Avery v The Queen [2014] VSCA 86

18 The prosecution case was that for just over a year, from mid-2004 to mid-2005, the applicant repeatedly engaged in acts of sexual penetration with the complainant. These offences took place at a series of different locations. They included both her home and his, the school itself, and his car.

19 In 2004 the applicant was the complainant's music teacher, she being in his music class. He continued in that role in 2005, although by then, on a one to one basis. He also accompanied her to various musical performances. He continued to do that in 2006, when she was in year 11, and in 2007 when she was in year 12. The complainant's mother happened to be, at all relevant times, Director of Music at the school.

20 The applicant became a family friend. He was invited, on a regular basis, to the complainant's home for dinner. He also went on two camping holidays with her family during the school mid-year breaks in 2004 and 2005. The complainant said that the first incident, involving an indecent act, took place shortly after the 2004 trip. She said that the last incident occurred during the 2005 trip.

21 The complainant described the events that were the subject of the various charges as follows.

Charge 1: Indecent act with a child under 16 (no verdict)

22 Shortly after the mid-year break in 2004, the applicant invited the complainant to sing at a wedding function in Melbourne, accompanying him while he played the piano. The applicant drove the complainant home afterwards. Whilst in the car, the applicant was 'taking drags with his cigarette' and blowing the smoke in her direction. He blew the smoke into her mouth and was getting closer and closer until eventually he kissed her on the lips at some traffic lights. He then pulled over and they kissed on the lips passionately for 'quite some time, perhaps five, ten minutes.' The complainant could not 'really strongly remember' whether there was any conversation. She felt '[o]verwhelmed, confused, just kind of swept away in whatever was happening'. He then drove her home.

Charges 2 and 3: Sexual penetration of a child under 16 (acquitted)

23 Some weeks after the events giving rise to Charge 1, the applicant stayed the night at the complainant's family home after having dinner. He invited the complainant to come downstairs to see him after everybody had gone to bed. She was not sure but believed that he had invited her down via a text message. The complainant went downstairs and, whilst on a couch in the living room, the applicant gave her oral sex, which she described as him placing his tongue on and around her vagina for maybe 10 minutes (Charge 2). They then moved to the room the applicant was to sleep in, where he penetrated her vagina with his penis (Charge 3). She recalled saying '[w]e shouldn't be doing this,' and him saying, '[w]e already are' at which point he was inside her. They continued having sexual intercourse for a while, and at some point stopped. She could not remember whether he ejaculated. She went back to bed and felt overwhelmed and confused. Her vagina was also hurting a lot, because it was the first time she had ever had intercourse.

Charges 4 and 5: Sexual penetration of a child under 16 (no verdict)

24 The complainant and the applicant met during class time in a small room at the school where the performing arts were taught. The room was elevated and looked out over two large classrooms. It was not possible to see into that room from either of the two classrooms below. The applicant locked the door, and they had sexual intercourse while he sat on a chair and she sat on his lap (Charge 4). He ejaculated, which she remembered because of how it felt afterwards. On a separate occasion, at some later unspecified time, they met again in that same room. The complainant was standing up and the applicant penetrated her vagina from behind with his penis (Charge 5). She thought he ejaculated, but could not really remember.

25 In cross-examination, the complainant reiterated that the door was locked, but could not recall the details as to how that locking mechanism worked. She disagreed with counsel's suggestion that the door could not be locked from the inside, and that her evidence in that regard was demonstrably false. She later said that she thought the lock was a small one that could be turned from the inside, but could not say for sure. She just remembered that the door was locked. As to counsel's suggestion that there were blinds on the windows that were controlled from the outside, and could therefore be operated by anyone in the classrooms below, she said that she could not recall.

Charges 6, 7 and 8: Sexual penetration of a child under 16 (no verdict, not guilty by direction, no verdict)

26 During school hours, the applicant gave the complainant the keys to his car. On his instruction, she let herself into the car and hid there until he joined her and drove her to his home some 5 or 10 minutes away. There, she performed oral sex on him (Charge 6). On the same occasion, the applicant performed oral sex on her, placing his tongue on and around her vagina (Charge 7). They also had sexual intercourse (Charge 8). They then drove back to school.

Charge 9: Sexual penetration of a child under 16 (no verdict)

27 On an occasion separate from the events giving rise to Charges 6, 7 and 8, the complainant again hid in the applicant's car during school hours until he took her to his home. She remembered this occasion clearly because he gave her a paper bag containing a vibrator and some lingerie. She had the bag with her in the car, though they did not use these items during the sexual intercourse that then took place at the applicant's home (Charge 9).

Charges 10, 11 and 12: Sexual penetration of a child under 16 (guilty verdicts by majority)

28 These three charges related to two separate occasions where the complainant babysat the applicant's young son, and stayed the night at his home. On the first occasion, she took the vibrator (referred to in relation to Charge 9) with her. During the evening, he used the vibrator to penetrate her vagina (Charge 10). He also penetrated her vagina with his penis (Charge 11). She remembered this particular occasion because she stayed over and was in bed with the applicant in the morning when his young son came into the bedroom, and got into bed with them. She remembered that very clearly because she 'freaked out a little bit' that his son was there.

