Berntsen v R

Court of Criminal Appeal (NSW)|2023-09-05|Before: Ward P, Dhanji J, Sweeney J, Kirby JJ

Background

The applicant was the complainant's mother's de facto partner. The complainant's mother began a relationship with the applicant in 2011, and they commenced living together, first in the applicant's house at Portland and thereafter at Lithgow and Wallerawang. The alleged offences began in 2011 or 2012 when the complainant was nine years old and living with her mother and the applicant in Portland.
On 18 January 2017 the complainant told her mother that the applicant had been sexually abusing her since they first lived with him in his house at Portland. On that day she participated in the first of five interviews with police, all of which became her evidence in chief in the trial.

Applicable legal principles

There were two essential submissions made on behalf of the applicant. The first was that the jury's verdicts of acquittal on counts 6, 8 and 9 meant that the jury rejected the complainant's evidence as reliable and truthful, and therefore the convictions on the other counts, based on her evidence, were not reasonable. The second was that the different verdicts on counts 1-5 and 7, and 6, 8 and 9 are not capable of any logical explanation which can be legitimately found in the evidence; that the only logical explanation for the not guilty verdicts was that the jury were only prepared to acquit the applicant where he could point to some evidence disproving the complainant's version, thus reversing the onus of proof.
Before I turn to the detail of the evidence in the trial and of the parties' submissions on the counts, I will deal briefly with the applicable legal principles, which were not in dispute.
In considering the applicant's assertion of unreasonable verdicts on counts 1, 2, 3, 4, 5 and 7, the question this Court must ask itself is whether it thinks it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the accused was guilty of the offences charged, by making its own independent assessment of the evidence, taking into account the primary role of the jury to determine guilt, and the jury's advantage in seeing the witnesses, especially the complainant, give their evidence: Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35.
In respect of the applicant's assertion of inconsistency between the guilty verdicts and acquittals, in MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ stated, at 368: "… a residue of cases will remain where the different verdicts returned by the jury represent… an affront to logic and common sense, which is unacceptable and strongly suggests a compromise of the performance of the jury's duty… 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".
In determining whether convictions are unreasonable, in light of acquittals on other counts, "the focus of the enquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis": R v TK [2009] NSWCCA 151 per Simpson J (as her Honour then was) at [128], McClellan CJ at CL and Latham J agreeing. "In circumstances where a jury returns differential verdicts for multiple counts charged against one appellant on the basis of evidence from one complainant this Court must consider whether the differential verdicts are irreconcilable or not. This is a test of logic and reasonableness": Garling J in Wheeler v R [2019] NSWCCA 255, Bathurst CJ and Wright J agreeing, at [19], citing MacKenzie v The Queen. The applicant must satisfy the Court that no reasonable jury who applied their minds properly to the facts in the case could have arrived at the different verdicts: MacKenzie v The Queen; Walker v R [2019] NSWCCA 4 at [103]-[110].
In Cullen v R [2022] NSWCCA 63, Simpson AJA, Rothman and Ierace JJ agreeing, said: "[66] As a result of the searching analysis by Spielman CJ and Wood CJ at CL in Markuleski, and the passage from MFA extracted above, it is now accepted that, even in a case where proof of all counts depends on the evidence of one witness, convictions on one count (or more than one count) accompanied by acquittal on one count (or more than one) does not, without further analysis, demonstrate inconsistency (citations omitted). [67] As I suggested in R v TK… at [128] an apparently inconsistent conviction may be explained when a basis for an acquittal is understood. In a separate but concurring judgment in TK, McClellan CJ at CL said: '[6] It seems to me that there are problems in an appellate court concluding that because the jury does not convict on one or more counts any conclusion as to the general creditworthiness of a complaint can be drawn… It is a very significant step to conclude that the reason for a jury's decision to acquit on any count is that they were so unable to accept the complainant's evidence on the count that her evidence was not capable of founding a conviction on another count.'"

Evidence in the trial

The complainant and her mother gave evidence that on the morning the complainant told her mother about the alleged assaults by the applicant, the applicant walked into the room and asked why the complainant was crying. The complainant said "You know why, what you did to me in the Portland house". The applicant said "Are you seriously going down that road?". That was relied on by the Crown in the trial as an admission in respect of counts 1 and 2, which were alleged to have occurred when the complainant and her mother were living with the applicant at Portland.
The complainant said when the police arrived at the family home the applicant whispered to her to say she had made it all up because she was destroying the family.

Evidence about count 1

The complainant's evidence in chief about the offence charged in count 1, given in her first and second interviews with police (conducted on 18 January 2017 and 2 February 2017) was that when the family first moved in with the applicant to the Portland house, she was in her bed, her brother was in another bed in the room, she was nine, she woke up and the applicant had his hand down her pants touching her "rude part". He said "Shh or I'll kill you and mum". She said she cried and was scared. She did not tell her mother because she did not want her mother or herself to get hurt.
In cross-examination she maintained her account, and agreed that by "rude part" she meant her vagina.
The verdict on this count was guilty.

