PM v R

1. [1]

   THE COURT: There are statutory prohibitions on the publication of material that might tend to identify the complainant and some of the witnesses in this case. There are criminal sanctions for breaching the prohibitions in those provisions. In these reasons, without meaning disrespect and not intending to depersonalise any of the people involved, the alleged victim is referred to as the complainant or CC, while the applicant and some of the witnesses are referred to by pseudonyms.

2. [2]

   Between 28 October 2024 and 8 November 2024, PM stood trial before the District Court sitting in Dubbo in relation to an indictment charging him with 14 counts alleging that he committed offences of a sexual nature against his stepdaughter. The offences were allegedly committed in or near the small town of Bourke in northwestern New South Wales between June 1997 and June 2005. Two of the 14 counts (counts 12 and 14) were cast in the alternative.

3. [3]

   On 1 November 2024, upon the close of the prosecution case, the trial Judge (Judge Robinson) directed the jury to return verdicts of not guilty in relation to counts 8, 9 and 10. The jury retired to consider its verdicts on the remaining counts at around 3:00pm on Monday 4 November 2024 and at 3:33pm on Wednesday 6 November 2024 returned verdicts of guilty on counts 1, 2 and 3 and verdicts of not guilty on counts 6, 7, 11 and 13. The jury continued to deliberate on the remaining charges and received a majority verdict direction on 7 November 2024. On Friday 8 November 2024 at 10:47am the jury was discharged when it was unable to reach a verdict on counts 4, 5, 12 and 14. The Court was informed that no further proceedings are to be taken in relation to those counts where the jury was unable to agree upon a verdict.

4. [4]

   On 19 December 2024, Judge Robinson sentenced PM to an aggregate term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months. The sentence commenced on the day it was imposed and PM will first become eligible for release to parole no earlier than 18 March 2027, that is, at the expiration of the non-parole period.

5. [5]

   There is no appeal against the sentence, but PM seeks to appeal against the convictions on counts 1, 2 and 3 on the following grounds:

6. [6]

   Because grounds 1 and 2 do not raise a question of law alone, and because ground 3 concerns a matter not raised at the trial, PM requires leave to appeal in respect of each of the grounds: Criminal Appeal Act 1912 (NSW), s 5(1) and Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15.

7. [7]

   In short, under ground 1, counsel for the applicant submitted that the convictions on counts 1, 2 and 3 cannot, or ought not be allowed, to stand with the acquittals on counts 6, 7, 11 and 13 and the failure to reach a unanimous or majority verdict on counts 4, 5, 12 and 14. It was submitted that the mixed verdicts are factually inconsistent and fail the so-called “test of logic and reasonableness”. Under ground 2, the applicant relies on parts of the record of the trial which he submitted ought to have led the jury to entertain a reasonable doubt as to the applicant’s guilt on counts 1, 2 and 3. This includes the fact of the acquittals, evidence suggesting that the applicant did not have the opportunity to commit the offences charged in counts 1, 2 and 3, the applicant’s unguarded yet firm denial of committing the offences in a covertly recorded telephone conversation, and evidence of the applicant’s previous good character. Counsel acknowledged that, in resolving grounds such as these, the Court must always keep in mind the advantages enjoyed by the jury and its “constitutional” role as the arbiter of the facts in serious criminal cases. The third ground of appeal raises a complaint about a specific direction provided in the summing up. That direction exhorts a jury to take into account doubts it has about one or more counts, when considering the other counts. Accordingly, it also has some relevance in determining ground 1.

8. [8]

   Counsel for the respondent submitted that the advantages enjoyed by the jury in the present case were significant and that there were particular aspects of the evidence and the conduct of the trial which meant that the jury, acting logically and reasonably, could reach verdicts of guilty on counts 1-3 while entertaining a reasonable doubt on counts 6, 7, 11 and 13 and being unable to agree on the remaining counts. Counsel pointed to directions provided to the jury, particularly those concerning the substantial forensic disadvantage faced by the applicant in respect of the counts of which he was found not guilty, and parts of the evidence which, it was submitted, distinguished certain counts from others. The respondent relied on a substantial body of “complaint” evidence to submit that the jury was entitled to – and did – find the complainant to be a generally honest witness but, at the same time, to have a reasonable doubt about her accuracy and reliability on the counts of which the applicant was not convicted.

An overview of some relevant legal principles

1. [9]

   In MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Gaudron, Gummow and Kirby JJ said at 365-8 (with footnotes and citations omitted and some more significant passages highlighted):

2. [10]

   The following year, in Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 Gaudron, McHugh and Gummow JJ said at 453:

3. [11]

   On the other hand, in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Gleeson CJ, Hayne and Callinan JJ emphasised the importance of jury directions and the fact that acquittals do not necessarily indicate that a complainant was disbelieved. Their Honours said at [34]:

4. [12]

   McHugh, Gummow and Kirby JJ held that this Court had erred in its approach to the case but considered the underlying ground afresh. Their Honours held at [89] that Jones v The Queen was a “very fact-specific case” and that “[i]ndeed all such cases are highly fact-specific”. At [85]-[86], their Honours reiterated the fundamental principles stated in MacKenzie v The Queen:

5. [13]

   The applicant submitted he has discharged that obligation in the present case. To determine whether he has done so, given the focus in each of those High Court authorities on the “facts of the case”, it is necessary to consider closely the evidence adduced at the trial, the differences in the evidence between the counts, the content and adequacy of the directions provided by the trial Judge and the verdicts themselves. In dealing with the grounds of appeal, we will return to the authorities and refer to some intermediate appellate decisions where these principles have been applied and to the decision in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 where a five member bench of this Court considered the appropriate judicial directions in a case where a jury entertains a doubt about one or more counts on a multi-count indictment.

The 14 counts and associated particulars

1. [14]

   The following table is based substantially on a table annexed to the respondent’s submissions and a document styled “amended charge matrix” which was marked for identification at the trial (MFI 22). An earlier version of MFI 22 (MFI 1) was provided to the jury for a short period on the first day of the trial. The table below sets out briefly the particulars of each count and the outcome of that count at the trial.

The evidence of the complainant

1. [15]

   CC gave evidence on Tuesday 29 October and Wednesday 30 October 2024. As both parties to the appeal acknowledged, the evidence did not emerge in a strictly chronological order and not in the order of the counts on the indictment. This created some confusion and the trial Judge raised a concern about the “matrix” document (MFI 1, see above at [14]) at the first break after the complainant began to give evidence. It was retrieved from the jury by the court officers during the luncheon adjournment. Further, in addition to the counts on the indictment, the complainant also gave evidence of other sexual offences which were not charged.

