time did what was the subject of count 3. This was referred to during the trial as the first incident.

17. [18]

    The recorded evidence then turned to another incident which was described as one which HE did not tell the officers about during the JIRT interview and was referred to during the trial as the third incident. HE’s “guess” was that he was “around 11 or 12” at the time, when he was in first year of high school in New South Wales, but HE did not know what year it was. HE was with the applicant “at a house in Bradbury” where he had been once before but he was not sure of the address. HE described the conduct in counts 5, 6 and 7. HE was not asked to sketch these premises.

18. [19]

    The recorded evidence then dealt with a plan of the house at the address in Bradbury which was the location of the first and second incidents, a diagram of the applicant’s room at that address and a Google image of the address. Next, HE gave evidence about a drawing of the applicant’s residence at Ingleburn and the applicant’s bedroom there where the fourth, fifth and sixth incidents occurred.

19. [20]

    In the recorded evidence, HE was then cross examined. That cross examination concerned HE’s evidence in relation to the applicant’s residence in Ingleburn relevant to the fourth, fifth and sixth incidents. HE disagreed when it was put to him that he had not been to the applicant’s residence in Ingleburn and had not been assaulted by the applicant. HE was also cross examined about the applicant’s mate who also lived in the Ingleburn residence. Next, HE was cross examined about the fifth and sixth incidents and events surrounding them.

20. [21]

    In the cross examination, HE then confirmed that at the time of the JIRT interview he understood the difference between the truth and a lie, he told the police the truth and he did not deliberately leave out in the interview anything that happened between him and the applicant. The cross examiner then turned to the fourth or “shower incident” and confirmed that in respect of anal penetration of HE in that incident, HE had said in the JIRT interview that “It started to hurt because he’d never done that before”. HE also accepted that his recollection in the JIRT interview that the shower had a curtain was false as it had a sliding glass screen.

21. [22]

    Next, HE was cross examined about the third incident, at the unknown address in Bradbury. When asked whether this was “the third incident in time”, HE responded that “I’m not to know as to what time the incident was”. HE also agreed that he had no idea of the actual street address in Bradbury and he had never drawn a diagram of the layout of the premises. HE said he was not sure whether he drew a diagram of the layout of the lounge room. HE also confirmed that he did not make any reference to the third incident in the 2009 JIRT interview, he was “not sure of the exact years” and he did not remember having said in his police statement that it occurred sometime in 2006. In respect of the fourth incident, HE agreed that he said that “it started to hurt because he’d never done that before” but disagreed that the third incident did not happen.

22. [23]

    The cross examination then moved to the first incident and the conduct involved in counts 1, 2 and 3 was covered in some detail. HE disagreed that the incident did not happen. As to when HE lived in Queensland, it was said during the cross examination that when HE was in year 3 he went to live with his father in Queensland, he moved back to New South Wales in 2006 and by 2007 and 2008 he was back in Queensland and he was back living in Sydney in 2009

23. [24]

    The cross examination continued concerning living arrangements in the applicant’s house at Bradbury at about the time of the first and second incidents. After touching upon HE’s criminal record and family circumstances, the cross examination concluded and re-examination did not concern any of the particular incidents. There was no other evidence from HE, apart from the video of the recorded evidence and the JIRT interview, at the second trial.

24. [25]

    The other prosecution evidence in relation to counts 1 to 16 concerned, in general terms, the complaints made by HE to various family members and other persons as well as HE’s and the applicant’s family circumstances, where HE lived from time to time until 2009 and where the applicant lived during the relevant periods. There was also evidence of the visit to Mount Pritchard between the fifth and sixth incidents.

25. [26]

    There were agreed facts concerning the dates of birth of HE and the applicant and other matters such as the applicant’s ownership of two vehicles at different times, the applicant’s address on his driver’s licence between 2001 and 2016, the fact that the applicant had no criminal record and the fact that HE did not draw a sketch plan of the unknown address in Bradbury where HE said he had been assaulted by the applicant, which related to the third incident, counts 5, 6 and 7.

26. [27]

    The defence case in relation to HE included most pertinently evidence concerning the applicant’s character and a complaint in 2009 by HE that the applicant “touched” him but without anything more specific. Evidence was also given by the applicant’s brother concerning the layout of the residence in Bradbury between 1999 to 2003 and that there was no PlayStation in their bedroom. He also gave evidence that he had not seen HE with the applicant or at their house in those years or later “[t]o what I recall”.

