Jafary v R

Factual background

1. The following matters were not controversial. All of the charged conduct was alleged to have occurred during the course of a single afternoon on 29 December 2012 on the Northern Beaches of Sydney. The appellant was aged 29 at that time; the complainant (who will be referred to in these reasons as "BA" to preserve her anonymity) was aged about 15 years and 9 months.
2. The appellant's first contact with BA was on 28 December 2012 through Facebook. BA's Facebook account was in her own name, and displayed her date of birth. The appellant's account was under the pseudonym "Samir Barn". BA accepted a friend request from the appellant, and gave him her mobile phone number. There followed a series of text messages and phone calls between the appellant and BA.
3. The text messages sent and received from BA's phone during the relevant period were in evidence. They reveal that BA told the appellant, correctly, that she was 15 years old shortly after 6pm on 28 December. He had told her, falsely, that he was 18 years old.
4. At about 1pm on 29 December 2012, the appellant met with BA at St Matthews Oval, Cromer. From there they travelled in the appellant's car to Liquorland at Dee Why, where the appellant bought alcohol. They then drove towards Narrabeen, getting out at a beach which BA was unable to identify in her evidence. It was on this beach where count 1 was alleged to have occurred. This count (in relation to which he was found not guilty) alleged that the appellant touched BA's breast with his hands over her clothing.
5. From the beach, the appellant and BA drove to the "Pirates Mini Golf" carpark at Warriewood. It was alleged that in the appellant's car, the appellant sucked BA's breast (count 2), and committed an act of digital vaginal penetration (count 3). As noted above, the appellant was found guilty of count 2, but not guilty of count 3.
6. The appellant then drove with BA to the Sydney Academy of Sport and Recreation at Narrabeen, a more secluded area surrounded by bushland. It was here that the remaining counts (4-7) were alleged to have occurred. Count 4 (incite person under the age of 16 years to an act of indecency with himself) alleged that the appellant got BA to masturbate him. Count 5 alleged that the appellant touched BA's breasts with his hands, and count 6 was an allegation of digital vaginal penetration. The final count, count 7, was alleged to have occurred outside of the car, involving the appellant committing an act of digital anal penetration upon BA. Save for count 5, for which they found the appellant guilty, the jury returned verdicts of not guilty for each of these counts.
7. From the Academy of Sport, the appellant drove BA to a bus stop near her home, where he dropped her off, some three to four hours after they first met. BA walked home and had a shower upon arrival. Her parents became suspicious that she had consumed alcohol. BA eventually admitted that she had been with someone, prompting her parents to call the police, who arrived promptly, and asked for BA's clothes to be placed in a bag. BA was examined by a doctor the following day.

