G A P v The Queen [2011] VSCA 173

1 I have had the advantage of reading in draft the reasons of Redlich JA and agree, for the reasons his Honour gives, that the application for leave to appeal against conviction should be refused.

2 The applicant pleaded not guilty in the County Court to 14 counts of indecently assaulting a child under the age of 16.[1] After a trial the jury returned a verdict of guilty on six of the counts (counts 5, 8, 9, 10, 11 and 12) and a verdict of not guilty on eight of the counts (counts 1, 2, 3, 4, 6, 7, 13 and 14). The applicant seeks leave to appeal against his conviction on the six counts.

3 Counts 1 to 8 alleged indecent assaults committed by the applicant on his step-sister ('the first complainant') during the period 1 June 1975 to 21 November 1979, when she was between 9 and 13 years old. Counts 9 to 14 alleged indecent assaults committed against his niece ('the second complainant') during the period 5 February 1977 to 21 November 1979, when she was aged between 4 and 7. All of the offences were said to have occurred while the applicant was living in a caravan at the rear of a property in Corio where his sister lived with her family (including the second complainant, her daughter). In fact, counts 9 and 10 were alleged to have occurred inside the caravan.

4 The applicant denied that he ever indecently assaulted either girl. He gave evidence at the trial that he did not live at the property in Corio during the periods charged in the counts, nor did he visit there at any point in that period. He stated that in 1983 he moved on to the Corio property in his caravan and lived there for a period of about five months, to help his sister by taking her youngest child, Alison, to school. He stated that prior to that he had been living in Clarendon Street in Melbourne while doing an apprenticeship from 1974 to 1976, and then moved to

Moorabbin in 1976, and then Noble Park for 18 months to two years, before moving to live in Mornington with his eldest brother and working for the Mornington Shire Council for about 18 months to two years.

Ground 1: Verdicts are unreasonable or cannot be supported by the evidence

5 The applicant submitted that it was not open on the evidence for the jury to be satisfied beyond reasonable doubt that he committed any of the indecent assaults charged. Both of the complainants gave evidence that the offences occurred at the Corio property while he was living at the rear of the property in the caravan. He submitted that the jury should have had a reasonable doubt that he had been living in the caravan at the property in Corio at the time of the alleged offences. Hence the jury should have had a reasonable doubt about the reliability of each complainant's evidence that the applicant committed the offences, and therefore could not have convicted him.

Evidence as to when the applicant lived at the Corio property

6 Both complainants gave evidence of objective circumstances which enabled them to identify a timeframe for when the alleged offences had occurred. The first complainant gave evidence that the offences the subjects of counts 1 to 8 had been committed against her at a time when she was staying with the family at the Corio property and the applicant's sister had been pregnant with her third child, Alison. As Alison was born in February 1978, this placed the offending in the latter half of 1977.[2] This accorded with the first complainant's evidence that the offending had occurred in the six month period starting in the June school holidays and ending just before Alison was born. Further, the first complainant gave evidence that she was taking dance classes at the time of the offences, and the owner of the dancing school gave evidence at the trial that the first complainant had attended the school from February 1974 until 1983.

7 The second complainant gave evidence that the offences the subjects of counts 9 to 14 occurred in a six month period when the applicant was living with her family in the caravan in the backyard, and she was undertaking dance lessons at the same school as the first complainant. The evidence from the owner of the dance school was that she had done so from February 1977 until 1979. The second complainant gave evidence that her sister, Alison, was around 18 months old, 'a toddler', at the time of the offences. This would place these offences in around the latter half of 1979.

8 The first complainant also gave evidence that she was aged 17 and was engaged to her husband in 1983, and that the offences would not have occurred at that time.

9 Both complainants denied the suggestion put to them in cross-examination that they had made up the allegations against the applicant as 'payback' for the applicant's nephew making allegations that he had been physically abused by the applicant's brother-in-law. Both complainants denied this was the case.

10 The applicant asserted that there was no evidence from any Crown witness that corroborated the complainants' evidence that the applicant lived at the premises in Corio in the caravan before 1983. The applicant relied upon the following evidence, in addition to his own evidence at trial that he denied that he lived at the Corio property before 1983.

