(a) In 2012 to TW, a fellow student at the dance studio.

(b) In January 2014 to Sharelle Edwards, an instructor at the dance studio.

(c) In June 2016 to the online Sexual Assault Report Anonymously ('SARA') portal.

(d) In February 2021 to her sister, ST, and again to TW.

1. It is convenient, then, to summarise the relevant evidence.

1. LT gave evidence in a pre-trial hearing on 18 December 2023. In the course of this evidence LT stated that in 2012 she would attend the dance studio on Wednesday evenings for class.[3] She did not have her driver licence so would be driven to the studio by her parents or older sister. LT said that during one particular Wednesday night class the applicant, who was running the class, called her to the front and offered her a drink of a clear liquid from a used and worn Mount Franklin drink bottle. She refused the offer and returned to the class. Later the applicant walked past LT and again asked her to drink from the bottle. Again she refused the drink. LT said that the liquid smelt like alcohol.
2. Towards the end of the class LT said that the applicant asked her if she wanted to stay and do a private lesson in the studio. LT was keen to prepare for an upcoming dance competition and so called her sister to say that she did not need to be picked up as the applicant would drop her home. LT said that, after everyone else had left, the applicant told her it would be better if they watched a recording of a previous dance competition but that he didn't have a copy at the studio with him. The applicant then suggested they return to his house to retrieve the recording.
3. LT said she was driven by the applicant to his house and that she followed him inside. He went to the kitchen and she stood by the couch until the applicant called her to come to the kitchen. On the counter top were two shot glasses containing liquid. LT said that she did not see the applicant pour the drinks but did see him return an alcohol bottle to the fridge. The applicant told her to drink from the shot glass closest to her. LT said that she felt she had no choice and did, assuming they would then dance. LT's evidence was that the liquid tasted like alcohol.
4. The applicant then put on music. LT said she walked over to him in the lounge room and felt a bit 'woozy' and 'funny'. She said that her vision was affected and she was unsteady on her feet. LT said that feeling progressed until she felt 'almost not in control' of her body. She said that she had never felt that way previously. LT said that she did not remember dancing with the applicant, but did remember him putting her in 'a dancer's hold' - holding her up because she felt 'floppy and weak'. She said she progressively felt more unsteady on her feet and that the applicant was holding up her weight.
5. LT said that the applicant started kissing her neck, chest and breasts. She did not feel she had the capacity to say or do anything. She was uncomfortable, felt 'out of body', could not hold herself up and had blurry vision. LT said that she did not say anything because she felt like she could not talk.
6. LT said that she did not know how she got to the applicant's bedroom but the applicant then pushed her onto his bed. She said her memory of that was 'in snippets' and 'very visual'. LT said that her bra remained on but the remainder of her clothing was taken off. She did not know how. The applicant then knelt on the bed to put a condom on. LT said that the applicant had penile-vaginal sex with her. She said that after he put his penis in her vagina he was 'forcefully thrusting' in her. LT described feeling like she 'couldn't get away, and scared'. His penis was in her for 'not a short amount of time'. The applicant then got off LT and removed the condom. She assumed that he then dressed. LT said that she felt 'out of it' and was crying. She said that the applicant assisted her to the bathroom, unclipped her bra and told her to have a shower and, specifically, to wash her genitals. He remained in the doorway, watching. LT said that the applicant then helped her to get dressed. She did not recall how she got to his car.
7. LT said the applicant drove her to Briars Homestead (which was also known as the 'haunted house') before driving her to her parents' house. As they approached her parents' house LT said that the applicant was 'stern' about the incident being their 'little secret'. The following day the applicant called LT to remind her of their 'secret'.
8. LT said that she did not tell her parents what had happened upon her return home as her father had been very unwell, the family were 'all treading lightly' and she did not want to cause more stress. The applicant said that she did, in August 2012, 'vaguely' try to warn TW about what had happened. TW was her best friend at the dancing studio. LT said to TW something like 'something bad has happened' and that TW should be aware and keep her guard up around the applicant.
9. LT said that in 2014 she had told Ms Edwards 'some form of what happened'. It was not the full extent because she was not 'strong enough' and had not yet come to understand the severity of the incident. She did not use the word 'rape'. LT said that after that conversation, she and Ms Edwards exchanged messages via Facebook Messenger discussing whether LT would tell her parents. A copy of those messages was tendered in evidence.
10. LT said that she made a report to the SARA portal on 8 June 2016. She was then in her final year of nursing studies and was prompted to make the report because she had learnt of mandatory reporting obligations attached to that role. LT said that she did not intend the report to be a full account as there was a word limit. She described it as a 'vague factual statement'. A copy of the SARA report was tendered in evidence.
11. LT said that in February 2021 she told her sister 'exactly what had happened' because she wanted her guidance as to making a formal police report.
12. In cross-examination LT said that when she first made her statements to police she did not refer to visiting Briars Homestead because she thought it was irrelevant. LT said that she was not sure of the order in which events occurred, but she did not accept that she went to the Homestead with the applicant first. She was then asked about several aspects of the anticipated evidence of Sharelle Edwards. When it was put to her that she had told Ms Edwards that she went with the applicant that night in order to visit the Homestead, LT said that she did not recall having a discussion with Ms Edwards about the Homestead. When it was suggested that Ms Edwards would give evidence that LT had told her that she had not gone to the Homestead but instead went to the applicant's home, LT said she had no idea what Ms Edwards had put in her statement. When it was put that Ms Edwards would say that LT had told her that the applicant had grabbed LT and poured alcohol into her mouth, LT said she had no recollection of what she had told Ms Edwards. She made the same response when it was suggested that she had not told Ms Edwards about being drugged by the applicant or of any sexual activity with him other than kissing to the neck and face.
13. LT said that she did not provide Ms Edwards with a true account of what had happened. She accepted that she had said the contrary during evidence at the committal proceedings. LT agreed that she spoke with Ms Edwards whilst she was still dancing at the studio, but said her memory of the incident was not then fresher than it was at the time of giving evidence. She added 'I have my own opinion on that as to why'.
14. LT agreed that during the committal proceedings she said that it was possible that she had told other people she performed oral sex on the applicant and that they had showered together. LT did not accept that she would have told anyone that she and the applicant had 'fooled around'.
15. LT said that she believed she had been drugged by the applicant. She said that some aspects of her memory were vague either because of the drugs or a stress/trauma response. LT accepted that there was, to some extent, an inconsistency between the detail in the evidence she had given and her statement in the 2016 SARA report. She accepted that her memory was vague in parts. LT also accepted that there was some inconsistency in her description in her police statement of her incapacitated physical state immediately before she got into the applicant's car after the incident and her description of walking around Briars Homestead unaided.
16. LT accepted that she continued to attend the dance studio for some time after the incident.