2. [16]

   Because of the nature of the grounds of appeal, the main focus in the following summary is on those counts on which the jury returned verdicts. The summary will be, more or less, in the order in which the evidence emerged.

3. [17]

   The complainant gave evidence of the various members of her family, that her biological parents are RM and TM and that she was very young when they separated, something she learned about “in later life”. Her earliest memories included that her mother was in a relationship with the applicant who had a daughter from another marriage who is older than her (RB). The applicant and the complainant’s mother lived in different houses but at some stage – she thought in 1995 or 1996 – they moved in together. Her mother had a daughter to the applicant (BM) and the family eventually moved into the house in Anson Street. At that stage she was attending school and believed she was about 10 years old and in year 4. She provided some diagrams of the house (Ex 2), gave evidence setting out the layout of the house, and identified some photographs of the Anson Street home (Ex 3).

4. [18]

   The complainant then gave evidence of the incident that gave rise to the first count on the indictment:

5. [19]

   The complainant was asked to “focus in on the next incident that [she could] remember”. She then provided evidence in relation to the offence charged in count 5. She said this incident occurred when she was 12 years of age and in year 6 at St Ignatius Primary School. She said she came home from school and did not know the whereabouts of her mother or BM but “it would’ve been between 3 and 3.30pm, or 3.30 and 4pm.” The incident occurred in the bedroom at Anson Street. The applicant was on the bed. He picked her up and she “was propped up onto [PM’s] hips.” He removed her underpants and “there had been vaginal penetration” with “his penis.” She said there was a “sharp stinging pain … that burning, stinging on the outside of your skin feeling”. He said “it won’t hurt for long” but she “squirmed off” and went to the bathroom where she noticed there was blood in her underpants. The stinging pain lasted “for the rest of the afternoon into the evening”. She did not tell her mother because “[she] was made to believe that [her] mother would not believe [her] and that [her] dad would get in trouble and get sent to gaol.” That is what the applicant allegedly told her from when she was “very young”.

6. [20]

   The complainant was then asked about “any other … specific incidents occurring at [redacted] Anson Street.” She gave evidence of an incident on a school day when she was in year 6. She got home between 3:00pm and 4:00pm. She didn’t know where her sister or mother were, but the applicant was on the bed in the main bedroom. She described their respective positions and recalled that he spat on his fingers and inserted them into her vagina. She could not recall if he said anything and the incident lasted for a few moments. She said he inserted fingers from his left hand while his right hand was on his penis. The incident came to an end when BM arrived home and was talking to them from the hallway. She said that BM was standing at the doorway while the applicant still had his fingers in her vagina. She said, “there was a blanket covering his hand so that you couldn’t see his hand.”

7. [21]

   After an adjournment, the evidence recommenced with the complainant being asked to mark Ex 2 (the diagram of the Anson Street house) to show where the bathroom was. She said the toilet was separate and in the laundry. The evidence relating to counts 2 and 3 was then elicited as follows:

8. [22]

   A body of evidence relating to uncharged sexual and indecent acts was then adduced which the prosecution relied on to put the incidents alleged in the counts on the indictment in context. Some of the evidence was quite specific and there was an allegation that the applicant masturbated during the incident until he ejaculated, “cleaned himself up with a hankie” and would put Vaseline on her vagina which she was told to get from the second draw in the bathroom. The complainant said she was wearing her primary school summer dress and it was a school day. She described feeling sick afterwards.

9. [23]

   CC was then asked about properties that the applicant worked on. She remembered one was Rossmore Station and the other one was Barrakee Station. She said she visited Barrakee with her mother, stepfather and sister. She described the property and the house in which the family stayed. She identified drawings of the layout of the house (Ex 5) and said that this was the only house on the station. She described the mattress on which she and BM slept.

10. [24]

    She then gave evidence relating to counts 6 and 7:

11. [25]

    The complainant was then asked about other incidents that happened at Anson Street when she was in high school. She described briefly something like four incidents and there was some confusion as to whether they had already been covered and when they occurred. She described an occasion which “involved [her] masturbating him while he masturbated [her]” and another incident of sexual penetration that occurred in the bedroom. She said there was a “separate incident entirely … that occurred on the lounge”.

12. [26]

    The complainant was then asked whether the “lounge” incident occurred after she attended Red Bend Catholic College and she said that it did. She then gave the evidence that was subject to counts 11, 12, 13 and 14:

13. [27]

    The complainant was then asked about the people she had told about the alleged abuse. She gave evidence of conversations she had over the years, starting with a boyfriend she dated when she was 16 or 17 years old (Russell Tiffen), a school friend (AL), a university friend (Kerrie-Anne Maunder) and her “then fiancé” (Nick Sanders). She also told her “longtime best friend” (EM). She said she did not provide many details but told these people she had been sexually abused by her stepfather (or named him). A text message exchange with her sister (BM) was tendered as Ex 6. The complainant said those text messages were the first time she told BM that the abuse was at the hands of the applicant. She told her stepmother (CM) about the sexual assaults in 2020.

14. [28]

    The complainant said she called the applicant and spoke to him for about an hour. He said she should go to the police and that he would sue her for defamation. She then wrote a letter to her mother apologising for hurting her and recounting the conversation she had with the applicant. She never sent the letter and it was tendered, without objection, as Ex 7 and read onto the record:

15. [29]

    Some notes the complainant made to try to record a timeline were marked as MFI 7. Once CC told the police about the accusations, she made a second telephone call to the applicant. This was covertly recorded and the recording was tendered as Ex 8. The applicant made no admissions and denied the allegations. We will set out the full text of the conversation when we summarise the police investigation. The complainant made a police statement but said this was not the first time she had “gone into any specific detail about the incidents that had happened during [her] childhood.” She said she had done that on another occasion.

16. [30]

    The complainant was cross-examined on 30 October 2024. Based only on a close reading of the transcript, she was an articulate and at times combative witness who volunteered information beyond the scope of the question. Those remarks must be considered in light of an observation by the trial Judge at the first break that the “tone” of the cross-examination was “disdainful” and the questions and remarks “on occasions” bordered on sarcastic.

17. [31]

    The complainant was first asked about the family relationships, her schooling, how she and her sister travelled to and from school, and her parents’ jobs and hours of work. She said she often walked to and from school, played when she got home sometimes with her neighbours and, between years 3 and 6, would “often” travel on the bus to and from St Ignatius. She confirmed that “quite often” the applicant and her sister would be home with her after school. She said her mother tended to get home a little later. She agreed that the three would sometimes go to see “the horses”. She agreed that she and BM had chores to do almost every afternoon which were allocated by her mother. When asked who would be at home when she got home from Bourke High School, she said “typically, [the applicant]”.

