2 Like Lasry AJA, I have concluded that leave to appeal should be granted, but the appeal dismissed. I respectfully agree with the reasons which his Honour gives for rejecting the ground of appeal. I would add the following only by way of elaboration.

3 Complaints of inconsistent verdicts are advanced in this Court with some frequency, particularly in cases of sexual offences. The complaint rarely succeeds. This is hardly surprising, in my view, given that success on the inconsistency ground involves persuading the appellate court that no logical or rational basis can be found for reconciling the verdicts in question. Put another way, it must be shown that no reasonable jury, applying their minds properly to the facts of a case, could have arrived at those (differential) verdicts.

4 As counsel for the applicant acknowledged, appellate courts have consistently expressed reluctance to come to such a conclusion.[1] As the High Court explained in MacKenzie v The Queen, that reluctance reflects both 'respect for the function which the law assigns to juries (and the general satisfaction with their performance)'.[2] Experience shows that juries take their role very seriously, discharge their duty conscientiously, and - relevantly - follow directions to consider each count separately.[3] The present case was no exception. As Priest JA has pointed out, more than once in the course of their deliberations the jury asked the judge pertinent questions about the central issue of consent.[4]

5 As a result, if there is some evidence sufficient to sustain the difference in verdicts, the Court is not inclined to substitute its own view for that of the jury. I would respectfully adopt, as applicable to the present case, what was said by Weinberg, Mandie and Bongiorno JJA in their joint judgment in Goldsmith v The Queen, as follows:

A court should ordinarily be loath to find that members of a jury have willingly foresworn their oaths and arrived at their verdict on the basis of compromise, rather than the evidence led at trial. There may be occasions when that is the only conclusion that can be reached. However, this is not one of them.[5]

6 I agree with Lasry AJA that there was a perfectly sufficient basis in the evidence for the jury to be satisfied beyond reasonable doubt that charge 1 had been proved and, at the same time, to fail to be satisfied to that standard that either charge 2 or charge 3 had been proved. What clearly distinguished the conduct underpinning charge 1 from the subsequent conduct was that, when the touching on the vagina described by the complainant ('the first touching') occurred, the complainant had not said or done anything to suggest that she was or might be consenting.

7 At most, on the applicant's account, he had identified himself. The uncontradicted evidence of the complainant was that the applicant had woken her, and that the touching had occurred without warning, and wholly without invitation or consent from her. For his part, the applicant could not recall whether he had touched the complainant on the vagina at this point of their encounter.[6]

8 The evidence was much more equivocal regarding the circumstances of the vaginal penetration which founded charge 2. On the applicant's version, as Lasry AJA points out, the act of penetration was preceded by a conversation - initiated by the complainant - in which she voiced doubts about whether it was right for them to have sex together given that each had a partner. Although the complainant did not recall that conversation, there was evidence that she had mentioned to a friend the following morning that she had initiated such a conversation.

9 In my opinion, it was well open to the jury, acting reasonably, to view that circumstance, and the fact that sexual intercourse subsequently took place, as raising a doubt about whether - in respect of charge 2 - the prosecution had proved absence of consent and absence of belief in consent. For the jury to conclude that there was no basis for the applicant to believe that the initial sexual contact was consensual, but not to be so satisfied in relation to the subsequent sexual activity, was logical and reasonable in the circumstances.

10 Accepting that the later interaction between the complainant and the applicant - both physical and verbal - apparently raised questions in the minds of the jury about the complainant's consent to the later acts and/or the applicant's belief in her consent, it does not follow that they ought to have had similar doubts in relation to the first touching. Counsel for the Director drew attention to the statements by the applicant in his record of interview that he had 'started to make advances' at the complainant, which he described as 'instigating'. After the conversation about their respective partners, he said, he had 'persisted to make advances at her'. It was well open to the jury to view this statement as meaning that, after the first non-consensual touching, he had persisted until - at least as he perceived it - the complainant consented.

11 Non-consensual sexual touching, whether intended to convey to the other person an interest in sexual activity or to ascertain whether the other person has an interest in sexual activity (or both), remains non-consensual even if consent is given to subsequent sexual activity. The subsequent giving of consent - if it occurs - cannot retrospectively alter the non-consensual character of the first touching. To put it bluntly, it is unlawful to engage in non-consensual sexual touching in order to 'instigate' sexual activity, or 'make advances' to another person.

12 Finally, I note that counsel for the applicant placed considerable reliance on what he submitted was an important 'concession' made by the complainant under cross-examination. As appears from the judgment of Priest JA,[7] the complainant's evidence-in-chief was that, at the time of the first touching, she did not know the identity of the person who had got into bed with her.

13 Under cross-examination the complainant gave the following answers:

In terms of your first statement to police which you have told us that you have read before giving your evidence here today, you say in that statement that you see someone walk in the room and even though all the lights were on you couldn't see who it was, it was just a figure?Yes.

Do you agree with that? Yes.

And that at one point you recall that Andrew was in the bed next to you?Yes.

Is that right?Yes.

That is prior to any kind of physical activity occurring between the two of you?Yes.

At the time that you realised Andrew was in the bed next to you, you were aware that you were naked?Yes.

The light was still on?Yes.

At that point in time you didn't say anything to him, did you?No.

Indeed Andrew told you that it was him when he got into the bed?No, I don't remember that.

Therein lies the difference. There are two different propositions in that answer so this is what I want you to think about. Is your answer either no, he didn't tell you it was him, or you don't remember whether that happened or not?I don't remember whether that happened or not.

...

I have asked you that you didn't say or do anything to Andrew at that point in time to communicate to him to get out of the bed, you agree with that, don't you?Yes.

It is subsequent to that that you felt Andrew touching the outside of your vagina with his fingers?Yes.

You were aware of that happening?Yes.

At that point in time you touched him back?No.

Touched his back and his chest?No.