Text messages

1. BA's text messages sent and received between 4:25pm on 28 December and 7:14pm on 29 December 2012 were in evidence, reproduced across some five A3 pages. The majority of the messages (148) were with the appellant (under the name by which BA knew him, Samir Barn). BA also gave evidence that she and the appellant spoke on the phone for about 6.5 hours during this period. Relevantly, there was also a series of text messages between BA and her friend, VT. These messages reveal that BA had arranged for VT to be her alibi should her parents inquire as to her whereabouts while she was with the appellant.
2. In BA's examination-in-chief, the Crown Prosecutor drew attention to two texts in particular. First, at 6:41pm on 28 December the appellant texted BA, "Send me ur hot pic of u". She did not send him any photographs answering that request. Secondly, at 1:47pm on 29 December (shortly after meeting the appellant), BA texted VT, "Fml he's giving me alcohol fark [VT] I need you plz :( I feel like crying ..;((". (BA explained in her evidence that "Fml" stands for "fuck my life".)
3. On the morning of 29 December, the appellant texted BA, "Get ready I cum see you at 1". Three minutes later, BA responded, "Yeah cool :)) il get up soon". 14 minutes later, BA texted VT asking for a favour: "Okay well I'm meeting up with a guy at 1 & can't let parents know yet cuz he's 18 its all abit to hard atm when im 15 & younger than most ppl our age but would you be able to cover for me ? If mum calls can you tell her I'm at urs ? is your mum working today ??:/" VT agreed to the favour.
4. At about 1:30, shortly after meeting the appellant, BA texted VT again: "[VT] help meeee :/ text me when you get this pleasee….", then shortly after, "Im with this guy and he's really nice and cute but he has alcohol and were at dy and idk what to do im in shit if my parents find out :/". ("dy" refers to "Dee Why" and "idk" means "I don't know".)
5. At 2:01pm she texted VT again: "It's all good were on collator beach or some beach and his got alcohol but I don't wanna drink.it". It was at this beach that the Crown alleged count 1 to have occurred.
6. At 5:14pm, after she had returned home, BA sent another text to VT: "Oii mum believed that I was at urs yay success (: I had two vodkas mwah so yum". The texts between BA and VT over the course of the following two hours revealed that BA's mother discovered that they had not been together that afternoon.
7. Finally, there were further texts between the appellant and BA on the evening of 29 December. At 5:34pm she texted him, "Fml :/ I think my mum knows ;(". At 5:48 she said, "Oii :(( I need you in my life but you don't care… You just say you love me and you don't mean it :/". He replied three minutes later: "I do love you babe", then, "And I mean it". About 30 minutes later BA asked the appellant how old he actually was. She gave evidence that this inquiry resulted from one of her friends raising doubts about the appellant's true age, having looked up his profile on Facebook. Then at 6:57pm she sent a final text to the appellant: "Honestly you could of just told me that u wanted to just do shit with me. You don't give a fuck about me and you didn't mean anything you said and I believed it :/ why would you do this to me seriously. I don't get why you tried to pressure me into sex and you said il love you forever why!?! ;(("

BA's evidence

1. BA was interviewed on 9 January 2013 by the Chatswood Joint Investigation Response Team (JIRT). A DVD recording of this interview was played to the jury, and the transcript was admitted into evidence. She also gave oral evidence at the trial, and was cross-examined by defence counsel.
2. On appeal, the appellant (who did not give evidence at trial) sought to highlight inconsistencies in BA's evidence. In the JIRT interview, she had said that the appellant's poking her on Facebook "went on for a while like a couple of months". At trial, however, BA said that their first interaction online was on 28 December 2012, the day before their meeting.
3. When describing the events the subject of the charges, BA frequently couched her recollections with the qualifying words "I think". In his written submissions, by way of example, the appellant identified BA's statement in her JIRT interview in respect of count 2: "I think he was touching my boobs sort of thing and he also … pulled down my bra and was like, I guess like sucking on my boobs I think." Similarly, when describing the act going to count 5 in her JIRT interview, BA said "he was also grabbing my boobs I think." BA's use of the words "I think" was taken up by defence counsel in cross-examination: "Q. This is the position, that when you used the expression 'I think' you were drawing a distinction between what you clearly recall and what you may have some doubts about. Do you agree with that? A. Yes." In his closing address, defence counsel put to the jury that there were "about, give or take one or two, 95 'I think sos' in [BA's JIRT interview]."
4. In assessing the consistency between BA's evidence from her JIRT interview and at trial, the lengthy period between those events is to be borne in mind. By the time she gave evidence at trial in March 2016, she was 19 years old, and more than three years had passed since the events which were the subject of her evidence.

