Daaboul v R

Court of Criminal Appeal (NSW)|2019-06-05|Before: Bathurst CJ, Bell P, Hamill J

The applicant's record of interview

The applicant was interviewed on 10 April 2016. The applicant's interview thus took place between the first and second electronic recorded interviews given by the complainant and at a time when the specific allegations of sexual assault said to have taken place on 7 April had not been reported to the police.
The applicant was told that the police were "investigating an alleged domestic assault". He was then asked about what occurred on 7 April 2016 at Rookwood Cemetery. He said that he went to Rookwood Cemetery because it was the anniversary of his grandmother's death. He then stated that the following occurred: "So I went to visit her, her grave, so I went to there, and then we pretty much had a discussion, I told her I didn't want to see her any more, I was sick of just stuff she was making up, predominantly the lies that she was telling, that she can attest to that she admits she's been doing, pretty much just told her I don't want to see her any more, she got emotional, started begging me, saying, I love you, I want to stay with you, and all this stuff, and I tried to tell her that I just don't have that on my end and we've got to stop, she begged me, I asked her to just get out and, like, not see me any more, she wouldn't, I did swear a couple of times, so I did say the F word a couple of times directed at her, pretty aggressively, so I did say that, but she didn't get out of the car so at the time I was just like, I'll just take her back to the station, go from there, deal with … see her again and just move on."
It was then suggested to the applicant that he and the complainant were in a relationship for about five years at high school. He denied this saying that he had only known her for two years. However, he agreed that she was an ex-girlfriend.
The applicant stated that he had known the complainant for "not even … a year and a half" and they had "been together for two months" and then during the last couple of weeks he and the complainant were not seeing each other. He stated that they had "a disagreement", their "parents got involved" and they "came to a mutual agreement" that they would not contact each other. The applicant said that the complainant got in contact with him about three months later, begging him to talk to her and he "felt sorry for her" and "gave her a chance" but "nothing changed". The applicant then told her that they had to stop, they had made an agreement and "she got upset and then went from there".

Mr M

Mr M gave evidence that he knew both the applicant and the complainant. He attended schoolies week at the same time as each of them.
Mr M said that prior to going to the schoolies week he had a conversation with the complainant about meeting her there. He said that a relationship between them began at schoolies week at Terrigal after he asked the complainant out. He said that during the "schoolies" week, he saw the complainant every day.
Mr M said that he never saw the applicant with the complainant during that time. He said that he was with the complainant for the "majority of the day" and for the "majority of evenings as well". Mr M said that the complainant did not stay at the same accommodation as he did.
In cross-examination, he accepted that he did not spend every evening with the complainant and that they would each go back to their respective accommodation at night. He accepted that when they left each other's company, he could not account for her whereabouts.

Ms C

Ms C said that she went to high school with the complainant. She said that when they left school, they were in the social group and they both went to Avoca for "schoolies" week.
Ms C said that she knew the applicant and held him in high regard.
Ms C said at "schoolies" week, 14 girls stayed in a large house. This group staying at the large house included the complainant but did not include the applicant. She said that the complainant was with her throughout the period but she did not recall seeing the applicant.
Ms C was asked about the allegations made against the applicant and said she found them out of character. She said that she had known him for 10 years, although she had "not [seen him] since school as much" but they still messaged "every now and then". She said that the applicant's reputation was that he was respectful towards the opposite sex.
Ms C was asked about a conversation she had with the complainant in January 2017. She said they were at a school reunion and were catching up and the complainant said to her "oh, you heard Joe and I broke up". She said that she replied "yep" and the complainant said "I don't understand - he was so nice to me" and she replied "I don't know babe" and then the complainant said "I hate him; I - I don't understand". She said that the complainant told her he broke her heart.
In cross-examination she agreed that she was unable to account for the applicant's movements during the whole of schoolies week. However, she rejected the proposition that the conversation in January 2017 was with a girl named Rachel rather than her.

Mr George Doueihi

Mr Doueihi gave character evidence. He said that he had known the applicant for eight to nine years. He said that whilst at school, he saw the applicant every day and that they were "close mates since then".
He described the applicant as "a gentlemen" and stated that he found the allegations out of character. He said that the applicant had a good reputation.

Mr Said Saliba

Mr Saliba stated that he was the Sales Manager for Mercedes Benz at Peter Warren situated at Warwick Farm.
He gave character evidence on behalf of the applicant. He said that whilst the applicant was studying, he worked part-time for him and is continuing to do so. Mr Saliba said the applicant had been working for him for over two years and that he or other staff had never had any issue with him.
Mr Saliba described the applicant as "very respectful at work" and that the allegations were 100% out of character.

Mr George Daaboul

Mr George Daaboul was the father of the applicant. He was asked about the second meeting which took place between the complainant and the applicant and their parents. He said that during the meeting the complainant was saying that she and the applicant "had slept together and had sexual relationships together" whilst the applicant was denying it. He said "to clear the air", he specifically asked the complainant by "sex" did she mean "Joe putting his penis inside her vagina" and her reply was "no".
He said that at the meeting all four parents agreed that the complainant and the applicant should not see each other or contact each other anymore.
Mr Daaboul agreed that his family had a number of cars and neither a knife nor a shovel was kept in any of them.
It was suggested to Mr Daaboul in cross-examination that he was concerned about his son having sex outside marriage. He stated that he was "more concerned that the parents and the daughter had come and made some serious allegations". He said that he "was prepared to listen to what they had to say before drawing any judgment or any conclusions". He stated the comments that he made "were made after careful consideration and listening to, for want of a better a word, the evidence that was being put forward that night in the discussion, and the discussion was clearly only about the sexual relationship between my son" and the complainant.
It was suggested to him that when he asked the question "Did Joe put his penis in your vagina", the complainant actually said yes. He answered "You may put that question to me but that is not the answer the young lady gave".
It was put to him that his son was having sex in the family Tarago. He said that he did not recall discussions about where the sex happened. It was suggested to him that the complainant told the group that the places they had sex was in the family vehicles, that is the Tarago and also the VW, and also at university. He said that the family did not have a VW and it was suggested to him that it was a Golf and he said that the family had no Golf at that stage, and that it was "not true" that the complainant told the group they were having sex at university.

Mrs Meray Daaboul

Mrs Meray Daaboul was the mother of the applicant. She said she had six children, the younger two of which had intellectual disabilities. She said that the applicant had elected to live at home and assist in looking after the two younger boys.
She was asked what she recalled about the meeting in November and answered as follows: "Sure. It started by [the complainant] saying that she had slept with Joseph, and Joseph denied that he had slept with her, and there was a bit of confusion between oral sex and the normal sex. Then my husband had to interfere to clarify and he asked her, 'Did he actually put his penis in your vagina?' And she said, 'No'. Then it was silent in the room, and everyone was looking at each other because - yeah."
Mrs Daaboul was then asked whether something was said about a phone and she said that the complainant's mother told her that the applicant had given the complainant his old phone and when she asked to see the phone, she told her that that wasn't the applicant's phone and that she had never seen this phone with the applicant. She said the complainant then told her mother that she bought the phone and "smashed the screen to make it look like an old phone" and told her mother that it was the applicant's old phone.
She was cross-examined on the second meeting and she was asked if she recalled the complainant's mother saying to the applicant "If you didn't like her, why would you have sex with her?" She stated that she did not remember that being said. She agreed that the applicant asked the complainant "What kind of person would tell her mum about her sex life?" Mrs Daaboul stated that the applicant denied that he had sex with the complainant and did not remember whether that conversation was in Arabic, whilst the complainant told her mother that they had sex. She said that she recalled asking where the complainant where they had sex and the complainant said in the car.
It was put to her that her husband asked the complainant "Did he put his penis inside you?" and the complainant answered "yes". She said that the complainant said "no".