27. [28]

    The applicant’s mother gave evidence about living arrangements in the house in Bradbury where her family lived including that there was no PlayStation in the room the applicant shared with his brother in 1999 and 2000 and they had a computer from 2002. She also gave evidence of HE’s mother and their living across the road. Her evidence was that HE went to Queensland with his father permanently in September-October 2001. She said that HE was also not allowed in the bedrooms at her house and she had never walked into the applicant’s room and seen him with HE. The applicant’s mother recalled HE returning to New South Wales at New Year in 2009. She also referred to the address where the applicant lived in Ingleburn. There was also evidence of the complaint made about the applicant in 2009 in which her husband spoke to the applicant’s uncle on the telephone which was on speaker.

28. [29]

    The applicant’s father also gave evidence of a complaint made by HE to his uncle in 2009 and a telephone call with the uncle in which the uncle said it was the first time he had heard about it and he knew nothing.

29. [30]

    The defence case at trial also included documents evidencing the applicant’s address in Ingleburn in 2008 and a tax assessment for the applicant in 2003.

30. [31]

    It is not necessary to summarise the closing addresses except to note that counsel for the applicant emphasised in relation to counts 5, 6 and 7, the third incident, the following matters without attempting to be exhaustive :

    1. (1)

       HE said nothing about the third incident, as well as the first incident, until 2021. The facts would have been fresher in HE’s mind in 2009 at the time of the JIRT interview compared to 2021 and HE confirmed that, in the JIRT interview, he did his best to tell investigators about all the times he was assaulted by the applicant and he did not deliberately leave anything out;

    2. (2)

       Having regard to what HE said in the JIRT interview about the fourth incident being the first time anal penetration occurred, that cannot have occurred during the third incident some years earlier as HE said it did in his recorded evidence. The two versions were said to be irreconcilable and would cause the jury at least to have doubts about counts 6 and 8. Further, if the jury had a reasonable doubt about count 6, they should not be satisfied beyond reasonable doubt about counts 5 and 7 which were said to have occurred during the same incident; and

    3. (3)

       HE did not draw a diagram of the unknown address where the third incident was said by HE to have occurred and there was no evidence to support the assertion that the applicant ever lived at an address in Bradbury other than the address at which the first and second incidents were said to have occurred.

31. [32]

    In relation to the summing up, it is sufficient for present purposes to note that the trial judge:

    1. (1)

       gave directions as to considering each count separately and the fact that the onus was on the Crown to prove each and every count on the indictment beyond reasonable doubt;

    2. (2)

       referred to the importance of the age of the complainant at the time of the relevant conduct given that being under a certain age or between certain ages was an important aspect of the offences charged;

    3. (3)

       noted that, with witnesses, it is not all or nothing and the jury could accept some things a witness said and reject other things and they could be unsure about some things a witness said but more certain of others;

    4. (4)

       directed that the jury was able to bring in different verdicts in relation to different counts if there is a rational reason for doing so and reiterated that it is not all or nothing and that the jury may find that they are more comfortably satisfied in relation to evidence on certain counts rather than others;

    5. (5)

       gave directions concerning the delay between the complaint being raised initially with police in 2009 and the applicant being charged as well as the fact that further allegations were made going beyond what was said in the JIRT interview all of which led to there being difficulties for the applicant in seeking to meet the charges;

    6. (6)

       directed the jury that if they were ultimately not satisfied beyond reasonable doubt in relation to the evidence of a complainant so far as one count was concerned, and particularly if that was because the complainant was not regarded as reliable in relation to that count, they were entitled to take that finding into account in deciding whether they accepted that complainant as a reliable witness in relation to any of the other counts that are relevant to him.

32. [33]

    The trial judge also summarised each party’s case.

33. [34]

    There was no challenge to any relevant part of the summing up at the trial.

34. [35]

    The verdicts relating to the charges concerning HE have been set out in the table at [5] above. The applicant was found not guilty on counts 5, 6 and 7 but guilty on all the other counts concerning HE.

35. [36]

    On 14 December 2023, an aggregate sentence was imposed of 8 years and 3 months commencing on 17 October 2023, with a non-parole period of 5 years and 6 months, in respect of the 13 offences that occurred during the first, second, fourth, fifth and sixth incidents.