29 As to the second occasion, the complainant once again babysat the applicant's son. She and the applicant had sexual intercourse (Charge 12). She remembered that occasion, specifically, because she was wearing the lingerie that he had previously given her.

30 In relation to Charges 10 and 11, the complainant was not entirely certain as to how she came to arrive at the applicant's house to babysit for him. She said:

I don't have a strong memory attached to this certain occasion, but I know that the only reason I was ever at his house during that time would have been to babysit, cause I babysat his son on numerous occasions. So I would be confident in saying that that's why I was there.

31 She said that the applicant would just ask her to babysit for him, and they would organise for her to go over to his house. Often he would drive her home afterwards. There were a couple of occasions that she would have stayed the night because he arrived home late. She said that her parents were aware of the babysitting arrangement because she had discussed with them the fact that she would be babysitting, and obtained their permission.

32 In cross-examination, the complainant rejected counsel's suggestion that she had never, at any stage, babysat the applicant's son in either 2004 or 2005. As to whether she could recall specific occasions of babysitting, she said, in examination in chief:

I have memories of babysitting. I have memories of the events I've spoken about. I just couldn't be a hundred per cent sure that those memories are the same time as each other.

33 In cross-examination it was put to the complainant that she had never stayed overnight at the applicant's house prior to 2008, when, in his absence, she looked after his house for him. It was further put to her that she babysat the applicant's son in 2006, when she was in year 11, but never, at any stage, stayed overnight in the course of doing so. She insisted that she had on at least two occasions stayed overnight, these being when the offences that formed the basis of Charges 10, 11 and 12 were committed.

34 Counsel also suggested that the complainant's evidence, in relation to Charges 10 and 11, that the applicant's son had gotten into bed with them was 'just fantasy' and 'just never happened'. She replied:

I have a clear memory of that because it was during those years. Your questions just previously were to do with the later years and I couldn't tell you exactly how many times I babysat in the later years but I do remember sleeping over during that time.

35 As to whether the complainant had asked her parents (when she was contemplating reporting the matter to the police) whether they could remember her staying over at the applicant's house, she said that she had not asked them that question. She agreed, however, that she had given answers at the committal to the effect that she had discussed the matter with them. She sought to clarify the point, insisting that she had discussed the matter with them, but denying that she had done so in order to help herself remember, as she 'knew' these things already. As to counsel's suggestion that her parents' response was that they could not remember a time (that she stayed over at the applicant's house), she agreed that that was so.

Charge 13: Sexual penetration of a child under 16 (acquitted by majority verdict)

36 The applicant contacted the complainant by phone late at night and arranged to meet her near her parents' home. He took her by car to a secluded place where they had sexual intercourse. He then took her back home, where she saw her father as she came in the front door. He asked her where she had been and she made up an excuse for having been out so late. She said that she felt sick and needed to go for a walk.

37 In cross-examination, the complainant agreed that she had not included in her statement to the police this conversation with her father. She also agreed that the first time she provided that particular detail was at the committal, and that she had acknowledged, on that occasion, that she did not have any clear recollection of having spoken to her father in that way. She agreed that her account to the jury about the conversation with her father was much clearer than what she had provided at committal. She also stated that she had spoken to the informant and done her own research and thus understood the need for specific identifying detail regarding charges. In that context, of the numerous occasions where they had sex in the car, she remembered this specific incident by reference to the conversation with her father.

Charge 14: Sexual penetration of a child under 16 (no verdict)

38 On another occasion while the complainant was at the applicant's home, they had sexual intercourse while she was menstruating. She felt nervous about that. Afterwards, they had a shower. That was all that she could remember.

Charge 15: Sexual penetration of a child under 16 (acquitted)

39 On another occasion, the applicant drove the complainant to her part-time job at a supermarket. During the trip, which took about 20 minutes, he continually inserted his fingers into her vagina.

Charge 16: Sexual penetration of a child under 16 (no verdict)

40 On another occasion the complainant was again at the applicant's home and they had sexual intercourse. While she was in the shower, he found text messages about a male, 'J', whom the complainant had been 'kind of seeing'. The applicant became angry and upset with her for seeing someone else.

41 In cross-examination, the complainant agreed that 'J' was her saxophone teacher and, at the time, he was 22 and she was 15. She agreed that, on her evidence, she was having sexual intercourse with two music teachers, during the same period, namely 'J' and the applicant.

Charge 17: Sexual penetration of a child under 16 (acquitted)

42 In the mid-year break in 2005, the applicant joined the complainant's family on a camping holiday in North-Western Victoria. He took her for a driving lesson. At some point they both got out of the car. The complainant leant onto the passenger seat while the applicant had sexual intercourse with her from behind.

43 The defence contended that none of this offending had occurred. In essence, the applicant invited the jury to conclude that the complainant had either concocted all of these allegations, or that for a combination of other reasons, her evidence was unreliable.

44 The applicant said that he was a friend of the complainant's family and regularly dined with them and joined them on holidays. His evidence was that he had never stayed the night at the complainant's family home, and that the complainant had never stayed the night at his home. He acknowledged that the complainant had babysat for him but insisted that this had occurred only after 2006, well past the period of the alleged offending.