Additional evidence

In addition to the evidence to which I have referred above, it should be noted that on 14 August 2015 a lengthy and somewhat hostile Facebook exchange occurred between the complainant and the applicant in the course of which the applicant indicated to the complainant that he did not wish to continue his relationship with her. During the course of the exchange the following remarks were made: "[The complainant]: Felt sorry for me!? You we're using me! I felt sorry for you. What says that! Joey Daabs: How wa[s] [sic] using you why did you feel sorry for me [The complainant]: You said that to me! That's why I said WHO SAYS THAT! Joey Daabs: People who cares [sic] [The complainant]: I can't believe you. The fact I was going to change for you and wanting this to work. Joey Daabs: you keep saying thay [sic] [The complainant]: What do you want me to say. I really am changing. I haven't lied to anyone for at least a month already, but then you break up with me because of stupid things. I try! Joey Daabs: what stupid [sic] about not having feelings for you [The complainant]: See you just admitted it. Joey Daabs: I don't have them anymore [The complainant]: This whole thing was a lie. Joey Daabs: ANYMORE [The complainant]: You can't just say I want to marry you, spend my life with you and then fall out of feelings and love with them. That's a shit move! Joey Daabs: i realeised [sic] that you were not the personi though [sic] you were [The complainant]: That's your excuse. I'm upset Joey Daabs: how is thaqt [sic] an excuse you were also physically unattractive so we never were physical [The complainant]: You know you never wanted to be with me after this dude was gone. You decided to leave every fucking day! Joey Daabs: what i offered tot [sic] take you out [The complainant]: Yeah. I went to most of them because I had work. Joey Daabs: thats [sic] your fault [The complainant]: How is going to work my fault. I don't do my roster. Joey Daabs: Ik [sic] then [The complainant]: Joe, are you serious? We we're not physical you only started not wanting that because of your friends and Geoff. Joey Daabs: has nothing to do with them [The complainant]: We hooked so many times Joey Daabs: I just don't find you attracticvv [sic] what [The complainant]: Hooked up* Joey Daabs: like 5 thats [sic] nothing [The complainant]: It was not 5 times Joey Daabs: whatever i [sic] never enjoyed it"
In her examination in chief, the complainant gave the following evidence concerning a conversation which took place shortly after the Ashfield restaurant incident. The evidence which dealt with the meaning of the expression "hooked-up" was in the following terms: "Q. You mentioned the next day - what happened the next day? A. He texted me asking me to come back to - and talk to him. That was at 2pm. So I agreed. He wanted to work out some issues. So I moved - I - I went to Strathfield Station at 2 - I got there at 2. I met him at the 7-Eleven that we always meet at - in the alleyway. He started yelling at me again. He said, 'Why are you lying to me? Why are you cheating on me?' I said, 'I'm not doing any of them - we've already talked about that.' And then he - he said, 'You're probably hiding things from me. You hid Jeff from me - you also hid Mike from me - what else are you hiding, or who else are you sleeping with, slut?' I said, 'I'm only sleeping with you.' And he said, 'No, we're just hooking-up.' Q. And what did you say when he said, 'We're just hooking-up?' A. 'No, we're having sex. You've come to me so many times.' And then he said, 'I don't fit.' And then I said, 'Yes, it does.' As I said before, he's come to me so many times. And then he said, 'Whatever'."
It appears from this that, at least so far as the complainant was concerned, the expression "hooked up" was not equivalent to having penile-vaginal sex.
Reference should also be made of the photographs of the complainant's arm, leg and neck which were taken at Quaker's Hill Police Station on 9 April and 11 April 2016. The photographs tendered, which included blown-up versions, showed bruising to the right arm, bruising to the right thigh and leg and bruising not inconsistent with choke marks around the neck.

a The applicant

The applicant submitted that the verdict of guilty on Count 8 could not stand with the failure by the jury to agree on Counts 1 to 7, particularly the latter count. Queen's Counsel for the applicant referred to what was said by Simpson J in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [135] and by the plurality in MacKenzie v R (1996) 190 CLR 348; [1996] HCA 35 at [29] on this issue.
It was submitted that the alleged inconsistency was highlighted by the failure to convict on Count 7. Queen's Counsel for the applicant submitted that the complainant's evidence was that "there was a choking for five minutes". He submitted that the evidence of the complainant was that by reason of the choking, she had reached a point where she was unable to resist further, so that if the evidence of the complainant was accepted, the elements of Count 7 were made out. He submitted that in those circumstances there was "no logical reason" for differentiating between Counts 7 and 8.
The material relied upon by Queen's Counsel for the applicant in demonstrating that the complainant's evidence was that she was incapable of resistance was her statement in her interview of 11 April that "I didn't want to go through it again, so I just did it".
In his written submissions, the applicant accepted that the jury could have failed to convict on Counts 1 to 6 because of the lack of corroboration of those elements, whilst with Count 8, the jury could "more comfortably accept" the complainant's evidence because of the content of the photographs. In addition, in relation to Count 4, Queen's Counsel for the applicant referred to the inconsistency in the evidence of the complainant and Ms N concerning the allegation that the applicant threw water on her and the fact that Ms N said that before meeting the complainant in October 2015, she had not seen the complainant since leaving high school. It was submitted that these difficulties did not apply with respect to Count 7.
Queen's Counsel for the applicant submitted that the principles applying to inconsistent verdicts could be applied in cases where the jury failed to reach agreement on one or more of the counts. He referred to what was said by Rothman J in Walker v R [2019] NSWCCA 4.

b The Crown

The Crown submitted that in dealing with inconsistent verdicts, "the focus of the inquiry is upon an explanation, not for the convictions, but for the acquittals" citing Simpson J in TK v R at [128] and [130]. It was submitted that in the present case, there was no acquittal upon which to focus. It was submitted that in these circumstances the principles concerning inconsistency of verdicts had no application.
The Crown pointed out that all that could be concluded from the failure to reach a decision was that "the jury were unable to unanimously or by majority reach a decision that the elements of a particular charge were proved beyond reasonable doubt". It was pointed out that "where the Crown relies almost entirely on the evidence of a complainant, mixed verdicts of guilty and not guilty do not, of themselves, result from a finding by the jury of the complainant's inherent unreliability", but "the verdicts of not guilty may arise simply because of the burden and the standard of proof". In that context, in the case of a failure to reach a verdict, it cannot be said that "any juror, let alone the jury itself, reached an adverse decision concerning the reliability of the complainant".
So far as the inconsistency between the conviction on Count 8 and the failure to reach a verdict on Count 7 was concerned, the Crown at the hearing pointed to the fact that to establish the offence the subject of Count 7 it was necessary to prove beyond reasonable doubt that the applicant choked the complainant so as to render her unconscious, insensible or incapable of resistance and did so with the intention of enabling him to commit another indictable offence. The Crown pointed out that the alleged choking took place both while the applicant was driving the car and during the course of the offence the subject of the charge and that both were relied on at trial. The Crown submitted that it was open to the jury to be satisfied that the choking occurred, whilst not being satisfied that it was done with the intention of committing an indictable offence. It was submitted that for the purpose of Count 8, all the jury had to be satisfied of as a circumstance of aggravation was that the applicant committed an assault upon the complainant.
The Crown however appeared to accept that the Court could take into account in considering the question of unreasonable verdicts the fact that the jury was unable to reach a verdict on all other counts.