11 The applicant's sister gave evidence that he stayed with her family in the caravan on the Corio property for about a year, and that he was staying with them when Alison started primary school, in February 1983. She could not recall whether there were other periods before that when he stayed with them, but said that the applicant may have stayed with them on two occasions. She gave evidence that he had lived in the house at one stage. A step-sister also gave evidence that she recalled that the applicant had lived at the Corio property, and that she believed it was in 1983 but was 'not really positively sure'. She said she had worked that out from the fact that Alison started her first year of school in 1983, and would have been nearly five at that time. She gave evidence that prior to moving onto the Corio property in 1983, the applicant was doing an apprenticeship in Melbourne, and she believed that he was not living at the property.

12 The informant gave evidence at the trial that records held by the State Apprenticeship Board indicated that the applicant held an apprenticeship in electroplating from January 1974 to 23 July 1976, and during that time his home address was listed as Malvern. The applicant's eldest brother gave evidence that the applicant had lived with him in Melbourne for a period in 1974 while he was doing his apprenticeship, but could not remember for how long. He also stated that the applicant had lived with him on the Mornington Peninsula for some time in the 1980s.

13 In his outline of submissions, the applicant also referred to the evidence of his nephew, who was born in January 1975. The nephew gave evidence that he had lived at the property in Corio from June 1978 until March 1980, and that during that period the applicant did not live at the property, and he did not remember ever seeing him at the property. As the nephew was only 3 to 5 years old during that period, he was asked how he could remember any detail about that time. He replied that he had been abused by the applicant's brother-in-law while he was living at that address, so 'I had a pretty traumatic upbringing so I can't really forget what I went through and what happened around that time.'

14 The applicant also sought to impeach the convictions on counts 9, 10, 11 and 12 on the basis that the applicant's step-sister testified that the second complainant had said on an occasion several years ago that the applicant did not commit offences against her, and on a separate occasion, had said that he did. The step-sister gave evidence that she had said this in the context of there being allegations that the second complainant's father and other uncles had been sexually abusing her from a young age. The second complainant was not cross-examined in relation to her alleged admission that the applicant did not commit offences against her.

15 The respondent submitted that the evidence given by the applicant's sister and other step-sister was equivocal in that neither witness's evidence excluded the possibility that the applicant had stayed at the Corio property during the relevant periods, in addition to staying there in 1983.

16 The respondent referred to the applicant's record of interview on 14 March 2007, in which he gave answers which were inconsistent with the evidence he gave at trial. At trial the applicant had not only denied that he had lived at the Corio property before January 1983, but denied that he ever visited the property prior to that date. He specifically denied he was there during the period 1974 to 1979 when he was between 18 to 22, or that he had ever babysat the first complainant at the property. He stated that as she was 17 in 1983, he would not have been babysitting her then.

17 In his record of interview, which was played to the jury, the applicant stated that he had resided in a caravan in the backyard of the Corio property where the second complainant lived with her family, when she was a little girl. He agreed that she would have been approximately 7 or 8 years old. The applicant also stated that he had babysat his sister's children, including the second complainant, and that he used to put Solvol in her mouth for swearing when he was looking after her. He said in his interview that the first complainant sometimes came over to the property on a Saturday night when he was in charge of babysitting them. He said that he did so because his mother was helping out in his parents' catering business.

18 The respondent submitted with some force that there was a change in the applicant's defence between the answers given in the interview and the defence pursued at trial. In the interview, the applicant did not deny that he had been in the company of the complainants at the Corio property around the time of the allegations, or that he had lived there in the caravan around that time. He denied that he ever indecently assaulted the girls. However, at trial the applicant sought to establish that he was not at any point at the property before 1983. The applicant's evidence at the trial was inconsistent with his answers in the record of interview concerning whether he had babysat the girls at the property, and had been living at or visiting the property in the mid to late 1970s. This shift in the applicant's defence potentially damaged his credibility in the eyes of the jury.

19 Moreover, the applicant's answers in the record of interview in fact lent some support to the complainants' versions of events as the applicant said that he lived at the property when the second complainant was about 7 or 8 when he was in his 20s. He had acknowledged in his interview that he would baby sit the children at the property while his parents were running the catering business, which, it was not disputed, was running in around the mid 1970s. It was therefore open to the jury to conclude that the applicant had, by his own answers, placed himself at the property around the time of the alleged offences.