The appeal

1. [37]

   A notice of intention to appeal against conviction was apparently filed on the applicant’s behalf on 5 November 2023, before the applicant was sentenced.

2. [38]

   On 3 April 2024, another notice of intention to appeal was filed. That notice ceased to have effect on 3 April 2025, under r 3.1(3) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (the Criminal Appeal Rules).

3. [39]

   On 16 April 2025, a notice of appeal was filed, together with an application for leave to file a notice of appeal after expiry of the filing period. Since the later notice of intention to appeal filed on 3 April 2025 ceased to have effect before 16 April 2025, leave to make the appeal or application for leave to appeal is required under r 3.5(5) of the Criminal Appeal Rules. From the explanation provided by the applicant’s solicitor, it appears that most of the time between February 2024 and 10 April 2025 was taken up with briefing counsel and receiving counsel’s advice and proposed ground of appeal. Thus, there is some explanation for the delay and any delay does not appear to be attributable to anything done or not done by the applicant himself.

4. [40]

   The sole ground of appeal upon which the applicant proposes to rely if leave is granted is:

5. [41]

   As this ground involves a question of mixed law and fact, leave to appeal is also required under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act).

Inconsistent verdicts?

1. [42]

   The applicant’s ground of appeal does not expressly identify which limb of s 6(1) of the Criminal Appeal Act the applicant relies upon. Nonetheless, it appears clear that it is contended the guilty verdicts in respect of counts 1 to 4 and 8 to 16 should be set aside on the basis that they are unreasonable, or cannot be supported, in light of the not guilty verdicts for counts 5 to 7 having regard to the evidence.

2. [43]

   The applicant’s written submissions referred to the principles concerning inconsistent verdicts set out in the authorities. It was observed that the prosecution case in respect of all the counts involving HE very much relied on HE’s evidence as there was no other direct evidence of the matters and no admissions were made by the applicant. The only other evidence of what occurred was said to be in substance the complaint evidence.

3. [44]

   The applicant’s principal submission was that there was nothing in the complaint evidence which provided a rational explanation for the inconsistency of verdicts. The submissions referred to the evidence from HE’s uncle’s partner that HE said on two occasions when HE was about 14 or 15 years old that the applicant had fondled and put his mouth over his penis and vice versa and things like that and this had occurred from when HE was about 8 years old, but there was no mention of anal intercourse. This was submitted to provide some support for the Crown case in relation to counts 1, 2, 3 and 4, of which the applicant was found guilty. It was submitted that this complaint evidence was also consistent with counts 5, 6 and 7 of which the applicant was found not guilty.

4. [45]

   The submissions also referred to the complaint evidence of HE’s mother that, in 2009 before the JIRT interview, HE told her the applicant had molested him and referred to anal and oral intercourse “both ways”, it had started when HE was about six or seven and went on for about 8 years. It was submitted that this applied equally to some of the allegations which the jury accepted, counts 8, 9, 11, 12, 13, 15 and 16, as well as to those which the jury did not accept, including counts 5 and 6.

5. [46]

   Other complaint evidence was referred to in the applicant’s submissions but it was noted that this did not involve evidence of any particular incident.

6. [47]

   The ultimate submission was that, taking the complaint evidence at its highest, it provided some support for both the counts on which the applicant was found guilty as well as those on which he was found not guilty. Thus, the complaint evidence could not explain the different verdicts. Accordingly, it was submitted that there is no rational explanation for the jury having returned verdicts of guilty for counts 1 to 4 and 8 to 16 and not guilty for counts 5, 6 and 7.

7. [48]

   The Crown also identified in its submissions the relevant principles in relation to inconsistent verdicts. It was then submitted that HE’s evidence concerning counts 5, 6 and 7 was materially different from his evidence as to the counts of which he was found guilty in six respects, which may be briefly summarised as follows:

   1. (1)

      there was a lack of specificity as to the location of the third incident, counts 5, 6 and 7;

   2. (2)

      there was a lack of evidence confirming where the applicant was living or that HE was then in New South Wales, at the time of the third incident;

   3. (3)

      in the 2009 JIRT interview HE’s evidence was that he was first anally penetrated in January 2009, count 8, but his evidence at the trial was that anal penetration occurred during the earlier third incident in 2004-2006, count 6;

   4. (4)