45 The applicant said that the school principal had spoken to him in early 2005 about the nature of his relationship with the complainant. He said that her father had also spoken to him regarding that matter. As a result, the applicant had thereafter distanced himself, at least to some degree, from the complainant. He said that he was conscious of various personal issues that affected the complainant throughout this period, including the fact that she had a significant eating disorder.

46 The applicant accepted that he had taken the complainant to perform at a wedding in Melbourne in order to develop her talents as a musician. He said that the door to the room where he was alleged to have had sexual intercourse with the complainant, at the school, could not be locked from the inside, and could only be locked with a key from the outside. He said that that room had windows on four sides and blinds that could be operated externally by people in the adjoining areas. He added that anyone could see clearly into that room from one of those adjoining areas.

47 The applicant agreed that he had seen a text message regarding 'J' on the complainant's phone during a music lesson at the school. The complainant had told him that she had 'got with J', who was her saxophone teacher.

48 He said that he had been a mentor and friend to the complainant between 2006 and 2007, and had attended her 18th birthday party.

49 He agreed that he had received an abusive telephone call from an [AK], a classmate and later boyfriend of the complainant, who gave evidence that in 2008 he had spoken to the applicant on the telephone about his sexual relationship with the complainant.[6]

50 The applicant called evidence as to his good character, and to the effect that he was someone who understood appropriate boundaries when interacting with students.

51 In his closing address, the prosecutor described the case as having 'no middle ground'. He submitted that it was either a matter of the complainant having made false allegations, or the applicant having made false denials. He accepted that the ultimate focus had to be upon the complainant's credibility. The issue to be resolved was whether the jury were satisfied beyond reasonable doubt that the complainant was telling the truth.

52 On the other hand, neither counsel who appeared for the applicant at trial, nor the trial judge, saw the matter in quite that way. Counsel for the applicant reminded the jury of the need to consider the evidence relating to each charge separately. Although the defence case was that none of the complainant's allegations were true, it was at least implicitly accepted that her evidence in relation to some of the charges might be seen as being stronger than that in relation to others.

53 As would be expected, the trial judge was of the same view. He gave the jury a standard 'separate consideration' direction in his charge.

54 Although the applicant's challenge to his convictions on Charges 10, 11 and 12 is divided, by the grounds of appeal, into three separate components, these grounds overlap to a considerable degree.

55 Ground 1 contends that the guilty verdicts on these charges are unreasonable, or cannot be supported, having regard to the evidence. The ground asserts that the 'cumulative effect' of what are said to be deficiencies in the complainant's evidence should lead to these convictions being quashed, and verdicts of acquittal being entered.

56 Ground 2, on the other hand, focuses upon what may fairly be described as an 'inconsistency' between the verdicts on these three charges, and those delivered in relation to all remaining counts.

57 As previously indicated, proposed Ground 3 takes Ground 2 no further, but, in accordance with the established authority of this Court, treats inconsistency as a ground of appeal that is separate and distinct from unsafe and unsatisfactory.

58 The applicant submits that if either Ground 2 or Ground 3 is made good, there should be a new trial in relation to the charges in respect of which he has been convicted.

59 As previously indicated, the applicant drew attention, in support of this ground, to a series of what was said to be deficiencies in the Crown case regarding the incidents that gave rise to the convictions presently under challenge.

60 More particularly, the applicant submitted that the complainant's evidence, in support of Charges 10, 11 and 12, was somewhat uncertain. The applicant referred to the passage in the complainant's evidence that I have set out earlier at [30] of these reasons.

61 Further, the applicant relied upon what was said to be a significant inconsistency between the complainant's evidence, regarding discussions that she had had with her mother, and the evidence given by her mother in relation to that matter. The complainant said that she had discussed the allegations concerning the applicant's conduct toward her with her parents, and that they had told her that they had no recollection of her having stayed overnight at his home, after babysitting, during 2004 and 2005. However, her mother gave evidence that although she recalled the complainant having stayed at the applicant's house, after babysitting in 2004, she could not identify a time by reference to any specific incident. Contrary to the complainant's evidence, the mother denied having discussed with her daughter the issue of her having stayed overnight after babysitting. She said, of her daughter's account, that 'all I can think is that she was so confused'.

62 The applicant submitted that the convictions on Charges 10, 11 and 12 gave rise to a concern that the mother's evidence may have been impermissibly used by the jury as 'corroboration' of the complainant's evidence that sexual intercourse had occurred, rather than simply as an account that did not detract from what the daughter had said.

63 The applicant next raised, in support of Ground 1, inconsistency, the very matter that lies at the heart of Grounds 2 and 3. He noted that Charges 10 and 11 were particularised by reference to the vibrator and lingerie. Yet these were also the identifying particulars of Charge 9, on which the jury were unable to reach a verdict.

64 Finally, the applicant submitted, in support of Ground 1, that when the evidence going to Charges 10, 11 and 12 was viewed in the context of the verdicts as a whole, there was a real possibility that the jury had arrived at their verdicts by way of compromise. After all, the jury had 'repeatedly and fundamentally rejected the complainant's account of the alleged sexual activity' in relation to the vast bulk of the charges. Why then, it was said, convict of these three charges only?