1. TW gave evidence that in 2012 LT had pulled her aside at the dance studio to make sure she was okay and the applicant had not 'tried anything' on her. LT had said that there was an incident with him after she had been asked to stay back at the studio for a dance lesson and that they had instead gone for a drive where the applicant had 'tried something' on her. TW said that it was clear to her that the 'something' was sexual in nature.
2. TW further said that in February 2021 LT told her more detail. LT said that the applicant had asked her to stay back at the studio but they went for a drive instead. They ended up at a house where the applicant had drugged and raped her. LT told her that the applicant had put his penis in her vagina and she could not push him off because she was drugged.

1. Ms Edwards gave evidence that she had been a teacher at the dance studio and had taught LT, who had a passion for dancing. Ms Edwards said that on Australia Day in 2014 LT had told her that there was a time when the students were discussing Briars Homestead as the applicant walked past. Overhearing, he offered to take LT there. LT said that when in the car with the applicant, he indicated to turn away from the Homestead and she told him that it was the wrong way. LT said that the applicant 'snuffled' and replied 'did you really think we were going to the haunted house?'. LT told Ms Edwards that they went to the applicant's unit, where he asked her if she wanted a drink. LT said that she did not want to drink alcohol and the applicant grabbed hold of her mouth and poured the drink in. LT told the applicant that she wanted to leave. The applicant told her that he would show her around his house first. LT told Ms Edwards that as she was walking down the hallway she felt like a pinball, bouncing off the walls. LT said that the applicant pushed her onto the bed in his bedroom and then kissed her neck and chest. LT told Ms Edwards that she pushed the applicant off and asked him to take her home. Ms Edwards said that LT had also told her about a Mount Franklin bottle containing vodka at the studio.
2. Ms Edwards said that on 28 January 2014 she sent LT some messages asking if she had told her parents.