Evidence in respect of count 2

The complainant's evidence in chief about the offence charged in count 1, given in her first, second and third interviews, was that a few weeks after the alleged event the subject of count 1, when she was nine, and living at Portland, on one occasion when the applicant took her on a weekend to the sewerage plant where he worked, he laid her on her back on a washing machine in a laundry, on a brown towel, took her pants off and put his penis inside her vagina for about half an hour. It hurt. She screamed. He pinned her down by her shoulders. He was breathing heavily. He ejaculated on her belly.
Afterwards he told her not to say anything. She said she had to tell her mother. The applicant said her mother would not believe her, she would believe him, because he was the adult.
The complainant's mother confirmed, and it was not in dispute, that the applicant sometimes took the complainant to his workplace on weekends, and she would use the computer there.
In cross-examination, the complainant said that the applicant put one hand on her chest and had one on his penis, his feet were on the ground and he was leaning over her. She agreed that the 30 minutes she said the intercourse lasted for was more a guess than an estimate.
She said she noticed after the intercourse there was bleeding and bloodstains on her underwear. She agreed she had not mentioned before then, in any of her interviews with police, that she bled after that act of intercourse. She otherwise maintained her account.
The verdict on this count was guilty.

Evidence in respect of count 3

The complainant's evidence in chief in respect of the offence charged in count 3, given in her first three interviews, was that just after the family moved to Wallerawang, when she was 10, she was admitted to hospital after a car accident. She said after her stitches had been removed, she was at home in her bedroom, trying to sleep in her loft bed, which had stairs going up to the bed. The applicant put her on the stairs to the bed, facing away from him, with her knees on the stairs and her face against the wall of the stairs and put a dildo "up her bum" for a few seconds or minutes. She said "It really hurt, like I was constipated". She said the applicant was breathing heavily. She cried a lot, loudly, because it hurt. The applicant took the dildo back to his room. As he walked out of her room, she saw the dildo was purple.
She said when this occurred the complainant's mother and older brother were at home, watching a movie in the mother's room on the other side of the house. The door to the complainant's bedroom was closed.
In her fourth interview, conducted on 21 October 2018, after the complainant had reviewed her previous interview videos, she told police that the purple dildo was a bubble blower, about a metre long, with a purple handle which the applicant put "up her bum".
On 16 October 2018 the complainant's mother made a statement, at the request of police, in which she said she had never owned a purple dildo, in answer to a police question to that effect. She was not asked in cross-examination if she had told the complainant she had made that statement to police.
In cross-examination the complainant agreed that the pain from the object being inserted into her bottom was excruciating. She said she was not sure how far the dildo went into her bottom, it was "just a little bit". She said she noticed bleeding from her bottom afterwards. She accepted she had not mentioned bleeding in any of her interviews with police. She said she could not remember how long the purple object was in her bottom. She said the applicant walked out with the purple dildo and shut the door.
She said her mother did not tell her, before her fourth interview in which she said the object was the handle of a bubble blower, that she had made a statement to police about a purple dildo.
In re-examination the complainant demonstrated how far into her anus the object was inserted, which was estimated by the lawyers as 9.5cm. This was relied on by the applicant as an inconsistency in the complainant's evidence.
The complainant maintained the act alleged in count 3 occurred.
The verdict was guilty.

Evidence in respect of count 4

The complainant's evidence in chief about the alleged act the subject of count 4 was given in her second interview on 2 February 2017. She said when they were getting firewood in the bush near the house, in the car, the applicant put what he told her was "lube" into her vagina. It was cold. He pinned her in the car seat, lay on top of her and put his penis in her vagina for almost an hour. He was breathing heavily.
The complainant's mother gave evidence of finding lubricant and condoms in a toolbox owned by the applicant in the carport of their house on 28 January 2017. She said she had not seen them, and "we never used anything like that". It was not suggested to her that she had told the complainant about finding the lubricant and condoms. The lubricant was relevant to the complainant's account of count 4, the condoms to the complainant's account of count 5.
In cross-examination, the complainant said she was not aware, until it was put to her in cross-examination, that her mother had found the lubricant in the carport, days before her second interview in which she spoke about this alleged act, that she did not know at the time of the second interview that a tube of lubricant had been found at the house.
In cross-examination she said of the incident that the time estimate of an hour for the intercourse was more of a guess. She said the applicant ejaculated on her stomach, and she wiped the ejaculate on the car seat.
She maintained the intercourse happened in the circumstances she described.
The verdict on this count was guilty.

