Chambers v R

Court of Criminal Appeal (NSW)|2024-04-26|Before: Davies J, Wright J, McNaughton J, McNaughton JJ

HEADNOTE [This headnote is not to be read as part of the judgment] Between 14 November 2022 and 23 November 2022, the applicant stood trial before her Honour Judge Hock ("the trial judge") and a jury on an indictment containing two counts; namely exposing the complainant to indecent material namely a pornographic movie with the intention of making it easier to procure the complainant for unlawful sexual activity contrary to s 66EB(3) Crimes Act 1900 (NSW) (Count 1); and sexual intercourse with the complainant whilst under authority contrary to s 66C(2) Crimes Act (Count 2). The complainant was found guilty of Count 1 and not guilty of Count 2. The applicant sought leave to appeal, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), against his conviction. The sole ground of appeal was in effect that the verdict of guilty in relation to Count 1 was inconsistent with the verdict of guilty on Count 2 and therefore unreasonable. The principal issues raised by the ground of appeal were: 1. whether the only rational explanation for the acquittal on Count 2 was that the jury had rejected or had a reasonable doubt about the complainant's credibility as a witness generally; and 2. whether the jury should have had a reasonable doubt about the complainant's evidence concerning Count 1 when they did not accept beyond reasonable doubt the complainant's evidence on Count 2. The Court held (Wright J, Davies and McNaughton JJ agreeing) granting leave to appeal and dismissing the appeal: 1. The jury could well have concluded that the complainant was an honest 12-year-old who was doing her best to recount everything that had happened to her truthfully to the best of her ability but, notwithstanding that, her evidence concerning Count 2, while honest, was not sufficiently certain or detailed as to be reliable enough to justify a finding beyond reasonable doubt: Wright J at [111], Davies J at [2]-[3] and McNaughton J at [119]. 2. The very different quality of the complainant's evidence in respect of Count 2 compared to Count 1 provided a proper explanation for the different verdicts on the two counts that did not depend on the rejection or non-acceptance beyond reasonable doubt of the complainant's credibility: Wright J at [114], Davies J at [1]-[3] and McNaughton J at [119].

Judgment

DAVIES J: In an appeal alleging inconsistent verdicts, this Court said in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130]: The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility.
For the reasons given by Wright J, the acquittal on Count 2 was explicable by reason of the uncertainty surrounding the complainant's account of what occurred concerning that Count. The jury must have had a doubt about whether the offence occurred or whether the applicant had only "tried" to put his penis into the complainant's vagina. It is significant that the first evidence of complaint in relation to that Count was to ST who said that the complainant told her that the applicant "tried putting" his penis into her vagina. The doubt was not one about the complainant's credibility.
I agree with Wright J's reasons and the orders his Honour proposes.
WRIGHT J:

Introduction

The applicant seeks leave to appeal, under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), from his conviction on one count of exposing a child (under the age of 14 years) to indecent material with the intention of making it easier to procure the child for unlawful sexual activity, contrary to s 66EB(3) of the Crimes Act 1900 (NSW). This was the first count ("Count 1") on an indictment, which also included a second count ("Count 2"), a charge of having sexual intercourse with the same child (over the age of 10 years and under the age of 14) while she was under the authority of the applicant, contrary to s 66C(2) of the Crimes Act.
As the complainant was a child at the time of the relevant events, s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of her name or any other information that identifies her or is likely to lead to her identification. Section 578A of the Crimes Act prevents publication of any matter which identifies or is likely to lead to the identification of a complainant in prescribed sexual offence proceedings such as the present. In order to ensure that these statutory prohibitions achieve their intended purpose, I have not referred to the complainant by name in my reasons for judgment and have avoided recording any information which might be likely to identify her. In some cases, I have used letters, rather than names, to refer to various persons.

Trial and sentence

Following a trial in November 2022 in the District Court before Hock DCJ and a jury, the applicant was found not guilty on Count 2 but guilty on Count 1.
On 10 May 2023, the applicant was convicted and sentenced for the offence contrary to s 66EB(3) to imprisonment for 3 years and 6 months commencing on 9 January 2023, with a non-parole period of 1 year and 9 months, expiring on 8 October 2024.

Application for leave to appeal and ground of appeal

By notice of appeal filed, within time, on 23 January 2024, the applicant has sought leave to appeal against his conviction on Count 1 but has not sought leave to appeal against his sentence. The sole ground of appeal relied upon is that: "The verdict of guilty in relation to Count 1 is inconsistent with the verdict of not guilty on Count 2."
Leave to appeal is required in relation to this proposed ground as it involves questions of mixed fact and law: Criminal Appeal Act, s 5(1)(b).

Submissions

After referring to the test for determining whether inconsistency arises in jury verdicts on different counts in a criminal trial referred to in NW v R [2023] NSWCCA 134, the applicant submitted in effect that: 1. the only rational explanation for his acquittal on Count 2 "must be that the jury had a reasonable doubt as to the complainant's credibility"; 2. the case against the applicant relied solely on the evidence of the complainant in relation to both counts 1 and 2, and that evidence was given at the same time and was of the same quality, and there was no forensic or other evidence to support the complainant's account in relation to either count; 3. there was nothing in the complainant's evidence in relation to Count 1 or the surrounding circumstances which provided any basis for supposing that her evidence was more reliable in relation to Count 1 than it was in relation to Count 2; and 4. thus, there was no rational explanation for the acquittal on Count 2 and the conviction on Count 1.
Furthermore, it was submitted that the absence of corroborating evidence by way of pornographic material found when a search warrant was executed at the applicant's residence and the evidence of the applicant and his wife that the configuration of the relevant room made the complainant's account highly improbable meant that greater doubt attended Count 1 than Count 2. Therefore, it was said that the reasonable doubt that the jury must have had about the complainant's credibility on Count 2 should also have resulted in an acquittal on Count 1.
It was also submitted on the applicant's behalf that the inconsistency in the verdicts on counts 1 and 2 could not be explained on the basis of the possibility of a "merciful verdict".
The Crown in its submissions referred to relevant authorities and submitted in substance that there were differences in the quality and cogency of the complainant's evidence in relation to Count 1 and Count 2. In particular, it was contended that: 1. there were inconsistencies in the complainant's evidence in relation to Count 2 which the jury was specifically asked to evaluate in counsel's address; 2. the not guilty verdict in relation to Count 2 did not necessarily equate to a finding that the complainant lacked credibility but rather reflected the jury's discharging its responsibilities cautiously in light of the trial judge's directions concerning considering each count separately; and 3. the guilty verdict in relation to Count 1 demonstrated that the jury rejected the applicant's evidence denying that he showed the complainant pornographic movies and the applicant's or his wife's evidence that the television could not be accessed or watched from the bed in question.
The Crown also made specific submissions concerning the consistency of the complainant's evidence in relation to Count 1 and aspects of the complainant's evidence in relation to Count 2 which were said to have evolved over the course of her evidence, been inconsistent, lacked detail, or involved a degree of uncertainty, such as saying that the applicant "tried to", rather than did, have sexual intercourse. Furthermore, it was contended that there were differences between the complainant's account of what occurred in respect of Count 2 and the complaint made to Ms Taylor in that regard, whereas the complaint to Ms Taylor concerning Count 1 was consistent with the complainant's evidence. Thus, it was submitted that there was a clear and logical basis to differentiate between the two verdicts which did not diminish the credibility of the complainant generally or her evidence in relation to Count 1.