1. ST said she recalled a night in August 2012 when she received a phone call from her sister, LT, who said that she did not need a lift home. ST said later that same evening LT returned home and went straight to her room. ST was then in the lounge room with her parents. ST said her father had significant health issues at the time.
2. ST said that in February 2021 she received a text message from LT asking to meet. They did. LT told her that she had stopped dancing because the applicant had taken her to his home on the pretext of watching a dance video. The applicant had offered her a drink. LT initially refused it but finally accepted. LT told ST that she then felt weak, out of control and unable to talk. ST said that LT did not use the word 'rape' but said that while her bra was left on, the applicant undressed her from the waist down and had sex with her. LT said that she could not push him off because she was 'absolutely out of control'. LT said that she ended up in the shower, where the applicant watched her, before he dropped her home.

1. Senior Constable ('SC') O'Brien, the informant, was stationed at Frankston SOCIT.[4] She gave evidence of obtaining statements from LT and other witnesses and arranging for the pretext call to be made. SC O'Brien conducted the interview with the applicant on 10 May 2021.

1. LT made the pretext call on 30 April 2021. LT told the applicant that she was looking to come back to dancing and wanted to 'clear the air' about a few things. The relevant portion of the transcript of the call relied upon by the prosecution as an admission to sexual penetration was as follows.

LT: ... do you remember what happened between us that night back at your house?

Applicant: Yep.

LT: Has - like, I know we had sex, but I've - this is really uncomfortable for me to give you a call because I kinda just have to know whether you used a condom.

Applicant: (Inaudible) - I did.

1. LT went on to say health concerns meant that she was contacting previous sexual partners and that she '... really needed [the applicant] to confirm that, like, when you - like, we did have sex, didn't we?'. The applicant replied that he could not remember and asked if LT wanted to talk face to face at the studio. LT again asked if the applicant had used a condom. The applicant again said that he would rather talk face to face. LT said that she knew they had vodka, but did not know whether they had anything else. The applicant said that it was a long time ago and he could not remember.

1. In the interview with police, the applicant said that he had received a phone call from LT the previous week asking him 'some very weird questions'. He thought she was 'baiting' him. He said that there was a time when, after class, she came back to his house. They had a few vodka shots and she gave him oral sex before he dropped her home. He said it was consensual - LT had a crush on him and they 'fooled around'. He kissed her on the couch. This involved 'kissing, grabbing boob, grabbing her breasts'. They then moved to the bedroom where LT undid his pants and performed oral sex on him for about a minute. Afterwards they had a shower together. The applicant denied penile-vaginal sex with LT. He said that he did not wear a condom for the oral sex.

1. The applicant called his father, Andrew Garnett, who gave evidence that he oversaw the administration of the dance studio. Mr Garnett Senior produced business records which suggested that LT and her sister ST cancelled their membership of the studio on 28 December 2012.

1. The applicant contends that the incident in which both charge 1 and charge 3 were alleged to have occurred was a single, continuous transaction. The physical acts alleged occurred minutes apart. There was nothing distinctive in LT's evidence in support of charge 1 which provided a rational reason for the jury's acceptance of it to the criminal standard but not her evidence in support of charge 3.
2. The applicant further contends that there was materially less supporting evidence in relation to charge 1 than there was in relation to charge 3. In particular, the pretext call was relevant only to charge 3. Further, the quality of the complaint evidence relevant to charge 3 was clear whereas that with respect to charge 1 was vague, inconsistent and contradictory.
3. In short it is put that if the jury was not satisfied of LT's evidence with respect to charge 3, it was not open to find the applicant guilty of charge 1. The verdict returned on charge 1 was either an improper compromise or an example of a jury applying a lesser standard of proof to a less serious offence.