Evidence in respect of count 5

In her second interview, in February 2017, when asked (after some context evidence about penile-vaginal intercourse) if the applicant would wear a condom, she said, "once in the laundry he used a condom, cause he did it once in the laundry". She said while her mother was inside, the applicant said the complainant had to go and help him do jobs, and "he took me in the laundry and raped me with a condom". She said she thought that happened at the beginning of 2016. She said later in that interview that on the floor of the laundry the applicant put his penis in her vagina and he ejaculated on her belly.
In her third interview, in July 2017, she was asked how many times did things happen in the laundry room, and she said four or five times. "It was all just the same really". "He put me on the floor in the laundry and… put his penis inside my vagina". She said he would ejaculate on her belly and walk out. She said one time in the laundry he wore a condom, he put a condom on and ejaculated inside her. He used his teeth and "ripped it open" and put the condom on. He put his penis in her vagina, he was breathing heavily, "squishing" her and then he ejaculated inside, then he walked out and shut the door.
The occasion on which the complainant said the applicant used a condom in the laundry was the occasion relied on by the Crown as the subject of count 5.
In cross-examination, the complainant said she was not aware that her mother had found condoms in the carport at the Wallerawang house between her first and second interviews with police; she only became aware of that when it was put to her in cross-examination. In cross-examination, when asked about her accounts in her interviews of the applicant using a condom in the laundry on an occasion of sexual intercourse, and ejaculating on her belly in the laundry after sexual intercourse, she said they were different occasions, of the four or five times sexual intercourse occurred in the laundry. She maintained that penile-vaginal intercourse took place in the laundry.
The verdict on this count was guilty.

Count 6

In her first interview, after the complainant had told police about the act the subject of count 3, inserting an object in her anus, she was asked if he had put anything else "up there". She said "He's put his penis up there before and he ejaculated up there". She said it was about six months ago (the interview having occurred on 18 January 2017). She said it hurt. It happened at lunchtime. Her mother was at work, her brother was out playing, and her younger brother was playing Xbox.
In her third interview (14 July 2017) the police officer asked the complainant to tell her more about what she had said in her first interview, that the applicant had put his penis in her anus. She said "He put his penis inside my bum one time". She said it happened "back like when it first started".
In cross-examination she said the applicant put his penis all the way into her bottom. She agreed it was "incredibly painful". She agreed she told police in her July 2017 interview that this happened when the applicant began sexually assaulting her, so in 2012 or 2013. She was taken to her first interview in which she said the penile-anal act happened about six months before the interview (of 18 January 2017), which would have been around July 2016.
It was put to her that in the second interview after she had spoken about penile-vaginal assaults, police asked her "Did he put it anywhere else?" and she understood "it" to mean the applicant's penis, but agreed she did not say then that the applicant had put his penis in her anus. She maintained that he did.
The jury's verdict on this count was not guilty.

Count 7

The act the subject of count 7 was alleged to have occurred about a week before the complainant made her complaint to her mother, after the complainant returned from a trip to Canberra. In her first interview the complainant said she came back from a visit to Canberra with her siblings on Tuesday 10 January. She said that night while she was trying to go to sleep the applicant came into her room and said "Did you miss my big cock?" and she said "No, that's disgusting". She said the applicant took off her blanket and her pants and put his penis in her vagina for about 10 minutes. She said the applicant had cleaned her room while she was in Canberra, and he demanded "ten roots" in return for cleaning her room, which she had not asked him to do.
The complainant's mother confirmed in her evidence that the applicant cleaned and disinfected the complainant's room and the bathroom while the complainant was in Canberra but not any other room, after the mother had complained about the smell of cats in the house.
In cross-examination the complainant maintained that this assault had happened and she had not made it up.
The verdict was guilty.