20 Before this Court the applicant challenged the significance of the record of interview, submitting that no great reliance was placed on it at trial. The applicant had been cross-examined as to some of his answers in the interview, and in particular the inconsistencies between his answers and his evidence at trial. In cross-examination the applicant sought to explain his answers in his interview by saying that he was confused and was 'bombarded' with questions about events alleged to have occurred around 30 years ago. He gave evidence that he and the interviewer were at cross-purposes as to the period of time to which the questions were directed. These matters were referred to in the judge's charge to the jury. Having regard to the circumstances in which he came to be interviewed, and the fact that the investigators stated a number of times during the interview that their questions related to the 1970s, it is unlikely that the jury were persuaded to treat the applicant's answers as the product of misunderstanding. I accept the respondent's submission that the applicant's record of interview was likely to have assumed particular importance in the trial.

21 The question which this Court must ask itself is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[3] This Court must give full weight to the fact that the jury has the benefit of having seen and heard the witnesses, and so is 'in a position to evaluate the evidence in a manner in which a court of appeal cannot.'[4] Counsel for the applicant conceded that in those circumstances, he had a very difficult, but 'not insurmountable' task, to convince this Court that it was not open to the jury to convict the applicant.

22 Having regard to the whole of the evidence, I am satisfied that it was open to the jury to have convicted the applicant on the counts on which it did. The nature and the quality of the complainants' evidence was not so inherently suspect and devoid of probative value that this Court could conclude that the jury should have experienced a reasonable doubt as to the applicant's guilt.[5] The assessment of the probative force of the various witnesses' evidence said on appeal to be inconsistent with the Crown case was quintessentially an issue for the jury.[6]

Ground 2: The guilty verdicts were inconsistent with the acquittals

24 Under cover of ground 2 the applicant submitted that the verdicts of guilty were inconsistent with the verdicts of not guilty on counts 1, 2, 3, 4, 6, 7, 13 and 14. It is therefore necessary to set out briefly the evidence given by the complainants in support of each count.

Complainants' evidence as to the conduct the subject of each count

25 The first complainant gave evidence that the applicant indecently assaulted her on four occasions when he was staying at the Corio property in the caravan, and she was staying over in the house at the property because she was babysitting the children. The first occasion of which she gave evidence was when the applicant came into the bedroom where she was sleeping and touched her on her vagina on the outside of her underpants (count 1). She said that he then touched her vagina inside her underpants with his fingers (count 2) and then rubbed her vagina with his penis inside her underpants (count 3), after which he ejaculated, causing the first complainant to think that she had wet the bed.

26 Counts 1 to 3 therefore were alleged to have occurred in the one episode. The first complainant gave evidence that she did not speak to him throughout the incident, but 'lay there dumb and pretended that I was still asleep'. Count 4 had charged alleged conduct when the applicant, during that same episode, made the first complainant touch him. She gave evidence at trial that she did not touch him at all during this incident. Accordingly, the trial judge directed the jury that it must acquit the applicant on count 4 as there was no evidence before it of that count.

27 The first complainant's evidence as to count 5 was that about six weeks after this first incident, the applicant again came into her bedroom when she was staying at the Corio property, unzipped his pants, pulled his penis out and started rubbing it on her mouth, after which he ejaculated onto her face. Counts 6 and 7 were referable to a third incident. The first complainant gave evidence that on this occasion, again in the bedroom, the applicant spat on his finger and rubbed her clitoris, and then inserted two fingers into her vagina (count 6). He then rubbed his penis against her vagina until he ejaculated (count 7). Count 8 referred to a fourth incident involving the first complainant, when she was woken up by the applicant climbing into the bed with her until he was lying on top of her, and he moved his whole body up and down, and rubbed his penis against her vagina until he became erect and ejaculated.

28 The first complainant gave evidence that she did not tell anybody about any of these incidents because the applicant had threatened her that if she did so she would be beaten.