Can I ask you about your answer, in relation to saying 'No' to that, is it something that you say didn't happen or are you saying, 'I have got gaps in my memory. It might have happened, I just don't recall it'?I don't remember that happening.

So gaps in your memory, you just can't recall whether it happened or not?Yes.

14 According to the submission on behalf of the applicant, these answers were to be understood as representing a wholesale reversal of the complainant's evidence-in-chief on the issue of identity. That is, the jury should have appreciated that the complainant, having stated clearly in chief that she had no idea who the person was when he first got into bed beside her, had under cross-examination changed her evidence completely, now stating that she did know that it was the applicant.

15 I would reject that submission. In my opinion, it is inherently improbable that the complainant intended by her answers to reverse her evidence in this way. The position would, of course, be different, if she had been directly challenged on the relevant piece of evidence and - perhaps on the basis of some other conflicting piece of evidence to which reference was made - had it put to her that she was mistaken.

16 Nothing of that kind occurred here. Indeed, there was no direct challenge of any kind to that part of her evidence-in-chief. Rather, the answer relied on simply came out in the course of questioning. As a general rule, fairness to a witness requires that, if the truthfulness or accuracy of something said in evidence-in-chief is to be challenged, that challenge should be put in sufficiently clear terms to enable the witness either to affirm, or depart from, the evidence previously given.

17 But, even assuming that the complainant did change her evidence, and was now conceding that she knew that it was the applicant when he first got into bed with her, this would not alter the analysis with respect to the differential verdicts. As I have said, nothing which had passed between them up to that point suggested that the complainant would consent to an uninvited touching of her vagina by him, upon her being woken from sleep.

18 There were three charges on the indictment filed against the applicant. The first was a charge of indecent assault,[8] constituted by the applicant touching the complainant, SF, on the vagina; the second, a charge of penile-vaginal rape;[9] and the third, a charge of digital-vaginal rape.[10] A jury empanelled in the County Court to try the applicant returned a verdict of guilty on the first charge,[11] but verdicts of not guilty on both charges of rape. The applicant contends that the verdict of guilty on the charge of indecent assault is inconsistent with the acquittals on the two charges of rape. I would uphold that contention.

19 In my opinion, for the reasons that follow, the verdict of guilty on charge 1, indecent assault, is indeed inconsistent with the verdict of not guilty on charge 2, rape. The conviction for indecent assault thus cannot be permitted to stand.

20 The complainant, 'SF', and the applicant worked together at a café in Flinders.

In December 2010, SF was aged 20 years, and the applicant was 28 years of age.

21 On 13 December 2010 the owners of the café, Julie Derham and Harry 'Lee' Everett, hosted a Christmas party at their home in Flinders. It was attended by staff, friends and regular customers. Ms Derham arranged for the complainant and two other staff, Imogen Barton and Georgia Noonan, to stay the night. They were to sleep in the bedroom occupied by Ms Derham's son.

22 SF and the applicant both drank significant amounts of alcohol. In her evidence, SF recalled drinking at least two gin and tonics, two Kahlua and cokes 'and a large shot of vodka as well'. At about 10.30 pm, SF changed into a one piece bathing suit and got into the spa with Ms Barton and Ms Noonan. She gave evidence that by this stage she was 'starting to feel out of it'. When she left the spa, SF, who to the observation of others was noticeably drunk - she herself giving evidence that she had 'never felt that drunk before in [her] life' - danced in the entertainment area, still wearing her bathing suit.

23 Presumably because of the alcohol she had consumed, SF later began to vomit in the garden. As she did so, she was helped by a co-worker, Amy Johnstone. Ms Johnstone said that when the applicant approached, she told him to 'piss off'. After SF had finished vomiting, Ms Johnstone put SF, who was still wearing her bathing suit, into the shower in the bathroom of the home. SF was then put into a double bed in the bedroom of Ms Derham's daughter, Sophie Derham. She was naked under the covers. A mop bucket was placed by the side of the bed.

24 Some time later the applicant entered the room. Thereafter a number of sexual acts took place. The prosecution's case was that SF was so affected by alcohol that she was incapable of freely agreeing to the acts.[12] Moreover, the prosecution alleged that the applicant was aware of the fact that SF was too affected by alcohol to consent to sexual activity, and that his asserted belief as to consent was not reasonable.

25 SF first gave evidence that as she lay in bed someone came into the room - she did not know who - and got into the bed with her. She was 'Just out of it, not really sure of what was going on', and could not recall anything being said. SF said she felt fingers touching the outside of her vagina as she lay on her back, but did not know whose fingers they were. (This conduct presumably was the basis of charge 1, indecent assault, upon which the applicant was found guilty.) SF stated that she was 'just really confused' and did not understand what was happening to her. She gave evidence that she recalled 'just drunkenly' saying 'no'; and she said that she was not really sure why she was saying no, 'it just didn't feel quite right.' At the time her state of drunkenness was such that she was 'having massive lapses in between thinking and feeling things.' She could recall hearing the applicant's voice and thinking that it was him (as he had an American accent) but could not recall what he was saying. SF could not recall any physical actions on her part. After what she said felt like a short amount of time, SF passed out. She was unable to say whether the touching continued or stopped. (I will later set out a passage of the cross-examination of SF, upon which considerable reliance was placed by counsel for the applicant, pertinent to the touching the subject of charge 1.[13])

26 Some time later, SF recalled, she heard 'a male's voice come in to the room', but she did not know what was said. She was embarrassed because she was naked and she asked to be covered. SF said that after the person left she 'felt a penis go inside [her] vagina' for a short time before she again passed out. She gave evidence that she remembered saying 'that [she] didn't want this when [she] felt him go inside [her]'. (The penetration of SF's vagina by the applicant's penis was the foundation of charge 2, rape, upon which the applicant was found not guilty.)