18. [32]

    She was asked about the stations outside of Bourke where she said the applicant worked as a “station hand”. She refuted the proposition that her parents “owned” Barrakee Station but agreed “they” just worked there. She said Bill Stalley owned Barrakee (which was later confirmed by other witnesses). She agreed they went to Barrakee as a family, but she didn’t like it much and would stay with her grandmother.

19. [33]

    She agreed she went to Hopelands Station with her biological father before she headed to university because she “wanted to go out there to say goodbye” to the applicant.

20. [34]

    She disagreed that she and BM were “inseparable” during childhood but said she “idolised” her older half-sister (RB). She was asked about visits to see RB and her family but did not recall staying with her for a number of weeks. She no longer has contact with RB. Apart from what we infer was a conversation at the Court around the time of the trial, they had not had contact for a number of years. The complainant tried to speak to RB “when [the applicant] was diagnosed with cancer” and last spoke to her when she (the complainant) was “over 21”.

21. [35]

    It was suggested she would be excited when the applicant took them to see the horses but she could not recall, although she agreed she loved horses.

22. [36]

    She said the applicant would leave for work “by 5am” and be home again “by 2pm”. She was unable to say how she knew that because she did not get home until later. Even so, she was firm that he was home from work when she got home and said the work on the stations was hot and so the work was done in the morning and early afternoon. She said it was “possibly” the case that there were times when she was in bed before the applicant got home from work but denied that was “the norm”.

23. [37]

    She said her parents were quite strict and did not approve of her boyfriend Russell Tiffen who she met after she was expelled from Red Bend Catholic College. She agreed she moved to her biological father’s place “because of the friction that had been created by [her] decision to have a relationship with [Mr Tiffen]” but she could not recall the words that were exchanged.

24. [38]

    There was a somewhat tortured exchange about whether her mother and the applicant supported her financially but she agreed they had lent her between $4,000 and $7,000 and at some point declined to lend or advance her money.

25. [39]

    The complainant agreed that, at 17 years of age, she told Mr Tiffen that she hated the applicant but denied that she has hated him ever since that time. She denied that she hated “him now, today”.

26. [40]

    She agreed that she had brought her own children to meet “this man [who] sexually abused [her] a number of times”. She could not remember the number of times and at precisely what ages her children had met with the applicant but agreed on one occasion it was at Hopelands Station (but not Barrakee). She facilitated other contact, telephone and video calls, between her kids and the applicant. She also agreed that the applicant attended her wedding and that she asked him to “give her away” but the applicant suggested her biological father undertake that role.

27. [41]

    The complainant was cross-examined about the people she told about the offences and, generally, agreed she did not provide many details although she told her stepmother (CM) some details over the years. She said she “would have told her” that there were occasions where the sexual abuse was with PM’s fingers and others where it was with his penis. She was challenged on the use of the phrase “would have” and the complainant said, “I would have told her what had happened, the truth.”

28. [42]

    She was challenged about attempts she made to tell her mother (TM) “that [the applicant] had done this horrific sexual abuse to [her] over a number of years” and asserted that she attempted to tell her mother more than once, by email and over the telephone. These attempts occurred before and after the complaint was made to the police. She also said she proposed to meet with her mother “and talk about all of this”. The complainant agreed it was suggested they might meet at the Bourke Bakery or at the park, but said that meeting was to allow her mother to see the children. The complainant was asked whether her mother said “if you’re going to make those allegations about [the applicant] you need to look me in the eye and say it” but said she could not “recall those words.”

29. [43]

    There was a seemingly combative exchange about money that had been advanced by TM and the applicant. The complainant denied she needed money for her mortgage but they had helped her out with her car registration. This exchange culminated in the complainant saying:

30. [44]

    After a short adjournment, Ms Hopper cross-examined the complainant about her knowledge of the applicant’s other children and disputes that she had with one of them and Mr Tiffen’s ex-fiancé. She accepted she had hit both of those women and said she did not know which of the named people were actually the applicant’s children because, on her version of events, he had denied that they were. She was asked about an occasion when both she and the applicant were involved in separate accidents on the same day and were flown, coincidentally, together by air ambulance to Dubbo Hospital. She said she did not remember her accident or what happened and did not remember calling out for the applicant while they were in the hospital.

31. [45]

    After an adjournment during which an application to amend the indictment and an objection was resolved, CC was asked for more details about punching the two women in the incidents referred to in the preceding paragraph and asked more questions about the people to whom she had complained.

32. [46]

    It was put to the complainant that she had never seen the applicant hit her mother and that the couple were affectionate. She did not agree with these propositions although she acknowledged that her “interpretation of affection may not be the same as [theirs].”

33. [47]

    Towards the end of the cross-examination, counsel complied with the rule in Browne v Dunn (1893) 6 R 67. The complainant rebuffed a series of propositions including that the applicant did not sexually assault her, kiss her, speak to her about sex or have sexual intercourse with her.

34. [48]

    During the complainant’s evidence, the Prosecutor indicated the evidence had not fallen precisely as expected and made an application to amend the indictment. The application was opposed but the Prosecutor was permitted to amend the indictment. There is no complaint on appeal as to that decision. The Prosecutor also identified, by way of example and to assist the trial Judge in drafting the directions on the “context” evidence, certain parts of the evidence which disclosed offences but which were not charged in the indictment. This included the allegations where the applicant allegedly used Vaseline in committing the offences.

35. [49]

    While the prosecution case rested substantially on the evidence of the complainant, other evidence was adduced in the prosecution case. Much of this evidence concerned things the complainant told other people after the incidents occurred. The Prosecutor also elicited evidence aimed at establishing that the applicant had the opportunity to commit the offences in the periods averred in the indictment. This included evidence of where the applicant was working and where the family was living. There was also evidence of other aspects of the police investigation such as the use of listening devices calculated to obtain admissions from the applicant.

36. [50]

    AL is around the same age as the complainant. They attended school together and were part of the same circle of friends. AL gave evidence of a conversation she had with the complainant while AL was housesitting for a friend in Anson Street. She could not be “100% sure” when this was, but by reference to her leaving school in 2004, thought it was “somewhere around 2007, early 2007”. AL gave the following evidence:

37. [51]

    When asked whether the complainant had told her anything else, AL said:

38. [52]

    Russell Tiffen started dating the complainant when he was around 20 years old and she was 17 years old. They moved in together after around 8-12 months and the relationship lasted for about 2 years. Mr Tiffen gave evidence that about 8 or 10 months into the relationship they had a conversation at the back of The Port of Bourke Hotel:

39. [53]

    Mr Tiffen said the complainant did not say how old she was at the time of the abuse, or how many times the abuse had happened, and did not provide any detail about where the abuse occurred. She did not raise the subject matter again.