      HE did not refer at all to the third incident, counts 5, 6 and 7, or the first incident, counts 1, 2 and 3, when giving his JIRT interview but the first incident did not involve the same tension as between the JIRT interview and the evidence at trial, and there was more specificity as to location and confirmatory evidence in relation to the first incident;

   5. (5)

      there was a lack of specificity and confirmatory evidence of relevant dates or residence in relation to counts 5, 6 and 7 and thus the jury may have experienced a reasonable doubt as to whether HE was aged between 10 and 14 at the relevant time; and

   6. (6)

      a delay warning under s 165B of the Evidence Act 1995 (NSW) was sought and given which focused on the applicant’s inability to provide evidence of where he was living which was most relevant in relation to counts 5, 6 and 7.

8. [49]

   It was also noted that the jury directions in this matter included directions as to separate consideration of each count, the onus and standard of proof as well as a Markuleski direction. [2]

9. [50]

   Finally, it was submitted by the Crown that the verdicts of not guilty in respect of grounds 5, 6 and 7 were not indicative of a want of confidence in HE or a rejection of his evidence but rather indicated that the jury recognised the qualitative difference in the evidence and acted faithfully in accordance with the directions. There were thus said to be rational reasons to explain why the jury was not satisfied to the requisite standard of the applicant’s guilt in respect of counts 5, 6 and 7 and the verdicts were not inconsistent.

10. [51]

    In response, the applicant submitted that the differences identified by the Crown in HE’s evidence concerning counts 5, 6 and 7 which made up the third incident compared to his evidence in relation to the counts on which he was found guilty were not such as to explain the different verdicts. More specifically it was said that the fact that HE did not know the address where the third incident occurred was not surprising given that he had only been to that address twice. As to the lack of a sketch, it was said that HE had not been asked to make a sketch. It was also noted that HE was similarly vague concerning the address in Ingleburn which was relevant to counts 8 to 16 and the nature of the residence there as he was in relation to the address in Bradbury which was relevant to counts 5, 6 and 7.

11. [52]

    The evidence or lack of evidence as to HE’s residence at various times was also said to be not relevantly distinguishable as between counts 5, 6 and 7 and other counts. The fact that the third incident, counts 5, 6 and 7, were not mentioned in the JIRT interview was said not to provide a sufficient explanation for the not guilty verdicts since the first incident, counts 1, 2 and 3, of which the applicant was found guilty were also not mentioned in the JIRT interview.

12. [53]

    As to the uncertainty concerning HE’s age at the time of the third incident, the applicant submitted that the evidence relied on by the Crown was not directed to the date of the incident and, in any event, HE was similarly vague about the date and his age in relation to other counts in respect of which he was found guilty.

13. [54]

    The applicant also submitted that the direction that was given under s 165B of the Evidence Act did not focus on delay in relation to the facts of counts 5, 6 and 7 but rather concerned the Ingleburn address which was said to be the location of the later incidents relating to counts 10 to 16.

14. [55]

    Accordingly, it was submitted that there was no logical or rational explanation to explain the divergence between the verdicts of not guilty in relation to counts 5, 6 and 7, and the guilty verdicts in relation to the other counts and, as a result, it was submitted that the appeal should be allowed.

15. [56]

    The applicable principles relating to whether verdicts are inconsistent so to establish that they are unreasonable, or cannot be supported, having regard to the evidence were not in dispute in the present case and can be briefly stated.

16. [57]

    Where factual inconsistency of the type relied on in this case is raised, the test is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 (MacKenzie) at 366 (Gaudron, Gummow and Kirby JJ).

17. [58]

    The obligation to establish inconsistency of verdicts rests upon the person making the submission: MacKenzie at 368.

18. [59]

    Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) at [34] (McHugh, Gummow and Kirby JJ). Similarly, in addressing a ground raising unreasonable verdicts on the basis of inconsistent verdicts, the enquiry is whether there exists any rational explanation for the acquittals rather than the convictions, other than doubts about the complainant’s credibility: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130] (Simpson J with McClellan CJ at CL and Latham J agreeing); Davis v R [2024] NSWCCA 120 at [121] (Adamson JA, with Price AJA and Garling J agreeing).

19. [60]

    If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted and if there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury: MacKenzie at 367.

20. [61]

    In a criminal appeal, the view may be taken that the jury simply followed the judge’s directions that each count should be considered separately, that all of the ingredients of each count must be proved beyond reasonable doubt and that the evidence of a witness may be accepted in whole or in part: MacKenzie at 367; MFA at [34].