27 Lee Everett's statement to police was read to the jury. He stated that he had entered Sophie Derham's bedroom between 1:00 am and 2:00 am to turn the light off, and saw 'the white backside of a male person who [he] thought was having sex with someone in the bed'. Mr Everett told Sophie that someone was having sex in her bed. Sophie Derham then went to her bedroom. The light was on. She observed the applicant 'on top of someone', but she could not see whom. The applicant was still while she looked in and did not move or say anything.

28 When she 'sort of came back to again', SF was on her side and could feel 'a thrusting action from behind' her, although she was not sure whether she was being penetrated. She recalled having said 'no' more than once, and was saying that she 'didn't want this to happen'. At the time she was 'Just out of [her] own body'. She could not recall how long the thrusting went on for or when it occurred, but she believed that it was after midnight. The next recollection that she had was of hearing the applicant's voice again, saying something to the effect of, 'I want you.' She recalled her head being pulled around and someone kissing her, but she did not respond.

29 In the early hours of the morning, SF woke up to someone rubbing her clitoris. She 'felt aroused by this touching'. After 'maybe a minute' she said 'stop' and it did. (This activity was the basis of charge 3, rape, of which the applicant was acquitted.) SF fell back asleep. When she woke up half an hour to an hour later she noticed that the applicant was in the room with her.

30 SF gave evidence that she had been menstruating and noticed that there was blood on the sheets. She had been wearing a tampon, which was in amongst the sheets, but could not recall removing it. The applicant cleared the sheets from the room and placed them in the laundry.

31 A little later, SF went to speak to Imogen Barton and Georgia Noonan. She gave evidence that she told them that she thought something had happened between her and the applicant but she did not know what. Ms Noonan gave evidence that she suggested to SF that she might have been sexually assaulted and suggested that she speak to the applicant. SF and the applicant subsequently had a discussion about their respective partners. They hugged each other and exchanged telephone numbers since he wanted to check on her later in the day. SF said that at the time she thought that the applicant had taken advantage of her but did not feel he had done anything 'seriously wrong'. Subsequently the applicant had a conversation with Ms Noonan and Ms Barton, during which Ms Noonan insinuated that, from what SF had told them, 'maybe it wasn't 100 per cent consensual'. Ms Barton gave evidence that the applicant looked 'horrified' at the suggestion, and described the applicant as being 'flustered' and 'in shock'. The applicant said, 'Wow, like as far as I'm concerned we were two consenting adults'.

32 Timothy Cheers was SF's boyfriend. After she had called him, he came at about 6 am to pick her up. SF told Mr Cheers, whilst he was driving, that 'something had happened' and that 'some guy has had sex with me.' Mr Cheers reacted angrily and accused her of cheating on him. SF told him what had occurred and he told her that she had been raped. He later drove the complainant to Rosebud Hospital. Police were called and the complainant attended Monash Medical Centre for an examination. It revealed no evidence of injury.

33 The applicant did not give evidence at trial, but relied on his interview with police conducted on 16 December 2010. In the interview, the applicant said that he had been drinking full strength Corona beer - six, if he 'had to guess' - and 'two or three or maybe even four' strong whisky and cokes, so that towards the end of the night he was 'extremely affected' by alcohol. His judgment, he said, was 'impaired'. During the night he danced with SF, flirted with her and complimented her on her smile. He told police that at one point in the evening, after he tried to change the music, SF had lain down on the fireplace inside the house and when he approached her and kissed her 'she kissed back'. Later, Amy helped SF, who was 'extremely affected' by alcohol, throw up in the backyard. He offered to help. After SF was sick, he and Amy helped her to a bedroom 'to have a sleep'. He thought Amy had helped SF shower, and he had checked on her in the bathroom.

34 The applicant told police that he went back to the dance floor, and after about 20 minutes dancing, he entered the bedroom. He could not remember if the light was on or off. When he got into the bed, as he did, SF was naked, but he had his clothes on. He 'flirted' with her in the bed, which included touching her hips and chest. SF, he said, was touching his chest and back and 'it felt like' she was kissing him back. (When asked directly whether he had touched SF on her vagina at that point, the applicant said he could not remember, but '[he] certainly did when [he] returned after vomiting'.) He then vomited on his clothes and on the floor, and then went and had a shower, taking his clothes off in the process. The applicant told police that SF might have been asleep when he entered the bedroom 'the first time'. The applicant said that she would not have known that it was him until he told her. He agreed that he may have woken her up, and said that in conversation she sounded 'drunk'. When asked by police if 'she could have been out of it a bit because she was so affected by alcohol', the applicant answered, 'I would assume so, yes.'

35 Upon returning to the bedroom from showering, the applicant continued to 'flirt' with SF. They kissed and cuddled. He 'started to make advances at her', 'touching her in her vagina - and breasts - and - instigating'. She said to him, 'You've got a girlfriend, I've got a boyfriend'. He 'persisted to make advances at her' and they then had sex. Someone came into the room and SF asked for the covers to be put over them. When they had sex, SF was on her back and the applicant 'was on top of her'. He had turned the light on. SF was, he claimed, 'awake or conscious for the sex'. Although he 'attempted to pull out' beforehand, the applicant ejaculated inside SF. The applicant told police that, 'At the time, I believed she was consenting'. She was 'putting her legs up and ... feeling willing'.

36 In the morning he tried to 'instigate it again' and inserted his finger into SF's vagina. She was awake at the time. He thought that SF was 'getting aroused', but after a few minutes she told him to stop and he did. The applicant did not know that SF had her period 'until after'. There was a tampon in the sheets the next morning, but he had not removed it. When they awoke, SF said she loved her boyfriend and the applicant consoled her. They were sitting on the end of the bed and SF hugged him three or four times. Later, in the hallway, before her boyfriend picked her up, SF gave him 'a long intense hug'.

37 From this summary of the interview, it will be noticed that the applicant did not dispute the essential conduct which founded the three charges against him. Thus he agreed that he touched SF on the vagina (the basis of charge 1), had sexual intercourse with her (the basis of charge 2) and touched her on the vagina in the morning (the basis of charge 3). The substance of his 'defence' was, however, that he believed that SF was consenting to the sexual activities.