Review of the evidence

I have independently reviewed the evidence as a whole. The most pertinent aspects of the evidence include what is recorded in the paragraphs which follow.
The agreed facts (Ex 1) included the following as set out below. 1. The applicant was born in February 1955 and the complainant was born in January 2007. 2. Relevantly, the applicant lived in Fern Bay until 4 May 2017 and after that he lived in Raymond Terrace. 3. In January 2016, the complainant went into long term care with CA and TB but attended respite care in the house of the applicant and his wife at Fern Bay between 21 December 2015 and 3 January 2017 and at Raymond Terrace between 7 July 2017 and 13 May 2018. The respite care usually lasted three days and two nights over a weekend although there were some longer periods over December and January in various years.
On 13 February 2019, the complainant participated in a recorded police interview, the transcript of which was MFI 3. At that time she was 12 years old. Her relevant evidence in that interview commenced with her response to the question "… [d]o you know what you want to talk about?". She responded that it was "being abused by the old … people that [she] used to live with" and "this man, he's a paedophile". She identified the man as the applicant and, when asked why he was a paedophile, she said: "… he makes me watch rude movies. Sex scenes in them." When the questioner pointed out that notes were being taken, the complainant added: "[a]nd he has, um tried to put his penis inside my vagina." These two types of conduct become the subjects of counts 1 and 2, respectively.
She said that initially nothing happened when she went to the applicant's house but "then he started to do rude things when [his wife] wasn't there". In relation to those matters, the evidence included: "Q84 … So what's the first thing that you can remember happening with him? A Don't remember. I only remember he's a paedophile, because, um, well, by the time I didn't know he was paedophile. I just thought he was teaching me what life was. And then when I left there, yeah. …"
The questioning then addressed the conduct the subject of Count 1 and included: "Q86 So OK, well, tell me, um, one of the things that you can remember happening with, with [the applicant]. You said he makes you watch rude movies. Tell me about that. A Um cheerleaders that are having sex. Q87 … And when you say having sex, what do you mean, it might mean something different to what I mean. A Um, not the gender, making a baby sex…. Q88 What could you see when you watch the movie? A People making a baby, basically. Q89 … What parts of the body, um, are involved with that when you are talking about sex. A Penis, vagina and boobs. Q90 OK. So you could see cheerleaders having sex. A Uh-huh."
The complainant then said that when she was watching that movie she was in the bed in the bedroom which was in the hallway in the Raymond Terrace house and she was probably 10 years old. She also said that the applicant put the movie on for her and he was there sitting on the bed while she watched it. During these times, the applicant's wife was away and the complainant's evidence was that "every time she went in the shops, he would make me watch the movies". When asked where the movies were kept, the complainant said they were up somewhere safe where the applicant's wife could not see them and were hidden, "up in the cupboard, up the top" in her bedroom. The complainant said that there was another movie "but it was kind of similar" but she could not remember anything about it. Her evidence then was that the applicant would watch the movie with her and there was no conversation that she remembered but when his wife came home he would quickly turn the television off, put the movie away and act like nothing had happened. She also said that he told her to keep it a secret. Her evidence also included at that point: "Q126 OK. All Right. Um, so did anything happen while you were watching that movie? Any of the times you are watching that movie? A No. Q127 No. Yeah? It did? A He put it on. Q128 Mmm. A And we were watching the movie… Q129 Yeah. A … so yep. That's all I can remember is he used to watch it with me."
The questioning then turned to the conduct the subject of Count 2 as follows: "Q130 All right. So tell me about, you said, um, he tried to put his penis in your vagina. Tell me about that. A That's when he watched the movie and then he decided to do it so he done it. And yeah. I told him not to do it anymore. 'Cause yeah. Q131 … But because I'm not there, I need to know exactly what happened… A Yep. So that's what I remember. Q132 Yep, so you're in, where were you when he tried to have sex with you? Or … A In the bedroom. Q133 Tried to put his penis in your vagina. So in that bedroom. A Yep. Q134 And how, what happened, so you're watching the movie and the movie finishes and what happen next? A The movie wouldn't finish. Q135 Oh, it'd still be going? A Yeah. Q136 OK. So what would happen? What would he do? A He watch it me. … Q138 … How does it get to his trying to, how is he trying to put his penis in your vagina? From sitting there on the bed, how's it get to that? A He lays, so. Q139 Yeah … A So yeah. I just want you to, I want to see [the applicant's wife]. Q140 Yep. A In here and tell, and tell her what has been happening while she's been gone. So she knows and she can deal with it by herself 'cause yeah. … Q144 … I just need that, a little bit more detail about what you can remember actually happening. So what, what part of his body did what to what part of your body and how that happened from you're sitting on the bed watching and then, what does he do next? A He, um, he rubs my vagina sometimes. Q145 Yep. A He watches me when I have a shower. Q146 Yep. A He watches me when I'm asleep. … Q148 OK. And when he rubs your vagina, what is he rubbing it with? A His hand. Q149 OK. And is it on top of the clothes or under the clothes or something else? A Top of the hand, top of the clothes. Q150 On top of the clothes. And is this one time or more than one time or something else? A Used to do it a lot. Q151 Used to do it a lot. Is there any particular time you can remember? A While we had a Wii [the game controller] he would do it."
The questioning then covered the complainant's age at the time of certain of the events and then returned to the conduct the subject of Count 2 as follows: "Q179 What… Can you tell me about how then he, he tries to put his penis in your vagina? Tell me about that. A Well, he did it, and then it kept bleeding because he done it. Q180 What did he do? A Put his penis in my vagina. Q181 It did go in, did it? A Well, it tried to. Q182 OK. So, um, when you say tried to, where did his penis actually go? Can you remember? A In the hole. Q183 It went in the hole? A Uh-huh. … Q185 So what do you mean by tried to then? A Like, he's tried to have … Q186 Oh … A … It with me but it didn't work because I stopped him. Q187 OK. So his penis went into the hole in your vagina. A Uh-huh. Q188 And what did it do when it was in there? A It hurt. So I … Q189 It hurt. A Told him get off. … Q191 Yep. Did he say anything? A Um, no, he just got off. … Q196 OK. All right. Um, so can you remember, was it, was it only the one time or were there more times that his penis went into your vagina? A There was more times. No, there was only one. Q197 Only that one time? A Yep. … Q199 So that day, if you think about that day and what else happened that day so we can maybe narrow down what day it was. A Nothing happened after that. … Q203 OK. And was, did any other part of his body touch any other part of your body, arm, before he tried to put his penis into your vagina? A No. Q204 No. So was that after you were watching a movie or something else? A Yeah, I think so, yeah. Q205 OK. What did you see when, when he was doing that? A Blood after… … Q207 You saw blood. OK. And where did you, where were you when you saw the blood? A In the bathroom. … Q217 OK. So blood coming out of there. And what happened next? A [The applicant's wife] was home so we acted normal. Q218 Yep. And did you say anything to [the applicant's wife]? A No. Q219 OK. Um, how, why didn't you say anything to her? A 'Cause it was a secret I couldn't tell no one. … Q221 … So you said there was only that one time when he tried to put his penis in your vagina, were there other times where he tried to do that or something else? A No. Q222 No? A He's asked me but I said no."
In relation to those other times when the applicant asked, the complainant explained that she knew what he wanted her to do because of the movies she watched.
There was then evidence relating to the applicant's age at relevant times. The questioning then returned to the conduct the subject of Count 2: "Q250 … So there's that [touching her vagina outside her clothes] and then there's that he put his penis in your vagina? A Yep. Q251 So, um, did you, did any part of your body touch any part of his body? A No."
The questioning then moved on to other conduct of the applicant which was not the subject of counts 1 or 2 and then returned to the complainant's age at relevant times as follows: "Q290 … So when you were, just so we're clear, when you were eight and turning and nine …. A Yeah. Q291 … was it only the movies? A The movie started, then it came, like, the time he came how he wanted to be sexual to me, so yeah. … Q293 And when that time started, when he wanted to be sexual, were you nine still or 10 or something else? A I feel like I was 10. … Q295 … When you say started to be sexual, do you mean actually touching you or something else? A Like, the things have happened, like… Q296 … And has he touched in a sexual way before you were 10? Just while you were watching the movies? A Um, sometimes. Q297 Yeah. What, what are you just remembering? A Like on the Wii …".
The complainant was then asked whether she could remember the last time anything sexual happened with the applicant and she replied "[n]o". She also said on a number of occasions that there was nothing else about what the applicant had done that she could remember. The complainant said that she had not told anyone else about it apart from recently telling ST.