65 Plainly, this last point is little more than a precursor to the 'inconsistency' claims made in support of Grounds 2 and 3.

66 The applicant submitted, in support of these grounds, that the convictions on Charges 10, 11 and 12 should be set aside as being unsafe and unsatisfactory. In support of that submission, he made the following points.

67 First, the case ultimately rested solely on the credibility of the complainant. It was noteworthy that the jury acquitted him on each of the charges that, according to the complainant, began and ended the alleged sexual relationship. By reason of those acquittals, and by reason of the applicant's presumed innocence on charges where the jury were unable to reach a verdict, the entire narrative of the Crown case had been significantly undermined.

68 Secondly, this was not a case explicable by the sequential rejection of the applicant's evidence, followed by separate consideration of each of the remaining charges. This was a case where the jury were unable to be satisfied beyond reasonable doubt as to the applicant's guilt on 14 of the 17 charges brought against him. In relation to some of those charges, the defence case was not merely that the Crown had failed to establish guilt to the requisite standard, but also that some of the complainant's allegations were so inherently implausible as to be 'outlandish'. Not surprisingly, so it was submitted, the jury had acquitted the applicant on those charges. However, the complainant's willingness to maintain her allegations, for example, in relation to Charges 2 and 3, made it clear that she was a 'wholly unreliable' witness.

69 Thirdly, the applicant submitted that the artificiality of the sentencing on Charges 10, 11 and 12 demonstrated just how flawed the verdicts on those counts were. The Court was bound to sentence, consistently with the jury's verdict, and with the presumption of innocence, on the basis that the applicant and the complainant engaged in three separate acts of sexual penetration, arising out of two separate visits to the applicant's home, without there being any context whatsoever for the commission of these offences. That view of the facts was inconsistent with the complainant's entire narrative.

70 Fourthly, the jury had indicated, on the Friday afternoon, the day following the commencement of their deliberations, that they were in a position to deliver unanimous verdicts on five of the 17 charges that they were considering. However, by the following Monday morning, they had retreated from that position. In the end, they were only able to deliver unanimous verdicts on four of those charges, and having been given, on the Monday, a majority verdict direction, majority verdicts on a further four charges. From this, so it was said, it could be inferred that at least one juror was prepared to change his or her mind about convicting or acquitting the applicant after having earlier reached a final position regarding that matter.

71 Fifthly, the verdicts on Charges 10, 11 and 12 were by majority, as was the acquittal on Charge 13.

72 In the context of the 'all or nothing' nature of the case, and the way in which it had been conducted before the jury, it was difficult to reconcile the verdicts on Charges 10, 11 and 12 with the verdict on Charge 13. It was, after all, the very same issue, namely the credibility of the complainant, that underpinned the consideration of each of those charges.

73 Finally, the applicant submitted that the overall pattern of the verdicts in this case strongly suggested an 'illogicality', or a serious compromise, in the jury's reasoning process.

74 The respondent submitted that in accordance with the decision of the High Court in M v The Queen,[7] the question to be determined by this Court, in relation to this ground, was whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the charges.

75 The respondent further submitted that in order for this Court to discharge its responsibility in relation to this ground, it would be necessary to examine all of the admissible evidence against the applicant, and to consider whether it was reasonably open for the jury, on that evidence, to be satisfied of his guilt.[8] To make this ground good, the applicant would have to establish not merely that the jury 'might' have entertained a reasonable doubt as to the applicant's guilt, but that they 'must' have done so.[9] In other words, it would be insufficient, to succeed on Ground 1, if all that could be shown was that there was material which might have been taken by a jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

76 Senior Counsel for the respondent attached to his written case what he described as a 'schedule of references to closing addresses' and a further schedule to the judge's charge, 'dealing with the reliability of the complainant'. There were, in these schedules, 14 references to passages in the Crown's closing address, 31 references to passages in the defence address, and 15 references to passages in the judge's charge. These references provide a helpful, but incomplete, synopsis of the totality of the evidence given at trial.

77 It was accepted that, as a matter of substance, the case against the applicant depended entirely upon the evidence given by the complainant. As previously indicated, the offences that gave rise to Charges 10 and 11 were said to have been committed on the one occasion, at night time, when the complainant went to the applicant's house to babysit. She claimed that she took with her on that night, the vibrator which the applicant had previously given her, and that he used it to penetrate her vagina (Charge 10). He then penetrated her vagina with his penis (Charge 11).

78 The complainant then related a further occasion when she attended the applicant's house and when penile/vaginal intercourse took place (Charge 12).

79 It was submitted that the circumstances upon which the applicant now relied to argue that the complainant's evidence was 'wholly unreliable' were all matters that the jury must have considered. They were all thoroughly explored in the cross-examination of the complainant, and extensively argued in the closing addresses of both parties.

80 It was submitted that, having regard to the entirety of the evidence against the applicant, it was well open to the jury, whose members had had the benefit of having seen and heard the witnesses, to convict him of the three charges.