38 In this Court, the applicant relied on suggested 'factual inconsistency', contending that no reasonable jury properly applying their minds to the facts in the case could have arrived at the verdict of guilty on charge 1 whilst at the same time acquitting on charge 2.[14] Acquittal on charge 2 must have meant that the prosecution had not disproved the applicant's asserted belief in consent for the purposes of that charge. Given the proximity of the activities founding charge 1 and charge 2, the jury's conclusions concerning the applicant's belief in consent should have dictated a verdict of not guilty on the first charge.

39 On the other hand, the respondent submitted that the verdict on charge 1 is explicable. It was open to the jury on the applicant's own version, so it was argued, to conclude that the applicant was aware that SF was not consenting, or that he touched her without giving any thought to whether she was not consenting or might not be consenting.

40 Verdicts which are inconsistent render convictions unsafe and unsatisfactory.[15] Much of the learning of the subject was gathered together and digested in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie.[16] Six propositions were conveniently set out[17] (which, for present purposes, I have taken the considerable liberty of abbreviating):

From a review of the cases, a number of general propositions can be stated:

1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve ...
2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events ...
3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness ...
4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense_. Thus, 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. 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._ In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries ...
5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case' ...
6. The obligation to establish inconsistency of verdicts rests upon the person making the submission ...

41 To succeed in this Court the applicant must establish the inconsistency for which he contends, rather than the respondent demonstrate consistency. He must show that, applying logic and reasonableness, the verdict of guilty on charge 1 cannot stand with the verdict of not guilty on charge 2, and that the differing verdicts are an affront to logic and commonsense. Reminding myself (as I do) that I must be astute not to substitute my own opinion of the facts for one which was open to the jury, and recognising the possibility that a jury might in a given case take a merciful approach, I have been unable to conclude other than that the verdicts in this case are an unacceptable affront to logic and commonsense, strongly suggesting compromise. For this Court not to intervene would be to tolerate a significant risk of injustice.

42 The principal issue on each charge at trial was consent, both with respect to whether there was a lack of consent on the part of the complainant and as to the applicant's belief in her consent (or lack of consent). It was, it seems, an issue uppermost in the jury's mind from an early stage. Thus, shortly after the complainant had given her evidence, the jury asked the judge, 'What is the legal definition of consent and is it a pre-condition for a person to be capable of rational thought at the time it is given?'. The trial judge gave directions responsive to the question. Later, after all of the prosecution witnesses (save for the informant) had given their evidence, the jury asked, 'Is there an expiry on consent? That is to say, does it apply only to the consented act or does it apply until it is formally withdrawn?'. Brief directions were given in response; but, after the jury were then asked to clarify the question, it was 'withdrawn'. (No complaint was made to the trial judge, or in this Court, that the directions on consent given by the judge during the course of the evidence, or during her final directions in the Charge, were inadequate.)

43 The respondent submitted that it was open to the jury to conclude that the first touching occurred when SF was asleep and incapable of giving consent, and in circumstances where the applicant must have appreciated that this was so. That submission does not sit well, however, with the following passage from the cross-examination of the complainant which, because of its importance, I will set out in moderate detail:[18]

When you did go to bed or were taken into the bedroom, were you left in bed with the lights on?Yes.

You didn't change that?No.

So at the time that you were aware of someone being in the room, the lights were on?Yes.

...

In terms of your first statement to police which you have told us that you have read before giving your evidence here today, you say in that statement that you see someone walk in the room and even though all the lights were on you couldn't see who it was, it was just a figure?Yes.

Do you agree with that?Yes.

And that at one point you recall that Andrew was in the bed next to you?Yes.

Is that right?Yes.

That is prior to any kind of physical activity occurring between the two of you?Yes.

At the time that you realised Andrew was in the bed next to you, you were aware that you were naked?Yes.

The light was still on?Yes.

At that point in time you didn't say anything to him, did you?No.

Indeed Andrew told you that it was him when he got into the bed?No, I don't remember that.

Therein lies the difference. There are two different propositions in that answer so this is what I want you to think about. Is your answer either no, he didn't tell you it was him, or you don't remember whether that happened or not?I don't remember whether that happened or not.

Certainly you would say that at that point in time you didn't feel panic or anything?No.

Certainly at that point in time you don't do anything to communicate to Andrew for him to get out of the bed?No, I didn't know it was.

You just told us that you did and the light was on?(No audible response.)

[OBJECTION]

I will just get the answer to that question again. I have said to you that - I have suggested to you and you have agreed with me that Andrew has got into the bed and the lights are on, do you remember me asking you that question?Yes.

And you agree with me when I asked you that question?Yes.

I have asked you that you didn't say or do anything to Andrew at that point in time to communicate to him to get out of the bed, you agree with that, don't you?Yes.

It is subsequent to that that you felt Andrew touching the outside of your vagina with his fingers?Yes.

You were aware of that happening?Yes.

At that point in time you touched him back?No.

Touched his back and his chest?No.

Can I ask you about your answer, in relation to saying 'No' to that, is it something that you say didn't happen or are you saying, 'I have got gaps in my memory. It might have happened, I just don't recall it'?I don't remember that happening.

So gaps in your memory, you just can't recall whether it happened or not?Yes.

In terms of the evidence you have given about saying 'No', I just want to ask you some questions about that. Your version is that you did say 'No', isn't it?Yes.

Does that reflect you assessing that something is happening that you don't want to have happened and saying 'No' to it, is that what that is a reflection of?I didn't - I didn't fully understand what was going on and that was me saying 'No' because it didn't feel - it didn't feel right.

44 What can be drawn from the above passage is that when the applicant got into bed next to SF, and she was naked, the light was still on. It was only subsequently to the applicant being in the bed beside her that he touched the outside of her vagina with his fingers, SF being aware that was happening. The complainant's answers in the extracted passage of cross-examination are, in my opinion, an impenetrable obstacle in the way of conviction for indecent assault.