Consideration

Although for the reasons I have set out below I have considerable doubt as to whether it is appropriate, I have considered this ground on the basis that the principles relating to inconsistent verdicts can apply to circumstances where a jury convicts on one count whilst failing to reach a verdict on other counts.
The principles to be applied in circumstances where verdicts are challenged on the ground of inconsistency are set out in the judgment of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen at 366-368. So far as relevant, their Honours made the following remarks: "From a review of the cases, a number of general propositions can be stated: 1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. … … 3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. … 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. 5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'. 6. The obligation to establish inconsistency of verdicts rests upon the person making the submission."
In the present case, the different results in relation to Charges 1-6 compared with Count 8 can be readily explained. In the case of Count 8 unlike the earlier counts, the jury had the corroborative evidence of the complaints made by the complainant shortly after the alleged assault and the photographs, which it was open for them to conclude were consistent with the assault alleged. Thus, a logical explanation for the difference was that even if the jury did not have doubts about the complainant's credibility generally, they (or some of them) were not prepared to conclude beyond reasonable doubt that each offence was committed without the benefit of corroboration and thus, they were prepared to be so satisfied in respect of Count 8. As was pointed out by Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] that "where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count" and that "[i]n the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant". They pointed out that this did "not necessarily involve a rejection of the complainant's evidence" (see also [85]-[86]).
The failure to reach a verdict in respect of Count 7 presents more difficulty as the same matters of corroboration that were available in respect of Count 8 were available in respect of this count. However, the elements of s 37(2) of the Crimes Act 1900 (NSW) (the charged offence) requires the jury to be satisfied beyond reasonable doubt, first, that the choking was such as to render the victim unconscious, insensible or incapable of resistance and, secondly, that it was done with the intention of enabling the offender to commit another indictable offence. The jury may well have been satisfied that the choking occurred but not be satisfied beyond reasonable doubt that it had the effect on the complainant required by the section, or that the applicant at the time of the choking had the requisite intention to commit another indictable offence.
It follows that there was no inconsistency in the sense described in the authorities.
Notwithstanding what I have said above, I have considerable doubt that the principles dealing with inconsistent verdicts can apply where the so-called inconsistency is between a failure to reach a verdict on a particular count and a verdict of guilty on another count, except in very limited circumstances.. There is a powerful body of authority which suggests that the principles cannot apply in those circumstances, including the dictum of Callinan J in Osland v R (1998) 197 CLR 316; [1998] HCA 75 at [232] and decisions of the Court of Appeal in Queensland and the Full Court of Western Australia and South Australia: R v DAL [2005] QCA 281 at [2], [5]-[6], [21], [23], [32]-[33]; R v CBF [2012] QCA 294 at [16]; R v CX [2006] QCA 409 at [33]; R v Garrett [2009] QCA 300 at [35]-[36]; Miller v The Queen [2002] WSCA 211; R v R, GJ (2009) 105 SASR 506; [2009] SASC 371 and a majority of this Court in PA v R [2015] NSWCCA 18.
There are a number of matters which support the approach that the principles dealing with inconsistent verdicts cannot apply in circumstances where there is a failure to reach a verdict on a particular count and a verdict of guilty on another count. First, as McPherson JA pointed out in R v DAL at [6], a failure to reach a verdict is not a verdict at all and logically there is no inconsistency. As Simpson J (as her Honour then was) pointed out in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] that in considering whether the reasons for the inconsistency can be ascertained without resort to doubts about the complainant's credibility, "the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals". If in fact there are no acquittals, it is difficult to see how the principles could apply.
Second, to the extent that inconsistent verdicts are sought to be relied upon as a way of demonstrating that the jury has acted unreasonably, the fact that different members of the jury have not been satisfied of at least one particular element of the offence does not necessarily throw the integrity of the verdict of guilty into question because as Keane JA (as his Honour then was) pointed out in R v DAL, "it does not imply that the jury as a whole entertained a reasonable doubt" about (in this case) the reliability of the complainant's evidence. Keane JA summarised the position in the following terms at [23]: "The failure by the jury to agree on verdicts on a number of charges in the present case, for example, may well be explicable by reason of the eccentric view of one juror not being satisfied beyond reasonable doubt of all the elements of the offence in question. Such an explanation does not necessarily throw the integrity of the guilty verdicts into question because it does not imply that the jury as a whole entertained a reasonable doubt about the reliability of evidence germane to the counts on which it convicted in the same way that a verdict of acquittal might have done. It is only if an appellate court is satisfied that a jury must have convicted in spite of such doubts that it must intervene. As McHugh J said in Osland v The Queen: 'When an appellate court sets aside a jury's verdict of guilty on the ground that it is inconsistent with a verdict of acquittal, it usually does so for one of two reasons. First, the verdict of acquittal may necessarily demonstrate that the jury did not accept evidence which they had to accept before they could bring in the verdict of guilty. Second, in acquitting the accused on one count, it may follow that the jury must have accepted evidence that required them to acquit on the count on which they convicted the accused. Sometimes, however, the verdicts may indicate that, if the jury did accept the evidence, it has misapplied or misunderstood the directions of law that it was given'."
Third and importantly, consideration of inconsistency between a guilty verdict and a failure to reach agreement necessarily involves speculation as to why particular members of a jury reached a particular view as distinct from consideration of why a verdict of guilty on one count and an acquittal on another are inconsistent. It is impossible for a Court to undertake such speculation and undesirable that it attempt to do so.
The three matters to which I have referred to at [236] to [238] above demonstrate that a failure by the jury to agree on some counts does not, of itself, lead to the conclusion that the jury could have had a doubt concerning the complainant's credibility such as to render another count unreasonable.
However, there may be cases where quite apart from any question concerning the complainant's credibility, a conviction on the one hand and a failure to agree on a verdict on the other, is an affront to logic and common sense and suggests a compromise by the jury of its duty. This was recognised by Keane JA in R v DAL. In that context, his Honour after citing the passage from MacKenzie v The Queen to which I have referred at [231] above made the following remarks: "[33] As I have observed, the issue before this Court does not involve the question whether inconsistent verdicts 'in the relevant sense' are reconcilable, but the guidance afforded by this passage as to the proper approach of an appellate court applies a fortiori to a case where the jury has not returned a verdict on some counts while convicting on others. The point at which a jury decided that 'enough is enough' and declined to convict or acquit on some counts is something which the courts cannot seek to second guess on appeal unless the result were to 'represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty.' …"
In Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249 (Pillay), the jury convicted each of the appellants on a charge of indecent assault, whilst failing to agree on a charge of rape arising out of the same incident. The Court of Appeal concluded at [30] that there was no explanation for the differing results "apart from some form of irrational and improper compromise". In that context, the Court cited the following passage at [22] from the judgment of the English Court of Appeal in R v Formhals [2014] 1 WLR 2219 at [27] with approval: "Overall in this context what the Court of Appeal ultimately has to consider is whether or not a conviction is safe. The failure of a jury to agree on a verdict is, as we have said, self-evidently not a verdict. But in our view, in a context such as the present, linguistics should not be allowed to triumph over justice. It thus may be that where a jury fails to reach a verdict that cannot be said to give rise, strictly, to an inconsistent verdict when set against another verdict. But that is labelling; and in our view, the principles applicable to inconsistent verdicts are capable of applying by analogy where it simply is logically inexplicable as to how a jury could not reach a verdict on one count when set against a verdict of guilt they had reached on another count. We thus think it would be going too far to preclude a defendant in such a situation from even being permitted to argue that the resulting situation gives rise to an unsafe conviction. Accordingly, it is open to the defendant to raise this point in this appeal."
Notwithstanding those comments, the Court stated that it was prepared to deal with the matter in the same manner as it was dealt with by the Full Court of the Supreme Court of South Australia in R v R, GJ. In that case Kourakis J, with whom the other members of the Court agreed, observed at [32] that there was "very little if any force in the proposition that a verdict of guilty is rendered illogical by the failure of a jury to reach a guilty verdict on another count within the same period of time", but he was prepared to deal with the appeal as if the jury had returned a verdict of not guilty on the second count.
In reaching its conclusion in Pillay, the Court of Appeal stated at [25] that it "border[ed] upon the fanciful" that the complainant would agree to participate in "a full-fledged orgy with three total strangers, including having oral sex with one of them, but draw the line at having one of those men with whom she was then having consensual sexual intercourse ejaculate upon her". The case plainly was an exceptional one. Subsequently in Tukuafu v The Queen [2014] VSCA 345, the Victorian Court of Appeal noted at [26] without elaboration, that in Pillay, the Court determined that there was no logical explanation for "the outcome of the jury's deliberations 'apart from some form of irrational or improper compromise'". However, the Court emphasised at [25] that "[a] failure to reach a verdict should not be equated with an acquittal" and cited at [27] the passage from R v DAL to which I have referred at [237] above with approval.
In Walker v R [2019] NSWCCA 4 Rothman J, without consideration of the authorities to which I have referred, appeared to accept at [139]-[140] that the inconsistency principles could apply in some cases where the relevant inconsistency was a failure to reach a verdict. However, the other members of the Court did not deal with this issue.
In Crofts v R [2018] VSCA 197 the appellant was found guilty of a charge of attempted anal rape but the jury failed to agree on a charge of vaginal rape. The alleged acts occurred in close temporal proximity. Priest JA in dissent reviewed the authorities on this point. His Honour following Pillay found at [47] that it was "impossible to see how any rational jury could logically have been satisfied beyond reasonable doubt as to the lack of actual consent on the first charge, whilst at the same time failing to be satisfied unanimously on that same issue on the second charge". In those circumstances, he concluded at [48] that "the verdict on the first charge smacks of compromise". However, his Honour considered the question of whether the inconsistency principles could apply in cases of a failure to reach a verdict a somewhat "barren" issue. His Honour made the following remarks: "[27] Regardless of the apparently ongoing debate concerning the application of the 'doctrine' of inconsistent verdicts to a case such as the present, in my view it is not necessary to try and fit the basis of this Court's intervention into a particular doctrinal pigeon-hole. I consider that there is much to be said for the view, expressed in GW, that the debate whether the kind of 'inconsistency' in a case such as this is the same as an 'inconsistency' between a verdict of guilty accompanied by one of not guilty, is barren; since I consider that - in accordance with the statutory foundation of this Court's jurisdiction - the underlying concern must be whether the verdict of the jury is unreasonable or cannot be supported having regard to the evidence."
Hargrave JA at [82] emphasised that "a failure to reach a verdict should not be equated with an acquittal".
Weinberg JA at [108] noted that "the Crown did not challenge the correctness of Pillay" and accordingly, proceeded upon "the basis that an inconsistency between a verdict of guilty, and an inability to arrive at a verdict on a different, but closely related charge, can, in some cases, give rise to an inconsistency of a kind that would render the conviction unsafe". However, he stated at [119] that "[u]nlike Pillay, the jury … were confronted not just with one issue to resolve, but also to consider, quite separately, different evidence that bore upon each of the two charges". He concluded at [136] that "[t]he combination of different defences, and different evidence in relation to each of the two charges" meant that the conviction and the inability to agree on the other charge "could stand together without amounting to an affront to logic and common sense".
Although it is not necessary to finally determine the issue in the present case, it seems to me that it is possible for the question of inconsistent verdicts to arise in circumstances where there is a conviction on one charge and a failure to reach agreement on another where the difference is incapable of any logical explanation. An instance would be where there was the same evidence as to the elements common to each charge and no dispute that the uncommon elements were made out. In such a case, a conviction on one and a failure to reach a verdict on the other could, in my view, be said to be illogical and unreasonable. However, the principles can have no application when, as in the present case, the circumstances of each charge and the evidence relating to them were different. In particular, it could not be said that a failure to reach a verdict on one charge cast doubt on the complainant's credibility such as to render a conviction on a different charge dependent on the acceptance of her evidence as illogical and unreasonable.
It follows that this ground has not been made out.