The complainant's pre-recorded evidence (the transcript of which was MFI 4) included relevantly that the applicant had shown her the cheerleader movie at both the Fern Bay house in the lounge room and the Raymond Terrace house in her bedroom where there was a sofa bed which would be made into a bed so that the complainant could go to bed.
The complainant also said that she met the children and other foster children of the applicant and his wife. She became friends with one of the foster children, SD. The complainant agreed that when she was staying with the applicant and his wife at the Raymond Terrace house she asked if she could come and stay with them permanently because she enjoyed staying there. Apart from one day, on Fridays when the complainant went to the Raymond Terrace house the sofa bed was already set up as a bed.
In the bedroom of the Raymond Terrace house, there was a television kept in the cupboard along with a Wii which the complainant played on, sometimes with SD when she came over. The applicant identified the television, the Wii controllers and similar items in photographs taken of the room in the Raymond Terrace house.
The complainant confirmed that she watched "the rude movies" at both the Fern Bay house and the Raymond Terrace house and that it was the cheerleader movie on a DVD that she watched at the Fern Bay house in another room on the right side of her room that had a TV in it and in which the Wii and a computer were set up.
As to watching the cheerleader movie at the Raymond Terrace house, the complainant said that she watched it in her bedroom but she also watched it in the lounge room at Raymond Terrace. The complainant said that there were two discs, one that she watched at the Fern Bay house and one that she watched at the Raymond Terrace house but she could not remember whether they were both cheerleader movies or one was a different movie. She acknowledged that there may have been two cheerleader movies that she watched at Fern Bay but she could not remember; she just remembered the cheerleaders.
As to the movies watched at Raymond Terrance, the complainant thought they were different cheerleader movies but she could not remember. She did say, however, that there were other movies as well, "good ones" when the applicant's wife was at home but, when she was not there, they watched "rude ones". Her evidence was that, at the Raymond Terrace house, there was an old tape movie that was not a cheerleader movie but a different type of rude movie. The complainant explained that when she was lying on the bed watching the cheerleader movie in her bedroom she was on her side looking at the TV and the applicant was sitting on the edge of the bed with his feet on the ground. Her evidence was that the bed shown in the photographs was a new one and that there had been a previous bed which had been at both the Fern Bay house and the Raymond Terrace house.
Her evidence during cross-examination then included: "Q. And when you say you were on the bed, was it the sofa that you can see in the picture that is in front of you, or the other bed? A. The other bed. Q. When you talked to police in your video about watching the cheerleader movie and you then go on to tell them about [the applicant] putting his penis in your vagina, is that all on the same day or are they two different times? A. I don't remember, but I think they're two different times."
On this same topic, her evidence continued: "Q. When [the applicant] put his penis in your vagina, what was happening in the room before he did that? A. I can't remember. … Q. Did this happen in the morning, the afternoon or the night time? A. I can't remember. Q. Where was [the applicant's wife]? A. I can't remember. Q. Was this on a weekday or a weekend? A. Still can't remember. Q. When [the applicant] put his penis in your vagina, had you been watching the rude movies on that day? A. I can't remember that."
The complainant's evidence then returned to the subject of the cheerleader movie and she said she did not know how long it went for but she thought it would go for a long time, she watched it with the complainant each time and did not watch it when he was not there and she only watched it when the applicant's wife was not at home and she, the complainant, was always in the bed or sitting on the bed. As to the position of the bed shown in the photographs, the complainant said that the bed would have to be moved around to open the last door of the cupboards where the TV was.
When asked why she did not tell her other carers about the applicant putting his penis in her vagina, she said: "[h]e wanted me to keep it a secret, so I kept it a secret and at the time I didn't know what was happening." While she acknowledged that she could have told those carers, she explained "at the moment I was thinking about, you know, I wouldn't see [the applicant's wife and the applicant] anymore and, yeah, stuff like that." The complainant also explained that she did not tell her caseworker about that matter for similar reasons.
After dealing with other matters in evidence, the complainant confirmed that the first person she had told about what the applicant did was ST, a long-term placement carer and she reported it straight away.
The complainant estimated that the applicant had watched the cheerleading movie with her about 16 times before he put his penis in her vagina.
The next witness called was ST, another foster carer. On 15 January 2019, the complainant came to stay with ST on a full-time placement. On 27 January, the complainant said to ST that she needed to talk to her in private. ST's evidence concerning that conversation was as follows: "Q. What was said? A. She stated that she had something serious to say about [the applicant], … She said that [he] would make her watch a video called Cheerleaders … … Q. Did [the complainant] describe what this movie was? A. Yes, it was about cheerleaders and where the penis would go into the vagina and sperm would come out. And I said 'Is that what [the applicant] did to you', and she said 'yes. He would wake up' - he slept with no clothes on - he woke up at 4 o'clock in the morning, … she said that he came into her and rubbed her, he said 'I'm running (as said) your fanny now'. He tried putting … his penis into her vagina. She felt stretched and it made her bleed. … Q. Did she say whether anyone else was home when this happened? A. I asked [the complainant] about that, and [she] said that [the applicant's wife] was either shopping or at the post office."
ST then explained that she reported what she had been told which led to her being contacted by police and bringing the complainant in for an interview on 13 February 2019.
CA who, with her partner TB, was a full-time carer of the complainant, gave evidence that there were occasions, including in November 2016, when the complainant would not want to go to respite care with the applicant and his wife. This was said to be because it was boring. During the time that the complainant was living with CA, she did not raise any sexual allegation about the applicant. In a later discussion with the complainant, CA's evidence was that: "She [the complainant] said that she had apologised for her behaviours whilst living with us and that she was scared and upset, so she didn't know how to tell us while she was living with us."
In cross-examination, CA gave evidence about the complainant's challenging behaviours and why CA and her partner decided to end the applicant's placement with them. CA confirmed that the first thing she knew of any of these allegations by the complainant in relation to the applicant was when she received a telephone call from ST. CA also gave evidence of the complainant saying that she was not allowed to go to the applicant's house anymore because the applicant's wife said that she had hurt the dog and the complainant saying something to the effect of "Nan [the applicant's wife] is an evil woman. She only wants me when it suits her".
TB also gave evidence concerning the complainant and her going to respite care with the applicant and his wife while she was in full-time care with CA and TB. Her evidence was that the complainant would not want to go to respite care with the applicant and his wife but she had to go. TB also said that the complainant never raised a sexual allegation about the applicant with her, but in a later conversation about why she had not told them when she was living with them about the applicant, the complainant said: "… She apologised for her behaviours, she said that [the applicant] told her to … keep it a secret, and the only way she could deal with it was the outbursts like at our place."
TB's evidence covered the complainant's challenging behaviours and what were described as "meltdowns", as well as the complainant's placement with them coming to an end and whether there were respite carers other than the applicant and his wife.
The applicant's daughter then gave evidence concerning the family circumstances and engagement with foster caring. She gave evidence of the family's rule that they should not be one-on-one with the children being fostered and that there should be at least two adults with them. She said that this rule or guideline was, as far as she could tell, adhered to. The applicant's daughter was not living in the house when the complainant came for respite care but she did meet her. To her observation, the complainant was treated like one of the grandchildren by the applicant and his wife. The applicant's daughter confirmed that the complainant never said anything to her in relation to any alleged sexual conduct by the applicant and she did not see anything during the weekends which caused her any concern in relation to that. The applicant's daughter remembered a conversation with the complainant, probably in December 2018, in which the complainant asked if she could come back and live with the applicant's family and it was explained that this was not possible because there was not enough room.