29 The second complainant gave evidence of three occasions on which she said the applicant indecently assaulted her, during which time she was taking dance lessons. She said that they all occurred during a six month period when he was staying at the Corio property in his caravan. On the first occasion, she gave evidence that he called her into his caravan where he was listening to music, and after she had sat on the couch in the caravan, he grabbed her hand and put it on his penis, over the top of his clothes. The second complainant stated that she could feel his erection, and he made her rub it through his clothing (count 9). She stated that he then took his penis out of his pants and put the second complainant's hand on his penis and made her rub it until he ejaculated (count 10).

30 The second complainant then gave evidence that a similar thing happened on a second occasion, on the couch in the lounge room of the house. She said that the applicant made her put her hand on his penis over the top of his clothes, and with his hand on top of hers made her rub it (count 11). He then took his penis out and put her hand on his penis, making her hand rub it until he ejaculated (count 12). On that occasion, after he ejaculated he told her not to tell anybody because it was a secret.

31 In examination-in-chief the second complainant said that she could not recall in detail another occasion on which a similar incident occurred in the house, but said that she remembered the occasion the subject of counts 11 and 12 because 'he told me that I wasn't to tell. Last time he never told me that.' In cross-examination she was taken to the statement she had made to police, in which she had stated that there were two occasions on which the applicant had made her masturbate him inside the house. She was also taken to the part of the statement in which she said that the first occasion had occurring inside the house, not in the caravan. In re-examination, she gave evidence that there had been two occasions inside the house, and that on an occasion not the subject of counts 11 and 12 he had similarly made her rub his penis over his clothes until it was erect, and then had taken his penis out and made her masturbate him outside of his clothes until he ejaculated. This other occasion inside the house, on which he did not tell her that it was a secret, was the subject of counts 13 and 14.

32 The applicant submitted that there was no meaningful basis upon which the jury could have differentiated the strength of the respective complainant's evidence as to each count, so as to acquit on some and convict on others, and that for that reason the guilty verdicts represented an affront to logic and commonsense.[7]

33 This submission must be rejected. There are logical reasons why the jury might have convicted on counts 5, 8, 9, 10, 11 and 12 and acquitted on counts 1, 2, 3, 4, 6, 7, 13 and 14.

34 In relation to counts 6 and 7, the respondent submitted, and I accept, that the verdict of not guilty on those counts is clearly capable of rational explanation. These counts were explicable on the basis that the jury was not convinced by the first complainant's evidence as to that particular occasion, by reason of the fact that she had recounted that occasion out of order when giving her evidence, had twice to be prompted by the prosecutor as to the detail of the digital penetration that was alleged to have occurred on that occasion, and appeared uncertain as to the duration of the penetration. Given these weaknesses in the first complainant's evidence of these two counts, the respondent submitted that the jury gave the applicant the benefit of the doubt in relation to those counts, as it was required by law to do.

35 A similar explanation can be given for the acquittals returned on counts 13 and 14. As I set out above in paragraph [31], in examination-in-chief the second complainant did not give any detailed evidence of the occasion charged by these counts, despite prompting by the prosecutor. She only did so in re-examination after having been referred to her statement to police. In those circumstances, it is understandable that the jury, acting conscientiously in applying the standard of proof to each individual allegation, was not satisfied that the incident the subjects of counts 13 and 14 had in fact occurred.

36 In relation to the verdicts on counts 1 to 3, which related to the one occasion, the first complainant had given evidence that she had pretended to be asleep during these acts. When asked in examination-in-chief how she reacted to him touching her vagina, she replied 'I just pretended to lay there and just wait to see what was going to become of it because other situations have shown me and taught me to lay quiet and not say anything.'

37 The respondent submitted that the jury might have acquitted the applicant on those counts on the basis that, as the applicant thought the first complainant was asleep on that occasion, an element of the offences charged in those counts was not made out, namely that the applicant had done an act which intentionally caused the first complainant to apprehend immediate and unlawful violence (the element of an assault). This argument is baseless, however, because for the purposes of the offence of indecent assault of a girl contrary to s 55 of the Crimes Act 1958 (as it was at the time of the offending), it was not an element of the offence that the offender intentionally caused the victim to apprehend violence. As is evident from the way in which the learned trial judge directed the jury as to the elements of the offence, all that the prosecution needed to establish was that the applicant committed 'an intentional and unlawful application of force to the person of another', in circumstances of indecency.