Medical and DNA evidence

1. BA was examined by Dr Shauna Hayes at Royal North Shore Hospital on 30 December 2012, 24-25 hours after BA had been with the appellant. Dr Hayes gave evidence at the trial. She said that when she examined BA, there was bruising on her mid right lower lip. As submitted by the Crown, this was consistent with BA's evidence that the appellant had engaged in some form of hard kissing on her lips. Dr Hayes also gave evidence that an anogenital examination performed upon BA returned results "within normal limits".
2. In examination-in-chief, Dr Hayes gave evidence by reference to her contemporaneous notes that BA had recounted the details of the incident to her at the examination. No material inconsistencies were identified between that description by BA and the subsequent account that she gave at her JIRT interview.
3. Testing on BA's underpants did not detect the presence of any fluids, and a presumptive test for semen was negative. Nor was semen detected on a low-vaginal smear or a perianal and anal smear of BA, and DNA testing did not identify any male DNA in those locations.
4. A tape-lift was taken for trace DNA from the inside of BA's underpants and bra cups by a police officer and conveyed to the NSW Forensic and Analytical Science Service for DNA analysis. DNA found on the tape-lift from the inside of the underpants had the same profile as BA's DNA profile. As for the inside of the bra cups, a DNA mixture originating from four separate individuals was found. BA and the appellant could not be excluded as major contributors to this mixture. A senior forensic biologist from the NSW Forensic and Analytical Science Service gave evidence that: "It is greater than 100 billion times more likely to obtain this mixed profile if it originates from [BA], [the appellant] and two unknown, unrelated individuals rather than from [BA] and three unknown, unrelated individuals in the Australian population."
5. The DNA evidence featured prominently in the appellant's arguments on appeal, and it will be necessary to return to it below.

Appeal against conviction

1. The single ground of appeal is that the guilty verdicts on counts 2 and 5 were unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As framed in the draft notice of appeal, this ground had two aspects: 1. that the guilty verdicts were inconsistent with the not guilty verdicts on counts 1, 3, 4, 6 and 7, and 2. that the guilty verdicts were unreasonable having regard to the nature and quality of the evidence.

Inconsistent verdicts

1. The appellant was convicted of counts 2 and 5, and found not guilty of the remaining five counts. The appellant submits on appeal that the guilty verdicts are unreasonable by reason of their inconsistency with the not guilty verdicts.
2. The legal test to be applied to the appellant's contention is one of logic and reasonableness: MacKenzie v The Queen (1996) 190 CLR 348 at 366; [1996] HCA 35. In MacKenzie (at 366), Gaudron, Gummow and Kirby JJ approved the test as stated by Devlin J in R v Stone, unreported, 13 December 1954. As framed, in order to succeed on this ground, the appellant: "must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."
3. If there is a proper way by which the verdicts may be reconciled, allowing the appellate court to conclude that the jury properly performed its functions, that conclusion is generally to be preferred: MG v R [2017] NSWCCA 14 at [88].
4. In cases such as the present one, where the charges are heavily dependent upon the evidence of a single complainant, the remarks of Spigelman CJ in R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [34] are to be borne in mind: "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 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 as emphasised in M, MacKenzie and Jones quoted above."
5. Similarly, in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], Gleeson CJ, Hayne and Callinan JJ said that "[a] verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility."
6. The starting point of the appellant's submissions was that in light of the not guilty verdicts for counts 1, 3, 4, 6 and 7, the jury must have concluded that BA's evidence, taken on its own, was insufficient for them to be satisfied to the requisite standard of the appellant's guilt. It followed, in the appellant's submission, that the DNA evidence had assumed significance to the jury. He sought to explain the not guilty verdicts for counts 3, 4, 6 and 7 by reference to the fact that those counts were unsupported by any DNA evidence, and therefore were "essentially based only on BA's word."
7. On the other hand, so the appellant submitted, counts 1, 2 and 5 (which each involved the appellant's alleged contact with BA's breasts) were all linked by the presence of the appellant's DNA on her bra. The appellant sought to draw the inference that the basis for the guilty verdicts on counts 2 and 5 must have been the DNA evidence. In oral submissions in this Court, Mr McLachlan, who appeared for the appellant, asked, "How is it they [the jury] distinguish between count 1 on the one hand and count 2 and 5 on the other? That I put respectfully to the jury as I must but that doesn't make sense."
8. There was a further basis for the alleged inconsistency of the verdicts put by the appellant. That was the reconciliation of the differing verdicts as between counts 2 and 3, and counts 5 and 6. It will be recalled that both counts 3 and 6 alleged digital vaginal penetration, while counts 2 and 5 alleged indecent touching by the appellant of BA's breasts. In essence, the appellant's submission was that because both counts 2 and 3 and counts 5 and 6 were alleged to have taken place in the same location and at the same time, "it is a complete affront to 'logic and reasonableness' for the jury (presumably because of the DNA evidence) to come to the opposite view on 'guilty/not guilty' in circumstances where … there is otherwise an innocent explanation for the DNA." By way of emphasis, the appellant pointed out, by reference to the evidence given by BA in her JIRT interview that "it was BA's account throughout that the appellant was 'fingering' her (Count 6) at the very same time as he was also 'grabbing my boobs' (Count 5)." (emphasis in original) It was said by the appellant to be "a fundamental affront to both logic and reasonableness" for the jury to be satisfied of the appellant's guilt for count 5 but not for count 6, when those counts involved an allegation of simultaneous offending.
9. The Crown, rightly, submitted on appeal that the correct starting point for considering whether verdicts can be reconciled is not the convictions, but rather the acquittals. This is to follow the approach stated by Simpson J (as her Honour then was) in TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128] (McClellan CJ at CL and Latham J agreeing): "In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant's credibility, the verdicts of guilty may not be unreasonable, at least not on that basis." Her Honour went on (at [130]) to stress that: "[before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility."
10. The appellant did not advance any submission that this approach is not the correct one to adopt in this appeal.