81 The respondent noted, in response to the inconsistency ground, that the jury had been given the conventional 'separate consideration' direction in its full form. It was submitted that they were presumed to have followed that direction.[10]

82 It was next noted that the jury retired to consider its verdict at 1:32pm on the Thursday. It adjourned its deliberations at 4:00pm that day, deliberated throughout the whole of the next day, and returned its verdicts on eight charges at 2:59pm the following Monday. The jury were discharged without verdict on the remaining nine charges. The Crown submitted that there was nothing sinister or particularly significant about any of this. The pattern of the verdicts, and the course of deliberations, revealed no more than that there had been a possibly recalcitrant juror. The fact that the jury had signified unanimous agreement on five charges on the Friday, but were not able to reach unanimity on more than four charges by the Monday, indicated nothing more than that a juror (probably only one, but perhaps more) had changed his or her mind over the weekend.

83 There was no basis for asserting, in relation to the convictions emanating from Charges 10, 11 and 12, if separately considered, that they were unsafe and unsatisfactory.

84 Those three convictions, five acquittals and nine charges on which the jury were unable to agree formed no basis in logic in support of the ground for which the applicant contended.

85 Neither party sought to make any oral submissions with respect to the sentence appeal, with both relying on their respective written cases. The applicant's written case did not provide any further submissions than those articulated in the grounds of appeal stated above. The respondent submitted that a sentence of four years in respect of the sexual penetration of a 15 year old student by her teacher was not outside the permissible range so as to amount to error. The respondent further submitted that the total effective sentence and non-parole period were within the acceptable range.

86 This ground must be rejected. The fact that the complainant was clearer, in her recollection, in relation to some of the charges than she was in relation to others was hardly surprising. There were, as has been seen, a large number of allegations. However, it may fairly be said that Charges 10, 11 and 12 were distinctive in certain key respects.

87 The complainant claimed that she recalled the offences committed at the applicant's house that gave rise to Charges 10 and 11 because she had stayed over that night, having babysat the applicant's young son. She remembered him coming into the bedroom the following morning. That was an unusual feature, likely to have imprinted itself upon her memory. Where she had been vague and uncertain regarding other offences, the jury might well have concluded that, in relation to Charges 10 and 11, her account of these specific matters was both truthful and accurate.

88 Much the same can be said of Charge 12. There is nothing surprising about her having a clearer recollection regarding this offence than a number of the others. On this occasion she again babysat the applicant's son. She said that she remembered it specifically because she was wearing the lingerie that he had previously given her.

89 The fact that the applicant escaped conviction on seemingly related Charges, 9 and 13 does not mean that the jury's findings regarding Charges 10, 11 and 12 were not reasonably open. It would be perfectly feasible for the jury, acting reasonably, to entertain a doubt as to guilt in relation to Charge 9, taking the view that the surrounding circumstances of that offence, as outlined by the complainant, including hiding in his car during school hours, cast doubt upon her reliability in that regard. Moreover, the complainant herself said that although she had a 'strong memory' of driving out of the school driveway with the paper bag containing both a vibrator and some lingerie, she added that she could not recall when this occurred, and no memory at all of any conversation. She had no particular recollection of what occurred when they returned to the applicant's house, other than not using the 'stuff' that he had given her. All that she could say was that she remembered 'just having sex'.

90 Likewise, in relation to Charge 13, the circumstances surrounding the commission of that offence, including her supposed late-night discussion with her father, were somewhat improbable. In addition, her account of this incident, in her evidence at trial, was far more detailed than her recollection at committal. That, of itself, might have caused some jurors to have a doubt as to the applicant's guilt of this charge, though not as to his guilt of Charges 10, 11 and 12.

91 Having read with some care both the complainant's evidence at trial, and that of the applicant, I am not persuaded that the jury ought to have entertained a reasonable doubt as to these three charges. I am even less persuaded that the jury 'must' have entertained such a doubt.

92 These grounds must also be rejected. The reasons have already, to some degree, been canvassed. The complainant's evidence in relation to Charges 10 and 11 goes part of the way towards explaining this conclusion. Although she acknowledged that she was not one hundred per cent sure as to how, precisely, she came to be at (meaning arrived at) the applicant's house on the night in question, she added that she knew that the only reason she was ever there at night would have been to babysit. She said that her parents were aware of her arrangement with the applicant, and also that they knew that she would be staying the night because the applicant would be returning home late.

93 The complainant went on to say that on the first of the two occasions involving sexual penetration while she was babysitting, the applicant used the vibrator upon her. She then said this:

I remember a specific time, that specific time, because I'd stayed over. In the morning his son [E] came in to the bed and got into bed with - and I was in the bed with [the applicant]. I remember that very clearly because I freaked out a little bit that [E] was there. Whether or not that was something he would remember or say to someone else, but I remember that clearly.

94 When asked when this incident took place, the complainant said '[j]ust in the later [sic] half of 2004'.

95 In dealing with the offence the subject of Charge 12, the complainant said '[t]here was another time I remember because I remember wearing the lingerie'. When asked what she meant by 'the lingerie', she said:

The items he'd given me, the top and the bottom, and then we had sex in that he put his penis in my vagina again. I just remember that time specifically because of the lingerie.