21. [62]

    A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach by the jury to the discharge of its heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others: MFA at [34].

22. [63]

    Finally, respect for the function of juries has led to a general curial reluctance to accept a submission that verdicts are inconsistent in the relevant sense: Mackenzie at 367; MFA at [49] and [51]; Barney v R [2023] NSWCCA 85 at [10] (Kirk JA with N Adams and McNaughton JJ agreeing).

23. [64]

    Applying these principles, in my view, there is a reasonable and logical explanation for why the jury returned verdicts of not guilty on counts 5, 6 and 7 which did not involve the credibility of the complainant, HE, being generally rejected. That explanation involves a number of considerations.

24. [65]

    While it may be accepted, as the applicant submitted, that the complaint evidence did not provide a basis for distinguishing in material respects between counts 5, 6 and 7 and the other counts, the evidence of HE and the supporting or confirmatory evidence in relation to location, dates and whether HE was in New South Wales at the time did.

25. [66]

    In May 2009 when HE gave the JIRT interview the events in question would have been much fresher in his recollection compared to 2021 when he gave his police statement. The events said to have occurred during the second, fourth, fifth and sixth incidents, counts 4, 8, 9, 20, 11, 12, 13, 14, 15 and 16, were described in detail in the JIRT interview but there was no mention of the first incident, counts 1, 2 and 3, or the third incident, counts 5, 6 and 7, during that interview. This was so notwithstanding that the applicant accepted that he had been telling the truth in the JIRT interview and had not deliberately left out anything that that had happened between him and the applicant. The first and third incidents were only mentioned in the recorded evidence from the first trial. While this provides a solid basis for distinguishing between counts 5, 6 and 7 and counts 4, 8, 9, 20, 11, 12, 13, 14, 15 and 16 and explaining why the applicant was acquitted of counts 5, 6 and 7, it does not, by itself, provide a basis for explaining the not guilty verdicts for counts 5, 6 and 7 and the guilty verdicts for counts 1, 2 and 3.

26. [67]

    Counts 1, 2 and 3, as well as counts 4, 8, 9, 20, 11, 12, 13, 14, 15 and 16, were, however, supported by evidence which established or confirmed that HE and the applicant were living where HE said they were and that HE was in New South Wales, at the relevant times. In addition, each of those counts was supported by a sketch or plan of the location where the conduct was said to have occurred. By way of contrast, the evidence in support of the third incident, counts 5, 6 and 7, did not include evidence which confirmed that the applicant lived, at the relevant time, in an unidentified house in Bradbury different from where he lived at the time of the first and second incidents. Nor was there confirmatory evidence that HE was in New South Wales at the relevant time and some of the evidence from HE’s family members indicated to the contrary. In addition, there was no diagram drawn of the location where the third incident was said to have occurred. In this way, the evidence in support of counts 5, 6 and 7 was materially different from that in support of counts 1, 2 and 3, as well as the other counts.

27. [68]

    In addition, HE was significantly younger when the first, second and third incidents are said to have occurred compared to the fourth, fifth and sixth incidents in 2009. The conduct which was the subject of the first and second incidents was consistent with HE’s young age in that it involved less serious engagement in sexual activity than some of the conduct said to have been engaged in during 2009. This could have been accepted by the jury as making the evidence of counts 1, 2 and 3 more inherently credible. The same was not the case in respect of the third incident which was said to have involved the same types of sexual activity as in the fourth, fifth and sixth incidents, despite HE’s younger age.

28. [69]

    The fact that the third incident was not mentioned in the JIRS interview, the different seriousness of the sexual activity alleged and the presence of supporting or confirmatory evidence in respect of counts 1, 2 and 3 and the other counts mentioned in the JIRT interview and the absence of supporting or confirmatory evidence in respect of the third incident, counts 5, 6 and 7, together provide a logical and reasonable basis for accepting HE’s evidence in respect of the first incident and not the third incident, even though neither incident was mentioned in the JIRT interview.

29. [70]

    Furthermore, if the evidence in the JIRT interview was accepted at face value, count 6 during the third incident could not have occurred. In the May 2009 JIRT interview, HE said that during the fourth incident, in about mid-January 2009, the applicant penetrated HE’s anus with his penis going about half way in and “[i]t started to hurt, ‘cause he had never done that before”. This conduct was the subject of count 8. If the applicant had never penetrated HE’s anus before count 8 in 2009, then count 6 cannot have occurred during the third incident in about 2004 to 2006.