a The applicant

The applicant referred to eleven matters which he submitted cast doubt on the credibility of the complainant. Without doing any injustice to the submission, they may be summarised as follows.
The first matter was the absence of complaint concerning Counts 1 to 6 and Count 8 in the complainant's first police interview on 9 April 2016.
The second was the improbability of the sexual abuse in light of the applicant's suggestions that the complainant seek medical help. Queen's Counsel for the applicant submitted that if the applicant was abusing the complainant, it was inherently unlikely that he would advise her to get medical help.
The third matter was described as the "staggered and inconsistent nature" of the complaints. The applicant referred to the fact that the complainant told her aunts that she fell down the stairs on 10 April, notwithstanding that she had already told the police about the assault.
The fourth matter was that she told her aunt, Aunt B, that the applicant had choked her with both hands, whereas it was the complainant's evidence that the applicant choked her with one hand while driving. It was submitted that the proposition advanced by the Crown that the complainant may have meant that the applicant had choked her with both hands at different times was speculative.
The fifth matter was that the applicant submitted that there was no basis for the suggestion that the applicant had a shovel and a gun, pointing to the fact that that allegation was only made to JAE (see [171] above) and pointed to the different evidence given by the complainant that the applicant told her he had a shovel and a knife (see [10] and [17] above).
The sixth matter was that the allegation in respect of Count 1 was "inherently improbable".
The seventh matter was the Facebook communication to which I referred at [87] above. The applicant noted that this occurred after what was alleged to have been consensual penile-vaginal sex at UTS. The applicant described the complainant's explanation that the applicant was "delusional" as "bizarre".
The eighth and ninth matters were the other Facebook messages in which there was no complaint of sexual or physical misconduct.
The tenth matter was the Facebook message to which I referred at [93] above. The applicant noted that this message was sent after the alleged incident, the subject of Counts 2 and 3. It was submitted that the complainant's explanation for her statement that the applicant was "the best boyfriend" she had had in the communication was a lie was evidence of "further contrivance".
The eleventh matter which related to Count 4 was the evidence of Ms N which the applicant submitted was "entirely inconsistent with that of the complainant".

b The Crown

The Crown submitted that it was of significance that the complainant complained to the police very shortly after the incidents the subject of Counts 7 and 8. The Crown pointed out that in the first interview the complainant stated that the applicant threatened to kill her if she did not give him a blow job and that he choked her (see [11]-[12] above) and that the injuries were photographed. It was acknowledged at the hearing that she did not complain of any sexual assault in the first interview. However, the Crown submitted it was "a relatively short interview".
The Crown noted that immediately after the first interview, the complainant complained to Ms B that she felt pressured to have oral sex. Ms B, however, did not go so far as to say the complainant told her that in fact they had oral sex.
The Crown also relied on the interview between the applicant and the police in which the applicant said that he patted the complainant but denied hitting or choking her. It was submitted that the applicant's "inability to explain the complainant's bruises was to his detriment". The Crown also noted that the applicant said there was sexual activity. However, he stated this as an explanation for the bite marks on the complainant's neck (see [187] above).
So far as the submission that it was inconsistent with Counts 1 to 3 for the applicant to advise the complainant that she seek medical help, the Crown submitted that it was only inconsistent with the complainant's case if "the applicant appreciated at the time or later that he had engaged in sexual intercourse without the complainant's consent". The difficulty with this is that if the evidence of the complainant was accepted, it was clear that on each occasion that she was not consenting to oral sex.
The Crown submitted that the inconsistent nature of the complaints regarding the complainant having told her aunts that she had fallen down the stairs after she had spoken to the police, could clearly be attributed to the complainant being embarrassed by what occurred.
In relation to the different accounts given by the complainant as to how she was choked, the Crown submitted that the complainant's aunt may have been mistaken in her recollection, or that the complainant may have been referring to being choked by both hands at different times. The Crown submitted that JAE's evidence that the complainant told him that she was threatened with a shovel and a gun may be attributed to the fact that "he was not as focused on what she was saying because … he was already angry".
So far as the inherent improbability of Count 1 was concerned, the Crown contended that "reasonable minds might differ" on the question of whether the conduct was improbable. The Crown also submitted that whilst willingness to engage in penile-vaginal sex shortly after a non-consensual act of oral sex may seem to be improbable, it might be "a reflection of how compliant the complainant was at the time".
The Crown also submitted that the reference in the complainant's Facebook message to the applicant on 8 October 2015 to "hooked up at uts", supported the complainant's account. However, that remark cannot be read in isolation from the applicant's response and the fact that in the cross-examination to which I have referred at [218] above, it appears the applicant understood "hooked up" as something other than having penile-vaginal sex.
In relation to the Facebook communication of 15 September 2015 (see [87] above), the Crown submitted that to simply focus on the complainant's explanation that the applicant was delusional did not pay regard to the "somewhat unusual circumstances of their relationship". Similarly, the Crown whilst accepting that there was no complaint of physical or sexual abuse in the Facebook messages, pointed to the fact that the complainant wanted to continue the relationship and that "experience has shown … that some people …put up with assaults in a relationship for a variety of reasons".
So far as the Facebook conversation of 8 October was concerned, the Crown referred to various messages which I have extracted at [93] above, and submitted that the complainant's untruthfulness had to be assessed in accordance with her feelings towards the applicant at that time.
In relation to the conflict between the complainant's evidence and that of Ms N, the Crown accepted that it would be open to the jury to conclude that the complainant was inaccurate to the extent that the complainant stated that applicant had wet her. However, it was submitted that because of the contemporaneous complaint in relation to Count 8 and the "support from injuries on the complainant's body", its ability to affect the verdict on Count 8 was limited.