In cross-examination, the applicant's daughter gave evidence about the applicant being a private man who would not walk around the house with just shorts on. Her evidence was that over the years, the applicant and his wife had fostered more than 40 children, from eight days old to 14 years. The applicant's daughter also gave evidence of how she would interact with the complainant when she was staying with her parents and that the complainant seemed to enjoy her time with the applicant and his wife, who tried to make her feel part of the family. The applicant's daughter confirmed that she was a mandatory reporter of any form of mental, physical or sexual abuse and during the whole time that the complainant was having respite care with her parents she did not have any concerns about her father's behaviour towards the complainant.
The applicant's wife gave evidence and covered their family circumstances and their relevant history of fostering children. She confirmed that they took seriously the verbal instruction to make sure never to leave a foster child with only one adult. The applicant's wife gave examples from early on in their fostering when there might be just one adult left in the house with a child being when she was at the clothes line or went to the shop which was around the corner from the Fern Bay house. When the complainant stayed with them initially, they did not have two adults present because the applicant was working and, since it was an emergency situation, she was given time off work to do it and stayed at home. At the time when the complainant first arrived both the applicant and his wife worked with the organisation that was responsible for arranging and supporting foster care. Later, the complainant came to their house for respite care on weekends, originally monthly and then fortnightly. The applicant's wife gave evidence about the Fern Bay house and that there was a DVD player there and about the move to the Raymond Terrace house in the middle of 2017. She also described the Raymond Terrace house, the change from the futon to the sofa bed, and the televisions, one of which was in the lounge room and one in the cupboard in the room where the complainant slept. The applicant's wife did not know whether a DVD could be played through the television. She confirmed that she took photographs of the bed and the room in which the complainant slept at Raymond Terrace and how the sofa bed had to be moved in order to be folded out so as to leave enough room to walk. When the complainant was coming for respite care the sofa bed was folded out and made up before she arrived and stayed that way for the entirety of the weekend. The applicant's wife also described what had to occur if someone wanted to use the television on the weekend and she said that this did not occur all that often when she was around because it was too much of a hassle to put it all back together. Her evidence also included that the sofa bed when pushed all the way into the corner still did not allow the cupboard doors to open fully and one would only be able to see the television "square".
As to the time at the Fern Bay house, the applicant's wife acknowledged that when she was hanging out the washing or went to the shop, the applicant was with the complainant in the house but she was of the view that this only occurred once or twice and she said that the shop was a two-minute drive away. Her evidence was that, at the Raymond Terrace house, the shops were one minute away and that she would be gone from the house for approximately 15 minutes but this did not occur very often. She said that there was never any physical interaction between her husband and the complainant.
The applicant's wife denied being aware of any pornographic DVDs in either house and denied minimising the number of times she was away from the house leaving the applicant alone with the complainant.
In cross-examination, the applicant's wife gave evidence of how she became involved in foster caring and of what she called the "advice", apparently about two adults being present, which she acknowledged was not always followed when it was "just not practical". She said that she did all the caring for the children, including the complainant, and the applicant did not share those responsibilities with her. The applicant's wife understood that the complainant loved coming to respite at their house in Fern Bay and at Raymond Terrace but it was hard for the applicant to handle a child who was overactive or naughty, as he found the complainant to be. Her evidence was that at the Fern Bay house there was one large combined sunroom kitchen and dining area which was not a bedroom but there was a TV there with a Wii gaming machine connected. The applicant's wife also said that the applicant liked to watch a lot of TV and he collected a lot of movies but she denied that there was ever any pornographic material in the Fern Bay house or the Raymond Terrace house. She acknowledged that, when they were younger around the time when they were first married, she and her husband may have watched pornography together but denied doing so after that.
The applicant's wife said that she was not particularly savvy when it came to technology and that the applicant and his daughter looked after the technology needs for the house. Her evidence was that the applicant had a hard drive or a computer that he could play movies through the computer on the television. The applicant's wife also gave evidence that she always made the sofa bed up into a bed before the complainant arrived so that everything would be there waiting for her and when setting up the bed she had to open the cupboard to get the complainant's blankets and things out. The applicant's wife described what was depicted in the photographs she took of the bedroom between February and June 2019 and noted that the sofa bed was heavy and had to be folded up into a lounge in order to move it over to under the window. Her evidence was also that when the futon was moved it was configured as a chair and when set up as a bed it still obstructed the view of the television.
The applicant's wife was asked questions about the boombox and the cords which prevented the sofa bed and the futon from being pushed right up against the window wall in the Raymond Terrace house. She maintained that if she were asleep at 4:00 am she would know whether or not her husband was out of bed. She also gave evidence of the family routine and activities when the complainant came to stay for respite care, including with other children in foster care with the applicant's son and daughter. The applicant's wife confirmed that she did not go to the shops for extended periods of time leaving the complainant alone with the applicant and that the latest she would go would be at 3 o'clock in the afternoon. Her evidence also included that the applicant told her that the complainant annoyed him by dancing and singing and turning the music up while he was watching television and she told her not to do it.
The applicant's wife explained that, when a search warrant was executed at the Raymond Terrace house on 19 February 2019, they had just returned from a 14-day cruise and they had no idea that the police were going to come to the house. She said that she had been married to the applicant for 47 years and that he was a very private person. She denied that she had ever known him to sleep naked, walk around the house without clothes on or come into the bathroom while she was showering. She maintained that he was the most trustworthy person she knew and had never known him to be dishonest. The applicant's wife said that she understood what a mandatory reporter was in this context and acknowledged that she was one but said that she had never had any concerns or suspicions about her husband's behaviour towards the complainant.
In re-examination, the applicant's wife was asked about the DVD player and the television as well as the boombox and the layout of the room in which the complainant slept and the photographs taken of the sofa bed folded out.
The evidence of the officer in charge covered the original complaint, the complainant's recorded police interview, the execution of the search warrant at the Raymond Terrace house on 19 February 2019, during which no pornographic material was located and the applicant said that the DVD player was in the television. There was also evidence of certain photographs of the Raymond Terrace house being taken and what they depicted. It was also noted that the applicant participated in an electronically recorded interview of a suspected person (ERISP), the recording of which was played for the jury.
During the ERISP (Ex 10), the applicant outlined his involvement with his wife in foster care, as well as that of his daughter and son. He answered questions concerning when the complainant started to have respite care with him and his wife. He denied ever being with the complainant when his wife was not there. He said that, if they went to the shop, they all went and there was not five minutes when it was just him and the complainant. He said it used to annoy him when the complainant danced around in front of the TV while he was watching it and his wife told him to be careful of the complainant. He again denied that he had ever been alone with her. The applicant said that he could talk to her or play cards but when asked what he did when she was there he said "[j]ust watch movie" and he noted that he had about 70 kids' movies on a hard drive. His evidence was that at the Raymond Terrace house, there was a television in the complainant's room but it was only ever used for the Wii and he did not go into her room while she was playing on the Wii. The applicant said that he did watch movies with her in the lounge room.
According to the applicant's answers during the ERISP, he got up at 4:00 am and had his shower when the others got up and were having their breakfast. The applicant also referred to the complainant being friendly with SD, who also stayed with him and his wife for respite care. The applicant said that he did interact physically with the complainant when she just put her arms around his neck and said good night and did the same to his wife. In addition, he said that the complainant would give him a hug during the day but he would not touch her, because he had been warned by one of the case workers who said "[b]ecause if they take a dislike to you … They'll stab you in the back straight away so be wary of 'em." The applicant also recounted an incident where the complainant dropped the dog and his wife yelled at her.
