[1991] HCA 4
Collins v R [2020] NSWCCA 198
Dansie v The Queen [2022] HCA 25
96 ALJR 728
Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155
[2019] NSWCA 172
Fleming v The Queen (1998) 197 CLR 250
[1998] HCA 68
Jones v The Queen (1997) 191 CLR 439
Source
Original judgment source is linked above.
Catchwords
[1991] HCA 4
Collins v R [2020] NSWCCA 198
Dansie v The Queen [2022] HCA 2596 ALJR 728
Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155[2019] NSWCA 172
Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68
Jones v The Queen (1997) 191 CLR 439[1997] HCA 56
M v The Queen (1994) 181 CLR 487[1994] HCA 63
MacKenzie v The Queen (1996) 190 CLR 348[1996] HCA 35
MFA v The Queen (2002) 213 CLR 606[2002] HCA 53
NW v R [2023] NSWCCA 134
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
R v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
R v Markuleski (2001) 52 NSWLR 82[2001] NSWCCA 290
TK v R (2009) 74 NSWLR 299
Judgment (5 paragraphs)
[1]
The applicant was lying about never having sexual relations
The jury cannot have accepted the applicant's evidence that he had never had sexual relations with the complainant. I have no difficulty whatsoever with that conclusion. The jury saw both the complainant and the applicant give diametrically opposed evidence on this issue. Further, parts of the pretext call are very difficult to explain unless the pair had a sexual history. In that call, the applicant repeatedly invited her to come to his place to "have some fun" if "you don't have anyone in your life now". There is no suggestion in the evidence that "Come over, so we can have some fun" was said sarcastically or in other sense other than the ordinary sense, which is laden with sexual connotation. Indeed, that was appreciated by the applicant when he said "I'm saying it to someone who is 30 years old, not 13 years old". By itself, this falls far short of establishing the Crown case. Considered in isolation, it is entirely consistent with the applicant's version of the kissing incident, but also that after his relationship with his wife broke down, he had sexual relations with the complainant when she was 16 or older.
However, I do not accept the Crown's submission that the affirmative "Yes" in the pretext call when the complainant said she recalled him looking at the TV screen was an admission that any aspect of the second occasion had taken place. I have listened, repeatedly, to the recording, and it is at least equally consistent with the applicant being distracted and making non-committal statements to a woman who had called him to tell him about her dream, and wanting her to finish in order that he could repeat his offer to her to come back to his home so that the pair could "have some fun".
[2]
The significance of the complaint evidence and the swearing on the bible
Next, there is a powerful body of evidence that a neighbour interfered with the complainant when she was a young girl. I agree with the Crown submissions that "[o]verall, the body of complaint evidence (made to four separate friends, over a period of 14 years from 2006-2020) was powerful evidence in support of the Crown case". Two aspects of the evidence go back to 2006.
There is the unchallenged evidence of two school friends. One remembered the complainant's recounting to them of her being interfered with by the man who drove past the pair while they were standing outside the complainant's house, and recalled her saying that "he touched me" and that she was crying. The other said that when in year 9 the complainant had told her that she was sexually involved with an older man who was a family friend. Both friends were recounting events which would be apt to stick in their minds.
There was also no challenge to the evidence of Mr Jacob, that the complainant broke down and cried when the telling him that her neighbour had touched her and pulled his shorts down.
Secondly, there is the evidence from the complainant and her mother concerning the "swearing on the bible" incident. I have no doubt that that happened. It was the unchallenged evidence of both the complainant and her mother. It was a remarkable event. It was, according to the mother's cross-examination, the only time the complainant had been asked to swear on the bible. That came about because the mother was concerned that something sexual had happened between the complainant and the applicant. According to the applicant, it was her unsolicited kiss on the lips; according to the complainant, it was because her mother had been told that the applicant had touched her.