96 The complainant's specific recollection of the circumstances giving rise to the offences the subject of Charges 10, 11 and 12, stands in stark contrast with her uncertainty, and the vagueness of her evidence, in relation to a number of the remaining charges. That, of itself, helps explain why the jury convicted of the three charges, and did not convict of the others. When one factors in, as well, the inherent improbability associated with the complainant's account of some of those other offences, it is scarcely surprising that the jury did exactly what they were told they should do, namely give separate consideration to each of the charges.

97 The complainant's evidence was, of course, far from unimpeachable. She acknowledged that she had developed an attachment to another teacher towards the end of her primary schooling, and had suffered a severe emotional reaction, amounting to depression, when that teacher left. She had received counselling in relation to her depression. She had also developed an eating disorder at about the same time. She agreed that throughout the entire period that she had been having sexual relations with the applicant, she never mentioned that fact to any of the counsellors who were treating her.

98 The complainant was obviously a troubled young girl when these alleged offences took place. She agreed that even after the offending ended, she was 'not a very happy person'. She accepted that by 2005 she had developed an obsession towards the applicant, and that once contact between them lessened, she reacted very strongly, and adversely to that fact. She accepted that the applicant, a man who she claimed had continually abused her for about a year, while she was aged 14 and 15, had nonetheless been invited to attend her 18th birthday party. She also accepted that there were no outward signs, at that stage, of anything untoward about their relationship. She agreed that, in the period leading up to her decision to report the matter to the police, in 2011, she had been receiving counselling for depression. She acknowledged that while she was in a sexual relationship with the applicant, she was also in a relationship with another, much younger, music teacher at the school.

99 In cross-examination, the complainant acknowledged that by the time she reported the applicant to the police, she had long since disposed of the vibrator and the lingerie. She also acknowledged that she had never told anyone about them at the relevant time.

100 The real answer to how the jury might reasonably have convicted the applicant on Charges 10, 11 and 12, but not any of the other charges, can be seen from the following passages in the transcript of the complainant's cross-examination (acknowledging some repetition of what has already been set out earlier in these reasons):

I'll move to Counts 10, 11 and 12. You refer to being at [the applicant's] house at night-time. Is that right?---Yes.

You say, 'I don't have a strong memory attached to this certain occasion, but I know that the only reason I was ever at his house during that time would have been to babysit.' Is that right?---Yes.

So again, you have no memory of why you were at, you say, [the applicant's] house at night, but you believe it would have been in relation to babysitting. Is that correct?---Yes.

What I suggest ... is that you never babysat [the applicant's] child, [E], at all during 2004 or 2005. You disagree with that, do you?---Yes.

You disagree on the basis that you can recall specific occasions where you did that, can you?---I have memories of babysitting. I have memories of the events I've spoken about. I just couldn't be a hundred per cent sure that those memories are the same time as each other.

There's no possibility of finding out any date where you might have actually gone and babysat [E], I suppose, ..., is there?---Not that I know of.

No way that we could fix a time where you say you were at [the applicant's] and we could check it. No way we could do that, I take it?---Not that I can think of.

Well, I'll come back to that. I want to suggest to you that you never stayed overnight at [the applicant's] house, never stayed at his house until you house-sat his house in 2008. That's right, isn't it?---No, that's wrong.

Well, when did you stay at his house overnight, ...?

---During those years?

Yes?---I can't tell you exact dates. I can't tell you - you know, it's a very long time ago and there was no - I didn't keep a diary. There's no way for me to know.

You did babysit [E] when you were in year 11, didn't you?

---Yes.

Now, that was in 2006, wasn't it?---Yes.

I should put to you that that was about three or so occasions, wasn't it?---I can't remember. I couldn't tell you.

But on no occasion did you stay the night at his house, did you?---I couldn't tell you. I can't remember.

Isn't that something you're likely to remember, whether you stayed at his house or not?---Not when it's something that's been, you know, an ongoing event that had been going on for years. You know, I spent a lot of time since then not thinking about these things. I never knew I would have to remember every time I babysat, but I assure you I remember the important aspects.

You told the jury yesterday that when you stayed the night you remember it clearly because you freaked out a little bit that [E] was there. Is that right?---Yes.

MR HAMMILL: It needs to be put properly, Your Honour. That was in the context of [E] coming into the bed in the morning or coming in

MR O'CONNELL: That's what I'm putting.

HIS HONOUR: Yes, it wasn't precisely put that way but that's where you're leading to, yes.

MR O'CONNELL: That's what I meant. I'll rephrase it. (To witness) What you told the members of the jury is this: 'I remember' - this is p.101 line 19. 'I remember a specific time, that specific time, because I had stayed over. In the morning his son [E] came into the bed and got into bed with - and I was in the bed with [the applicant]. I remember that very clearly because I freaked out a little bit that [E] was there.' That's what you said, wasn't it?---Yes.

Now look, I suggest to you that's just fantasy. That just never happened, ...?---Well, if all of this never happened then why are we here? I have a clear memory of that because it was during those years. Your questions just previously were to do with the later years and I couldn't tell you exactly how many times I babysat in the later years but I do remember sleeping over during that time.

You, as a 15yearold girl, needed the permission of your parents to stay overnight anywhere, didn't you?---Yes.