The applicant described being annoyed by the complainant's dancing and playing loud music, trying to "get somebody to look at her". He denied that there were times when he was alone with the complainant, that she had seen him naked, that he did not sleep without clothes on or that he owned or ever owned any pornographic movies in any form. He did, however, subsequently say that he had watched pornographic movies with his wife when they were first married but denied watching any sexual movie with the complainant and said that he did not have any. When the complainant's more specific allegations were put to him, the applicant denied them all.
The evidence of the officer in charge then continued after the playing of the ERISP and she confirmed that the applicant had not been convicted of any criminal offence, sexual or otherwise, and that, to her knowledge, he had never been interviewed previously by police. As to the execution of the search warrant at the applicant's premises, the officer in charge indicated that they were looking for pornographic DVDs and videos and electronic storage devices. Although in excess of 600 movies were downloaded from a portable hard drive nothing of a pornographic nature was found and no other pornographic material of any kind was found on any of the items seized. Furthermore, there were no deleted files containing explicitly pornographic material found on any of the devices seized from the applicant's house. The officer in charge then gave evidence of some photographs being taken at the applicant's house but no measurements were taken of the bedroom and sofa bed.
The recording of the applicant's evidence from the preceding trial was then played and a transcript (MFI 11) was provided. The applicant provided some personal and work history and gave details of his family circumstances, including children, grandchildren, nephews and nieces. He then explained how he and his wife had become involved in foster caring and the checks and inspections that he and other members of the family had to undergo. The applicant said that there was no training of any kind provided but they had been instructed not to be left alone one-on-one with any of the children for whom they were caring and with every foster child they tried not to have only one person in the house with them.
Specifically about the complainant, the applicant gave evidence of how often she had respite care with him and his wife at Fern Bay and after they moved to Raymond Terrace. Generally, the complainant would come on Friday afternoon be there on Saturday and Sunday and go back on Monday morning but there were occasions when she stayed for longer periods.
His evidence was that at the Raymond Terrace house the closest shops were about three minutes' drive away. The applicant then answered questions concerning the photographs of the bedroom at Raymond Terrace in which the complainant slept and said that two of the cupboard doors could not be opened or could only be opened a little when the bed was in the position shown in the photographs, and one door could be opened up a bit further and that was the one in which the complainant's clothes were kept. As to the photographs that depicted the door of the cupboard where the TV was fully open, the applicant said that when the complainant stayed there the sofa-bed or the futon were never in a position where it could open that way. The applicant denied ever keeping DVDs, any movie that depicted cheerleaders or any pornographic material in the top of the cupboard in the room in which the complainant would stay at the Raymond Terrace house.
The applicant denied that there was any time when he and the complainant were in the Fern Bay house when his wife was not there but said that, at the Raymond Terrace house, there may have been two or three times when she went over to shop across the road for 10 or 15 minutes leaving him alone with the complainant. During those times he was just watching TV and the complainant could have been watching TV, or could have been in her bedroom or out in the back sunroom playing with the dog.
The applicant then specifically denied that he had ever exposed his penis to the complainant, rubbed her vagina on top of her clothing, watched her while she was having a shower, showed her a pornographic or sexually explicit movie or a movie depicting cheerleaders, or ever attempted to put his penis in her vagina.
The applicant then gave evidence that prior to police attending his home on 19 February 2019 and his being interviewed, he had never been placed under arrest and had never been interviewed by police before and was in shock. He denied that he had any idea whatsoever that the police were going to come to his house that day, which was the day after they got back from a 13-night cruise. The applicant said that he did not speak to a solicitor before he was interviewed because he had nothing to hide. In response to questions about specific answers given in the ERISP, the applicant explained that he was in shock and if he had remembered certain things he would have told them. As to why he had told police that he was not left alone with the complainant at the Raymond Terrace house but now had said that on some occasions his wife went to the shop and he was alone with the complainant in the house, the applicant explained that: "[t]o me left alone would be an hour or longer. I didn't think 15 minutes would count as being left alone. I know I - that's all I can say."
The applicant also gave evidence about downloading movies using a program called "Torrenting" but denied ever downloading triple X or pornographic movies. He also specifically denied ever doing anything of a sexual nature to any child in his care at any time.
In cross-examination the applicant was questioned concerning his answering "[n]o" during his ERISP to the question "[t]here was never a time when it was just you and [the complainant], not even for five minutes". His answers included that, even though he accepted that he knew at the time he answered that he had spent more than five minutes with the complainant by himself, he disagreed that he lied to police. The applicant explained at one point: "It's a lot like now. It's the first time I'd ever been interviewed for anything that I was accused of ever and I just was in shock. Didn't register to say, 'Five minutes my wife would be out hanging clothes on the line.' Would that be classed as being left alone, like?"
In addition, the applicant disagreed that he told the police he was not with the complainant for even five minutes because he knew that telling the truth would implicate him in sexual conduct with the complainant.
The applicant did not accept that his talking about the complainant dancing and carrying on was trying to paint the complainant in a bad light for police.
As to the television in the bedroom at the Raymond Terrace house, the applicant's evidence was that the doors to the cupboard with the TV unit were never opened when the bed was set up as a bed. He also described the furniture that had been in the room but had been taken out before the applicant's wife took the photographs of the room. The applicant denied moving the bed around trying to open the last door of the cupboard when the complainant was there and he also denied that she ever watched the television in that room while the sofa bed was set up as a bed. It was his evidence that if the complainant wanted to watch TV or play Nintendo, the bed would have been folded up and put underneath the window but as soon as she had finished, it was moved back and made into a bed straight away. He said that this would not have been done twice in a weekend because it was a lot of trouble moving that around and having to make the bed again.
The applicant denied that he could have been with the complainant while his wife went to the shops more than two or three times, that there were times at the Fern Bay house when he was left in the house with the complainant by himself, and that his wife was ever gone for longer than 15 minutes. As to what the applicant did when he was left alone with the complainant, he said that all he ever did was watch TV and denied that he showed her a pornographic DVD. He said that in the over 600 movies that he had downloaded none of them had cheerleaders in them. Although the applicant acknowledged that the TV in the complainant's room had a working DVD player in the back of it, he denied that he had used it to play any pornographic movie for the complainant. The applicant maintained that he never had any pornographic movies. He also denied having pornographic movies in the upper shelving of the cupboard in the complainant's bedroom and denied asking her "do you want to do it" while showing her such movies. The applicant also denied that on one occasion he put his penis in her vagina, or rubbed her on her vagina outside her clothes.
As to whether he told the police that he got up at 4:00 am, the applicant said that he might wake up then but might get up at 5:30 am. He also denied telling the complainant that he slept naked.
In re-examination, the applicant said that the shops were 100 or 200 yards from the Raymond Terrace house. He also said that nothing of any significance ever happened on any occasion when he was left alone with the complainant. His evidence was also that the sofa was not in the position depicted in the photographs with the doors of the cupboard open on any occasion when the complainant stayed with the applicant. The applicant said that he was not aware at any time before the start of the police interview that he was going to be questioned about the complainant but he did remember the interview stopping when he was informed that a solicitor was available to speak to him on the telephone.
At the trial, there was no defence case.