1. The respondent contends that the two returned verdicts were open to the jury on the evidence led at trial. It is put that both the complaint evidence and the different quality of LT's evidence with respect to each charge allows the verdicts to stand together.
2. The respondent argues that the complaints most proximate in time to the incident, that is, those to TW in 2012 and Ms Edwards in 2014, were limited either expressly or implicitly to an indecent assault. The first complaint of rape was made in 2016 to the SARA portal, some four years after the incident. The respondent argues, further, that the words LT used in that complaint might themselves raise a doubt as to the physical act described. The 2021 complaints of rape to both ST and TW were proximate to the formal police complaint and made after LT had decided to report the matter to police. It is put that the jury were entitled to reason that if penile-vaginal penetration had occurred, the content and manner of the first complaints to TW and Ms Edwards might have been different. In contradistinction to charge 1, the jury might not have been able to reach the criminal standard of satisfaction with respect to charge 3.
3. As to the quality of LT's evidence relevant to each charge, the respondent argues that LT made a distinction in the state of her own memory as to the two events. Relevant to both charges LT described herself as unsteady on her feet and 'woozy' after consuming the liquid in the shot glass and becoming progressively more physically incapacitated. However, only after the events relevant to charge 1 had ended and before the events of charge 3 occurred did LT say she had gaps in her memory. That was when she described her memory as being 'in snippets' and 'visual'. While LT's description of the sexual penetration was complete, she was unable to say how she got from the lounge room to the bedroom, how her or the applicant's clothes were removed and how she got to the shower or later the car.
4. Whether the applicant's statements in the pretext call were, in fact, an admission, was a contested issue in the trial. The respondent submits that it was open to the jury to reason that the utterance 'I did' in response to the question of whether the applicant wore a condom was not an admission to the physical act of charge 3, not least because of the inaudible words immediately preceding it. Further, if the jury did not accept any of the applicant's answers in the police interview, the jury would have put them to one side, as directed, and decided the case on the basis of the evidence that was accepted. In any event the jury was directed that the applicant made no admission to any charge in the interview.
5. The respondent's written case articulated a second pathway of reasoning said to render the verdicts consistent, namely that it was open to the jury to find that the prosecution had failed to prove to the requisite standard that the applicant did not have a reasonable belief in consent to the sexual penetration in charge 3. At the oral hearing of the application the respondent all but abandoned that argument. In light of the conclusion we have reached, it is unnecessary to further address this second pathway.

1. A court considering a complaint of inconsistent verdicts must apply a test of logic an reasonableness.[5]

[I]f 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.[6]

1. Inconsistency in the verdicts delivered must amount to 'an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty'[7] before an appellate court will intervene.
2. In cases involving allegations of multiple sexual offences against a single complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable across the board, or that an appellate court should assess the reasonableness of the guilty verdicts on the basis that the complainant is a person of damaged credibility.[8] This is so even where the acts constituting the offences alleged occurred in close temporal proximity. Each case is dependent on its own facts.[9]
3. As this Court recently explained in Booth v The King,

[o]ne way to reconcile purportedly inconsistent verdicts is on the basis that they were simply the result of ordinary directions that the jury must consider each charge separately, be satisfied of guilt beyond reasonable doubt, and that they may accept a witness's evidence in whole or in part. Indeed, an acquittal on a particular charge does not necessarily mean that the jury found the relevant witness's evidence to be untruthful. A jury might believe that a witness is likely to be telling the truth, but still require something more before reaching a conclusion of guilt beyond reasonable doubt. Or a jury might consider a witness to be more reliable, or specific, about some parts of their evidence than others.

Another way to reconcile purportedly inconsistent verdicts is on the basis that the jury took a 'merciful' view of the facts. A jury may consider that, although a number of charges have been proved beyond reasonable doubt, justice is sufficiently met by convicting on less than the full number of charges. This is a legitimate approach for a jury to take, even if it may not appear strictly logical to an appellate court.