45 On the hearing of this application, however, counsel for the respondent sought to defend the conviction on charge 1, urging upon the Court what was, to my mind, a somewhat strained construction of the evidence (particularly of the applicant's interview with police). As I followed the steps in the argument, the respondent's counsel first relied on the following passage from SF's evidence in chief (parts of which, in my opinion, are inconsistent with her answers in the cross-examination earlier set out):[19]

[H]ow did you get into the bed, do you remember?No, I don't recall.

Were you in the bed?Yes.

What was your state of clothing?I had - I was naked, I had no clothing on.

So you were in that bed naked. Did you have any thought processes at that stage that you can remember?Yes, I was thinking why do I have no clothes on, where am I.

Do you recall after that at some stage whether anybody came to that room?Yeah, someone entered the room. At the time I didn't know who it was.

What did they do?They came into the - into the bed with me and ---

...

So this person comes in and what was your thought process at that point?I thought that maybe it was just someone coming in to check on me.

What was your state like, that is your mental or bodily state at that stage?Just out of it, not really sure of what was going on.

So this person comes into the bed with you. Do you recall saying anything or the other person saying anything?No, I can't recall anything being said.

What is your next sensation or feeling that you recall?I felt fingers touching my vagina.

Did you know who the hand or fingers belonged to at that stage?No.

How were you laying, do you know?Just on my back.

...

What were you thinking at that stage?I wasn't really sure what was going on. I was just really confused and, yeah, I just - I didn't understand sort of what was happening to me. It didn't feel - it didn't feel like anything that - like, I didn't feel like - that it was a sexual thing at all, I just felt the sensation and ... It didn't - it didn't feel right so I remember saying, 'No', but not really sure why I was saying 'No', it just didn't feel quite right.

How did you say that, do you remember?Just drunkenly.

How would you describe your state of drunkenness at that point?I never felt like that before and I was just having massive lapses in between thinking and feeling things.

...

For how long do you think your vagina was being touched as you have described?It only felt like a short amount of time and then I passed out, so I don't know.

Do you know whether it continued or otherwise stopped?No.

At some stage did you identify who this person was?No, I remember hearing Andrew's voice at one point and thinking that is Andrew because he had an American accent and so I recognised it but I didn't - I didn't know that Andrew was touching me. I didn't think that - I didn't connect his voice with what was going on.

But at this stage, you don't know who it is, is that right?That's correct.

Were you aware of what the other person was wearing?No.

46 Certain aspects of the evidence contained in this passage of the complainant's evidence-in-chief do not sit well, in my opinion, with the cross-examination to which I have earlier made reference. In her evidence-in-chief, SF claimed to be unaware of who got into bed with her and touched her vagina; yet in cross-examination agreed that the lights were on when the applicant got into bed with her, and that she was aware that the applicant was the person in bed with her before any physical activity[20] took place. The jury would have had to have rejected SF's answers in cross-examination in order to conclude that she was not aware that it was the applicant in the bed with her, and that it was he who was touching her vagina. Such an approach plainly would have been unreasonable, particularly when, as the respondent conceded in its written case, 'The complainant's evidence was littered with gaps in her memory and there were several important inconsistencies with other evidence'. That concession was correctly made. The overall impression gained from a full reading of SF's evidence is that it is vague and imprecise in significant aspects, probably as a result of her befuddlement from drink.

47 As I understand it, the second step in the respondent's argument revolves around the applicant's answers to police in his interview. Having acknowledged that the complainant's evidence contained 'important inconsistencies with other evidence', in its written case - the content of which counsel adopted specifically on the hearing of this application - the respondent submitted that, 'The verdicts are logically and reasonably explained by the jury accepting, for the most part, the explanation given by the applicant in his interview'. It was submitted that, 'Charge 1 was alleged to have occurred in the dark bedroom, when the applicant was clothed, and before he vomited'; and, 'Charge 2 occurred after he had vomited, showered and then returned to the bed, naked' when 'the lights in the room were on'. Thus the respondent relies on the fact that the applicant had said that when he first went in to the bedroom, and got into bed with SF clothed, the lights were off. SF, he said, may have been asleep. The applicant told police that he could not recall whether he touched SF on the vagina at that point, but he 'certainly' did after he returned from the bathroom after vomiting.

48 The insurmountable difficulty for the respondent is, however, that in the same way that '[B]y no torturing of the statement "I did not do the act" can you extract the evidence "I did do the act"',[21] by no torturing of the statement 'I can't remember' [if I touched the complainant on the vagina before I vomited], can you extract 'I do remember' [that I touched the complainant on the vagina before vomiting]. His lack of recollection cannot, by some form of evidential alchemy, be converted into proof positive that he did in fact touch the complainant before he vomited. Hence there was no evidence out of the applicant's mouth capable of supporting the prosecution's case that the touching on the vagina for charge 1 'occurred in the dark bedroom, when the applicant was clothed, and before he vomited'.

49 Moreover, there is no proper construction of the complainant's evidence available to prove that the touching on the vagina - she only recounted one such incident - occurred 'in the dark bedroom, when the applicant was clothed, and before he vomited'. It would have been wholly capricious of the jury to ignore SF's evidence in cross-examination that the lights were on when the applicant got into bed, and that it was then that she was touched.

50 Properly analysed and understood, therefore, the evidence before the jury admitted of only one construction: that there was evidence only of a single touching of the vagina, and that touching - on the complainant's own evidence - occurred when the light was on. Nothing in the police interview - again, when it is properly analysed and understood - contradicted that version. Hence for the jury to convict on the first charge, it would have been necessary for them to have ignored the way in which the prosecution put its case, and to have used the act of touching the vagina when the lights were on, and when the complainant knew it was the applicant touching her, as the foundation of the guilty verdict. For the jury to have adopted such a course, and, in order to convict, to have notionally manufactured a case different from that put by the prosecution, would have been wholly indefensible.