Count 8

The act the subject of count 8 was alleged to have occurred on the night of 15 January 2017, a few days before the complainant's complaint to her mother. In her first interview of 18 January 2017 she said this alleged assault happened on the Sunday before the interview. She said as she was in bed falling asleep the applicant came into her room and said "Can I have a root?" and she said "No". She said the applicant grabbed her feet and took her pants off and put his penis inside her vagina for about 10 minutes, then he pulled it out and went to bed. After she left the room she put her shorts, singlet and underwear back on. She said the applicant did not use a condom.
After she told her mother about the assaults, her mother removed the sheets from the complainant's bed.
In cross-examination the complainant was asked "if I understand your evidence correctly, you said that [the applicant] ejaculated inside your vagina on that occasion, is that correct?". She answered "I don't remember". The premise of the question was not correct as the complainant had not said, in her only account of this event in her first interview, anything about the applicant ejaculating.
She agreed with the cross-examiner that she put her underwear on. A question was asked "That was after [the applicant] ejaculated in your vagina?". She answered "Yes". This was the basis of a submission to the jury about the absence of semen on the complainant's clothes and bedsheets, which I will come to shortly.
The complainant's mother gave evidence that after the complainant made her complaint to her she took the sheets from the complainant's bed. There was evidence in the trial that a Crime Scene Officer had tested the complainant's bedsheets and the clothes she was wearing on 15 January for the presence of semen and no semen was detected on any of them.
In her closing address to the jury, the Crown Prosecutor said: "One of the other areas I just want to touch on briefly is the DNA or the lack thereof, so what I mean by that is just the general scientific evidence… certainly in certain types of investigations scientific evidence such as DNA can be very important, but I suggest to you that it's not important in this case. We know that [the complainant] was medically examined at the hospital on 18 January. We know that she had a genital examination and certain internal and external swabs were taken. They were sent to the lab for analysis and DNA consistent with the accused's was not located on those swabs. That said, you may think it is not surprising that his DNA was not there three days after the last assault. You may perhaps be more surprised if it was there considering she said the last encounter was on the 15th. She wasn't sure whether he ejaculated inside of her or not, and then she wasn't examined until the 18th. I suggest to you that the same is true for her bedsheets and the clothes. We know that the complainant's mother put her bedsheets in a plastic bag for evidence, and that her clothes were taken. The UV light was waved over the sheets and clothes and didn't light up for semen. But again, you may think that in the circumstances described by the complainant, the absence of semen showing up on either her sheets or the clothes three days after the last incident is not surprising. So I don't mean to suggest to you that in certain circumstances, DNA is not important, but I would suggest to you that in the circumstances of this case, you wouldn't expect it to be there, and indeed, it's not." (T. 235-236)."
The trial judge then pointed out to the Crown Prosecutor that there was "not one jot of evidence in relation to how long DNA lasts and things of that nature in the human body. There is not one jot of evidence as to how long semen would remain on the bedsheets or the clothes." (T. 248).
The Crown Prosecutor agreed that there was no such evidence and offered to withdraw that submission to the jury (T. 249).
Counsel for the applicant then raised with the trial judge that he had intended to submit to the jury that the complainant had put her underwear back on after the act the subject of count 8, that she had indicated that the applicant had ejaculated in her vagina on that occasion and "you might expect that some semen might have touched the underwear" and submit that might be a reason for the jury to have some doubt. The Crown Prosecutor then raised that there was no evidence as to whether semen would have been on the clothes or the sheets. The trial judge said that the difference seemed to be that the police Crime Scene Officer took the items and examined them, from which it could be inferred that the police at least regarded as a possibility that there would be a result, so the trial judge permitted defence counsel to make that argument to the jury (T. 250-251).
The Crown Prosecutor then told the jury that she withdrew the submission she had made about the absence of DNA on the complainant's clothes or sheets, as there was no expert evidence in the trial as to how long DNA would remain on particular surfaces (T. 256).
In his closing address to the jury, trial counsel for the applicant referred the jury to the cross-examination of the complainant in terms: "Q: Unless I'm mistaken, you gave evidence that after [the applicant] left your room you put your underwear back on. Do you remember telling that to police in your first interview of 18 January 2017? A: Yes. Q: That was after [the applicant]) ejaculated in your vagina? A: Yes."
Counsel submitted to the jury that if the complainant had put her underwear back on after the applicant had ejaculated into her vagina "You might think there is at least a possibility that some semen may have come into contact with [her] underwear". He reminded the jury of the evidence that tests were undertaken by a Crime Scene Officer and no semen was detected on the complainant's clothes she was wearing on 15 January and on the sheets on her bed.
Counsel submitted: "Now no expert evidence with respect to DNA and led by the Crown. There's no expert evidence before you… as to how long semen or DNA remains on clothing or bedsheets, or indeed within the vagina… you don't have any such evidence to guide you in your deliberations. You must not speculate as to such matters. Simply act upon the evidence that is before you and assess it to determine where you are prepared to act on it beyond reasonable doubt. What you don't have is any semen on, evidence of any semen on the underwear which [the complainant] says she put back on after [the applicant] had ejaculated in her vagina. What you make of that is a matter for you, as it always is. I merely raise that for your determination. It's a matter that you might consider in your determination. You will recall what I said earlier in my address. Any doubt must be resolved in [the applicant's] favour and you must be satisfied of [the applicant's] guilt beyond reasonable doubt on each of the specific counts on the indictment" (T. 273-274).
The trial judge directed the jury about this topic as follows: "He then reminded you of the evidence of the 15 January 2017 and his cross-examination where he asked, Q: Unless I am mistaken you gave evidence that after Mr Berntsen left your room, you put your underwear back on. Do you remember telling that to the police in your first interview of the 18 January 2017? A: Yes. Q: That was after Mr Berntsen ejaculated in your vagina? A: Yes." So he submitted to you that you might think that there is at least a possibility that there was semen which it would be inside her vagina and also semen which might have come in contact with her underwear. You will remember that her mother collected up the sheets and the clothing that she was wearing. It was handed to the police on the 18 January and the police then examined the clothing for semen. There was no semen found on the clothing. There was no semen found on the sheets. The items were then sent to the forensic laboratory for testing. There was no semen found on them. There was in relation to the Sexual Assault Kit that was done at the Bathurst Hospital that was sent to the forensic laboratory and there was no semen found, or any DNA found in relation to the accused in any of the swabs that had been taken from outside and inside [the complainant's] vagina at the time of the medical examination."
The verdict was not guilty.