Count 1

1. This alleged assault occurred when the appellant and BA were at the beach. As described in BA's JIRT interview, it involved an allegation that the appellant "tried to put his hand down my top, um, I think that's all." Her evidence in the JIRT interview was that she had blocked the appellant's hand. When asked to identify where his hand had been, BA described it as "like my chest I think", and agreed with the interviewer that she would consider it to be part of her "breast area".
2. In his opening address to the jury, the Crown described count 1 as "the putting of the hand on her breasts even over her clothing, and attempting to put his hand down her bra". In cross-examination, defence counsel put to BA that when she had indicated where the appellant had placed his hand, she had in fact indicated an area above her breasts, over the chest bone. In his closing address, defence counsel suggested to the jury that BA had "indicated an area near the clavicle".
3. In light of the ambiguity generated by the above exchanges in respect of count 1, the jury's verdict is explicable on the basis that the jury was not satisfied that the Crown had proved that the appellant's touching of BA had been indecent. This verdict, then, is explained by the possibility that the jury determined that the Crown had simply failed to make out the case on which it had opened for count 1. There was no logical inconsistency or unreasonableness in returning a verdict of acquittal on ground 1, and guilty verdicts on grounds 2 and 5.

Counts 3 and 6

1. In written submissions, the Crown advanced three potential specific bases arising from the evidence for the not guilty verdicts for counts 3 and 6. First, unlike counts 2 and 5, there was no corroborating DNA evidence for these counts whatsoever.
2. Secondly, the results of BA's anogenital examination performed the day after the relevant events were "within normal limits". This absence too tended to support a conclusion that the jury could not be satisfied beyond reasonable doubt that counts 3 and 6 had occurred.
3. Thirdly, in respect of count 3, the Crown drew the Court's attention to the way in which BA's evidence was elicited in the JIRT interview. BA's original account of the acts giving rise to this count, in the car at Warriewood, included the appellant sucking her breasts (count 2), some form of heavy kissing with the appellant biting BA's lips, and BA touching the appellant's penis over his clothes. It was not until some 30 questions later that BA raised the alleged digital vaginal penetration. As the Crown submitted, the jury may have concluded that this allegation came as an afterthought to BA, and was therefore less reliable than the other elements of her account which had been present in her original description.
4. Those bases for the jury's differing verdicts for counts 3 and 6 on the one hand and counts 2 and 5 on the other are more than adequate to establish a rational explanation for the acquittals which is not logically inconsistent with the convictions, or patently unreasonable.