The complainant's mother gave evidence that her daughter was scared when she returned from the Hannas' house. I see no reason to discount the force of that evidence by the mother's statements that, after her daughter so swore, she believed that nothing had happened. The complainant said that she lied because she feared that she would be punished if she told the truth. The critical fact is that there had been some incident, 17 years earlier, which struck the mother sufficiently strongly to cause her to do something unprecedented, namely, to require her daughter to swear on the bible.
When all that evidence is combined, I am left in no doubt that some sexually charged incident took place in 2005 when the complainant was 12 or 13, in the afternoon in Mr Hanna's home. The jury proceeding rationally to evaluate the evidence would likewise have had no doubt about that. It may very well be that Mr Hanna told his wife and his babysitter Mrs Spiegler that he had received an unsolicited kiss from the complainant, and that each of those women believed what Mr Hanna told them. But the truth of that account cannot be reconciled with the evidence of the school friends and Mr Jacob, it sits very uneasily with the evidence of the complainant's mother that her daughter was scared, and of course it is contrary to the complainant's account.
[3]
The corroborating details in the complainant's account, and the peripheral inconsistencies
Next, there is a deal of force in aspects of the complainant's account. Her statement that Mr Hanna said "Oh, you have hair" is highly suggestive of a genuine recollection of words spoken to a 13 year old girl. Her recollection of the applicant saying that his birthmark was the same shape as Lebanon is also suggestive of a genuine recollection, although it was common ground that the complainant had accompanied the Hanna family to an excursion to the beach, at which point she might readily have noticed his birthmark.
I regard the large majority of the inconsistencies and defects in the complainant's evidence as not significantly undercutting that evidence.
It is unusual that the complainant forgot to mention what, according to her, was the first time she had been penetrated by a man's penis, when giving evidence at a trial where he was charged with unlawful sexual intercourse because of that act. However, it is tolerably clear that the complainant was in some distress when giving her evidence. That seems to have been obvious to everyone in the Court, including what was said and what was left unsaid by the application under s 38 of the Evidence Act made in the absence of the jury. Parts of the transcript ("Do you need a moment?"; "would you let me know, or let her Honour know, if you need a break?") convey that the complainant appeared to be distressed while giving the evidence reproduced above. The jury were much better placed than this Court to assess the effect (if any) that the complainant's momentary inability to recite the events giving rise to the third count had upon the reliability of her evidence. It is also to be borne firmly in mind that witnesses who appear to have a clear and confident recollection of the events of many years ago may be regarded as (and may be in fact) no more than witnesses who have "learnt their lines" and are no longer attempting to convey their memories of the events. The fact that a witness forgets a crucial aspect of his or her testimony is not uncommon (a not dissimilar example may be seen in Fairfax Media Publications Pty Ltd v Gayle (2019) 100 NSWLR 155; [2019] NSWCA 172 at [40]-[42]). It is easy to underappreciate the pressure that a witness giving such personal evidence to strangers in a court may experience, even if doing so remotely (as was the case here). Indeed, the most confident and assured witnesses may be those who have practised their evidence so extensively that they no longer have a genuine recollection of what occurred. It is quite possible that the fact that the complainant was emotional when recalling these events, and had to be reminded of an aspect of her account, added to the perception by the jury that she was giving reliable evidence of traumatic events that had actually happened to her. In short, this is an example of an aspect of the evidence which was well within the scope of the jury to assess, and they were squarely directed to do so by both the defence and the judge.
The applicant placed greater weight on the conflicting evidence about the CCTV camera, just as he did at trial, because it was central to the conclusion of the second occasion which gave rise to the second and third counts. But it is quite possible that the complainant was merely confused and the events took place in the informal lounge room at the back of the house, where there was a CCTV camera. The fact that the applicant recalled a CCTV camera, which was in the room where the applicant regularly had a nap each afternoon, tends to support the reliability of her account.