Count 9

The complainant spoke about the event the subject of count 9 in her fifth interview on 25 October 2018. The complainant told the police officer she had been at court the day before and then went to the home of a friend of her mother's. She was in her mother's friend's caravan and recognised it as a caravan her family used to own, and memories came back of the applicant sexually assaulting her in the caravan. There was no charge referable to that conduct, but during that interview the complainant told police about another assault that she had not told them about. She said that occurred in a shed near the family house. She said the applicant grabbed her, bent her over, pulled down her pants and put his penis in her vagina. She said she was not sure when it happened. She said she was probably 12 or 13 when that happened.
In cross-examination it was suggested to the complainant that the shed was locked by the landlord. She disagreed. She maintained the act happened.
The verdict was not guilty.

Trial judge's directions to the jury

In the summing up, the trial judge directed the jury that they had the right to accept or reject some or all of a witness's evidence, and that each charge must be considered separately, in light only of the evidence which applied to it, that the jury could not use the evidence in relation to one count in relation to another count. The judge directed the jury that evidence which provided a context must not be used by them as establishing a tendency on the part of the applicant to commit the offences charged. The judge directed the jury in accordance with R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290, that if they were to find the then accused not guilty on any count, particularly if that was because they had doubts about the reliability of the complainant's evidence, they would have to consider how that conclusion affected their consideration of the remaining counts.
The judge directed the jury that the evidence of the complainant may be unreliable: "Members of the jury, as I say, the only evidence implicating the accused with any of these offences comes from [the complainant]. There is no evidence independent of [the complainant] that in any material way tends to implicate the accused in any of these offences. … There are features of this case in combination which require me to give you a warning that the evidence of [the complainant] may be unreliable. Those features are these: (1) delay. That is, the passage of time between the alleged offences, that is counts 1 to 6 on the indictment and count 9 in the indictment, and giving of evidence. … The accused is prejudiced by that delay in the sense that such delay has impacted upon his ability to effectively test or challenge [the complainant's] account and her credibility and his ability to effectively present material to rebut the allegation or to raise a reasonable doubt about the allegations or her credibility. It is the experience of the courts that those matters do have an impact upon the reliability of witnesses, including complainants such as [the complainant]. It has been the experience of the courts that persons, innocent people, have been found guilty on evidence that is unreliable because of those reasons. It is the experience of the courts that injustices can and do occur as a result of delayed prosecutions. That is so, regardless of the reasons for that delay. It is vital that such injustices be avoided. You must guard against such an injustice occurring in this case. You must bear in mind the directions I am giving you concerning delay, and you must take them into account when considering [the complainant's] evidence in relation to counts 1 to 6 and 9 in the indictment. That does not mean that you may not act upon [the complainant's] evidence. It means you must not act upon it unless you have paid heed to the warning that I have given and the reasons for the warning. As a matter of law you must not find the accused guilty unless you have been satisfied beyond reasonable doubt that the complainant, [the complainant's] evidence is both honest and reliable and you have satisfied yourself beyond reasonable doubt that you can exclude the possibility that an injustice is occurring due to the delay. In order to avoid such an injustice, you must be satisfied beyond reasonable doubt that you can exclude both of the following possibilities: (1) that the passage of time between the alleged events and the complainant giving evidence has not adversely affected her reliability, and, (2) that the accused has not been prejudiced by the delay due to an inability to effectively test or challenge [the complainant's] account or her credibility. I need to expand upon these two features that I have just referred to. In that process I expand upon the reasons that I have given you for the warning. Members of the jury, human experience tells us that the passage of time does effect the reliability of a person's memory, especially where the event being remembered occurred when the witness was quite young. The events that you are concerned with, here, so far as the counts of the indictment are concerned, are some years ago. Our memories of past events may be affected by or influenced by subsequent events and experiences. Our memories of past events may be an amalgam of what we genuinely remember, wishful thinking, fantasy, family myth, and folklore. When individuals recall past events it is very common for them to put their own spin on those events. Thus, there is a tendency to reconstruct events in a way that most favours the slant that they want to put on them. The longer the delay, the greater the potential for these sorts of matters to adversely affect an individual's memory. Where that delay is combined with the individual being young at the time of the alleged offence, then the adverse impact on the memory may increase. Young people may not have the same capacity of adults to distinguish fact from fiction. The borderline between fantasy and reality can be uncertain. Contemporaneous questioning, that is, questioning almost immediately after the event, may distinguish fantasy from reality. The passage of time can harden fantasy or semi-fantasy, into absolute conviction of reality. An individual can be unconscious of the process by which their memory is distorted or contaminated as a consequence of the delay. It is the experience of the courts that delays mean that it is often hard to demonstrate the passage of time has adversely affected the memory. The process can be quite subtle and the witness may not be aware of it. An individual may genuinely hold the belief that their memory is accurate, but the belief may be quite wrong. The delay will mean that it is very difficult to demonstrate that the belief is, in fact, wrong. A witness who is genuinely mistaken may be convincing in recounting an event said to have occurred long ago. You are required to consider that an honest witness can be mistaken. You are also required to consider that an honest and mistaken witness can be convincing. The delay provides a ready explanation for any inadequacies or gaps in [the complainant's] account. Do not reason that because of the credible explanation for those inadequacies that the credibility of [the complainant] is, thereby, enhanced, or, not reduced. Such a process of reasoning must not be engaged in under any circumstances. It is contrary to the burden of proof and will lead to injustice. The inadequacies or gaps in the complainant, [the complainant's], account, are indications of unreliability and must be used adversely to her credibility. A dishonest witness may appreciate that a delay makes it difficult to effectively test or challenge her account. She may appreciate that the assertions or lack of memory, of detail, for example, would be more readily acceptable because of the delay. I remind you that it is not for the accused to demonstrate that the delay has adversely affected [the complainant]' honesty or credibility. The Crown bears the burden of proof on both matters. It falls to the Crown to establish beyond reasonable doubt that the evidence of [the complainant] is honest and reliable. If you have a reasonable doubt about either of those matters, then you must find the accused not guilty. The fact that [the complainant's] evidence may not have been demonstrated to be dishonest or unreliable in some respect does not enhance the credibility. The delay may mean that it is not possible to demonstrate that. The delay is what renders that her evidence may be unreliable or lacking in credibility. That is the starting point for you."