Directions and verdicts

On the morning of 18 November 2022, the trial judge commenced her summing up. The directions given to the jury relevantly included that the counts should be considered separately and there was no legal requirement that the verdicts which the jury returned must be the same on both counts. It was expressly noted that the jury was entitled to bring in a verdict of guilty on one count and not guilty on the other count if there is a logical reason for that outcome. In relation to the jury's role in assessing the reliability of the evidence of a witness, they were instructed that there were two critical matters to consider which were separate but overlapping, namely truthfulness and accuracy, and that part of a witness's evidence could be accepted and part rejected. In addition, the jury was directed that unless they were satisfied beyond reasonable doubt that the complainant was both an honest and accurate witness, and therefore a reliable witness, in relation to the evidence given to the jury about the essential elements of each count, the jury could not find the applicant guilty. No complaint was made on appeal concerning the trial judge's directions in these, or any other, regards.
The jury retired to consider its verdict at 12:56 pm on 18 November 2022 and their deliberation continued on 21 November 2022 after the weekend break. On the morning of 21 November 2022, the jury sent a note requesting to see the complainant's interview and testimony again.
After clarification of what was being sought, the recordings of the complainant's police interview and pre-recorded evidence were replayed for the jury in court on that day and the following day. The jury's deliberation continued at 11:36 am on 22 November 2022 after the viewing of those recordings was completed.
On 22 November 2022, at some time before 3:13 pm the jury sent another note which read: "After two and the half days of deliberation and not coming to a unanimous decision we, the jury, would like some advice." In these circumstances, at 3:13 pm the trial judge gave a direction in accordance with Black v the Queen (1993) 179 CLR 44; [1993] HCA 71 and the jury retired again for further deliberation at 3:18 pm. Some time before 3:46 pm, the jury sent a further note which read: "We have reached a unanimous decision on Count 2. We can't reach a unanimous decision on Count 1 even after calm considered deliberation. PS, can we leave early?" At 3:48 pm, the jury returned a verdict of not guilty on Count 2 and were then allowed to separate for the night.
On the morning of 23 November 2023, the jury sent a note which read: "We feel after more discussion a verdict could be achieved with further deliberation" and they continued their deliberations. Sometime before 12:19 pm, another note was sent by the jury indicating that they had reached a unanimous decision on Count 1. At 12:19 pm that day, the jury returned a verdict of guilty on Count 1.

Applicable principles

In light of the terms of s 6(1) of the Criminal Appeal Act, the applicant's ground of appeal requires the Court to consider whether the jury's verdict of guilty in relation to Count 1 was unreasonable on the whole of the evidence taking into account the jury's verdict of not guilty in relation to Count 2. In addressing such a ground, an appellate court must make its own its own independent assessment of the evidence, but having particular regard to the advantages enjoyed by the jury in seeing and hearing the witnesses give their evidence: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M v The Queen) at 492-3 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63; Z (a pseudonym) v R [2022] NSWCCA 8 at [24] (Macfarlan JA, Brereton JA and Beech-Jones CJ at CL, as his Honour then was, agreeing). The ultimate question for the appeal court must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v The Queen at 494-5; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay) at [66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
There was in effect no dispute as to the principles to be applied in determining whether a verdict of guilty on one count was unreasonable on the basis of inconsistency with a verdict of not guilty on another count, where both counts depended upon the evidence of the same complainant. Consequently, it is sufficient to note the following principles that are the most relevant for the purposes of considering the applicant's ground of appeal. 1. The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point where intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Walker v R [2019] NSWCCA 4 at [105] (Hoeben CJ at CL, Rothman and Price JJ agreeing) and the cases there cited. 2. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved or a want of confidence in the complainant since it may simply reflect a cautious approach by the jury to the discharge of its heavy responsibility in accordance with the directions given by the trial judge including, for example, directions that separate consideration is to be given to each count, that evidence of a witness may be accepted in whole or in part, and that the Crown bears the onus of proving each element in respect of each count beyond reasonable doubt: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (MFA) at [34] (Gleeson CJ, Hayne and Callinan JJ); Shiv v R [2021] NSWCCA 245 at [108] (Leeming JA, Hamill and Lonergan JJ agreeing). 3. In the case of sexual offences where there is no objective evidence, it is not necessarily unreasonable for members of a jury to require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant and a finding of not guilty on one count does not necessarily involve a rejection of the complainant's evidence because a juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt: MFA at [34]; Ha v R [2023] NSWCCA 274 (Stern JA, Harrison J, as his Honour then was, and N Adams J agreeing). 4. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others: MFA at [34]. 5. Ultimately in a case where it is contended that a verdict is unreasonable on account of its inconsistency with another verdict, the test for an appellate court is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35 (Gaudron, Gummow and Kirby JJ). 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: MacKenzie at 367. 6. In determining whether a conviction is unreasonable on the basis of inconsistency with another verdict, the focus of the inquiry is upon any explanation, not for the conviction, but for the acquittal. 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 on that basis: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] (Simpson J, McClellan CJ at CL and Latham J agreeing); Lenior v R [2023] NSWCCA 242 at [101] (Ward P, Harrison J agreeing).