I am unpersuaded of the significance of the evidence as to whether the complainant visited the applicant's house to babysit the children. In this Court, the applicant submitted that "there was no evidence from any other witness that supported the assertion from the complainant that she did baby sitting on behalf of the Hannas". The applicant's wife denied it, and the complainant's mother said that her daughter would sometimes visit the Hannas to check on the baby very quickly. The applicant pointed to evidence from the complainant's mother to the effect that the only time when her daughter had spent a long time at the Hanna home was when a kitten was in a tree and being rescued by the fire brigade, with many neighbours watching.
It is quite plausible that a 12 or 13 year old girl was never formally employed as a babysitter. That does not mean that she was not asked to visit the house on afternoons where Mrs Hanna was away and the applicant was known to be taking a nap. Few witnesses are capable of giving evidence about something which did not happen 17 years earlier. The evidence of the complainant's mother, who plainly regarded it as perfectly clear that her daughter was asked to visit the Hanna house while Mrs Hanna was visiting their own house, was both confident and plausible. And there is the striking fact that on any view of the matter, something happened between the applicant and the complainant while the two were in a room alone in the applicant's house which led to the complainant's swearing on the bible.
I am also not greatly troubled by the inconsistent evidence concerning whether the applicant's son Patrick had been circumcised, or the complainant's faulty recollection that she had been told as much. Similarly, whether the events took place in the formal or informal lounge room, the presence or colour of the curtains are neither here nor there, insofar as they do not greatly bear upon the assessment of the complainant's evidence. They are relatively peripheral details. It would be astonishing if there were no conflicts in the evidence of events many years earlier, and if every aspect of the complainant's evidence, whether entirely peripheral or closely related to the events giving rise to the counts, was accurate.
The applicant submitted that the complainant had been adamant as to her age at the time of the third incident, and that if the not guilty verdicts were the consequence of the jury not being satisfied that she had not turned 16, that went significantly to her credibility. But it is clear that the complainant was confused as to the times in relation to that part of her evidence bearing upon the third occasion, some three years after the first and second. Her inability to be sure of the date does not of itself undercut the evidence of the first and second occasions.
I am not greatly troubled by the many years which have elapsed between the alleged offending and the police being notified. Lengthy delay is not uncommon, and there may be good reasons for such delay, which is now recognised in s 294 of the Criminal Procedure Act. Here a young child, apparently from a religious family, being required to swear on the bible that nothing had happened, and doing so because she feared being beaten, is at least one aspect of the delay.
[4]
The three most significant matters capable of giving rise to doubt
There are three matters which, to my mind, are of greater concern. They are the internal inconsistencies in the complainant's account, the evidence of Ms Nakhoul about her not being certain and seeking revenge, and her evidence about the applicant being circumcised.
The complainant at one stage said that there were countless occasions of sexual interactions between her and the applicant when she was aged between 13 and 16, only to withdraw that evidence and substitute for it countless sexual interactions after the third incident. It is an unusual thing to be confused about, and it might suggest a poor recollection of her early teenage years.
This links with the evidence of Ms Nakhoul. The applicant's counsel said that "one could scarcely think [of] more damning evidence about the testimony of a complaint witness in a sexual assault case", and noted that there was no re-examination. It must have been obvious to the jury that Ms Nakhoul had been told by the applicant that there was more than one man with whom she had had damaging sexual relations, and also that she had had memory lapses. That said, the fact that two participants in a conversation have different recollections of the force of what was said (including as to the basis upon which the complainant sought "revenge") is utterly normal. The jury saw both the complainant and Ms Nakhoul give evidence on that point. The latter was a witness who was compelled to attend, and was poor at answering questions. She had to be reminded repeatedly to focus exclusively upon what the complainant had said about her sexual history with the accused.
However, the complainant's inconsistencies and the evidence of Ms Nakhoul were more directly related to counts 4-9, when the applicant was older. Neither bears directly upon the evidence concerning counts 1-3. And again, both of these points were forcefully raised for the jury's consideration.