40. [54]

    Nicholas Sanders met the complainant in Armidale in 2008. Within a few months of meeting the two began a relationship which lasted approximately 2 years. Mr Sanders gave evidence that:

41. [55]

    Mr Sanders said that he and the complainant had many conversations after that night where they spoke about having children together and where Mr Sanders raised concerns about having a man like the applicant around his children. However, the complainant did not provide any further details about the abuse.

42. [56]

    EM first met the complainant at Bourke High School in around year 7 or 8 and remained close friends with her. She said the complainant had spoken to her about the applicant more than once and that the first such conversation took place in 2011 on the front step of the veranda at her house in Hope Street:

43. [57]

    EM said the complainant did not, at that time, say when the sexual assault occurred. Shortly after that first conversation, EM and the complainant had a further discussion over the ‘phone. EM gave evidence that the complainant told her about an incident that occurred when the complainant was attending Red Bend Catholic College in Forbes:

44. [58]

    EM also gave evidence about a comment that the complainant made to her sometime after 2018 during “a face-to-face conversation”:

45. [59]

    The Prosecutor returned to the subject of the use of Vaseline a short time later:

46. [60]

    EM said she was present at the doctors and the complainant left and went to sit in the car by herself.

47. [61]

    AH is the complainant’s cousin. They spent time together as children, mostly at their grandmother’s house. As adults, AH and the complainant reconnected when the complainant moved to Tamworth in around 2018. In early 2019, AH and the complainant had a conversation at Sonny’s Bakery in Tamworth:

48. [62]

    When asked if the complainant provided details of the sexual abuse, AH said that they had discussed it in other conversations, but did not give evidence of what the complainant had said.

49. [63]

    Kerrie-Anne Maunder met the complainant in 2007 when they did a bridging course together at the Oorala Centre at the University of New England. Ms Maunder gave evidence that she and the complainant had had a conversation regarding childhood trauma, during which the complainant said, “One day they will hate me for bringing this up”. The complainant did not provide any further details at that time.

50. [64]

    Ms Maunder said that she and the complainant had a further conversation the following week:

51. [65]

    When asked whether the complainant had provided details of the sexual assaults, Ms Maunder said:

52. [66]

    CM is in a relationship with the complainant’s biological father. In 2020, CM stayed overnight at the complainant’s house in Tamworth. She recalled a conversation they had during the visit:

53. [67]

    CM said that the complainant “didn’t go into” the details of the abuse. When she asked the complainant when the abuse began, the complainant “said that she couldn’t pinpoint when it started. But she told [CM] it finished when she moved in with [CM and RM]”.

54. [68]

    RC is the complainant’s husband. He gave evidence about a face-to-face conversation he had with the complainant in Bourke before they moved to Tamworth at the end of 2017:

55. [69]

    The complainant did not provide any further details at that time.

56. [70]

    RC initially said the topic was never raised again. However, he was shown his police statement to refresh his memory and then gave evidence of a further conversation in August or September 2019 in their backyard. He said the complainant disclosed that it was the applicant who was responsible for what happened in her past. However, he said the complainant never provided him with specific details about what happened to her.

57. [71]

    One of the issues at the trial concerned whether the applicant had the opportunity to commit the offences alleged against him. Both parties called evidence relevant to this issue and there was also evidence that records, which may have been relevant, were unable to be located.

58. [72]

    Denise Stalley and her husband Bill used to own a sheep station called Barrakee which is situated on Wanaaring Road about 115 kilometres from Bourke. The couple also owned a station called Rossmore where they lived. The applicant worked on their properties over many years doing “sheep work and repairs and maintenance, [he] did a lot of cementing … for different things, troughs and fencing and whatever”. He was mainly working full-time. Without being critical, the Prosecutor asked Mrs Stalley a leading question as to whether the applicant worked on the properties full-time or part-time “between 1991 and 2004” but the evidence of surrounding events, the passage of time and the unavailability of relevant records made it difficult to establish a precise period of his employment with the Stalleys. Mrs Stalley said the applicant generally worked from 7am until 4pm or 5pm, although he occasionally finished work at around 3pm. She said that Rossmore was about a 20-minute drive (27 km) from Bourke and Barrakee was about 1 to 1.5 hours from Bourke. Mrs Stalley agreed that her husband and the applicant would sometimes spend time together outside of work hours, and that the applicant worked some weekends. She also agreed there was a house on Barrakee where the applicant and his family, including the complainant, could (and did) stay on weekends.

59. [73]

    RB is one of the applicant’s daughters. The Prosecutor called her, asked her name and relationship with the applicant, and asked no further questions. Ultimately, the prosecution case was that RB’s evidence should not be accepted. The substance of the evidence was elicited in cross-examination. In the late 1990s, RB would visit the applicant’s home at Anson Street every week after work at around 4pm or 5pm. She gave evidence that the applicant was never at home when she arrived, and that he did not get there until after dinner which was around 6pm or 7pm, and sometimes 8pm:

60. [74]

    In re-examination, the Prosecutor asked if RB attended the Anson Street home “randomly” and put to her that “we are now talking about some 20 years ago odd?”. RB agreed with both of those propositions.

61. [75]

    BM is another of the applicant’s daughters. She lived with the complainant, TM and the applicant as the two girls were growing up. She was a few years younger than the complainant and was the couple’s biological daughter. She gave evidence that in 1997 she and the complainant would finish primary school a little after 3pm and would either catch the bus home or be picked up by their mother. She was asked who would be at the Anson Street home after school and she said either her and the complainant, or the two of them and “mum”. Her father did not get home before the complainant and BM, and when asked directly “never?” she said “no”. When the complainant attended Bourke High School from year 7 to 9, BM said that she and the complainant would meet up after school and go home together. Her evidence was that she and the complainant were always the first to arrive home, and that they always arrived together. She said that the applicant was “never home before us”.

62. [76]

    BM initially denied that the complainant told her that she had been sexually abused by the applicant. However, she was shown an exchange of text messages between her and the complainant (Ex 6) in which BM had written “Because you once told me you were sexually abused”. However, BM maintained that although the complainant told her that something had happened to her as a child, “she has never named my father as the sexual abuser”.

63. [77]

    The Prosecutor was granted leave to cross-examine BM and she conceded that she asked the complainant (by text message) if her disclosure had “anything to do with dad?”. The complainant had confirmed that it did. While BM acknowledged that the complainant “used the word ‘dad’” she maintained that it was unclear whether this was a reference to the applicant because the complainant “referred to both her fathers as dad”, that being the applicant and her biological father.