Count 4

1. Count 4 alleged that the appellant had incited BA to an act of indecency by getting her to masturbate him. This was alleged to have occurred when the appellant and BA were in his car at the Academy of Sport at Narrabeen. His Honour the trial judge directed the jury that "To incite a person to do an act is to encourage, command or urge a person to do that act."
2. The jury submitted two written questions in respect of this count to the trial judge: first, "how are we to interpret the word 'encourage' in relation to the explanation for incite related to charge 4?"; and secondly, "Is lack of stopping an indecent act viewed as inciting?" It is evident from the questions submitted to the trial judge that the true identity of the instigator was a matter of concern for the jury in its deliberations.
3. Having received submissions on the questions from counsel, his Honour answered the second question in the negative, and the first question as follows: "'Encourage' is to be seen in the sense of urge or command. It is to positively act, that is, by command or communication to cause someone to do the particular act alleged. So, it requires a deliberate or voluntary act by someone urging, encouraging by communication, as an example, to do the particular act alleged."
4. The primary basis for the acquittal on this count proffered by the Crown is the apparent uncertainty generated by BA's account. She had consistently given evidence that she did masturbate him for a short period of time; the doubt related primarily to who had been the primary instigator of the act.
5. Starting with the JIRT interview, when asked by the interviewing officer whose idea it had been to give the appellant a "handy" (to adopt the term used in the interview), BA responded, "Um, I think he asked for it." Earlier in the same interview, BA had described a similar act which had occurred in the car while parked in the Minigolf carpark at Warriewood. BA's description of this act was not entirely clear, at least as it is reproduced on the interview transcript, but it appears that she is describing rubbing the appellant's penis through his clothing. When asked whose idea this had been, BA said, "Oh, I think it was mine." It is clear from the JIRT interview transcript that BA was describing two different events: one at the Warriewood carpark (which was uncharged conduct), and the other at Narrabeen (which was the subject of count 4).
6. The distinction between the two acts was, however, the subject of some confusion in defence counsel's closing address. Defence counsel characterised BA's evidence in relation to count 4 in her JIRT interview as "flip-flopping between 'it was my idea/he asked me'". In support of that characterisation, he had directed the jury's attention to BA's evidence, given in respect of the uncharged conduct in the Minigolf carpark at Warriewood, that she thought it had been her idea to rub the appellant's penis over his clothing.
7. Nowhere does it appear that the jury's attention was squarely drawn to this error, although it is to be noted that the Crown prosecutor accurately described the alleged act at Warriewood as uncharged in his closing address. It is therefore reasonable to suppose that the jury accepted defence counsel's argument that BA had given inconsistent accounts as to who in fact instigated the conduct charged as count 4, and therefore could not be satisfied beyond reasonable doubt that the appellant had incited BA to perform the act. The jury's verdict on count 4 is thus adequately explained.