I am also a little troubled by the complainant's evidence about the applicant being circumcised. On the versions of the complainant's testimony given in the witness box (as opposed to in her witness statement), she had ample opportunity to observe whether he was circumcised. On the other hand, she said she rarely saw his penis when flaccid, and was not paying attention, and accepted she could have been wrong. On balance, I think this falls into the same category as the evidence about the number of sexual encounters between the pair: the jury were well placed to see the complainant tested on this, at length, and to assess whether it materially impacted the reliability of her evidence of the events of 2005.
In short, the position is this. The complainant's evidence in chief established, if ultimately accepted to the criminal standard, that the applicant had committed the act of indecency and the two acts of digital and penile penetration in 2005. His denials that he had never had sexual relations with her are readily rejected. The complainant's memory was faulty, which is unsurprising since it was of traumatic events suffered as a child 17 years earlier. Her evidence about his birthmark was correct, and her evidence about the CCTV camera is readily accommodated if the events took place in the informal rather than the formal lounge room. The roughly contemporaneous complaint evidence from her two school friends is powerful - and powerful in two respects. It is not merely evidence which supports her account of the applicant's sexual offending. It is also evidence which is inconsistent with the competing hypothesis that her unsolicited kissing of the applicant while asleep was the incident that caused the swearing on the bible.
Once the story that the complainant gave an unsolicited kiss to the sleeping applicant is put to one side, which it must be unless the complainant was knowingly lying to her school friends, then the only real question is whether the essential aspects of her testimony as to the applicant's conduct on the first and second incidents in 2005 established the elements of the offences in counts 1, 2 and 3 to the criminal standard. The other difficulties with the complainant's evidence are capable of casting doubt about her reliability. But when it is borne in mind that the jury had the advantage of seeing the complainant give that evidence, I am unpersuaded that the jury acting rationally should have had a doubt. Having considered all of the evidence, I do not consider that there is a significant possibility that the applicant was wrongly convicted.
For those reasons, while there should be a grant of leave, I propose that the appeal be dismissed.
YEHIA J: I have had the significant benefit of reading the reasons of Leeming JA in draft form. Having conducted my own assessment of the evidence, and having regard to the matters outlined by Leeming JA, I have concluded that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused on counts 1, 2 and 3, and that it is not the case that the jury must have entertained a doubt as to the applicant's guilt on those counts. Accordingly, I agree with the orders proposed by Leeming JA.
WEINSTEIN J: I have also conducted an assessment of the evidence. I agree with the reasons of Leeming JA that it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused on counts 1, 2 and 3. I agree with the orders proposed by his Honour.
[5]
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Decision last updated: 26 July 2023
The applicant advances a single ground of appeal:
That in all the circumstances, the verdicts of the jury on counts 1-3 of the indictment were unreasonable and unsupported having regard to the evidence and the verdicts of not guilty on counts 4-9.
The large majority of the submissions on appeal were directed to the first limb of this ground, rather than the limb based on the not guilty verdicts. That was appropriate, for reasons which are best exposed immediately in order to explain the way these reasons selectively summarise the evidence adduced at trial.