64. [78]

    BM also gave evidence that the applicant would leave for work before the sun came up. She said she would have coffee with him before he left “every morning”. However, when pressed by the Prosecutor, she conceded that there were “very rare” occasions when her father was up but she was not.

65. [79]

    The Prosecutor confirmed at the end of cross-examination that the effect of BM’s evidence was that “there was no opportunity for the accused of being home, before [TM] got home.” BM was pressed about the passage of time – 20 years – and it was put to her that she could not have a “categorical memory of every single day, 20 years ago” and she replied:

66. [80]

    Ms Hopper, counsel for the applicant, cross-examined BM about the time spent at Barrakee. This included eliciting evidence about the layout and facilities in the house on Barrakee and the fact that the applicant also worked at Hopelands, a station on the same road, which she said the family also visited when her father was working there. BM said the complainant stopped going to the station(s) at some point which she estimated to be “probably around when she was 11, ten maybe.” Over objection, BM was cross-examined to establish that the complainant had four children and she had brought them to the Anson Street house where the applicant was living.

67. [81]

    Counsel also asked questions about whether BM “loved” her sister, something she had asserted in cross-examination by the Prosecutor. This provoked re-examination about text messages between the sisters after the complainant raised her allegations against the applicant. In those messages, BM wrote:

68. [82]

    These messages were “after 2019” but “before 2023” and BM said “emotions were very high between us.”

69. [83]

    Detective Senior Constable Whatler gave evidence that she took charge of the investigation in August 2022 and the complainant made a police statement on 15 August 2022. She approached the applicant’s wife (TM) who did not provide a statement and said she had little memory of dates. DSC Whatler confirmed she arranged to lawfully record a conversation between the complainant and the applicant. This “pretext call” was made on 7 December 2022 when the applicant was unaware of police involvement and did not know the call was being recorded. The recording was played and tendered during the complainant’s evidence. The transcript was MFI 8 and in the following terms:

70. [84]

    The officer also confirmed that the applicant had never been charged with offences of a sexual nature.

Directed verdicts of not guilty

1. [85]

   On 1 November 2024, following the close of the prosecution case, Ms Hopper made an application that the jury be directed to return verdicts of not guilty in respect of counts 8, 9 and 10. The Prosecutor did not oppose that application and asked to put on the record her reasons for taking that position in respect of each count. Put briefly, those reasons were:

2. [86]

   The trial Judge accepted these concessions, and observed that “there’s a real danger in the jury trying to find evidence that might support a particular count”. Her Honour provided brief reasons for accepting that there was insufficient evidence capable of establishing beyond reasonable doubt the allegations in counts 8, 9 and 10. Her Honour noted the fact that the prosecution relied on “effectively, ongoing uncharged sexual misconduct” and “opened its case on the basis of a number of specific incidents” each attaching to a particular count on the indictment. Her Honour found that the complainant’s evidence “did not appear to address all of the counts, and in fact, did not provide all particulars consistent with the way the [Prosecutor] had opened.” Her Honour recounted the particulars by reference to the opening and the “matrix” document which had, by then, been withdrawn from the jury. Her Honour concluded there was “no prima facie case in support” of counts 8, 9 and 10.

3. [87]

   Accordingly, at her Honour’s direction, the jury returned a verdict of not guilty to counts 8, 9 and 10 on Friday 1 November 2024 at 10:10am.

4. [88]

   We note in passing that, because of the bases upon which these verdicts were directed, those verdicts do not inform to any great extent a proper consideration of the grounds of appeal advanced.

The applicant’s case at trial and the evidence of his wife

1. [89]

   The applicant’s case, as put in the cross-examination of the complainant, comprised a complete denial of any sexual wrongdoing towards the complainant. This was reflected in his responses to the complainant in an earlier telephone conversation and in the pretext call (MFI 8). He relied on these responses and did not give evidence at the trial. However, his wife gave evidence which raised questions about whether the applicant had the opportunity to commit the offences, and which highlighted the forensic difficulties her husband faced in defending himself against allegations relating to events so long ago. She was cross-examined robustly and the Prosecutor questioned her impartiality and emphasised the implausibility that, 20 years after the events, she could rule out the possibility that the applicant and the complainant were alone together at the time of the alleged offences.

2. [90]

   TM is the applicant’s wife and the complainant’s biological mother. She was the only witness called by the applicant and her evidence traversed several topics.

3. [91]

   TM confirmed that the complainant was born in 1987 and that her relationship with the complainant’s biological father, RM ended in August or September 1988. Soon thereafter she commenced a relationship with the applicant and their daughter, BM, was born in 1990. She said they lived in various houses (including another house in Anson Street) before purchasing the house in Anson Street (where many of the offences allegedly occurred) in 1997.

4. [92]

   The complainant commenced kindergarten in 1992 at Bourke Public School, moved to St Ignatius Primary School in 1995 (year 2) and attended Bourke High School in 2000 (year 7). She was at Bourke High School for years 7, 8 and 9 and then went to Red Bend Catholic College where she boarded in 2003 (year 10). She was expelled in year 11, and returned home until she moved out to live “with [RM] a few months later”. She returned to Bourke High School in year 12 but only completed the first term.

5. [93]

   TM gave evidence of her employment and that of her husband during the relevant period. The applicant worked as a “contract musterer” at various properties outside of Bourke and left home very early to start work at 7:00am; “he was gone dark time because he had to travel”. He rarely got home before dark and when he finished work he went for a drink. TM worked in childcare in Bourke up until the year 2000 when she took a job with the Bourke Mobile Children’s Service where she worked for 2½ years before taking a position at the Exhibition Centre (presumably in Bourke). She gave evidence that she moved out to Hopelands at (or near) Wanaaring in 2006.

6. [94]

   In effect, TM’s evidence was that the applicant was not alone with the complainant during the relevant periods because of his work hours and because she would collect the children from school and be with them before the applicant returned from work. She also said the complainant and BM were very close and always together and would walk home from school together. Otherwise, TM’s parents would look after the children. TM was asked if she “ever” came home to find the applicant at home with BM and the complainant and she said “no”.

7. [95]

   She also gave evidence relevant to the relationship of the complainant and the applicant after the offending but before the complaint was made to police. For example, she identified the applicant with the complainant or her children in photographs taken around Christmas of 2015 (Ex 9-12) and spoke of the complainant’s wedding when she asked the applicant to “give [the complainant] away”. She said she and the applicant saw the grandkids “every week” until they moved away in 2017. She testified to a fall or accident the complainant had in Bourke which resulted in her admission to hospital and being “airlifted to Dubbo Base Hospital”. The applicant also had an accident on that day and the pair were airlifted on the same ‘plane. When TM visited the pair in Dubbo, the complainant asked her “how dad was”.