Count 7

1. This remaining count was alleged to have occurred outside of the appellant's car at the Academy of Sport at Narrabeen. The Crown alleged that while the appellant and BA were standing up outside of the car and hugging, the appellant placed his hand down BA's back and performed an act of digital anal penetration.
2. The explanations for the acquittals on counts 3 and 6 (the absence of corroborating DNA evidence and the medical examination) are equally applicable to this count.
3. Moreover, as with grounds 3 and 6, the Crown submitted on appeal, and we accept, that the manner in which BA described this count in the JIRT interview could have been sufficient to give rise to a reasonable doubt in the jurors' minds as to its occurrence. Following a series of nine questions and answers, where BA gave a somewhat ambiguous account of what the appellant had done with his hand, there was the following exchange: "Q177 Lana just has a question. Just wanted to be clear --- A Yeah. Q177 --- ….. wasn't quite sure. So, so you said he, he had his hands on your bum and did his finger actually go inside your bum? A Yeah. Q178 Yeah. And was that when you were facing towards him or facing away from him? A Um, away."
4. At least two specific issues arise in respect of BA's evidence on this count, both of which were relied upon by defence counsel in his closing address. First, it is apparent that BA only told police that the appellant had digitally penetrated her anus in response to a leading question. Secondly (and as defence counsel submitted, this is linked to this first point) the ambiguity in BA's account as to whether the appellant had in fact penetrated her anus, or had placed his hand between her buttocks. It is convenient here to reproduce the passages highlighting these issues from defence counsel's closing address: "Now, question 170, 'Okay, and where did his fingers go?' 'I think on my bum. Like down that area.' A few lines further on, 'And was it inside or outside of your bum? The skin, like your skin?' Answer, 'I think inside and outside.' Question 174, 'So what could you feel when he was on the inside?' 'His fingers, yes, trying to rub, I think.' Then a few lines further on, question 176, 'And where were his hands when he was doing that?' 'He kept putting his hands like on my bum and like on my back and stuff.' And surprise, surprise, members of the jury, Lana, who was the police officer during this interview - this is at question 177 in the bottom of page 22 - the interviewing officer said, 'Lana just has a question. Just wanted to be clear.' Now, you see, members of the jury, how once you start analysing this, even the police officer at the interview wanted to be clear, and do you know what followed, it's on the very next page. So Lana wanted to be clear. Question, continuing on, 'Wasn't quite sure.' 'So you said he had his hands on your bum, and did his finger actually go inside your bum?' 'Yeah.' Now, that's an agreement to a leading question put to the witness in circumstances where, if I may say so, it doesn't adequately reflect what a person is alleging. It's a response to a suggestion by a police officer to clear up what was obviously an ambiguity, an unclear statement by the witness."
5. It would have been open to the jury to accept these criticisms of BA's evidence. Neither criticism has any direct bearing on the findings of guilt for counts 2 and 5.
6. For those reasons, the not guilty verdicts for all of counts 1, 3, 4, 6 and 7 are rationally explicable for reasons which are not logically inconsistent with the guilty verdicts on counts 2 and 5.

The nature and quality of the evidence

1. The other aspect of the appellant's ground of appeal was that the guilty verdicts were unreasonable having regard to the nature and quality of the evidence. This contention was principally directed to (a) BA's overall credibility, and (b) the DNA evidence which the Crown relied upon in support of counts 1, 2 and 5.

BA's credibility

1. Specific reliance was placed upon what is said by the appellant to be the general uncertainty in BA's narration of events. In particular, the appellant maintained that BA's continual use of the words "I think" (set out above), including when describing the acts for which the appellant was convicted, was indicative of a general lack of certainty in respect of crucial details. We have set out above the concession which defence counsel extracted from BA about her use of the words "I think". It is to be noted that that concession was made over three years after her JIRT interview. By that time, BA was 19 years old and being asked to give a blanket statement as to the meaning of a phrase she had used when she was 15. Her assent to defence counsel's proposition that the words signified "some doubt" is not to be understood as inevitably leading to the conclusion that whenever she used the phrase the jury was required to hold a reasonable doubt as to the events she was recounting.
2. Another basis for impugning the reliability of BA's evidence advanced by the appellant on appeal was her (admitted) untruthfulness surrounding the events of 29 December 2012. In his written submissions, the appellant set out a series of actions by BA which he said affected her credibility. One obvious example is the deception practiced by BA (colluding with VT) to avoid her mother discovering that she was with the appellant and drinking alcohol. Another example is the inaccurate evidence BA gave at the start of her JIRT interview concerning the length of time for which the appellant had been poking her on Facebook, set out above.
3. The appellant also raised what his counsel described as "the forces that led her to come forward and speak to the police or to provide the account that she ultimately did" as a further matter impugning BA's credibility. This is a reference to the relevance of BA's supposed fear of "parental reprimands", as well as her feelings at having been deceived by the appellant as to his age.
4. At trial, defence counsel made extensive submissions to the jury concerning BA's credibility. Each of the above matters was specifically raised. The jury could not have failed to appreciate that BA's credibility was in issue. In his closing address, the Crown told the jury: "obviously the main witness is [BA], the complainant, realistically you could not convict the accused on any count without accepting her evidence, she is the pivotal witness in the case."
5. The jury enjoyed a substantial advantage over this court in assessing BA's credibility, having seen her give evidence. The primacy of the jury's role in this respect was recently reiterated by the High Court in R v Baden-Clay (2016) 258 CLR 38; [2016] HCA 35 at [65]-[66]: "Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. … With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'." (citations omitted)
6. That, of course, is not to deny the duty of an appellate court to conduct "an independent assessment of the evidence, both as to its sufficiency and its quality": Morris v The Queen (1987) 163 CLR 454 at 473; [1987] HCA 50, quoted in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [14].
7. Ultimately, the matters relied upon by the appellant on appeal are matters which were relevant for the jury's assessment of BA's credibility. It is to be recalled that it follows logically from the five not guilty verdicts that the jury must have concluded that BA's word, on its own, was insufficient in at least some instances to prove the appellant's guilt beyond a reasonable doubt. In other words, far from accepting every aspect of BA's evidence, the jury evidently applied some scepticism and caution, and consequently weighed the individual pieces of evidence which supported, or tended to contradict, each charge. That function is quintessentially the province of the jury, and the appellant has not identified any aspect of BA's evidence sufficient to justify disturbing the jury's verdicts.