It was not an element of any of the counts of the indictment for the Crown to prove an absence of consent, but it was necessary for the Crown to establish that the complainant had not turned 16. There was no documentary evidence establishing whether and, if so, on precisely what date the applicant had checked into the hotel some 14 years earlier. Nor were there any mobile phone records or social media posts. The only evidence relied on by the Crown was the complainant's recollection. It is true that the complainant gave clear evidence that it occurred before her 16th birthday, but she did so by reference to it being "just after [the applicant's] son was born which as, I believed it was early April". But the applicant's youngest son was born two years before the time specified in the indictment, and his birthday was four days before hers. (In fact the applicant's wife gave inconsistent evidence about the birthday - at least as it appears in the transcript at T 372.15 cf T 392.40 - but a four day gap is the better reading of her evidence, as well as giving a longer gap between his birthday and that of the complainant.) Even if the complainant was wrong about it being just after the son was born, and meant to say that it was just after the son's birthday, that left (at best) only a three day window of time in which the third incident had to have taken place if it was to have occurred before she turned 16. All these points were made, succinctly and forcefully, in the defence closing address:
[Y]ou will see that her reason for saying that this occurred before her birthday was because it was just after Joshua was born. That reason must be nonsense if she meant what she said, "Just after Joshua was born", because that would put it in 2006, but the Crown alleges this happened in 2008 between the dates in the indictment. That makes no sense at all. Her reason for saying it happened before her 16th birthday just is nonsense. This is the person upon whom the Crown relies for its only evidence as to when the Plumpton Hotel incident occurred. … She was bursting to say that it was before her birthday in 2008, but she fixed that by reference to the day Joshua was born, which was two years before. So that, in our respectful submission, is yet another reason why you would have reasonable doubt about whether the Crown has proved that the offences from four to nine in the indictment actually if they occurred, occurred before she turned 16 years of age.
The defence submissions were fairly summed up by the primary judge:
He submitted that her evidence in respect of timing was not reliable at all, giving you the example of the reference of Joshua Hanna's date of birth, submitting that she was out by several years. He submitted that even if you found the asserted events took place, that you would not be satisfied beyond a reasonable doubt that she was under 16 at the relevant time.
Applicable legal principles
There was no dispute as to the applicable legal principles. If the verdict of the jury is "unreasonable", or "cannot be supported, having regard to the evidence" within the meaning of s 6(1) of the Criminal Appeal Act then it may be quashed. It is necessary to adhere to the statutory language, rather than to phrases ultimately derived from statutes in other jurisdictions, such as "unsafe and unsatisfactory": Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [12]. The words "unreasonable" and "[un]supported" in s 6(1) are construed in the context where the verdict is that of a jury, which particularly in a serious criminal case is accepted as "attracting to decisions concerning the liberty and reputation of accused persons a special authority and legitimacy and hence finality" (MFA at [48]), with the result that they have "a strictness of meaning that, in isolation or in other contexts, those words might not enjoy" (MFA at [49]). That approach is confirmed by reference to a miscarriage of justice being made out "on any other ground whatsoever" (MFA at [50]).
The critical decision on how s 6(1) applies to the task undertaken by a court of criminal appeal is M v The Queen (1994) 181 CLR 487; [1994] HCA 63. That decision resolved an inconsistency in approach, associated with Dawson J's judgment in Chidian v The Queen (1991) 171 CLR 432; [1991] HCA 4 and indeed reflected in McHugh J's dissenting judgment in M v The Queen itself, in favour of what McHugh, Gummow and Kirby JJ later described in MFA at [55] as a "broader" test for unreasonableness. After M v The Queen, in Jones v The Queen (1997) 191 CLR 439 at 452; [1997] HCA 56, McHugh J participated in the joint reasons that said that "the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory". Subsequently, the approach in M v The Queen has been repeatedly confirmed by the High Court: see MFA at [25] and [56]-[59]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66]. Most recently, the joint judgment in Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [7]-[8]:
The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.
That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it 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", that question being "one of fact which the court must decide by making its own independent assessment of the evidence". (Footnotes omitted.)
In a context similar to the present, involving multiple sexual assaults against a single complainant, Spigelman CJ observed in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34]:
In the common case of multiple sexual assaults against a single complainant, often over a period of time, juries frequently acquit on some charges and convict on others. The issue raised by [Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56] is to determine when an acquittal so affects the credibility of the complainant that, in combination with other factors, a conviction was not open to the jury. A court of criminal appeal must perform this task whilst acknowledging the role of the jury…
Simpson J, speaking for this Court in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [130], stated that the inquiry was whether there was "any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility". These principles have regularly been followed. Six decisions were collected in Collins v R [2020] NSWCCA 198 at [13]-[14], to which may be added NW v R [2023] NSWCCA 134 at [36]-[39] and Walker v R [2019] NSWCCA 4 at [110].