Nevertheless, cases will remain where the verdicts affront logic and common sense, and strongly suggest that the jury failed properly to perform their duty. The verdicts may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between offences, or a lack of clarity in the directions given to them. An appellate court must intervene in such a case. That said, there are no hard and fast rules for when appellate intervention is required, which will depend on the facts of the case.[10]

1. The verdicts in this matter are reconcilable. The timing and content of the complaint evidence coupled with LT's own description of the gaps in her memory relevant to charge 3 but not charge 1 reasonably and logically explain the different verdicts.
2. The verdict of guilty on charge 1 demonstrates that the jury accepted LT as reliable and a witness of truth. The acquittal on charge 3 does not demonstrate that the jury considered her unreliable with respect to the offending alleged. It demonstrates no more than that the jury were not prepared to find, beyond reasonable doubt, that the elements of rape were proven.
3. Although the applicant points to the vagueness and inconsistencies in the complaint evidence relevant, expressly or implicitly, to charge 1, these matters are peripheral and secondary to the fact and timing of those complaints.
4. The complaint to TW was at about the time the incident occurred. Although vague, it was clear to TW that LT said that the applicant had tried 'something' sexual on her and understood it as a warning to be wary of him. It is unsurprising that the jury would have reasoned that this was a complaint of indecent assault and not a complaint of a completed act of penile-vaginal penetration. Moreover, it was powerful evidence. The complaint was made proximate to the event and LT's concern for her similarly teenaged dance studio friend lends it verisimilitude independent of its detail or lack thereof. While LT explained in evidence that she did not make a complaint about charge 3 until some years later because of a stress/trauma response, and the jury received a s 52 Jury Directions Act direction as to delay in complaint, it remains the case that LT did make a proximate complaint of inappropriate sexual conduct but not a complaint, explicitly or implicitly, of rape. Indeed, the complaint that the applicant had 'tried something' sits awkwardly with a suggestion of rape.
5. Nor did LT complain of rape to Ms Edwards. LT said that she could not remember what she had told Ms Edwards. The essence of LT's complaint to her in 2014, as recalled by Ms Edwards, was that the applicant had kissed LT's neck and chest after she had consumed an alcoholic drink. This was the very allegation that founded charge 1. The fact and timing of that complaint was corroborated by the text messages tendered in evidence.
6. LT also made complaint of an indecent assault in the SARA report. The relevant portion was:

Once we got to his place he offered me another alcoholic drink (vodka), I refused and then he became argumentative so I thought to shut him up I would have one shot of vodka. After that I vaguely remember him touching me inappropriately and kissing down my neck.

1. The applicant points out, correctly, that there are inconsistencies between the substance of these complaints and the evidence of LT. The complaint to TW lacked any detail. The SARA report did not refer to the touching or kissing of LT's chest or breasts. In contradistinction to the evidence of Ms Edwards, LT said that the trip to Briar Homestead was after the offending had occurred, she made no mention of the applicant grabbing her mouth and forcing her to drink and she said that the events of charge 1 happened in the lounge room rather than the bedroom. None of these matters undermine the fact that LT made a proximate complaint to a peer at the applicant's dance studio, of inappropriate and unwanted sexual behaviour (but not rape) towards her by the applicant, and described to both Ms Edwards and the SARA portal (the latter to a lesser extent), in 2014 and 2016 respectively, the essential details of the indecent assault alleged. The inconsistencies between LT's evidence and that of Ms Edwards did not compel the jury to discount the complaint evidence. The jury received a s 54D Jury Directions Act direction on differences in a complainant's account and LT gave evidence of her trauma/stress response. Further, the jury might well have reasoned that Ms Edwards had accurately remembered the essentials of the complaint, but not the peripheral details.
2. This consistent complaint of inappropriate sexual touching is different from LT's complaint of rape. LT said that she made the SARA report in 2016 after learning of mandatory reporting obligations as part of her nursing training. The SARA report does not contain the word 'rape' nor necessarily describe an act of sexual penetration. LT described the events relevant to charge 3 as follows.