The DNA evidence

1. The Crown case found prima facie support in the DNA evidence found on BA's bra in respect of counts 1, 2 and 5, which each involved allegations of the appellant touching or sucking BA's breasts.
2. In defence counsel's closing address, it was put to the jury that the DNA evidence was "not very helpful", because there was "no issue that the accused touched the bra at some stage." That approach was consistent with defence counsel's cross-examination of BA, where it had been put to her that in fact she had removed her own bra, that the appellant had asked her to put it back on, saying there were people nearby, and the appellant had picked it up and attempted to cover her breasts with it.
3. The trial judge gave the following direction to the jury in respect of the DNA evidence: "Now it is important that you understand this. It may be consistent with the circumstances of count 1, that is he touching of the bra, or count 2, that is the sucking allegedly of the complainant's breasts, or count 5, but it is not necessarily so. It may be consistent with one or other or some of those counts, but it may also be consistent with scenarios inconsistent with one or other or all of those allegations. The accused's DNA profile may have been transferred to the inside of the bra by the complainant's contact with him or his contact with the bra other than in the course of an indecent assault."
4. His Honour, with respect accurately, went on to direct the jury that "the mechanism of collecting the sample did not enable, ultimately, for any certainty to be had as to precisely where the DNA profile was located." A final extract of his Honour's directions to the jury which it is convenient to reproduce is the following passage (which refers back to the above passages): "In the context of what has been put to you by the parties, and in the context of what I put to you yesterday in my legal directions, you need to consider what weight you are going to give to the issue of the presence of the DNA profile of the accused being found from the tape lift from the inside of the bra."
5. No challenge was made to that direction on appeal. Ultimately, as his Honour told the jury, the weight to be given to the DNA evidence was a matter for their determination. It was certainly open to them to conclude that the explanation for the appellant's DNA being on the bra was not that he had touched it while trying to cover BA's breasts with it.
6. Reference was also made to the possibility of "transference", whereby the appellant's DNA may have reached the bra indirectly, through his contact with other parts of BA's body. This possibility was put to the DNA expert by defence counsel in cross-examination. On appeal, the appellant pointed out that this possibility was consistent with the fact that the DNA profiles of two other (unidentified) persons were also found on BA's bra. Again, however, this was a matter to be determined by the jury. True it is that these alternative hypotheses were apt to lessen the significance of the DNA evidence in the jury's minds. But the possibility that the appellant's DNA made its way onto BA's bra by reason of the acts alleged in counts 2 and 5 remained, and tended to support her testimonial evidence on one or both of those counts.
7. Though the DNA was consistent with each of counts 1, 2 and 5, as concluded above, there was nothing inconsistent in the jury reaching a not guilty verdict on count 1 and guilty verdicts on counts 2 and 5. That outcome was explicable for reasons concerning uncertainties in BA's evidence not involving the DNA evidence.

Orders

1. While there should be an extension of time, and a grant of leave to appeal, the appeal must be dismissed. We make the following orders:
2. Extend time to appeal to 29 June 2018.
3. Grant leave to appeal.
4. Appeal dismissed.

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