51 Assuming, however, and solely for the sake of argument, that the jury had been entitled to base their verdict on the touching of the vagina when the lights were on -the complainant's version in cross-examination - in my opinion the verdict of guilty of indecent assault (charge 1) would still relevantly have been inconsistent with the verdict of not guilty of rape (charge 2). As I have said, the issue in the trial was consent. The applicant's version in his police interview was that all sexual

activity was consensual, in the sense that he believed that the complainant (despite her state of intoxication) was capable of, and was, consenting to what was occurring. On the evidence, so it seems to me, the touching of the vagina and the later sexual intercourse were in reality part of the one continuing episode. Thus there was no basis, in my opinion, upon which the jury reasonably could distinguish between the applicant's state of mind for the two proximate acts. Indeed, my already firm impression that the verdict of guilty was the product of compromise would be strengthened.

52 For these reasons, the conviction on charge 1 on the indictment is inconsistent with the acquittal on charge 2, and the conviction and sentence on charge 1 must be set aside.

53 I would thus grant the application for leave to appeal against conviction, allow the appeal and make consequential orders.

54 On 27 February 2013, the applicant was found guilty by a jury in the County Court of one charge of indecent assault. He was acquitted by that jury of two charges of rape. On 15 March 2013, he was sentenced to an 18 month Community Corrections Order, which included 200 hours of unpaid community work. The applicant now seeks leave to appeal against the conviction for the offence of indecent assault on the basis that:

the jury's guilty verdict on count 1 on the indictment is inconsistent with its not guilty verdicts on counts 2 and 3, in that it was not open to the jury in all of the circumstances of the case to have a doubt in relation to guilt on counts 2 and 3, but not the same doubt on count 1, thereby giving rise to a verdict on count 1 which is unsafe and unsatisfactory.

55 I have had the advantage of reading in draft the reasons of Priest JA. Because I

have come to a different conclusion from his Honour, it is necessary for me to separately refer to the evidence of both the complainant and record of interview of the applicant concerning the first two charges in the indictment.

56 In her evidence, the complainant ('SF') described her employment at a café and how it gave rise to her presence at the Christmas party where these events occurred. She had known the applicant for about six weeks at that stage, as he had started working at the same café. The party was held at the home of her employers and it had been arranged that she would stay the night. She arrived and put her bags in a room she was supposed to sleep in along with two other employees. The applicant arrived at the party after the complainant. The complainant had not eaten an evening meal and began drinking, quickly becoming intoxicated. She recalled the applicant made a complimentary comment about her smile at some stage. There was a spa which the complainant got into and by this stage she was feeling 'really out of it'. She said she was not aware of what was going on around her. She said she had never felt so drunk in her life.

57 After leaving the spa, the complainant was dancing in her one piece bathers and she was, by then, so drunk that she needed to vomit and did so in the garden. A female friend then helped her into the shower inside the house and she was then taken by that friend to a bedroom to sleep in. The complainant thought it was not the same room she had put her bags in. When she got into bed, she was naked and she was wondering where she was and why she was undressed. She said someone entered the room and got into the bed with her. She thought it was someone checking on her. She recalled nothing being said but then recalled 'fingers touching my vagina' and, importantly, that she did not know who those fingers belonged to. She said the sensation of being touched did not 'feel right' and she remembered saying 'no' which was said drunkenly. She said after feeling she was being touched she 'passed out'. At one point she heard the voice of the applicant which she recognised because his accent is American. She did not know that he was touching her and she was unaware of what the other person was wearing. She did not recall him saying anything to her at the time she was being touched.

58 The complainant said she was then aware of another person coming into the room and she felt embarrassed and asked to be covered. She said that person left and she then felt 'a penis go inside my vagina'. This is the incident at the basis of charge 2. Shortly after that the complainant passed out. When she awoke again she could feel someone pressing up against her from behind and she was saying that she did not want this to happen. She also recalled hearing the applicant's voice saying 'I want you' and then being kissed. She said she did not respond.

59 When cross-examined she said she did not believe she was kissing the applicant in the lounge room earlier and said she was not attracted to him. She said when she got into the bed the lights were on. She agreed that she knew the applicant was in the bed next to her prior to any physical activity occurring and the light was still on. She did not recall him saying who it was when he got into bed. She did not tell him to get out of bed and she 'didn't know it was'. She agreed that it was after she became aware that the applicant was in the bed that she was first touched on the vagina. She denied she touched him back in any way. She repeated that she said 'no' because it did not feel right. When it was put her that she did not say 'no' she said 'No, I did tell him "no".' She did not remember any conversation about she and the applicant both having partners and that they should not be doing it. She agreed that being touched on the vagina preceded the act of sexual intercourse and she did not know the 'time frame' between the two events.

60 In his record of interview, the applicant described the events of the evening and his knowledge that the complainant was extremely intoxicated. He had seen her dancing in her bathers. He knew that a friend helped her as she threw up in the backyard. He had helped take her to the bedroom before she was showered because she was 'that drunk and - and sick' and 'you help a friend when they're that sick,' and then had checked on her while she was being showered. After she had been put to bed following that shower, he entered the room through the door that was closed and got into bed with her. She was naked. He thought the lights were off. She may have been asleep and he may have woken her up. Until he said who it was, she would not have known. She sounded drunk and he assumed she was 'out of it a bit'. He flirted with her which meant he touched, kissed and cuddled her. The touching was on the hips and breasts. He could not recall whether he touched her vagina. He then became dizzy and vomited. At the time that he did that it was dark and he could not see anything.