30. [71]

    A jury, acting on the trial judge’s directions that they could accept part of what a witness said but reject other parts, could well have accepted HE’s evidence in the JIRT interview concerning count 8 being the first time and rejected his account in the recorded evidence of being anally penetrated in 2004 to 2006 by the applicant, count 6. In addition, if they were not satisfied on this basis that count 6 was proved, this could also have led them rationally to conclude that they had a reasonable doubt about the other counts making up the third incident, counts 5 and 7. The jury could have been confirmed in this view by the fact that:

    1. (1)

       during the JIRT interview, after describing the fourth incident which involved anal penetration, HE was asked whether he could tell the interviewer “when the first time something like this happened with [the applicant]”. In response, HE did not describe the third incident which, based on his recorded evidence, would have been the first time something like this happened; and

    2. (2)

       there was detailed evidence in the JIRT interview of what occurred in relation to the fourth incident, counts 8, 9 and 10, which occurred only four months before the JIRT interview, as well as confirmatory evidence in the JIRT interview and the evidence at trial of the location and HE’s presence in New South Wales. Corresponding evidence was not available in relation to the third incident, counts 5, 6 and 7.

31. [72]

    In relation to counts 1, 2 and 3, there was no similar inconsistency between HE’s evidence in the JIRT interview and his recorded evidence. During the JIRT interview, when asked about “when the first time something like this happened with [the applicant]”, HE described the second incident, when the applicant pulled HE’s pants and underpants down and rubbed his penis between HE’s buttocks without penetrating him, count 4. In its context, the question during the JIRT interview concerning when “something like this” first happened could have been understood to be asking about when “something like” anal penetration first occurred and HE’s response was to describe the second incident and not the first incident, counts 1, 2 and 3. In the JIRT interview, HE was not asked when was “the first time that anything of a sexual nature occurred between [him] and [the applicant]” as he was during the recorded evidence. This latter question during the recorded evidence elicited the evidence about the first incident, which did not involve the buttocks or anus in any way. Thus, there is an explanation for why evidence concerning counts 1, 2 and 3 was not given during the JIRT interview but was given during the recorded evidence. A similar explanation was not available for why evidence of counts 5, 6 and 7 was not given during the JIRT interview.

32. [73]

    The verdicts of not guilty in respect of counts 5, 6 and 7 do not imply in the present case that HE was disbelieved. These verdicts, in my view, reflect a cautious approach by the jury to the discharge of its heavy responsibility taking into account the fact that the third incident was not mentioned in the JIRT interview for which there was no explanation and there was an explanation for why the first incident was not mentioned in the interview. In addition, there was a want of supporting evidence and a lack of detail in respect of counts 5, 6 and 7 which was not so in respect of the other counts of which the applicant was found guilty. Indeed, the evidence in relation to counts 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15 and 16 was compelling.

33. [74]

    For these reasons, there were logical and reasonable explanations for the jury’s verdicts of not guilty on counts 5, 6 and 7, which did not involve rejection of HE’s general credibility. Given the nature and content of the evidence and the circumstances in which it was given, the not guilty and guilty verdicts can be reconciled so as to conclude that the jury performed its functions as required, following the judge’s directions that each count should be considered separately, that all of the elements of each count must be proved beyond reasonable doubt and that the evidence of a witness may be accepted in whole or in part.

34. [75]

    Accordingly, I would reject the applicant’s ground of appeal. Since the matter raised a substantial point, was fully argued and there was some explanation for the delay in filing the notice of appeal, I would grant leave to make the application for leave to appeal out of time and leave to appeal but dismiss the appeal.

Proposed orders

1. [76]

   For these reasons, I propose that the orders of the Court should be:

   1. (1)

      Grant leave to make the application for leave to appeal out of time under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

   2. (2)

      Grant leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW).

   3. (3)

      Dismiss the appeal.

2. [77]

   WEINSTEIN J: I agree with Wright J.

3. [78]

   SWEENEY J: I agree with the orders proposed by Wright J and his Honour’s reasons for those orders. His Honour’s analysis of the evidence in the trial aligns with my assessment of it.