8. [96]

   TM gave evidence about the deterioration of her relationship with her daughter. She said there were problems with money which the complainant did not pay back and TM subsequently refused to lend her more money. When it emerged that the complainant was making allegations against somebody in the family, TM demanded “if you’re making allegations about anyone in this household you need to say it to me, to my face.” According to TM, they were to meet at the Bourke Bakery but the complainant did not attend the meeting. TM and the complainant last spoke in November 2022.

9. [97]

   TM also gave evidence of her attempts to obtain employment records for her husband to establish where he was working and his hours of work during the relevant periods.

10. [98]

    The Prosecutor cross-examined TM forcefully but relatively briefly. TM was challenged as to her truthfulness and it was suggested, at least implicitly, that her evidence was biased in favour of her husband.

11. [99]

    TM agreed her husband was “very good to the kids” and there was no reason that he would not be alone with the complainant. It was put to her that “you don’t have a memory of every single day between 1997 and 1999”. TM agreed with this proposition. However, she maintained that she was “overprotective” and that had the applicant been alone with the complainant she “would’ve known.”

12. [100]

    There was cross-examination about how the children got home from school and why they could not just walk given the school was just across the road from home. The witness maintained she would pick them up and walk with them or, if she was not available, her parents would do so. This part of the cross-examination included the following exchange:

13. [101]

    There was then cross-examination about the period when TM was working with the Mobile Children’s Service and required at times to drive 200km out of town, arriving home much later, and the period between 2000 and 2002 when the complainant had started high school. Again, the exchanges became testy:

14. [102]

    These passages are reasonably representative of a terse cross-examination of a somewhat argumentative and dogmatic witness. At one point, the trial Judge disallowed questions about the witness declining to make a police statement and her subjective opinion about whether her evidence was important.

15. [103]

    TM’s evidence assumed some importance on the appeal because the applicant relied on it with respect to ground 2 and the respondent submitted in addressing grounds 1 and 2 that it was open to the jury to reject TM’s evidence as implausible. It was also important more generally because it informed the jury directions concerning the “significant forensic disadvantage” suffered by the applicant in defending himself against allegations concerning events dating back some 25 years.

Relevant jury directions

1. [104]

   The authorities emphasise that in evaluating submissions like those raised under grounds 1 and 2, the appellate court must consider the directions the jury received. In this case, with one important exception which is the basis of ground 3, no criticism was made on appeal of the directions provided either in writing or in the summing up. It is not necessary to set out in full many of the directions, most of which were orthodox or in accordance with relevant statutory provisions. It is also unnecessary for the most part to repeat her Honour’s explanation of the elements of the offences.

2. [105]

   The trial Judge gave the jury standard but firm directions as to the onus and standard of proof. These were repeated on a number of occasions. Her Honour reminded the jury on something like 30 occasions that the charges and the elements of the offences had to be established “beyond reasonable doubt”. This was both in the context of the general directions on the onus of proof and in explaining the elements of the individual offences.

3. [106]

   As to the elements of the offences, the trial Judge provided the jury with written directions (MFI 23) which set out both the elements of each of the offences and related concepts such as “assault” and “indecent”.

4. [107]

   Her Honour told the jury that each count on the indictment needed to be proved beyond reasonable doubt and that each count was to be considered separately. Given the content of the arguments under ground 1, it is worth setting out the whole of the relevant direction:

5. [108]

   MFI 23 commenced with the words, emboldened, “You must consider each count and the evidence available to support it separately.”

6. [109]

   Her Honour followed that “separate consideration” direction with a direction that has come to be known in New South Wales as a “Markuleski direction”: R v Markuleski at [185]-[191]. This is the direction of which complaint was made under ground 3 and was as follows:

7. [110]

   The trial Judge reminded the jury of the motive(s) in the complainant to lie that were advanced by the applicant but explained that an accused person is not required to establish a motive to lie in a witness or complainant. Her Honour directed the jury in accordance with the important judgment of Sperling J in the case of R v Jovanovic (1997) 42 NSWLR 520 at 542. The trial Judge explained:

8. [111]

   There were several directions required by statute which explained to the jury that the credibility of the complainant was not necessarily diminished by the delay in complaint or because her conduct after the assaults might be considered at first blush to be counter-intuitive (our phrase). These included things quite properly advanced by Ms Hopper at the trial such as the complainant maintaining contact with the applicant, facilitating contact between the alleged perpetrator and her own children, and inviting him to attend her wedding.

9. [112]

   Her Honour explained that inconsistency in account and inability to recall specific details may not impact on the credibility of the complainant. She explained that “trauma may affect people differently and may affect how they recall events”. That direction was balanced by a direction that it was for the jury to decide whether any differences in the complainant’s account were important “in assessing her truthfulness and reliability.”

10. [113]

    A direction which had some prominence on the hearing of the appeal was the direction relating to the applicant suffering a forensic disadvantage in defending himself so long after the events said to give rise to the allegations. That direction was subject to discussion at the trial and was given in the following terms:

Consideration: the grounds of appeal and the reasonableness of the verdicts

1. [114]

   While the applicant’s grounds of appeal raise discrete issues, there is a connexion between them. Ground 1 (the asserted factual inconsistency in the verdicts) is a species of a general ground that the guilty verdicts on counts 1, 2 and 3 were unreasonable. Further, in developing the argument under ground 2, the applicant relies on the not guilty verdicts on counts 6, 7, 11 and 13 and the failure of the jury to agree on its verdicts on counts 4, 5, 12 and 14. Ground 3, the complaint about the failure to give a “full” Markuleski direction is relevant to a consideration of ground 1. As Spigelman CJ said in R v Markuleski at [185]-[186]:

2. [115]

   In reaching a conclusion as to grounds 1 and 2, each member of the Court has undertaken their own independent assessment of the whole of the record of the trial in accordance with well established High Court authority.

3. [116]

   We have set out the direction provided by the trial Judge at [109]. Following the passage from R v Markuleski set out above at [114], Spigelman CJ went on to provide some guidance as to the kinds of directions that may be appropriate depending on the circumstances of the case:

4. [117]

   It will be seen that at [188] his Honour referred to “the truthfulness or reliability” (our emphasis) of a complainant’s evidence, thus distinguishing between those matters. It was also posited that it may be appropriate to direct the jury that it might conclude that there was nothing to distinguish the evidence of the complainant on one count from the evidence she gave on the other counts.