Applicant's submissions

The applicant asserted a number of inconsistencies in the complainant's account.
In respect of count 3 the applicant submitted that it was improbable that the complainant said she cried really loudly upon her anus being penetrated with an object, but no one else in the house came into the room, when the complainant's mother and brother were in the house watching a movie. It was submitted that the complainant gave different descriptions of the dildo or bubble blower over time and that she did not mention in any interviews that she bled from the anus after the penetration, as she said in her evidence. The applicant relied on what was asserted to be a particular inconsistency as to the depth of penetration of the object described by the complainant as "a little bit" and the depth demonstrated, during re-examination of the complainant, as two to three inches.
In respect of count 5 the applicant submitted there was an inconsistency between the complainant's account in cross-examination that the applicant had sexual intercourse with her four or five times in the laundry, whereas in her interview of 2 February 2017 she said that happened once, and that she had given different accounts that the applicant ejaculated on her belly and inside her vagina. The applicant also placed reliance in this regard on the notes of the complaint to the doctor on 18 January 2017: "No condom ever used."
In respect of counts 4 and 5 the applicant submitted that the complainant only mentioned the use of lubricant and condoms in the acts the subject of those counts after those items had been found by her mother and given to police.
The applicant submitted it was not believable that the complainant would have showers at 3:00am after the applicant had had sexual intercourse with her but her mother did not hear the shower running at that time.
In respect of counts 6, 8 and 9, on which the applicant was acquitted, the applicant made the following submissions. In respect of count 6, the applicant pointed to the three different accounts given by the complainant about the penile-anal penetration alleged in that offence, that it happened six months before her January 2017 interview, placing it in 2016, in her July 2017 interview saying it happened "back when the assaults started", which would have been 2012, and in her February 2017 interview, when asked if the applicant had put his penis anywhere else than in her vagina, she said no. It was submitted that the only explanation for the acquittal of the applicant on count 6 was a rejection of the evidence of the complainant.
In respect of count 8 the applicant submitted that the absence of forensic evidence did not support the complainant's evidence, and submitted that since the alleged event the subject of count 8 was the subject of very recent complaint, the jury's acquittal on that count entailed the jury rejecting the complainant's evidence, which should have led the jury to have a reasonable doubt about her evidence on all the other counts.
In respect of count 9 the applicant submitted that the complainant did not mention having been assaulted by the applicant in the caravan until her last interview, and said she did not remember it in her earlier interviews. The applicant submitted that the only logical explanation for the acquittal of the applicant on count 9 was that it was suggested to the complainant in cross-examination that the shed in which she said the incident occurred was locked (although I note the complainant did not agree with that suggestion).
The applicant submitted that the different verdicts are not capable of any logical explanation, other than that the jury were not prepared to find the applicant guilty where there was some positive evidence, other than a denial by him, to suggest the applicant did not commit the offence, such as the absence of forensic evidence in respect of count 8 and the shed being inaccessible in respect of count 9. Therefore, the applicant submitted, the jury had reversed the onus of proof.