38 The respondent did not proffer any other explanation for the differences in the verdicts on counts 1 to 3 and on counts 5 and 8, other than to rely upon the learned trial judge's comments during the plea hearing that his Honour thought the verdict was 'fairly logical', because counts 5 and 8 were referable to two individual assaults that the jury were satisfied had occurred.

39 It does not follow that, because the jury had a reasonable doubt as to the evidence the subject of counts 1 to 3, that it must necessarily have had a doubt about the evidence of the first complainant on the other counts.[8] Credit is not a 'homogenous and indivisible whole'.[9] As Gleeson CJ, Hayne and Callinan JJ said in MFA v The Queen,[10] a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or demonstrate a want of confidence in the complainant. Such verdicts may reflect a cautious approach to the discharge of a heavy responsibility. It might be attributed to an absence of supporting evidence or detail in the account, some level of uncertainty, a faulty recollection, a contrast in different parts of the account that suggests part of it is more reliable than others, or that the jury thought that although a number of offences have been alleged, justice is met by convicting an accused of some only.[11]

40 Where multiple offences involving the same complainant are alleged, a verdict of not guilty on some of those counts does not necessarily reflect a view by the jury that the complainant was an untruthful or unreliable witness, such that an appellate court is required to consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. Pollard v The Queen[12] is illustrative. There the rejection of the complainant's evidence as to one of a number of offences alleged as part of a single episode did not mean that the conviction on other counts resulted in inconsistent verdicts.

41 In the present case, the jury was directed to give separate consideration to each count, and was specifically instructed by the trial judge that the evidence of each of the complainants could be accepted in whole or in part. They were told that although they might reject one part of a complainant's evidence, this did not mean that they should reject other parts of her testimony. The first complainant's evidence as to the conduct the subject of the first three counts, although relatively detailed, was not without weaknesses. There were aspects of her narrative in relation to that first occasion which the jury may have found troubling, such as her evidence that she was actually asleep when he started touching her, that she could not identify what he was using to touch her on her vagina outside her clothing, and that after giving evidence of him touching her directly on her vagina and then touching her with his penis, she then said that between those two acts he 'spat on his fingers and was trying to poke inside', an act which she also described in relation to count 6. The jury was directed to acquit the applicant on count 4, the last act alleged on that occasion, because the first complainant had given no evidence to support it. Her account of the offences the subject of counts 5 and 8 may not have been perceived by the jury as attended by the same difficulties.

42 When the jury returns different verdicts on multiple counts, the test of whether the verdicts are truly inconsistent is one of logic and reasonableness.[13] As this Court stated in R v JA:[14]

Appellate intervention is justified only if the verdicts cannot stand together, in the sense that 'no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion.'

Due to the respect accorded to the jury's traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, 'it is not the role of the appellate court ... to substitute its opinion of the facts for one which was open to the jury.' If the outcome is explicable as a merciful verdict, intervention will not be justified.

It is otherwise if the difference in the verdicts is 'an affront to logic and common sense which is unacceptable and strongly suggests a compromise' or confusion in the mind of the jury. In that context, '[i]t is impossible to state hard and fast rules. "It all depends upon the facts of the case".' Nevertheless, a conviction should not be set aside unless the inconsistency is sufficiently great to necessitate intervention to prevent a possible injustice.[15]

43 This is not a case in which the difference in the verdicts is 'an affront to logic and commonsense'. The charges on which the applicant was acquitted related to distinctly separate occasions from those on which a guilty verdict was returned.[16] There was sufficient evidence from the first complainant of the separate incidents the subjects of counts 5 and 8 to support the verdicts of guilty on those counts. The different verdicts are explained simply by the jury acting conscientiously in discharging their duty in relation to each separate occasion charged, examining the evidence of each complainant as to each count, and giving the applicant the benefit of the doubt when they were unsure.

44 Before leaving this ground I should refer to the Crown's invitation that we take into account the comments made by the trial judge in the course of the plea when counsel for the applicant raised a concern about the verdict returned by the jury. The learned trial judge said:

It's fairly logical, isn't it, they obviously accepted [the second complainant] on all the matters that she raised in evidence-in-chief...and they acquitted on the two matters that arose out of cross-examination...The two counts - count 5 and count 8...were individual assaults that they found...I don't have any problem with the verdict.