Consideration

In Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78 I sought to summarise the principles on which a Court will set aside a verdict as unreasonable. I made the following remarks (Johnson and Fullerton JJ agreeing): "[84] The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14], the court stated the approach to be adopted was that laid down in M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63, namely that the court is required to make its own 'independent assessment of the evidence'. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated (at 494) that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced' and '[i]t is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt … that the court may conclude that no miscarriage of justice occurred': see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [59]. [85] As was pointed out by Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Gleeson CJ and Heydon J agreeing), for a verdict to be unreasonable it is not enough that a review of the evidence shows only that it was possible for a jury to reach a different conclusion. However, for a court to conclude there was no miscarriage, it is not sufficient that there was evidence on which a jury could convict. If after giving full weight to the primacy of the jury, the court is left in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the doubt that the court can conclude that there was no miscarriage of justice."
As has been pointed out in a number of the authorities in considering the matter, regard must be had to the constitutional function of the jury as the tribunal of fact. That was emphasised in the following passages of the judgment of the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]: "[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact.' Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] 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' (footnotes omitted)".
In the present case, the jury had the opportunity of observing the complainant including in a lengthy and (without being critical) sometimes hostile cross-examination. Great weight must be given to the fact that the jury was able to be satisfied beyond reasonable doubt of the guilt of the applicant on Count 8.
Further, there are matters which support the complainant's account. The choke marks, bruising and bite marks shown in the photographs to which I have referred at [220] above, were consistent with her evidence and she complained about the sexual assault relatively shortly after it was alleged to have taken place, including the complaint to Ms B shortly after the first interview "confirming that … she felt pressured to perform oral sex on her boyfriend" (see [156] above).
Notwithstanding these matters, having reviewed the whole of the record, I am left in a reasonable doubt that the applicant committed the offence. It is a doubt which, in my opinion, should have been shared by the jury, notwithstanding the advantage that they had in seeing and hearing the complainant: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63. This is for the following reasons.
Although Count 8 must be considered separately from the other counts in respect to which the jury failed to reach a verdict, it is necessary to consider her evidence in respect of these counts in assessing her credibility: R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186]-[188].
The first matter of concern is her evidence on Count 1. Even if the lights were extinguished, there is a degree of improbability about the activities that she described taking place in a study room of a university which had windows, that students may have walked past the room and she did not know if the room was locked (see [41] above).
This would not, of itself, cast doubt on her credibility. More significant is her version of what occurred. I have set out her evidence in chief at [38] above and cross-examination at [78] above. Her evidence that she consented to penile-vaginal sex "immediately after the blow job" because she wanted to forget the latter, is difficult to accept, as is her evidence that after the penile-vaginal sex finished, she said "it was fun, but I don't like doing blow jobs" and then they went to KFC for dinner together.
The next difficulty is the Facebook messages to which I have referred at [87] and [93]. Her question, "are you really a virgin?" is of course quite inconsistent with her having had penile-vaginal sex with the applicant. The content of the Facebook exchange, "Baby are you really a virgin I'm so excited I want to have children" made her statement that she wrote the message because the applicant was "delusional" thinking he was still virgin, quite improbable. Similarly her statement in the Facebook message to which I have referred at [93], in which the complainant stated that other boyfriends had abused her but the applicant was the "best boyfriend" she had had, is inconsistent with the alleged sexual abuse. Her statement that this was a lie also impacts on her credibility.
Of greater significance is the absence of any complaint of sexual abuse in any of the Facebook messages which passed between the complainant and the applicant. Also of significance in that context are the matters to which I have referred at [94]-[96]. The complainant initially said that she had discussions with the applicant about seeing a psychologist or psychiatrist, although she subsequently said that it was her mother who said that she was going to take her to a psychiatrist when she and the applicant met with their respective parents. It should be noted that there is no reference to this in any of the evidence of the respective parents of the complainant or the applicant. Further as Queen's Counsel for the applicant pointed out, it would be surprising if the applicant advised or supported the complainant seeking psychological help if in fact the sexual abuse had been the cause of her psychological distress.
Further, whatever was said at the meeting between the respective parents in November, there did not seem to be any allegation of sexual abuse or non-consensual sex. In addition, in the Facebook messages which passed between the complainant and the applicant after the meeting, the applicant again denied that he had sex with the complainant (see [68] above).
The next difficulty relates to the evidence of Ms N. On the complainant's version of the conversation she had with Ms N, she told Ms N that she was wet as the applicant poured a jug of water over her and spat on her. If, in addition to this occurring, the applicant had beaten her with a tennis racket, there seems to be no particular reason why it was embarrassing to tell Ms N of that fact. Further, the complainant stated that there were no marks on her which was surprising if the applicant had beaten her five times with a tennis racket.
In addition, contrary to the evidence of the complainant, Ms N stated that she did not observe the applicant was wet at all.
There are also a number of matters directly relating to Count 8. First, although the photographs provide some support for what the complainant said occurred on the night in question, they do not provide direct support for the actual sexual assault alleged. Rather, they are consistent with the original complaint made to members of the complainant's family and in the first police interview, namely, a physical assault. Even then, there are inconsistencies. According to JAE, the complainant told him that the applicant had threatened her saying that he had a gun and a shovel, whilst the complainant's evidence was that it was a knife and a shovel. In addition, according to her Aunt B, the complainant told her that the applicant had choked her with both hands, whilst the complainant said that in this incident, it was only with one hand. These matters are not of particular significance of themselves but they must be taken into account along with the other matters to which I have referred in assessing the credibility of the complainant.
The complainant did not directly allege that she had been sexually assaulted in her first interview with the police. The complainant stated in that interview that the applicant had threatened to kill her if she did not give him a blow job. Unfortunately, she did not appear to be asked by the police whether she complied with that threat by giving the applicant a blow job. The interview rather went on to deal with the assault that took place at the time. However, it must be noted that at the conclusion of her first interview, she was asked the following questions and gave the following answers: "Q. O.K. You may think of something that you have not remembered to tell us later on. A. Ah hmm. Q. We don't need to hear about every … A. Yeah. Q. … tiny little thing, but if there's anything that you think's very important that we need to know about, you should contact me and I can arrange to take a, a written statement that we explained is the other way of taking a statement … A. OK. Q. … at that time. A. Well, there … Q. Do you understand that? A. Yeah. There is something. Q. Yeah. Sure. Is there anything else you wish to tell me? A. Um, well, he spits at my face. I don't know what, he thinks I'm disgusting now, he never used to, he was never like that … Q. Yeah. A. … until I started hanging out with this girl Marcelle. He keeps on blaming this girl Marcelle about everything. 'Ever since you started hanging out with her, you became a loser, you this, and now I'm falling behind with life because of you,' all that stuff. And I don't know why he's blaming me, I've done nothing towards him. Q. Yeah. A. I was always there for him every time. I feel like I've done a lot for Joseph, but he doesn't see it. He doesn't. He thinks he's done a lot for me. He's only done, what, one thing, and then the rest, he tries, he says that he tries his best to make people think I'm not weird or some, or say stuff about me. But I don't know, I feel like he's the one saying it. But he tells me he's not, because he loves me. Q. All right. So the time is now 11.25."
Further, her Facebook message that evening, "Goodnight I love you" is on its face inconsistent with a sexual assault that day. In saying this, it must be remembered that does not, of itself, lead to the conclusion that the assault did not occur. There are many reasons why a person who has been assaulted in the manner alleged by the complainant may make a statement of that nature. Not the least being a desire to continue what had always been a turbulent relationship.
There are two other matters which are of relevance in assessing the complainant's credibility. First, the evidence of Mr M and Ms C which cast doubt on the complainant's evidence of the contact between her and the applicant in 2012 and second, the detail of her conversation with Ms C which the latter said took place at the school reunion. Ms C did not appear to have any reason to depose to a conversation which did not take place with her.
There is also evidence that the applicant was a person of good character, although the description of the applicant as "a gentleman" and "very respectful at work" is certainly not reflected in some of the Facebook messages he sent to the complainant.
In considering the evidence, allowance must not only be made for the advantage of the jury but also the emotional state of the complainant at the relevant time which is apparent from the Facebook messages in evidence, some of which I have reproduced in this judgment. Thus, I have placed no regard to the fact that the relationship continued, notwithstanding the alleged sexual assaults. Although I have referred to it, I have placed little weight on the message, "Goodnight I love you" on the night of the alleged incident the subject of Counts 7 and 8. Notwithstanding, the matters to which I have referred have left me in reasonable doubt that the offence was committed.
In these circumstances, in my opinion, Ground 2 has been made out.