The Crown's submissions

The Crown submitted there were distinctions between the counts in respect of which the applicant was acquitted and those on which he was convicted, being that there were qualitative differences in the complainant's memories in respect of counts 6, 8 and 9, the subject of the acquittals, and that in respect of the counts on which he was convicted there was some evidence supporting aspects of the complainant's account.
The Crown submitted that the applicant's submission that there had been a shifting of the onus of proof should not be accepted, that it was not the case that there was positive evidence the applicant did not commit the offences of which he was acquitted. The Crown submitted there was no such evidence in respect of count 6 and the suggestion to the complainant in respect of count 9 that the shed was locked was rejected by her.
The Crown submitted that there were logical and reasonable explanations for the acquittals on counts 6, 8 and 9 which did not lead to doubts about the complainant's credibility or indicate that the jury rejected the complainant's evidence or should have done so.
In respect of count 6, the Crown referred to the complainant giving two different timeframes, years apart, for the occurrence of the alleged assault the subject of count 6. The first, in her January 2017 interview, was six months before the interview, placing the event in 2016. The second, in her July 2017 interview, was "back when it all started" which she had said elsewhere was 2012. The complainant had also agreed she had not mentioned the single penile-anal incident of penetration when she was asked in her February 2017 interview if the applicant had put his penis anywhere else than in her vagina. The Crown submitted that the jury may not have been satisfied that the alleged assault happened in the time period particularised in count 6, 2016, or been satisfied of the proof of the complainant's age, between 10 and 14 years, as required, if the assault had happened earlier. In 2012, the complainant having been born in 2003, she would not have yet been 10 years old. The Crown submitted that the jury not being satisfied as to when the alleged incident occurred did not involve a rejection of the credibility or reliability of the complainant's evidence about the act alleged, particularly when regard was had to the trial judge's direction to the jury about the passage of time adversely affecting the reliability of the complainant's memory.
The Crown submitted that the acquittal in respect of count 8 was explicable because the complainant's memory of details surrounding the assault was different than in respect of other counts, and because of the strong focus on behalf of the applicant on the lack of semen on the complainant's bedsheets and clothes, without assistance from any expert evidence as to whether semen would be expected to be present in such circumstances, which could have led the jury to a disproportionate focus on the absence of forensic evidence.
The Crown submitted that the acquittal on count 9 was explicable by the complainant only recalling that incident after her first four interviews with police, when she said her memory was jogged when she was in the caravan, of the applicant having assaulted her in the caravan, and that her memory of the event was of a different quality than her evidence about the other counts. The Crown submitted the acquittal on count 9 showed the jury took account of the judge's direction about delay in complaint affecting the reliability of the complainant's memory.
The Crown submitted that in respect of all the counts on which the jury returned verdicts of guilty there was evidence supportive of the complainant's, which was not available in respect of the counts on which the applicant was acquitted.
In that regard, the Crown pointed to the response by the applicant "Are you seriously going down that road?" in response to the complainant saying "You know why - the Portland house", relied on by the Crown as an admission in relation to the offence in counts 1 and 2. In respect of count 2 the Crown relied on evidence that the applicant did take the complainant to his workplace at the sewerage plant on weekends. In respect of count 3 the Crown pointed to confirmation that the complainant was hospitalised in 2013, which was the event which framed her memory of that alleged assault. In respect of count 4 the Crown pointed to confirmation by the complainant's mother that the applicant did take the complainant with him when he went to collect firewood. In respect of counts 4 and 5, the Crown relied on the complainant's mother having found lubricant and condoms, in a toolbox in the carport, which she had not seen before or used, and that the complainant denied in cross-examination that she had known her mother had found those items and only mentioned them to the police after her mother found them. In respect of count 7 the Crown relied on the complainant's mother's evidence that the applicant cleaned the complainant's room while she was in Canberra.
The Crown submitted in respect of count 5 that the effect of all the complainant's evidence was that there had been four or five occasions of assault in the laundry, on one of which a condom was used, and on another of which the applicant ejaculated on her belly, and therefore there was no inconsistency in her evidence.
In response to the applicant's submission about the asserted inconsistency in the complainant's evidence about count 3, as to the depth of penetration of the object in her anus, the Crown submitted that there was not an inconsistency between "a little bit" of the object penetrating her anus and a demonstration which was estimated to be 9.5cm.
The Crown submitted that the jury's different verdicts indicate they followed the directions given to them to consider each count separately, the Markuleski direction, and what the Crown described as the "lengthy and stern" direction about the potential unreliability of the complainant's evidence arising from the delay in her complaint and her age.