45 An explanation by a trial judge as to matters which occurred in the trial process may be of assistance to this Court in certain circumstances. The High Court has recently considered the relevance of a trial judge's opinion that the jury's verdict was unsafe (expressed during an application for bail pending an appeal against conviction) to the appellate court's disposition of the appeal.[17] Crennan J (with whom French CJ, Gummow and Kiefel JJ agreed) set out the circumstances in which it may be appropriate for an appellate court to have regard to the opinion expressed by a trial judge, given that the provision of the transcripts of the trial to the appellate court is now routine. Her Honour stated that the following propositions about trial judge's reports were equally applicable to opinions expressed by trial judges in circumstances where the transcribed evidence is part of the written record:

First, whilst a trial judge's report may be a factor to be taken into account it would be wrong to substitute the opinion of the judge for that of the jury. Secondly, the weight to be given by an appellate court to a trial judge's report will vary with the circumstances. Such a report will be of greatest assistance when expressing views about matters not readily apparent from the written record of a trial. Less weight will be given to a trial judge's report in circumstances where the judge's opinion appears to be based almost wholly upon the assessment of the evidence which an appellate court is obliged to undertake for itself, or is an opinion which is not fully reasoned. The functions of such a report, when there is in existence an adequate system for reporting of court proceedings, have been summarised helpfully in Sloane:

'An important function of a report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded...'[18]

46 If it appears that a trial judge has expressed an opinion on a matter where it is clear that an appellate court is in as good a position as the trial judge to form an opinion, the trial judge's opinion should be given little or no weight by the appellate court. Such an approach is consistent with the view expressed in the above passage from the judgment of Crennan J. However, if the trial judge's opinion relates to a matter which is not revealed by a reading of the transcript, or is otherwise at least partially concealed from the appellate court, the appellate court may give that opinion more weight, so long as the trial judge provides a sufficient explanation for that opinion.

47 In the present case, the learned trial judge gave an explanation for his opinion that the jury's verdicts were not inconsistent. That explanation revealed that his Honour's opinion did not rest on any matters that were not evident from the transcript of the evidence given by the complainants at trial. It did not, in other words, depend on any advantage his Honour enjoyed over this Court from seeing and hearing the witnesses give evidence, but was based upon an evaluation of the content of the evidence, the very task this Court must undertake independently for itself.[19] His Honour's opinion that the verdicts were not inconsistent therefore is not a consideration to which I would give any particular weight in determining whether

the verdicts were inconsistent. However, it does reinforce the conclusion I have reached, that for the reasons set out above, the verdicts are consistent.

49 I would refuse the application for leave to appeal against conviction.

[1] This was an offence under s 55 of the Crimes Act 1958 at the time of the offending.

[2] The first complainant mistakenly gave evidence that Alison was born in January 1976, and therefore that the offending had occurred in about 1975, when she was nine. However she later stated, and it was accepted as correct, that Alison was born in February 1978.

[3] M v R [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).

[4] Ibid 493-4 (Mason CJ, Deane, Dawson and Toohey JJ).

[5] Svajcer v R (2010) 200 A Crim R 587, 597-8.

[7] MacKenzie v The Queen (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ).

[8] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 632 (McHugh, Gummow and Kirby JJ); Pollard v The Queen [2011] VSCA 95 (Neave JA).

[9] R v Ware [1997] 1 VR 647, 650 (Winneke P, Hayne JA and Hedigan AJA agreeing).

[10] [2002] HCA 53; (2002) 213 CLR 606, 617 (Gleeson CJ, Hayne and Callinan JJ).

[11] Ibid 617 (Gleeson CJ, Hayne and Callinan JJ), and see also 630-2 (McHugh, Gummow and Kirby JJ).

[12] [2011] VSCA 95.

[13] MacKenzie v R (1996) 190 CLR 348, 366 (Gaudron, Gummow and Kirby JJ).

[14] [2008] VSCA 169.

[15] Ibid [47]-[49] (citations omitted).

[16] This is to be contrasted with situation in R v JA [2008] VSCA 169, in which case the jury returned a verdict of guilty on count 1 but not guilty on count 2, but both counts related to the same occasion.

[17] SKA v The Queen [2011] HCA 13.