An irrelevant matter

In the course of a Crown detention application following the conviction, the trial judge made the following remarks: "I do have to say, I've put one matter perhaps on the table so far as the jury's verdict is concerned, and we are to respect it, and I do. It does, however, seem to me to be a matter of some concern about consistency when the jury were capable of deciding count 8, a sexual intercourse charge in its aggravated form, which relied upon the complainant's evidence substantially, although I note that that was a case where there was self-evident injury and they obviously took a view about that, but nevertheless were unable to decide on her word the other seven counts. Again, it is on one view - and this is a personal view apropos perhaps of nothing - but it strikes me as being at least a potential inconsistency. How that impacts on later proceedings, I don't know, but I would have thought that if [the complainant] was a credible and honest witness to 11 of them in relation to count 8, there is no reason to suppose she was other than that on counts 1 through to 7, but I simply make that statement and leave it to others to determine."
Subsequently in declining to set the matter down for sentence, the trial judge made the following comments: "I think what I'm inclined to do is to set a date for mention, I think. That seems to me to be perhaps creating work which may not be ultimately required for those and I see no practical difference, with due respect to [the complainant], who is the victim in relation to count 8, and all of them - I think it was a case which had, in my view at least, from the prosecution point of view, some problems, and I adhere to what I said after the verdict. It's very hard to discern how there could have been a guilty verdict on one and not the others. It seems to me the same author of the complaint, which was [the complainant], was the person who spoke to all counts, and speaking for myself, I didn't see much of a difference between the quality of the evidence or its nature, one against the other …"
The applicant submitted that the comments by the trial judge who, like the jury had the advantage of seeing the complainant, could be taken into account in determining whether the verdict is unreasonable.
I do not agree. It was a matter for the jury to determine the guilt or innocence of the applicant, not the trial judge. It is the function of this Court to determine whether the verdict is unreasonable in accordance with the authorities to which I have referred. With the greatest respect to those who take a contrary view (see McCann v R [2014] NSWCCA 79; Drysdale v R [2015] NSWCCA 135), I do not think that it is appropriate to take the view of the trial judge expressed following the conclusion of the trial into account.
The view which I have expressed seems to be consistent with what was said by Crennan J in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [112]-[115]. Although her Honour was in dissent as to the result, nothing said by her was inconsistent with the reasoning of the majority who did not deal with the issue.
As I have reached the conclusion that in any event the conviction should be set aside, it follows that it is not necessary for me to deal with this matter further or to consider whether I am bound by what was said in McCann v R and Drysdale v R.