Differential quality of the evidence in relation to counts 1 and 2

Having reviewed the evidence as a whole, I formed the general impression that there were aspects of the evidence in relation to Count 1, especially its detail, definiteness and consistency, which were in marked contrast to the quality of the evidence in relation to Count 2, which on occasions appeared confused, was vague and lacked detail, and was at times contradictory. This difference in the quality of the evidence provided, in my view, an explanation for the acquittal on Count 2 which did not involve rejection of, or doubts about, the complainant's credibility as a witness generally.
Since it is appropriate, when considering a ground of appeal based on inconsistent verdicts, to focus on any explanation for the acquittal, I shall consider the evidence in respect of Count 2 first.

Count 2

As to Count 2, the sexual intercourse charge, the complainant's first account of what happened was given to ST. According to ST's evidence, when she was told about the cheerleader movie "where the penis would go into the vagina and sperm would come out", she then asked the complainant: "[i]s that what [the applicant] did to you" and the complainant's response was: "yes. He would wake up' - he slept with no clothes on - he woke up at 4 o'clock in the morning, … she said that he came into her and rubbed her, he said 'I'm running (as said) your fanny now'. He tried putting … his penis into her vagina. She felt stretched and it made her bleed."
This answer suggested that the applicant's conduct of trying to put his penis in her vagina was said to have occurred early in the morning, when he came into her bedroom and rubbed her vagina. This may have been what the complainant said to ST or it may have been ST's memory of what was said.
When then asked by ST whether anyone else was home when "this happened", the complainant told her that the applicant's wife was out shopping or at the post office. It was not clear whether that answer related only to watching the cheerleader movie or whether it included some of the other conduct referred to. Since it appeared that the applicant's coming into her room naked and rubbing her vagina occurred very early in the morning, it could not have been when his wife was out shopping or at the post office. The conduct when he "tried" putting his penis in her vagina so that she felt stretched and she bled was mentioned directly after the early morning conduct and was not, in that account, linked temporally to watching the cheerleader movie.
As recalled by ST, there was thus some confusion and lack of detail in the account given to her and it was far from clear when the conduct the subject of Count 2 was said to have occurred, what it specifically involved and what the surrounding circumstances were.
The complainant's next account of the conduct in relation to Count 2 was given in her police interview on 13 February 2019, relevant portions of which have been quoted above.
At Q126 - Q129, the complainant denied that anything happened when they were watching the cheerleader movie and she said that all she could remember was the movie being put on and the applicant watching it with her. At Q130, however, the questioner asked the complainant to tell her about when "he tried to put his penis in your vagina" and she replied: "[t]hat's when he watched the movie and then he decided to do it so he done it. And yeah. I told him not to do it anymore. 'Cause yeah."
Those two accounts appear to be contradictory in relation to whether anything occurred when watching the cheerleader movie. Furthermore, in the second account the description that "he done it" was strikingly vague.
Clarification was then sought as to "exactly what happened" in that regard at Q131 - Q151.
Some of the complainant's answer were: "[y]ep. So that's what I remember" and "[h]e watch it [the movie] [with] me". In a further attempt to obtain a description of what occurred in relation to the second count, the questioner asked: "[h]ow does it get to his trying to, how is he trying to put his penis in your vagina? From sitting there on the bed, how's it get to that?" to which the initial response was: "[h]e lays, so". When subsequently asked in that context: "what part of his body did what to what part of your body and how that happened from you're sitting on the bed watching and then, what does he do next?", the complainant identified that he rubbed her vagina sometimes over her clothes and watched her when she had a shower and when she was asleep. This conduct referred to by the complainant was not the conduct that was the subject of Count 2. Once again, it appeared that the complainant had confused or conflated the early morning conduct and other conduct, such as watching her in the shower, with conduct relevant to Count 2.
Furthermore, on a number of occasions, the complainant referred to the applicant "trying" to put his penis in her vagina. When asked about this, for example from Q185 onward, the complainant's answers included: "Like, he's tried to have … [i]t with me but it didn't work because I stopped him". Once again, this evidence was particularly vague as to what precisely occurred.
As to how many times the applicant put, or tried to put, his penis in her vagina, the complainant's initial answer, at Q196, was "[t]here was more times. No, there was only one". That evidence was apparently self-contradictory, but it was said in later evidence that there was only one time, at Q197 and later at Q221 - Q222.
On a further occasion, when more detail was sought about the Count 2 conduct and she was asked whether any parts of her body touched any part of his body in relation to when "he put his penis in your vagina", the complainant's answer, at Q251, was "No". It was far from clear what this answer meant.
Later in the police interview at Q291 et seq., the complainant was asked in effect: "was it only the movies" and not the Count 2 conduct which occurred when she was 8 turning 9 and she answered: "[t]he movie started, then it came, like, the time he came how he wanted to be sexual to me, so yeah" and she felt she was 10 at that time. When asked, in effect, what "be[ing] sexual" involved she answered "[l]ike, the things have happened, like…". When asked whether she could remember the last time anything sexual happened with the applicant, she said "[n]o" (Q301). Finally, the complainant said that there was nothing else about what the applicant had done that she could remember (Q305).
Thus, without intending to be critical of the complainant in any way, the answers relating to Count 2 in the police interview, viewed as a whole, were far from clear, definite or detailed. In addition, there was apparent confusion between the conduct the subject of Count 2 and what the complainant said about the applicant rubbing her vagina over her clothes and watching her in the shower and when asleep.
In the complainant's pre-recorded evidence, she said in relation to Count 2 that she did not remember if that conduct occurred on the same day as they watched the cheerleader movie but she thought they were two different times. This indicated that she thought the Count 2 conduct did not occur when they were watching the cheerleader movie and, thus, that when she had said in the police interview that: "[t]he movie started, then it came, like, the time he came how he wanted to be sexual to me, so yeah", being "sexual" was not the same as putting his penis in her vagina.
In the passage of evidence set out at [35] above, when asked in cross-examination for details of what was happening before the Count 2 conduct occurred, what time of the day it occurred, where the applicant's wife was when it occurred and whether it was on a weekday or weekend, the complainant's response in each case was that she could not remember. These answers meant that there was a significant lack of detail about the Count 2 conduct, which might otherwise have supported its reliability. This inability to remember also greatly reinforced the impression created by the police interview that the complainant's account of the Count 2 conduct lacked detail and clarity, both as to what occurred and the surrounding circumstances.
The only other person who could give direct evidence of what happened in relation to Count 2 was the applicant and he denied that any relevant conduct occurred. There was little if any significant corroborative evidence that could be relied upon in relation to Count 2.
In summary, in the complainant's accounts relevant to Count 2, there was apparent confusion between the conduct of putting his penis in her vagina and the other conduct of rubbing her vagina over her clothes and watching her in the shower and when asleep. There were also inconsistencies or contradictions as to the time at, and the circumstances in, which the conduct the subject of Count 2 occurred. Apart from the evidence concerning feeling stretched and bleeding, there was also a striking lack of detail as to what physically occurred and how. As noted above, the complainant's descriptions were generally quite non-specific, for example, "he decided to do it so he done it" and "he did it, and then it kept bleeding because he done it". In addition, she denied that any parts of her body touched any part of his body in relation to when "he put his penis in your vagina", which was difficult to understand. Furthermore, her repeated description of the applicant "trying" to engage in the relevant conduct suggested a degree of hesitancy as to what occurred and its extent. Finally, the inability to remember any specific details concerning the Count 2 conduct in cross-examination was striking.
The nature of the complainant's accounts of the conduct in relation to Count 2 was, in my view, markedly different from the nature of her accounts of the Count 1 conduct.