5. [118]

   The direction in the present case only addressed the complainant’s “reliability” and failed to refer to her truthfulness or honesty. Given the complainant’s truthfulness was put in issue in relation to several matters, it would have been preferable to emphasise that matter rather than focusing exclusively on “reliability”. However, in the way the case was conducted, and given the addresses and the balance of the summing up, the jury would have understood clearly that any doubt it felt about the complainant’s honesty in relation to one allegation would have to be considered in relation to its findings on the other counts.

6. [119]

   Similarly, it may have been preferable to direct the jury in accordance with Spigelman CJ’s suggested direction at [189] although that direction would require modification to reflect the circumstances of the case because there were some distinctions in the evidence relating to the various counts. Similarly, the direction following on from that – a modified form of the suggested direction in [190] – would have emphasised the need to apply consistent reasoning across all counts given the similarities in the evidence relating to each.

7. [120]

   However, counsel at trial was plainly satisfied that, in the atmosphere of the trial and in view of the issues before the jury, the direction was sufficient. Spigelman CJ made it clear in R v Markuleski that the kinds of directions his Honour suggested were not prescriptive and that the form and terms of the direction would turn on the facts and circumstances of the case. While accepting that the direction could have been more detailed and directed, we would not grant leave to appeal on ground 3 alone.

8. [121]

   However, the substance and terms of the direction remains relevant to a determination of grounds 1 and 2.

9. [122]

   In R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151, Simpson J said at [128]:

10. [123]

    However, in Saunders v R [2022] NSWCCA 273 Hamill J emphasised “this generally is the correct approach. However, it is not an absolute rule. Nor is it the end of the inquiry.” Simpson JA herself at [107] and Ierace J at [133] agreed with those additional observations.

11. [124]

    Simpson J also stressed in R v TK that the inquiry is not limited to the evidence itself and “may also permit examination of circumstances that give ‘insight’ (Mackenzie), to the extent that is permissible, into the jury’s thinking.” R v TK involved a jury which was far from “as inscrutable as the Sphynx”, [3] and the inquiry on appeal into the mixture of verdicts included consideration of the many notes and communications concerning the deliberations which emanated from the jury room.

12. [125]

    Insight may also be gained from the fact that the jury was unable to reach a unanimous or majority verdict in relation to a number of other counts: see, for example, Dabboul v R (2019) 100 NSWLR 682; [2019] NSWCCA 191 at [226]-[230] (Bathurst CJ) and [316]-[319] (Hamill J). However, as the judgments in Dabboul v R show, considering the failure of a jury to reach unanimity is a task to be undertaken with considerable care. In the present case it provides some insight into the fact that the jury appears not to have reached compromise by a kind of impermissible horse-trading as to the counts on which it would convict or acquit.

13. [126]

    Whatever insight might be gleaned from material outside of the evidence itself and the directions provided in the summing up, it is not permissible for an intermediate appellate court to engage in speculation: Dabboul v R at [315].

14. [127]

    The only difference between the terms of count 11 and those of the alternative count 12 was the age of the complainant. Count 11 required the jury to be satisfied beyond reasonable doubt that the complainant was aged 16 years, while count 12 required that she be aged 17 years. The same distinction applied to counts 13 and 14. When the inability to reach verdicts on the alternative counts (count 12 and 14) is taken into account, it is very likely that the acquittals on counts 11 and 13 resulted from the jury reaching the unanimous conclusion that the evidence did not establish that the complainant was under 17 at the time of the relevant events. The discharge of the jury without verdicts on counts 12 and 14 establishes no more than that an unknown number of jurors (more than 1) had a reasonable doubt about the proof of one or more of the elements of the offence(s).

15. [128]

    In short, little insight can be gained from the outcomes on counts 11, 12, 13 and 14. On this, the parties seemed to be in general agreement.

16. [129]

    Similarly, but for different reasons, little insight can be gained from the verdicts on counts 8, 9 and 10 which were delivered on the trial Judge’s direction following her Honour’s acceptance of the joint submission of the parties that the evidence was not capable of establishing the elements of those offences beyond reasonable doubt.

17. [130]

    The reason that the prosecution case failed on those counts was because of the possibility that the evidence (if there was any) relating to the specific allegations concerning counts 8, 9 and 10 was conflated with the evidence of uncharged acts. It was impossible for the evidence to be disentangled. This did not reflect on the honesty of the complainant but resulted from her giving evidence of what she alleged was an ongoing course of sexual misconduct going back many years.

18. [131]

    Counts 6 and 7 related to events alleged to have taken place at Barrakee Station whereas counts 1-5 allegedly occurred at the Anson Street house.

19. [132]

    It cannot be said that there was any discernible difference in the detail and specificity of the complainant’s evidence as to what occurred in counts 1-3 as compared to counts 6 and 7 and she did not show any particular “uncertainty as to matters of detail” when she testified to the events in counts 6 and 7: cf MFA v The Queen at [34]. Nor, on a reading of the transcript, did the complainant demonstrate “uncertainty as to matters of detail” or “a faulty recollection” when she gave evidence about the events underlying counts 6 and 7: ibid.

20. [133]

    On the other hand, there were differences of substance in the evidence of opportunity as between the alleged offences at Anson Street and those arising from visits to Barrakee.

21. [134]

    The evidentiary dispute concerning when the applicant arrived home from work during the period of counts 1-3 was stark. The complainant was steadfast in saying that there were many occasions when the applicant arrived home by the time she got home from school. Her mother’s evidence, and that of BM, was equally firm. Each of these three witnesses was cross-examined forcefully about their evidence on this subject. It was open to the jury to find the strident nature of the evidence given by the complainant’s mother and sister to be somewhat implausible. Each provided absolute testimony that the applicant never arrived home before the complainant or that the two young girls were always together after school. We accept the respondent’s submission that some of this evidence was so unqualified that the jury was entitled to reject it. By contrast, the complainant made concessions that there were occasions when the applicant would leave before dawn and not return until after she had gone to bed.

22. [135]

    The evidence going to the applicant’s opportunity to commit the offences at Barrakee Station was somewhat more nuanced. It included the mother’s evidence and that of the complainant, each of whom was somewhat tendentious in their evidence and each of whom was cross-examined vigorously. However, there was also evidence from the owner of the station (Mrs Stalley) which appeared to be provided from a position of disinterest. While her evidence about visits from the family, including the complainant and the applicant, allowed for the opportunity to commit the offences, those opportunities were less frequent and the direction concerning forensic disadvantage somewhat more pertinent to those counts.

