1 After a trial before a County Court jury, the applicant was convicted of two counts of committing an indecent act with a child under the age of 16 and two counts of sexual penetration of a child under the age of 16. The complainant in each case was a girl of 14 ('SL'). The applicant was acquitted of a further count of committing an indecent act with a child under the age of 16, alleged to have occurred on the same occasion as the other counts but to have involved a different complainant ('KV').

2 The applicant now seeks leave to appeal against conviction. For reasons which follow, we would refuse the application.

3 The acquittal of the applicant on the indecent act count concerning KV arose in the following circumstances. At the urging of the applicant, the two complainants kissed. It was common ground that their participation was consensual. On the basis of this incident, the applicant was charged with two indecent act counts, one in relation to SL (the 'SL count') and the other in relation to KV (the 'KV count'). The applicant's defence in each case was that he had believed, on reasonable grounds, that the complainant was aged 16 or older.[1] The jury returned a guilty verdict on the SL count but acquitted the applicant on the KV count.

4 The contention for the applicant before this Court was that the guilty verdict on the SL count was irreconcilable with the verdict of acquittal on the KV count. The jury were evidently satisfied, on the balance of probabilities, that the applicant believed on reasonable grounds that KV was aged 16 or over. That being so, it was submitted, the jury acting reasonably would necessarily have come to the same conclusion as regards the applicant's belief as to SL's age. There was no rational basis for any different conclusion. The same analysis of the applicant's belief would apply to the other counts relating to SL.

5 KV gave evidence that she had told the applicant that both she and SL were under 16. Counsel submitted - and we accept - that the acquittal on the KV count meant that the jury must have rejected KV's evidence in this regard. Counsel also pointed to evidence given by the applicant's friend, at whose house these events took place, that he was surprised when KV told him she was 15. He said he had formed the view that both girls were 16 or older, from 'what they spoke about, how they presented physically and how they acted'. It had not crossed his mind that they might be younger.

6 In her reasons for sentence, the judge interpreted the differential verdicts as follows. The acquittal on the KV count indicated that the jury was satisfied on the balance of probabilities that the applicant had a genuine belief that she was aged 16 or over, and that that belief was held on reasonable grounds. The guilty verdicts in relation to SL, on the other hand, reflected an acceptance by the jury of an honest belief on the applicant's part that she was 16 or over but a refusal to accept that he had had reasonable grounds for this belief. (Her Honour proceeded to sentence the applicant on the basis that his moral culpability was 'significantly' reduced because of his honest (though not reasonably justified) belief that SL was 16 or over).

7 As counsel for the applicant accepted, it was for the applicant at trial to make good the 'reasonable grounds' limb of the defence. In a case such as this, where the complainant had made no statement about her age, this would ordinarily require an accused to say what it was about the complainant's appearance, demeanour or behaviour which had induced the belief that the complainant was aged 16 or over. As stated by the High Court in George v Rockett,[2]

When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

8 The applicant did not give evidence at the trial, and his record of interview identified no 'facts' of this kind. He did express surprise when told by police that SL was only 14 but said nothing to indicate what had led him to believe that she was 16 or over. He described SL as 'blonde, big blue eyes, wears braces and pretty short'. He acknowledged that he had only known her for a few hours. The written submission on his behalf relied on the fact that both complainants had been wearing make-up 'to make themselves look older and more attractive' and that, in a telephone conversation the previous evening with the applicant, the two girls had proposed to have 'a threesome' with the applicant.

9 As the applicant's counsel acknowledged, the guilty verdicts on the counts involving SL could only be shown to be 'unsafe and unsatisfactory' in the relevant sense if the jury were bound to be satisfied, on the evidence, that the applicant's honest belief about SL's age was based on reasonable grounds. Put another way, the applicant had to persuade this Court that that was the only conclusion reasonably open to the jury.

10 None of the matters relied on by the applicant comes near to making good that contention. In any case, as the sentencing judge pointed out to defence counsel on the plea, the jury's assessment of the applicant's belief must necessarily have been based in part on their own observation of the complainants, whose videotaped statements to police about the offences, made soon after they occurred, were before the jury. At the request of counsel for the applicant, we have viewed those videotapes. They reveal significant differences between the complainants in appearance, confidence and apparent maturity. This is not surprising, since KV was almost a year older than SL. It was well open to the jury, in our view, to reject the applicant's contention that there were reasonable grounds for his belief that SL was 16 or over.

11 There is one further matter. In her statement to police, SL said that after she and the applicant had had sex, he told her not to tell anyone as he would 'get into trouble'. There was no challenge to this evidence although, during argument on the plea, defence counsel told the judge that this had been an oversight. Her Honour found as a fact that the statement was made. Plainly enough, the jury were entitled to view this statement as seriously undermining the applicant's claim to have believed on reasonable grounds that SL was 16 or over and, hence, that consensual sexual relations with her were entirely lawful.

12 One further point was argued. It was said that there could be no act of indecency 'in two teenagers of essentially the same age kissing each other'. Alternatively, it was said, there was no act of indecency here because the jury had accepted that the applicant believed both girls to be 16 or over.

13 We disagree. The indecency resides not in the act of kissing but in the instigation of the act by a 24 year old man for his own sexual gratification.[3] The question of indecency was for the jury to decide.[4] In the circumstances, it was well open to the jury to be satisfied that the applicant's conduct in this respect was of a kind which 'right minded persons would consider to be contrary to community standards of decency'.[5] It is hardly surprising that defence counsel did not contest this point before the jury.

[1] Crimes Act 1958 (Vic) s 47(2)(a).

[2] [1990] HCA 26; (1990) 170 CLR 104, 112.

[3] R v Court [1989] 1 AC 28.

[4] R v Papamitrou [2004] VSCA 12, [45].

[5] DPP v Scott [2004] VSC 129.