Count 1

The complainant's first account of what occurred relevant to Count 1 was also given to ST whose evidence was that the complainant told her that the applicant would make her watch a movie "about cheerleaders and where the penis would go into the vagina and sperm would come out". Although it was not entirely clear, some of the conduct was said to have occurred while the applicant's wife was shopping or at the post office.
The complainant's next account of what occurred in relation to Count 1 was during the police interview 17 days later. That evidence was that the applicant made her watch rude movies, which involved cheerleaders having sex in the sense of people making babies. She was able to describe the parts of the body involved in what was being shown in the movie. The complainant was also able to describe where and when this occurred and where the movies were kept as well as what happened when the applicant's wife returned to the house. She also said that there was another similar movie but she could not remember anything about it.
The complainant's pre-recorded evidence for the trial also included details of when, where and how she had been made to watch the cheerleader movie or movies which was consistent with the previous accounts she had given. The complainant's evidence was that she did not know how long the movie went for but she thought it would go for a long time and that she watched it with the applicant each time and did not watch it when he was not there and she only watched it when the applicant's wife was not at home.
Apart from ST's evidence and the evidence from the complainant, the only other direct evidence of what occurred in relation to Count 1 was from the applicant who denied ever possessing or showing the complainant any pornographic movie, including any such movie depicting cheerleaders, although he did state that, on the occasions when he was left alone with the complainant, he generally watched movies.
The relevant evidence also included that, when a search warrant was executed approximately 9 months after the complainant ceased having respite care at the applicant's house, no cheerleader or other pornographic movie was found at the complainant's house. That evidence did not, in my view, preclude a finding beyond reasonable doubt in light of the evidence as a whole that the applicant showed the complainant pornographic movies as alleged in respect of Count 1, especially given the passage of time between the conduct complained of and the execution of the search warrant. Similarly, in my view, the evidence of the difficulty with opening the cupboard doors and viewing the television in the bedroom at the Raymond Terrace house did not mean that it was not open to find to the requisite standard that the applicant showed the complainant pornographic movies at that house.
In short, in relation to Count 1 the complainant's first description to ST, her police interview and her evidence were, especially given her young age, definite, clear and relatively detailed as to when, where and how the conduct occurred. Her accounts were all consistent on the principal aspects of what occurred.

Were the verdicts inconsistent?

The applicant was found not guilty on Count 2. In my view, given the nature and content of the evidence as a whole, this was explicable on the basis that the jury took into account the trial judge's directions that the jury must be satisfied beyond reasonable doubt of the accused's guilt before a verdict of guilty could be reached concerning any count, that separate consideration should be given to each count and that part of a witness's evidence could be accepted and part rejected. Moreover, the verdict in relation to Count 2 could be explained on a basis other than a rejection of the complainant's credibility.
A finding of guilt in relation to Count 2 depended on the jury accepting the evidence of the complainant. I formed the view that the jury could well have concluded that the complainant was an honest 12-year-old who was doing her best to recount everything that had happened to her truthfully to the best of her ability but, notwithstanding that, her evidence concerning Count 2, while honest, was not sufficiently certain or detailed as to be reliable enough to justify a finding beyond reasonable doubt. The matters identified above, including the contradictory aspects of her accounts as to when and how the conduct the subject of Count 2 occurred, the conspicuous inability to provide details of what occurred and of the surrounding circumstances, the uncertainty inherent in her description of the applicant "trying" to put his penis in her vagina, the apparent confusion or conflation on occasion of that conduct and the other conduct of rubbing her vagina over her clothes and watching her in the shower and when asleep and the inability to remember significant details provided a proper basis for the jury to conclude that, although she was credible in the sense of being honest, her evidence in relation to Count 2 was not sufficiently consistent, detailed and cogent that the jury was left without any reasonable doubt as to the applicant's guilt on that count.
For these reasons, I reject the applicant's submission that the only rational explanation for the acquittal on Count 2 must be that the jury had a reasonable doubt as to the complainant's credibility.
Furthermore, as explained above, the complainant's evidence in respect of Count 1 did not suffer from similar problems to those which affected her evidence in relation to Count 2. The complainant's evidence in relation to both counts was not, as the applicant submitted, of the same quality. Her accounts of what occurred in relation to the cheerleader movies were largely consistent, clear and relatively detailed, specifically as to when, where and how the conduct occurred and what was involved. There was also nothing inherently incredible in her accounts of being shown the pornographic movies and it was open to the jury to reject the applicant's evidence in that regard. The failure to locate any pornographic movies at the applicant's house when the search warrant was executed nine months later did not, in my view, necessitate a finding that there must be a reasonable doubt as to whether the applicant showed the complainant pornographic movies involving cheerleaders, nine months or years earlier.
On my review of the evidence as a whole, it was open to the jury to accept that in relation to Count 1 the complainant's evidence was both credible and accurate and thus reliable. I did not form the view that the jury must have entertained a reasonable doubt as to the applicant's guilt in respect of Count 1 and I was satisfied that it was open to the jury to find beyond reasonable doubt that the applicant was guilty on that count based on the whole of the evidence. The very different quality of the complainant's evidence in respect of Count 2 compared to Count 1 provided a proper explanation for the acquittal on Count 2 that did not depend on the rejection of the complainant's credibility.
In short, taking into account all the relevant circumstances, there was a logical and reasonable basis on which the two verdicts can be reconciled and the verdict of guilty on Count 1 was not unreasonable.
As to whether the different verdicts on counts 1 and 2 could be explained on the basis of one being a "merciful verdict", as referred to in cases such as Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [41] (French CJ, Bell, Gageler, Keane and Gordon JJ), this was not a contention relied on by the Crown. Furthermore, for the reasons I have set out above, there was a logical and reasonable explanation for the different verdicts and it was not necessary to consider whether a "merciful verdict" was an alternative or additional explanation, although the timing of the two verdicts would not suggest that this was likely to be the case.

Conclusion and proposed orders

Accordingly, while I would grant leave to appeal as the ground of appeal was arguable and deserved proper consideration, in my view, the applicant's ground of appeal has not been made out.
I propose that the orders of the Court should be: 1. The applicant has leave to appeal against his conviction. 2. Appeal dismissed.
McNAUGHTON J: I have had the benefit of reading the draft judgment of Wright J. Having reviewed the record of the trial for myself, I agree with his Honour's summary of the evidence. Further, for the reasons provided by his Honour I am of the view that there is a logical and reasonable basis on which the two verdicts can be reconciled and the verdict of guilty on Count 1 is not unreasonable. I agree with the orders proposed by Wright J.

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