Conclusion

In the result, I make the following orders: 1. Grant the applicant leave to appeal. 2. Quash the conviction of the applicant on Count 8 of the indictment dated 9 July 2018 and in lieu thereof enter a verdict of acquittal.
BELL P: I have had the benefit of reading in draft the reasons of the Chief Justice and the concurring reasons of Hamill J. I agree with the orders proposed by the Chief Justice and, subject to one point of elaboration, with his Honour's reasons.
The elaboration relates to the complainant's failure to raise the sexual assault which formed the basis of Count 8 in her first interview with the police on Saturday 9 April 2016, being two days after the alleged assault.
The Chief Justice has pointed out at [7]−[14] of his reasons that the complainant was asked on multiple occasions in her first interview what had happened. At [14], his Honour records that, after giving her account, the complainant was asked whether there was anything else she could tell the interviewer about what happened. The Chief Justice sets out verbatim the complainant's response to that question which made no reference to the alleged sexual assault. The complainant then volunteered that she felt confused "because I've been with him for a long time" and "I can't get out of it". After that answer, there then followed this exchange between the complainant and Constable Battin: "Q. OK. You may think of something that you have not remembered to tell us later on. A. Ah hmm. Q. We don't need to hear about every - - - A. Yeah. Q. - - - tiny little thing, but if there's anything that you think's very important that we need to know about, you should contact me and I can arrange to take a, a written statement that we explained is the other way of taking a statement - - - A. OK. Q. - - - at that time. A. Well, there - - - Q. Do you understand that? A. Yeah. There is something. Q. Yeah. Sure. Is there anything else you wish to tell me? A. Um, well, his spits at my face. I don't know what, he thinks I'm disgusting now, he never used to, he was never like that - - - Q. Yeah. A. - - - until I started hanging out with this girl Marcelle. He keeps on blaming this girl Marcelle about everything. 'Ever since you started hanging out with her, you became a loser, you this, and now I'm falling behind with life because of you,' all that stuff. And I don't know why he's blaming me, I've done nothing towards him. Q. Yeah. A. I was always there for him every time. I feel like I've done a lot for Joseph, but he doesn't see it. He doesn't. He thinks he's done a lot for me. He's only done, what, one thing, and then the rest, he tries, he says that he tries his best to make people think I'm not weird or some, or say stuff about me. But I don't know, I feel like he's the one saying it. But he tells me he's not, because he loves me. Q. All right. So the time is now 11.25." (emphasis added).
I have emphasised those aspects of this exchange that I consider particularly significant. The police officer perfectly properly signified to the complainant that if she thought that there was anything else particularly important, she should contact the police. The complainant responded immediately, under no pressure, and said that "Well … [t]here is something." That was the spitting.
It is, to my mind, striking that the complainant did not take the opportunity to volunteer the sexual assault on this occasion, particularly given the graphic and detailed nature of her account of it in the second police interview a mere two days later. It was not, if that account be accepted, something that was likely to slip her mind.
No evidence was elicited either in chief or in re-examination from the complainant as to why she made no reference to the alleged sexual assault in the first interview, particularly in circumstances where she had attributed to the applicant the statement "If you don't have sex with me, or if you don't give me a blow job, um, I will kill you." It was not as though she had avoided this subject in her first interview, and yet she had said nothing about acceding to the applicant's alleged threat notwithstanding being asked in what was, from the tone of the officer's questions, a sympathetic environment, whether there was anything else that she thought that was "very important that [the police] need to know about".
It is also significant to my mind that the complainant said nothing about the alleged sexual assault to her friend and work mate Ms B on the evening of 8 April 2016 when they were working together. Ms B's evidence in this regard was that: "Q. Half way through your shift you saw [the complainant] in the fitting rooms? A. Yes, that's correct. Q. You walked over to say hello to her? A. Yes. Q. Did you make any observations of her? A. Yes, I noticed a bruise on her right arm on the inside. Q. Did you say anything? A. I asked her, 'What happened.' Q. What did she say? A. I don't remember word for word, but it was something along the lines that her boyfriend had grabbed her arm. Q. Did you ask her - did you say anything to her when she said that to you? A. I said, she should probably report it, to the police. Q. Do you recall if she gave you any further details that evening? A. That he had taken her from Strathfield, he found her at Strathfield, and then took her into the car and drove her to a grave yard. Q. Did she tell you what had happened when they got to the grave yard? A. She said that's when he grabbed her arm and then punched her in the leg, she did show me her leg but there were no visible bruises on that time. That's all I can remember. Q. You said that you said to her that - did you say anything to her at that point in time? A. Yeah, I said, 'It'd be a good idea to go to the police,' and that I'd go with her if she'd want. Q. What did she say? A. She was a bit hesitant at first, because she didn't want her mum to find out, but then I said to her, 'It'd probably be a good idea,' and that, I would pick her up in the morning and then take her, just her and I." (Emphasis added)
The significance of the failure to report the sexual assault in the course of the first police interview is tempered to some extent by the fact that, according to the complainant's evidence which in this regard was corroborated by the evidence of Ms B, soon after the first interview when the complainant, Ms B and another friend, Ms D were speaking in a park (they all having attended the first interview), in apparent answer to a question from Ms B, the complainant said "she felt pressured to perform oral sex on her boyfriend". It was not entirely clear from Ms B's account that this was a specific reference to what had occurred on 7 April 2016 as opposed to a more general statement but the context of the conversation probably supports the view that is related to the incident on 7 April 2016. Ms B and the complainant both said that, as they were having this conversation, the complainant's phone rang and they were asked to come back to the police station. Ms B said: "When we went back, a female detective escorted us back into the same interview room, and then asked us to wait there, but I had to leave to go to work before they started anything."
According to the complainant's evidence, when she returned to the police station, she told a Detective Allen "about if I didn't give him a blow job he would kill me, and that he forced me to give it to him". There does not appear to have been any formal police record of this having been said in evidence at trial, and there was certainly no record of it in the materials put before the Court of Criminal Appeal. Nor is there any reference to it in the transcript of the second interview which Detective Allen conducted on 11 April 2016. That record of interview begins: "[S]o on Saturday, the 9th of April … 2014 [sic], you attended Quakers Hills Police Station … and spoke to Constable Batton on [sic] regards [sic] to a domestic incident". The transcript of the second interview makes no reference to any subsequent interview or report of the sexual assault to Detective Allen on 9 April 2016. The Detective was not called to give evidence, and Ms B was not able to give evidence as to what had been said or reported on the second visit to the police station on 9 April 2016 as she left the police station after the complainant had been taken into the interview room.
It is curious and unfortunate that there is no record or independent corroboration of the report of the sexual assault to police on 9 April 2016 subsequent to the first police interview earlier that day. The failure to raise the matter in the first interview, however, in the context of the tone of that interview, the other information that was volunteered, all taken in conjunction with the various other issues going to the complainant's credibility that have been referred to in the Chief Justice's judgment at [278]−[290] and my own review of the evidence leaves me with a similar doubt to that expressed by the Chief Justice at [276] of his judgment.
To the matters referred to in [285] of his Honour's judgment, I would add the following inconsistencies in the evidence relating to Count 8: 1. in her second police interview, the complainant said that she had told Ms B and Ms D on 8 April 2016 about what had happened; but, as I have noted in [305] above, the only matter Ms B recalled being told by the complainant on 8 April was the alleged physical "grabbing" of the complainant by the appellant but not sexual assault; 2. there was an important inconsistency in the second interview as to the circumstances surrounding the reason why the complainant "got angry" on 7 April 2016. The complainant initially said: "A. He got angry because he saw text messages from a guy I'm going on a date with on Friday. Q. Uh-huh. A. Um, and then that's when all the, um, abuse started happening, the choke, ah, choking and, um, the hitting. Q. OK. A. Yeah." (Emphasis added) Later in that interview, the complainant changed her evidence and said that the appellant saw the text messages the day before the alleged assault at Strathfield Station. I do not consider this inconsistency to be trivial or innocuous as, according to the complainant's initial account extracted above, it was the viewing of the text messages on the day of the incident in the car that triggered the applicant's anger and violence. The later change in evidence, bearing in mind that the second interview occurred only four days after the incident in question, seriously undermines confidence in the credibility of the complainant.
In relation to the final ground of appeal concerning inconsistency, the Chief Justice and Hamill J differ at least in terms of degree as to the extent to which the failure of a jury to reach agreement on a particular count or counts might underpin a ground of appeal based on principles of inconsistency.
In my opinion, the risks and illegitimacy of speculation or second guessing, even subconsciously, the reasons for such an outcome of jury deliberations seem to me to be very great. At the very least, great caution is called for in entertaining such a ground of appeal in the circumstances postulated.
HAMILL J: I have had the considerable advantage of reading the judgment of Bathurst CJ in draft. I agree with the orders proposed by the Chief Justice and with his Honour's reasons.
I do not share his Honour's reservations as to the extent to which the failure of a jury to reach agreement on a particular count or counts might form the basis of a ground of appeal asserting that the outcomes are inconsistent (legally or factually), or that a guilty verdict is unreasonable on the basis that the same jury was unable to reach a verdict in respect of other counts on the same indictment.
Plainly, a jury's failure to reach a verdict on particular counts cannot be said to be an inconsistent "verdict". However, as the English Court of Appeal said when considering this question, "linguistics should not be allowed to triumph over justice" [1] . Whether the ground be one of "legal or technical inconsistency", factual inconsistency, or where the assertion is that a guilty verdict is unreasonable because there is no logical or reasonable explanation for the disparate outcomes, I cannot see any reason in principle that a failure to reach a verdict cannot form the basis for grounds of appeal such as those now raised.
This is not to say that an appellate court can engage in speculation as to the reason for the disagreement. But, to cite the most common example, if the only issue in dispute is the credibility of the complainant, and at least some members of the jury entertained a reasonable doubt as to that credibility on some counts, while accepting it beyond reasonable doubt on others, the same considerations as those discussed in cases such as Jones v R [2] , MFA v R [3] and Markuleski v R [4] may apply.
As the Chief Justice's judgment demonstrates, there is some tension in the authorities. As I said in PA v R, [5] without attempting finally to resolve this conflict: "I am inclined to the view expressed by the Victorian Court of Appeal (Maxwell P, Redlich and Whelan JJA) in Tukuafu v The Queen [2014] VSCA 345 that: 'the appropriate inference to be drawn from the jury's failure to reach a verdict with respect to a particular charge is to be determined according to the circumstances of the particular case.'"
In PA, Hoeben CJ at CL posited a way of reconciling the authorities at [40]. I maintain my agreement with that approach and my view that "a jury's failure to reach a verdict may, in particular circumstances, provide some support for a ground of appeal based around an assertion that a guilty verdict reached by the same jury is unreasonable or unable to be supported." [6]
This is not a case of "legal or technical inconsistency" of the kind referred to in Mackenzie v The Queen. [7] Rather, to adopt again the language used in Mackenzie, it is one of "factual inconsistency". As I said in PA, [8] (by reference to the High Court's decision in MFA) [9] "ultimately, the test is unreasonableness rather than inconsistency" and the Court must "examine any differentiation in the verdicts to see if it can be justified" [10] .
Accordingly, and consistent with the approach taken by Bathurst CJ, I have considered the applicant's first ground on the basis that the failure of the jury to agree on verdicts for counts 1 to 7 can inform this Court's assessment of whether the guilty verdict on count 8 is factually inconsistent with the outcome (or lack of outcome) in counts 1 to 7 (and therefore unreasonable).
As the Chief Justice's analysis shows, there were manifest factual and evidentiary differences between the prosecution case on counts 1 to 6 and its case in respect of counts 7 and 8. Perhaps most significantly, there was a relatively prompt complaint in respect of the allegations comprising counts 7 and 8. There is no logical inconsistency between the verdict on count 8 and the failure to reach verdicts on counts 1 through to 6. The jury's differentiation between those counts, and the disparate outcomes, were justified by the evidence in the case. It was neither illogical nor unreasonable in the relevant sense.
Count 7 required proof (beyond reasonable doubt) of a particular and quite specific mental state. Count 8 did not. Further, the complainant's evidence in respect of the choking contained some inconsistencies. For those reasons, there was no relevant inconsistency between the guilty verdict in respect of count 8 and the jury's inability to reach a verdict on count 7.
For those reasons, and for those provided by the Chief Justice, I would reject ground 1.
As to ground 2, I have undertaken a review of the whole of the evidence, noting that neither party submitted that the Court should view or listen to the recordings of parts of the evidence or the interviews.
I am left with a substantial doubt as to the appellant's guilt. The jury's advantage in seeing the witnesses (and in particular the complainant) give evidence does not allay, explain or resolve that doubt. It is a doubt that the jury ought to have entertained. In reaching that conclusion, I have considered some of the more extraordinary aspects of the evidence in respect of the other counts and more generally, such as the version concerning count 1 and the ongoing Facebook message exchange. In making an assessment of the evidence elicited in proof of count 8, I have taken into account the deficiencies in the evidence in respect of the other allegations and counts and the prosecution case more generally: see R v Markuleski [11] .
Accordingly, I agree with Bathurst CJ that ground 2 must be upheld, the conviction on count 8 quashed, and a verdict of not guilty should be entered. In addition to the specific observations in the preceding paragraph, I agree with, and adopt, the reasons articulated by the Chief Justice.
In the circumstances of the present case, I agree that the understandable concerns expressed by the trial Judge as to the verdict on count 8 should play no role in this Court's consideration of the question of whether that verdict was unreasonable or unable to be supported by the evidence adduced at the trial.
I agree with the orders proposed by the Chief Justice.