61 The applicant said he left the bed and had a shower and returned to the bed naked. He said there was more flirting, kissing and cuddling and then he 'started to make advances at her for - in a sexual way' which meant he was touching her in her vagina and breasts. He then described a conversation which he claimed she initiated about them both having partners. He said he 'persisted to make advances at her and then we had sex.' He said someone entered the room and she asked to be covered. When asked whether she said anything about whether she wanted it or not, he described the conversation about both having partners 'implying that what we were doing was wrong.' When asked whether she was doing anything to indicate that she wanted to have sex with him, he responded, 'putting her legs up and just - and feeling willing.'

62 I should begin my reference to the submissions by noting that in the trial judge's charge, the jury was instructed about the requirement for separate consideration of each charge. Those directions followed the form given to all juries in cases where there is more than one charge in the indictment alleging separate criminal conduct.

63 The applicant's case in this Court was that the verdict of not guilty on charge 2 must have been because the jury could not exclude an honest belief in consent on the part of the applicant. Thus, the same doubt must have been raised in relation to count 1, which was proximate in time.

64 The respondent's case proceeded on the basis that the touching at the basis of charge 1 occurred before the applicant vomited and showered and that it was therefore differentiated from the sexual intercourse which was the basis of charge 2. On reflection, it is clear, as Priest JA has concluded, though perhaps for different reasons, that on the evidence of the complainant, the touching which led to charge 1 did not necessarily occur prior to the applicant vomiting and leaving the bed to shower. To the extent therefore that any reliance was placed by the respondent on charges 1 and 2 being separated by that incident, I agree there is no evidentiary basis for that conclusion. I therefore turn to the question of whether, if charges 1 and 2 occurred close to each other in time, are the verdicts of guilty on charge 1 and not guilty on charge 2 inconsistent?

65 In my opinion, a verdict of guilty on charge 1 was open to the jury whilst at the same time finding that the sexual intercourse at the basis of charge 2 was preceded by a conversation between he and the complainant about their respective partners, which she no longer recalls. It is logical enough that the jury then had a doubt as to that charge on the issue of consent and belief in consent.

66 In MacKenzie v The Queen,[22] a number of general propositions were identified from an analysis of the relevant authorities concerning a claim of inconsistent verdicts. The obligation to establish the inconsistency clearly rests on the applicant.

67 Among other things, in that case the High Court noted that '[w]here, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness'. The Court adopted the test from R v Stone,[23] requiring that we be satisfied that '... the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.' Importantly, the Court acknowledged the '... respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense.' If there is a proper way for the verdicts to be reconciled, the conclusion will generally be accepted. '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.'

68 The question here is whether this case falls in to what the High Court described as a 'residue of cases' where the verdict is an affront to logic and commonsense and strongly suggests a compromise.

for the jury to convict on the first charge, it would have been necessary for the jury to have ignored the way in which the prosecution put its case...For the jury to have adopted such a course, and in order to convict, to have notionally manufactured a case different from that put by the prosecution, would have been wholly indefensible.

70 I respectfully and completely disagree. I am not persuaded there is a conflict with the way the prosecution put its case and, in any event, the question is what findings were open to be made on the evidence before them. When the principles in McKenzie to which I have referred are applied to the facts of this case I am not persuaded that the verdicts returned by the jury in the trial of the applicant are 'so inconsistent as to render the resulting conviction of the applicant unsafe or unsatisfactory.'

71 I have come to that conclusion for the following reasons. First, the factual basis of charge 1 was the first sexual incident which occurred between the applicant and SF on this night, putting aside assertions of flirting and kissing during the course of the evening, which she denied. Second, the touching of the vagina of SF is likely to have occurred on the evidence either prior to, or at the time of, or shortly subsequent to SF being roused from her drunken sleep. Third, the only conversation the applicant mentioned in his record of interview as having occurred prior to him touching her was that he had identified himself, although he did say she sounded drunk. Fourth, despite this, the jury may well have concluded on the evidence that SF was not immediately aware of the identity of the person touching her and therefore did not consent. Fifth, SF maintained throughout her evidence that when touched on the vagina she said 'no'. Sixth, on that basis and notwithstanding what occurred thereafter, the jury may well have concluded that the applicant, who according to his own record of interview was aware that the complainant was drunk and sick, must have at the very least been aware that she may not have been consenting.

72 In addition, there is evidence from the applicant and from the witness Barton that between the incidents subject of the first and second charges, a conversation took place in which the complainant said, 'You've got a girlfriend, I've got a boyfriend', although it appears to be a conversation the complainant can no longer remember. It is possible that the jury found that in those circumstances they could not be satisfied beyond reasonable doubt that the complainant had not said or done something during that conversation that led the applicant to believe that she was consenting, despite being satisfied that he had no such belief in relation to charge 1.

73 I note that in argument, it was put that the complainant's evidence was that she also said 'no' on the second occasion, therefore making it more difficult to use her evidence that she said 'no' on the first occasion to distinguish the two incidents. In my opinion, reconciling the two verdicts does not depend upon a finding that she said 'no' to the touching of the vagina. However, I note that this is an occasion where a failure to properly capture the tenor of the evidence has led to submissions being conducted on a misconceived basis. The relevant passage of the complainant's evidence is as follows:

You said that you recalled a voice within the room and then what happened?---And then that person left or I believe they left, and then I felt a penis go inside my vagina.

For how long did you feel that?---Only a very short time and then I passed out again.

[...]

So you said that you passed out again. What is the next thing you can recall? How were you laying, do you remember?---I think next after that, when I sort of came back to again, I was on my side.

What do you feel?---I felt a thrusting action from behind me.

What do you mean by that?---I don't know how to describe it. Sort of someone pressing up against me from behind. I'm not -

Yes, go on?---I'm not sure if I was being penetrated or not.

What do you recall saying at that point?---I remember saying that I didn't want - I didn't want this to happen.

What else?---I was saying no.

How many times?---More than once but I don't remember the exact number of times that I said it.