It was common ground when the appeal was heard that one explanation for the acquittals was that the jury was not satisfied beyond reasonable doubt that the third incident occurred before the complainant's 16th birthday. That was an appropriate approach to take. Indeed, it is an "obvious explanation" (cf MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [36]). It may be doubted that even if the complainant were regarded as wholly reliable, her inconsistent and imprecise evidence of when the third incident occurred 14 years earlier would have sufficed to establish this element of the Crown case. But that is not to the point in light of the not guilty verdicts on this count. All that matters is that the verdicts on counts 4-9 fall far short of any "affront to logic and commonsense" to which Gaudron, Gummow and Kirby JJ referred in MacKenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35.
The gravamen of this appeal, then, is whether the verdicts on the first three counts were unreasonable. That requires an analysis of the evidence in a nine day trial, including the evidence directed to counts 4-9, insofar as it bears upon the guilty verdicts. However, it will not be necessary to summarise much of the evidence which bore upon counts 4-9.
Broadly speaking, the "independent assessment" required to be undertaken by the appellate court involves asking whether the appellate court having reviewed the whole of the evidence considers there is doubt. But that is not the end of the matter; otherwise no deference would be given to the role of the jury and the advantages it enjoyed in seeing the trial unfold. The joint judgment said in M v The Queen at 494 that:
It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. (Footnotes omitted.)
However, the joint judgment confirmed that "the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
Some further points applicable to the present appeal may be made immediately. First, consistently with those statements of principle, the applicant's written and oral submissions focussed upon the discrepancies, inadequacies and other defects in the evidence at trial.
Secondly, also consistently with those statements of principle, there are aspects of the evidence (for example, the complainant's initial inability to describe the events giving rise to count 3) which are poorly conveyed by the written record of the trial, in relation to which the jury enjoyed a significant advantage over this Court reviewing the record (which is almost wholly written). In those respects, the qualifying words "making full allowance for the advantages enjoyed by the jury" have a deal of weight. However, in other aspects (for example, the significance of the complainant's evidence of the applicant's birthmark) this Court is in substantially the same position as the jury. The different nature of the conflicts in the evidence needs to be borne in mind in applying the principles in M v The Queen. As the High Court indicated in Dansie v The Queen at [17], the scope of the advantage enjoyed by the tribunal of fact (in that case, a judge) over an appellate court "by reason of having seen and heard the evidence at trial will vary from case to case depending on the form in which the evidence was adduced at the trial and depending on the nature of the issues that arose at the trial". Indeed, the scope of the jury's advantage is apt to vary depending upon the particular discrepancy or inconsistency to which the appellate court is directed. The dependency of the scope of the jury's advantage being "witness and trial dependent" was explained by Beech-Jones CJ at CL in AJ v R [2022] NSWCCA 136 at [104].
Thirdly, the mere existence of discrepancies and inconsistencies does not suffice to establish this ground. The point was made by McHugh, Gummow and Kirby JJ in MFA v The Queen at [96]:
There are, it is true, some aspects of the evidence that are less than wholly satisfactory. But that is not uncommon in most trials. Experience suggests that juries, properly instructed on the law (as they were in this case), are usually well able to evaluate conflicts and imperfections of evidence. In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention. (Footnotes omitted.)
Finally, in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39] the High Court said:
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (Footnotes omitted.)
That passage is applicable to the present case, where the Crown case depended in very large measure upon the complainant's evidence (that is the force of the words "in a case such as the present"). It is trite that the jury must have found her to be credible and reliable in respect of counts 1-3. Where as in the present case, the accused gives evidence denying the offending, it is likewise trite that the jury found him not to be credible or reliable. Appropriately, the submissions in this Court were directed to whether the inconsistencies, discrepancies or other inadequacies, seen in the light of other evidence, were such that the jury ought to have entertained reasonable doubt as to the applicant's guilt.