Endnotes

R v Formhals [2014] 1 WLR 2219 at [27].
(1997) 191 CLR 439; [1997] HCA 56.
(2002) 213 CLR 606; [2002] HCA 53.
(2001) 52 NSWLR 82; [2001] NSWCCA 290.
[2015] NSWCCA 18.
PA v R [2015] NSWCCA 18 at [75].
(1996) 190 CLR 348 at 366.
PA v R [2015] NSWCCA 18 at [71].
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, especially at [36] (per Gleeson CJ Hayne and Callinan JJ).
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [89].
(2001) 52 NSWLR 82; [2001] NSWCCA 290 at [186]-[190].

Amendments 02 September 2019 - Amended paragraph numbering at end of judgment 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: 02 September 2019

CCA 151 Tukuafu v The Queen [2014] VSCA 345 Walker v R [2019] NSWCCA 4 Walker v R [2019] NSWCCA 4 Texts Cited: Nil Category: Principal judgment Parties: Joseph Peter Daaboul (the applicant) The Crown (the respondent) Representation: Counsel: A Bellanto QC with T Bicanic (for the applicant) E Balodis (for the respondent)

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Joseph Peter Daaboul was charged on indictment with 8 counts arising from his conduct towards the complainant. Count 1-3 and 5-6 each pertained to the applicant having sexual intercourse with the complainant without the consent of the complainant, knowing she was not consenting contrary to s 61I Crimes Act 1900 (NSW). Count 4 related to the applicant intimidating the complainant with the intention of causing the complainant to fear physical or mental harm contrary to s13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). Count 7 pertained to the applicant choking the complainant so as to render her incapable of resistance and did so with the intention of enabling himself to commit sexual intercourse without consent contrary to s 37(2) Crimes Act 1900 (NSW). Count 8 related to the applicant having sexual intercourse with the complainant without her consent, knowing she was not consenting, and at the time of the sexual assault did assault the complainant thereby occasioning her actual bodily harm contrary to s 61J(1) Crimes Act 1900 (NSW). Counts 7 and 8 both occurred on 7 April 2016 and arose out of the same alleged incident. Following a trial by jury, the applicant was found guilty on Count 8. The jury was unable to reach a verdict on Counts 1-7. The applicant is yet to be sentenced. The applicant has appealed against his conviction on Count 8. There were two main issues on appeal. The first issue was whether the verdict of guilty on Count 8 is inconsistent with the failure of the jury to agree on Counts 1-7, in particular, Count 7. The second issue was whether the verdict of guilty on Count 8 is unreasonable, or cannot be supported, having regard to the evidence. Whether the verdict of guilty on Count 8 is inconsistent with the failure of the jury to agree on Counts 1-7? There is no inconsistency between the verdict of guilty on Count 8 and the failure of the jury to agree on Counts 1-7, in particular Count 7: [231]-[234]; [249] (Bathurst CJ); [299], [310]-[311] (Bell P); [319]-[322] (Hamill J). MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 referred to. The principles dealing with inconsistent verdicts where the so-called inconsistency is between a failure to reach a verdict on a particular count and a verdict of guilty on another count may apply where "the difference is incapable of any logical explanation". However, the principles can have no application when the circumstances of each charge and the evidence relating to them were different. It could not be said that a failure to reach a verdict on one charge cast doubt on the complainant's credibility such as to render a conviction on a different charge dependent on the acceptance of her evidence as illogical and unreasonable: [230], [235]-[248] (Bathurst CJ); [299], [310]-[311] (Bell P). R v DAL [2005] QCA 281; Pillay v R; Toganivalu v R; Dansey v R [2014] 43 VR 327; [2014] VSCA 249; Walker v R [2019] NSWCCA 4; Crofts v R [2018] VSCA 197 considered. Osland v R (1998) 197 CLR 316; [1998] HCA 75; R v Formhals [2014] 1 WLR 2219; R v CBF [2012] QCA 294; R v CX [2006] QCA 409; R v Garrett [2009] QCA 300; Miller v The Queen [2002] WSCA 211; R v R, GJ (2009) 105 SASR 506; [2009] SASC 371; PA v R [2015] NSWCCA 18; R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 referred to. A jury's failure to reach a verdict may, in particular circumstances, provide some support for a ground of appeal based around an assertion that a guilty verdict reached by the same jury is unreasonable or unable to be supported. The test is "unreasonableness rather than inconsistency" and the Court must "examine any differentiation in the verdicts to see if it can be justified": [312]-[319] (Hamill J). MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; PA v R [2015] NSWCCA 18 considered. R v Formhals [2014] 1 WLR 2219; Jones v R (1997) 191 CLR 439; [1997] HCA 56; MFA v R (2002) 213 CLR 606; [2002] HCA 53; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 referred to. Whether the verdict of guilty on Count 8 is unreasonable, or cannot be supported by the evidence? The Court has "reasonable doubt that the applicant committed the offence". It is a doubt which should have been shared by the jury, notwithstanding the advantage that they had in seeing and hearing the complainant: [272]-[291] (Bathurst CJ); [299]-[309] (Bell P); [323]-[325] (Hamill J). Dickson v The Queen (2017) 94 NSWLR 476; [2017] NSWCCA 78; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; M v The Queen (1994) 181 CLR 487; [1994] HCA 63; R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 referred to.

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (36)

Cited By (10)