I do remember him assisting me to the bed and him undressing me and him lying on top of me thrusting at me. I felt uncomfortable and numb, possibly drugged. I felt like a rag doll with no energy to push him off, even though I could see and remember parts of what he did to me ... I couldn't fight him off.

1. The phrase 'thrusting at me' rather than in me, or any other descriptor like 'he had sex with me' may have given the jury a doubt as to whether an act of penetration had been there described or had, in fact, occurred. And, although LT complained to both ST and TW in 2021 of an act of non-consensual penile-vaginal penetration, this was after LT had resolved to make a formal police complaint of rape as well as unwanted sexual touching some nine years after the event.
2. The assessment by the jury of the difference in the complaints made by LT relevant to charge 1 and those relevant to charge 3 was also likely to be influenced by LT's own description of the state of her memory.
3. LT gave evidence that after she had consumed the liquid in the shot glass, the applicant put music on and had her in a dancer's hold. She said she felt 'woozy', 'a bit funny' and 'floppy', and her vision was not at full capacity. LT said she became progressively more unsteady on her feet. This description of her physical state was relevant to both charges 1 and 3, albeit she described a marked deterioration by the time charge 3 was said to have occurred. But LT only said that her memory was 'in snippets' and 'visual' with respect to charge 3. When asked in evidence if she and the applicant remained in the lounge room after he had kissed her neck and breasts, LT said 'this is when things feel a little bit more in snippets and very visual for me ...'. That is, in her evidence there was a distinction in LT's description of her similar physical state during both events and her capacity to remember one of them clearly and the other only in 'snippets'.
4. That distinction is repeated in the SARA report. While LT wrote that she (in 2016) 'vaguely' remembered the applicant touching her inappropriately and kissing down her neck, she went on to say that 'from standing at the bench to driving home in the car everything in-between was vague and parts were unclear whilst others were not.' Charge 1 might have then been 'vague' to her, but at the time of the SARA report she could 'only remember parts' of what the applicant did to her in the bedroom relevant to charge 3.
5. As submitted by the respondent, it was also open to the jury to reject the prosecution characterisation of the applicant's utterance 'I did' (wear a condom) as an admission to sexual penetration. The jury was directed correctly on the issue. Not only were there inaudible words spoken by him immediately before those words, but the fact that LT then continued to attempt to have him confirm 'we did have sex, didn't we' casts doubt on those two words being a positive, unambiguous statement by the applicant that he did wear a condom during penile-vaginal sex with LT, which would thereby be an admission to an act of sexual penetration.
6. It follows that it was open to the jury to accept LT as both a credible and reliable witness and convict the applicant of indecent assault, but be unable to conclude beyond reasonable doubt that the prosecution had proven the elements of rape. The two verdicts are logically reconcilable.

[1] Contrary to s 39 of the Crimes Act 1958.

[2] No verdict was taken on a charge of indecent act with a 16 or 17-year-old child (charge 2) which had been preferred as an alternative to charge 1. The judge directed an acquittal on a charge of sexual penetration of a 16 or 17-year-old charge (charge 4) which had been preferred as an alternative to charge 3.

[3] The evidence suggested she also attended on Tuesday and Thursday evenings to assist in teaching adult classes.

[4] Sexual Offences and Child Abuse Investigation Team.

[5] MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 ('MacKenzie').

[6] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35. See also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 ('MFA').

[7] MacKenzie [1996] HCA 35; (1996) 190 CLR 348, 368 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35.

[8] MFA [2002] HCA 53; (2002) 213 CLR 606, 617-18 [35]-[36] (Gleeson CJ, Hayne and Callinan JJ); [2002] HCA 53. See also R v Ware [1997] 1 VR 647, 650 (Hedigan AJA, Winneke P agreeing at 648, Hayne JA agreeing at 655).

[9] See, eg, Moharaminia v The King [2025] VSCA 159 where differing verdicts were held to be consistent. Cf Sladek v The King [2024] VSCA 119 where differing verdicts were held to be inconsistent.

[10] [2024] VSCA 318, [125]-[129] (Beach, Kennedy and Orr JJA) (citations omitted).