Determination

There appear to be logical and reasonable explanations for the acquittals on counts 6, 8 and 9 which do not indicate that the jury rejected the evidence of the complainant as unreliable.
In respect of count 6 the complainant gave two different timeframes for the event. The jury having a doubt as to whether the event happened within the time period alleged in the indictment does not indicate or require a total rejection by the jury of the complainant's evidence.
A logical reason for the jury's acquittal on count 8 was the focus on the lack of semen to which the jury's attention was directed.
In respect of count 9 it is not the case that the only logical explanation for the acquittal was the suggestion to the complainant in cross-examination, which she rejected, that the shed in which she said the incident occurred was locked. The complainant's explanation in her fifth interview with police, that she had only remembered on the previous day, when she was sitting in the caravan her family used to own, looking at the paint on the walls, that the applicant had assaulted her in the caravan when he was meant to be painting the walls, is an explanation the jury could have accepted. There was no charge in relation to alleged assaults in the caravan. In the course of that fifth interview the complainant also told the police about having been assaulted by the applicant in a shed adjacent to the family home, which she had not mentioned before then. Given the emphatic direction by the trial judge to the jury about the effect of delay on the reliability of the complaint's evidence, the delay in the complainant disclosing this alleged assault provides a logical reason for the jury to have acquitted the applicant in respect of that alleged act. It did not entail or require that the jury disbelieve the complainant's evidence in respect of the matters on which they convicted the applicant.
Rather the jury's verdicts indicate that they did precisely what they were directed to do.
In relation to count 3 it was open to the jury to find the complainant's description of the pain she experienced upon her anus being penetrated with an object compelling. That she said the assault was perpetrated when her mother and brother were elsewhere in the house, that she cried out loudly and the applicant withdrew the object and no family member came to see what was happening, and the asserted inconsistency in the complainant's description of the extent to which the object was inserted in her anus from behind her, even in combination, did not require that the jury must have had a doubt about the complainant's evidence in respect of that event.
In respect of count 5, it was open to the jury to accept the whole of the complainant's evidence about assaults in the laundry, that they had happened four or five times, they were all just the same, but on one occasion the applicant used a condom, whereas on the other occasions he would ejaculate on her belly and then walk out. All of that evidence was capable of acceptance by a jury to the requisite standard. Nor was it undermined by the complainant having mentioned a condom only after her mother had found condoms in a toolbox in the carport and given them to police, or by the note in the doctor's records of the history given by the complainant on 18 June 2017 that "No condom ever used". The latter depends on the correctness of the doctor's note, but even if it was said, it was still open to the jury to assess the evidence and accept the complainant's evidence that a condom was used on one occasion in the laundry. The mother's evidence of finding lubricant and a condom in the applicant's toolbox in the carport, which the jury may have considered an unusual location to keep such items, with the mother's evidence that she and the applicant did not use those items in their relationship, was evidence which the jury could have regarded as providing support for the complainant's evidence.
I am not persuaded that no reasonable jury who applied their minds properly to the facts in the applicant's trial could have arrived at the different verdicts the jury reached. I am not persuaded that the reason for the jury's acquittals on counts 6, 8 and 9 is that they were so unable to accept the complainant's evidence that her evidence was not capable of founding the convictions on the counts on which the applicant was convicted.
Having assessed the evidence in support of counts 1, 2, 3, 4, 5 and 7 I am satisfied it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of those offences.
I do not consider that jury's verdicts on counts 1, 2, 3, 4, 5 and 7 were irreconcilable with the acquittals, and I do not consider that the verdicts were unreasonable.

Orders

Therefore, I propose the following orders: 1. Leave to appeal be granted 2. The appeal be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2023

JUDGMENT

WARD P: I have had the considerable advantage of reading Sweeney J's judgment which analyses the evidence on the respective counts and the conduct of the trial in this matter. I agree, for the reasons that her Honour has given, that leave to appeal should be granted but the appeal dismissed. I have assessed the evidence and I consider that there is a logical and rational explanation for the different verdicts on counts 6, 8 and 9 from those on counts 1-5 and 7 (as Sweeney J has explained), and that the different verdicts do not undermine the complainant's credibility on the remaining counts. As to the counts on which the applicant was convicted, this is not a case where "no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion" which the jury did (MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 366 (Gaudron, Gummow and Kirby JJ). The guilty verdicts were not unreasonable. I agree with the orders that Sweeney J has proposed.
DHANJI J: I agree with Sweeney J. For the reasons given by her Honour the verdicts are not unreasonable. As both Ward P and Sweeney J observe, this is not a case where "no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion": MacKenzie v The Queen at 366 (per Gaudron, Gummow and Kirby JJ).
SWEENEY J: Carl Jason Berntsen, the applicant, was tried before Jeffreys DCJ and a jury in the District Court at Bathurst in August 2019 on nine counts alleging indecent and sexual assaults of his stepdaughter from 2011 until 2017. The jury found him guilty of six counts (1-5 and 7) and not guilty of three counts (6, 8 and 9).
He was sentenced to an aggregate sentence of 17 years imprisonment with a non-parole period of 11 years, commencing on 29 January 2019, the non-parole period being due to expire on 28 January 2030.
The applicant seeks leave to appeal against his conviction on the sole ground that: "The jury's verdicts on counts 1, 2, 3, 4, 5 and 7 are unreasonable and cannot be supported having regard to all the evidence and the verdicts of not guilty in relation to counts 6, 8, and 9."
The applicant requires an extension of time for seeking leave to appeal. He relies on an affidavit of his solicitor which explains that delay occurred in obtaining revised trial transcripts and a delayed response by the first counsel briefed. The Crown resists an extension of time and leave to appeal being granted, citing the interests of the Crown, the community, the victim and witnesses, and the importance of the finality of proceedings.

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