23. [136]

    The failure of the jury to reach verdicts on counts 4 and 5 is more difficult to explain in the light of the convictions on counts 1, 2 and 3 but the jury may have considered the evidence in relation to those latter counts to be somewhat bereft of detail and that it was given non-sequentially, if not chaotically. In the circumstances of this case, it would not be appropriate to make too much of the failure of the jury to reach unanimous or majority verdicts. To do so would be to engage in inappropriate speculation.

24. [137]

    The final thing that should be observed is that the guilty verdicts related to the first three counts on the indictment and related to the offences which occurred in the early stages. This may suggest that the jury found the complainant’s evidence on those counts to be more convincing and certain and less likely to be affected by the vagaries of memory of the kind that led to the directed verdicts on counts 8, 9 and 10.

25. [138]

    There is nothing in the record of the trial that suggests the jury compromised or reached some improper deal to convict on some counts but not on others when, in fact, it was unable to reach a unanimous verdict. As we have said, the failure to reach either unanimous or majority verdicts on a number of counts suggests that the contrary is true. Where unanimity could not be reached, the jury indicated as much and did not return verdicts.

26. [139]

    We cannot say that ground 1 is easy to resolve. This is not a case where there is an obvious or compelling reason for the mixed verdicts.

27. [140]

    However, there is no suggestion of improper compromise in the verdicts and there were some, albeit subtle, differences in the evidence relating to counts 1-3.

28. [141]

    Further, the complainant’s evidence more generally received some support in the body of complaint evidence. There was a particular aspect of that evidence which, in our assessment, strongly supported her credibility. In evidence that was ultimately left to the jury as evidence of context concerning uncharged criminal acts, the complainant described the use of Vaseline to facilitate penetration of her genitalia either by use of the applicant finger(s) or penis. EM gave evidence, reproduced above at [56]-[60] which provided support for the allegation of the use of Vaseline for this purpose. EM was present when the complainant had an immediate and visceral reaction when medical staff used Vaseline in treating her son for an “emergency circumcision”.

29. [142]

    While this evidence did not relate to a specific count on the indictment, the complainant’s reaction and EM’s description provided what the jury may have considered to be cogent support for the complainant’s general allegation of sexual abuse. It was an unusual detail for one person to fabricate, let alone two.

30. [143]

    It was open to the jury, in the sense used by the High Court in cases such as MFA v The Queen and M v The Queen (1994) 181 CLR 487; [1994] HCA 63 to find that the complainant was a generally honest and credible witness. It was also open to accept her evidence (beyond reasonable doubt) over the evidence given by her mother and sister.

31. [144]

    While the reasons for the different verdicts do not jump off the pages of the record, it may be that the jury, as articulated in MFA v The Queen took “a cautious approach to the discharge of a heavy responsibility” and “drew back” from convicting on those counts where the evidence did not receive some form of support or was less certain in terms of surrounding detail.

32. [145]

    The applicant has not discharged its onus of establishing that the verdicts fail the test of logic and reasonableness. We would not uphold ground 1.

33. [146]

    The task to be undertaken by this Court under a ground asserting that a jury verdict is unreasonable is well-established: see, for example, Morris v The Queen (1987) 163 CLR 454 at 472-4; [1987] HCA 50, M v The Queen at 493-5, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123 especially at 164-6; [2020] HCA 12, Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 and The King v ZT [2025] HCA 9; (2025) 99 ALJR 676, for example at [21], [56] and [89].

34. [147]

    As we have said, this was a case where the advantages enjoyed by the jury were considerable. This included not only the opportunity to see and hear the controversial witnesses live as they gave their evidence but also resided in the requirement for unanimity and the opportunity for collective discussion in the privacy of the jury room. On the other hand, the mixture of verdicts and the acquittals on counts 6 and 7, means that the observation made in Pell v The Queen at [39] – that the analysis “proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable” – may not be as significant as in a case where guilty verdicts are returned on all counts or on the vast majority of counts.

35. [148]

    The jury received appropriate directions concerning the use of the applicant’s previous good character and we have taken into account the evidence that he had not previously been charged with sexual offences.

36. [149]

    We have each carefully reviewed the evidence given by TM and BM concerning the applicant’s opportunity to commit the offences at Anson Street. Each of us has concluded, as we indicated earlier, that it was open to the jury to reject that evidence. In reaching factual conclusions as to the stark conflict in the evidence of opportunity to commit the offences charged in counts 1, 2 and 3, the advantages enjoyed by the jury were manifest and substantial. Aspects of the evidence of TM and BM were, as the respondent submitted, implausible.

37. [150]

    We have kept in mind that the prosecution case was almost entirely dependent on the evidence of the complainant and paid close attention to the contents of the pretext call in which the applicant firmly denied any sexual wrongdoing.

38. [151]

    Against that, the body of complaint evidence provided support for CC’s general allegation that the applicant sexually assaulted her during her childhood. The evidence of EM concerning the complainant’s reaction when doctors used Vaseline to treat her son is of some potency.

39. [152]

    We have taken into account the powerful submissions made by Ms Hopper in her address to the jury at trial and the submissions made by Mr Stratton SC and Ms Hopper in their careful submissions to this Court.

40. [153]

    Insofar as one can tell from reading a transcript, the complainant presented as a forthright and convincing witness. Where there were deficiencies in her evidence when it came to detail, these were brought to the attention of the jury in a forceful and persuasive way by counsel appearing at the trial.

41. [154]

    Having reviewed the whole of the evidence, we are not left with a reasonable doubt as to the guilt of the applicant. While the mixture of verdicts is not easy to reconcile, it was open to the jury to distinguish between the counts and to give the applicant the benefit of the doubt on some counts, while convicting on the first three counts on the indictment.

42. [155]

    We dealt with ground 3 at [116]-[121] and set out the direction provided to the jury at [109]. As we said earlier, it may have been preferable for the trial Judge to have provided the jury with a “full” Markuleski direction which focused on the fact that each count depended on the complainant’s evidence, and on her truthfulness, and on the fact that it may be difficult to justify a verdict of not guilty on one count (based on not believing the complainant) but guilty on other counts.

43. [156]

    However, in the atmosphere of the trial, counsel did not consider it necessary to ask for any direction beyond that which was provided. That is not surprising when it was self-evident that the prosecution case on every count was dependent on the word of a single witness.

44. [157]

    While we have taken into account the asserted deficiencies of the direction in considering the inconsistent verdicts ground, we would not grant leave to argue ground 3 as an independent ground of appeal.

Conclusion and orders

1. [158]

   For those reasons, the Court makes the following orders:

   1. (1)

      Grant leave to appeal under grounds 1 and 2.

   2. (2)

      Refuse leave to appeal under ground 3.

   3. (3)

      Dismiss the appeal.