This passage makes clear that the verbal protest recalled by the applicant did not relate to the stated factual basis of charge 2. Although the learned trial judge referred to it in her charge on consent in relation to charge 2, her Honour gave a transcript page reference and it was not referred to in the directions on mens rea nor in the summary of the prosecution closing.

74 In my opinion these verdicts indicate the jury was performing its role as instructed by the trial judge and treating each charge separately. As Priest JA points out[24] the main issue was consent and it was an issue the jury obviously thought about quite carefully as the questions they asked and to which Priest JA refers demonstrate.

75 Part of the reasoning of Priest JA rests in part on the passage of the cross-examination of the complainant which he quoted and which suggests that, in fact, when the applicant got into the bed next to SF, she was naked and the light was still on. It was after that occurred that the touching of her vagina occurred. I have already indicated that I regard that as a correct view of the evidence. However, his Honour has concluded that is an 'obstacle in the way of conviction' because the complainant knew it was the applicant who had got into the bed with her and knew it was him who was touching her. With respect, I am unable to see how that resolves the consent issue in favour of the applicant to the extent that the verdict on count 1 should be treated as 'an affront to logic and commonsense.'

76 Despite her statement that she knew it was the applicant in the bed, I think there is some doubt as to whether the complainant knew that he was the one who was touching her. In examination-in-chief, the complainant said that when the first touching occurred, she did not know who it was. In cross-examination, the complainant said that she realised that the applicant was in bed next to her prior to the touching occurring. However, later in cross-examination she again stated that at the time that the touching occurred, she did not know who was touching her. Given her evidence as to her state of intoxication and her evidence that despite recognising the applicant's voice by his accent she failed to connect it with the touching, I do not think that her statement that she knew the applicant was in the bed is sufficient to find that she knew who was touching her.

77 There is no question that given her state of intoxication there were flaws in her memory. That also applied to the applicant. More importantly she made no concession that she consented to being touched at that stage or that she did anything to indicate consent. The fact that she knew, if she did, that the person in the bed was the applicant cannot amount to consent. As I have earlier described, it was open to the jury to find that she was not consenting and that the applicant was at least aware that this may be so. It was also open to find that they could not be so satisfied on the second charge.

78 The jury would have been entitled to examine the obvious difference between the facts at the basis of count 1 and those at the basis of count 2 and conclude that, as to the latter, they could not be satisfied beyond reasonable doubt that there was no consent or a belief in consent if that conversation took place.

79 In my opinion, the jury may well have concluded that whatever doubt they had about the applicant's belief in consent in relation to charges 2 and 3 they were satisfied, and properly so, that he could not have had a belief in consent in relation to charge 1.

80 Therefore, it follows that I am not persuaded by the applicant's argument that the verdicts on charges 1 and 2 are inconsistent. I would grant leave to appeal but I would dismiss the appeal.

[1] R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82, 99 [70]; R v JA [2008] VSCA 169, [48]; Goldsmith v The Queen [2010] VSCA 99, [51]; Fattal v The Queen [2013] VSCA 276, [36] ('Fattal'); R v Motlop [2013] QCA 301, [47].

[2] MacKenzie v The Queen (1996) 190 CLR 348, 367.

[3] Fattal [2013] VSCA 276, [36]; R v PMT [2003] VSCA 200; (2003) 8 VR 50, 56-7; Andrew v The Queen [2013] VSCA 333, [62].

[4] Priest JA, [42].

[5] Goldsmith v The Queen [2010] VSCA 99, [51] (citation omitted).

[6] Priest JA, [34].

[7] Priest JA, [43].

[8] Crimes Act 1958, s 39(1).

[9] Crimes Act 1958, s 38(1).

[10] Crimes Act 1958, s 38(1).

[11] On 15 March 2013 the trial judge convicted the applicant and sentenced him to a Community Corrections Order for 18 months with a condition that he perform 200 hours unpaid community work.

[12] Section 36 of the Crimes Act 1958 relevantly provides:

For the purposes of Subdivisions (8A) to (8D) consent means free agreement. Circumstances in which a person does not freely agree to an act include the following -

(d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing; ...

[14] Both the applicant and respondent agreed that different considerations applied to the verdict on charge 3, which was, on the evidence, proper.

[15] MacKenzie v The Queen (1996) 190 CLR 348, 357.

1. [17] Ibid 366-9 (citations omitted; emphasis added). See also R v Bacash [1981] VicRp 86; [1981] VR 923; R v Nanette [1982] VicRp 8; [1982] VR 81; R v Kirkman (1987) 44 SASR 591; R v Dell'Albani (1990) 49 A Crim R 294; R v Celebicanin & Nyiri (1991) 53 A Crim R 374; R v Appleby (1996) 88 A Crim R 456; R v Ware [1997] 1 VR 647; R v Harvey [1997] 2 VR 121; Jones v The Queen (1997) 191 CLR 439; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; R v JA [2008] VSCA 169; R v Scott [2009] VSCA 20; (2009) 22 VR 41; CJJ v The Queen [2012] VSCA 196; Carrott v The Queen [2013] VSCA 90.

[20] In discussion on the appeal the idea was floated - if, perhaps, only faintly - that the reference to 'physical activity' between the two (see the cross-examination set out at [26] above) might not have embraced the applicant touching SF's vagina, and that counsel's questions should have been more specific. To my mind, however, it is fanciful to suggest that the reference to physical activity would not have been understood as including the applicant's touching of SF's vagina, particularly when regard is had to the follow-up question and answer:

It is subsequent to that that you felt Andrew touching the outside of your vagina with his fingers?Yes.

[21] Edmunds v Edmunds and Ayscough [1935] VicLawRp 35; [1935] VLR 177, 186 (Lowe J); R v Tripodi [1961] VicRp 30; [1961] VR 186, 193; Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193, 201 (Brennan J).

[22] (1996) 190 CLR 348, 366-8 (Gaudron, Gummow and Kirby JJ).

[23] (Unreported, 13 December 1954, Devlin J).

[24] Priest JA, [42].