Your parents needed to know where you were, didn't they?---Yes.

You say that you didn't lie to your parents as to where you were. Is that right?---I can't remember lying. Assuming I told the truth [sic].

You're assuming that you told the truth, are you?---There would be no reason to lie. I was just babysitting.

Weren't you conducting a sexual relationship with your music teacher?---Yes.

Wouldn't that be a reason to lie?---Yes.

Did you lie?---I don't remember lying. I am not a liar.

You asked your parents when you were contemplating reporting this matter to the police whether they could remember you staying over at [the applicant's] house, didn't you?---This was one of the points that I wanted to clarify.

I wonder if you might just answer the question for us, please?

---No, I didn't ask them.

You didn't ask them?---No. I know that at the committal hearing I said yes to that answer.

I'll just stop you there, if I may. You see, the members of the jury don't know that but we'll just go through it step by step, if we can?---Okay.

Page 18, line 1. Perhaps I'll start - put it in context, Your Honour, down the bottom of the page. Line 29, p.17. Question, 'No. So if it was the case that you were staying the night at [the applicant's] house they would want to know about it, wouldn't they?' Answer, 'Yes, they would.' Now, I pause there. The 'they' there is referring to your parents. Do you understand that, ...?---Yes.

Question, 'Yes, and you've discussed this with them, haven't you?' Answer, 'Yes.' Question, 'They can't remember a time between mid-2004 and mid-2005 that they've told you about where that happened, can they?' Answer, 'Not a specific time, no.' Now, those questions were asked of you and those answers were given, weren't they, ...?

---Yes.

They were truthful?---Yes, at the time to what I believed you were asking me and what - yes.

This is at p 20, line 9, Your Honour. Question, 'You say that that time was between mid-04 and mid-05. Is that correct?' Answer, 'Yes.' Question, 'You asked your parents whether you had stayed away at [the applicant's] house during that period, didn't you?' Answer, 'Yes.' Question, 'They told you that they couldn't remember such a time, didn't they?' Answer, 'They told me that they they couldn't really remember, no.' Were those questions asked of you and were those answers given, ...?---Yes.

Were they truthful?---Yes, at the time. I misunderstood what you were saying and I have since - reading my transcript I'd like to clarify.

101 It is particularly important, when dealing with Grounds 2 and 3, to note that unlike any of the other offences, Charges 10, 11 and 12 were supported, at least to some degree, by the evidence given by the complainant's mother. The transcript of her examination in chief reads as follows:

So at the time [the complainant] would have been 14, turning 15 toward the end of July?---Correct.

Can I ask over the course of the period of time that [the applicant] remained friendly to [your] family were there occasions where [the complainant] would babysit?---Yes, that's correct.

As the result of this babysitting, whenever it was, were there occasions for [the complainant] to stay overnight at [the applicant's] house?---Yes, there were multiple occasions. He used to play jazz gigs that went till quite late at night.

It was the case that, because it was so late at night for him to get home, with your consent and the consent of your husband [the complainant's father] it was easier for [the complainant] to remain there and come home the following morning?---Correct.

102 It was suggested in cross-examination that the complainant's mother had previously said that her daughter had babysat for the applicant when she was in year 11 (which was in 2006, after the period when the offences that gave rise to Charges 10, 11 and 12 were said to have been committed). Her answer was that she had been confused at the committal when she previously gave that answer. It was open to the jury to accept that explanation.

103 The complainant's mother went on to say that she had no recollection of having discussed with her daughter the complainant's assertion that she had stayed overnight, when she babysat the applicant's son. Indeed, the mother went so far as to describe her daughter's account of that conversation as 'confused'.

Nonetheless, you hold to the view that you believe [the complainant] stayed overnight on 2005. In that right? --- I know for a fact that she stayed over there from 2004 multiple times. I can't tell you when she stopped staying there.

105 In addition, the complainant's father was asked about his daughter's having babysat for the applicant. He confirmed that she had, from time to time, done so. He was not asked if he had any recollection of her having stayed at the applicant's house overnight.

106 Importantly, having regard to the complainant's mother's evidence, the applicant's own account of the complainant's babysitting was clear, and unequivocal. He said, in evidence in chief:

Did you ever take [the complainant] to your home during school hours?---No.

It has been alleged that she came to stay at your house overnight and babysit your son [E]. You will recall those allegations?---Yes.

Did she ever come and stay overnight babysitting [E]?---No.

What do you say as to the allegation that she had sex with you on two nights in 2004 at your home?---They're false allegations.

During 2004 and 2005 you had the care of your young son, [E], didn't you?---Yes.

Did you, at times, arrange for babysitting for him?---Yes.

How was that done?---The neighbour over my back fence, [NS], would on occasions - it wasn't a huge number of times but she would come and babysit during that period.

How old was [NS] at that time?---She was 16.

During 2004 and 2005 did [the complainant] ever babysit [E]?---No.

In 2006 when [the complainant] was in year 11 what do you say as to whether or not she did then?---Yes, she did.

On roughly how many occasions?---I would say roughly three, definitely more than one.

On any of those occasions did she stay the night?---No.

In 2007?---I don't recall her babysitting during 2007.

108 When considering whether Grounds 2 and 3 can be sustained, the point of differentiation between the verdicts on Charges 10, 11 and 12 and the remaining charges becomes readily apparent. The jury convicted the applicant on the only three charges in which there was supporting evidence for the complainant. That supporting evidence came primarily from her mother. Critically, the mother's account was directly contrary to that given by the applicant, and supported the complainant in an important particular.

109 The principles that govern factual inconsistency as a ground of appeal, are well-settled. In MacKenzie v The Queen,[11] Gaudron, Gummow and Kirby JJ said, in a joint judgment:

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. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

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. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of 'differences in the evidence presented at the two trials' or 'the different views which the juries separately take of the witnesses'.

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. A judgment of Devlin J in R v Stone is often cited as expressing the test:

"He must satisfy the court 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."

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. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin) observed:

"[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty."

We agree with these practical and sensible remarks.

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. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.[12]

110 In MFA v The Queen[13] the High Court affirmed the principles laid down in MacKenzie. The appellant in that case was found guilty of two counts of sexual abuse against a youth but was acquitted of a further seven counts. The sexual acts to which the nine counts related were alleged to have occurred on four separate occasions. The counts upon which the appellant was convicted related to one particular occasion. The appellant argued that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence and to the verdicts of not guilty on the other counts. It was submitted, that the acquittals involved the non-acceptance of the complainant's evidence which in turn impacted upon the complainant's evidence with respect to the guilty counts.

111 In dismissing the appeal, Gleeson CJ, Hayne and Callinan JJ rejected the notion that the Court's earlier decision in Jones v The Queen[14] stood for the proposition:

that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.[15]

112 Their Honours described that view as 'erroneous', adding that it:

overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned ... [earlier in MFA]. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M, which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.[16]

113 Similarly, McHugh, Gummow and Kirby JJ also rejected that view of Jones, adding that '[i]t always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified'.[17]

114 The principles expounded by the High Court in MacKenzie and MFA, and applied in numerous decisions of this Court,[18] make clear that if there is a rational explanation for the different verdicts arrived at by a jury, it will not lightly be inferred that the jurors have forsworn their oaths, and impermissibly compromised.

115 For the reasons previously set out, the verdicts in this case on Charges 10, 11 and 12 can readily be explained. There is nothing to suggest that those verdicts are an 'affront to logic and commonsense'. Indeed, they are perfectly understandable, given both the firmness with which the complainant adhered to her account of the offences in question, and the support that account received from her mother. The jury were perfectly entitled to prefer their evidence, regarding the babysitting and staying overnight, to that given by the applicant who denied that any such arrangement had been struck. Once the jury rejected the applicant's account, and preferred that of the complainant and her mother regarding that issue, it was but a short step to concluding that the applicant was guilty of these three offences.

116 To their credit, the jury did exactly what the judge directed them to do. They gave separate consideration to the other charges. They did not simply conclude that because the applicant was guilty of Charges 10, 11 and 12, he must therefore also be guilty of the other offences alleged.

117 In the circumstances, I would dismiss the application for leave to appeal against conviction.

118 Turning to the sentence imposed. The sole ground of manifest excess must be rejected. A sentence of four years' imprisonment for the sexual penetration of a child under 16 in circumstances such as these is, in my opinion, plainly within range. The applicant's conduct was deplorable. He was in a position of trust, and grossly abused that trust. He was the complainant's teacher, her mentor, and a close friend of the family. He had special responsibilities towards her when she babysat his son, and was accordingly in his care, at his home, when she stayed overnight. He had no business engaging in any sexual contact with a child, and particularly one who appears to have been extremely vulnerable throughout the period of his offending.

119 Similarly, the orders for cumulation, resulting in a total effective sentence of five years' imprisonment and a non-parole period of three years, were, in my opinion, entirely appropriate.

120 I would therefore also dismiss the application for leave to appeal against sentence.

[1] To ensure that there is no possibility of identification of the victims of sexual offending, the judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] (2010) 29 VR 305.

[4] See Pollard v The Queen [2011] VSCA 95; (2011) 31 VR 416, 437 [95].

[5] [2002] HCA 53; (2002) 213 CLR 606, 617-8 [35].

[6] [AK] gave evidence that the applicant had said 'sorry' and asked if he (AK) wanted money. [AK's] evidence was subject to a number of jury warnings, including an unreliability warning concerning the 'admission' allegedly made by the applicant.

[7] [1994] HCA 63; (1994) 181 CLR 487.

[9] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 (Hayne J).

[10] R v Halliday [2009] VSCA 195; (2009) 23 VR 419, 439; Gilbert v The Queen (2000) 201 CLR 414, 425 (McHugh J).

[11] (1996) 190 CLR 348 ('MacKenzie').

[12] Ibid 366-8 (citations omitted) (emphasis added).

[13] [2002] HCA 53; (2002) 213 CLR 606 ('MFA').

[15] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 618 [35].

[18] See, for example, R v Ware [1997] 1 VR 647; Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452; R v JA [2008] VSCA 169; Choudhary v The Queen [2013] VSCA 325; Andrew v The Queen [2013] VSCA 333.