King v The Queen [2014] VSCA 107

CRIMINAL LAW - Conviction - Cross-admissibility of BL's evidence in relation to charges involving JL and HL - Effect on charges 1, 3, 4, 5, 6 and 8 of allowing appeal in relation to charges 12 and 13 - Convictions on charges 1, 3, 4, 5, 6 and 8 set aside - Retrial ordered.

2 The applicant stood trial in the County Court at Melbourne charged with 13 separate offences involving three separate victims. He was convicted, in December 2012, of five charges of indecent act with or in the presence of JL, a child under 16 (charges 1, 3, 4, 5 and 6), one charge of threat to inflict serious injury upon HL (charge 8), and two charges of sexual penetration of BL, a child under 16 (charges 12 and 13). He was acquitted of the remaining five charges.

3 The following table sets out the details of each charge, the jury's verdict, and the sentence imposed:

[Crimes Act 1958 (Vic) s 47(1)]

[Crimes Act 1958 (Vic) s 47(1)]

[Crimes Act 1958 (Vic) s 47(1)]

[Crimes Act 1958 (Vic) s 47(1)]

Threat to inflict serious injury [Crimes Act 1958 (Vic) s 21]

[Crimes Act 1958 (Vic) s 21]

Sexual penetration of child under 16 [Crimes Act 1958 (Vic) s 45(1)]

[Crimes Act 1958 (Vic) s 45(2)(a)][1]

Sentenced as a serious sexual offender on charges 4, 5, 6, 8, 12 and 13.

Required to report for life pursuant to Sexual Offenders Registration Act 2004 (Vic).

4 By notice filed on 22 July 2013 the applicant sought leave to appeal against conviction. He relied, at that stage, upon a single ground, which was in the following terms:

The verdicts of guilty are unreasonable or cannot be supported having regard to the evidence; and in particular:

(a) the verdicts are inconsistent with the acquittals; and

(b) the evidence was so tainted, inconsistent, implausible and lacking in cogency and support as to render the guilty verdicts unsafe.

5 The application came before this Court on 20 March 2014. Following an indication from the Court in the course of oral argument that the ground, as set out above, was insufficiently particularised, and deficiently drawn, the applicant gave notice, on 7 April 2014, that he now sought leave to rely upon six amended grounds of appeal. These are as follows:

Ground 1 - [JL]: The verdicts of Guilty with respect to [JL] are inconsistent with the verdict of Not Guilty. The applicant was acquitted of Charge 2 but found Guilty of Charges 1, 3, 4, 5 and 6.

Ground 2 - [JL]: As to Charges 1, 3, 4 5 and 6, the Guilty verdicts are unreasonable or cannot be supported having regard to the evidence and in particular the evidence was so tainted, inconsistent, implausible and lacking in cogency and support as to render the Guilty verdicts unsafe.

Ground 3 - [HL]: The verdict of Guilty with respect to [HL] is inconsistent with the verdict of Not Guilty. The applicant was acquitted of Charge 7 but found Guilty of Charge 8.

Ground 4 - [HL]: As to Charge 8, the Guilty verdict is unreasonable or cannot be supported having regard to the evidence and in particular the evidence was so tainted, inconsistent, implausible and lacking in cogency and support as to render it unsafe.

Ground 5 - [BL]: The verdicts of Guilty with respect to [BL] are inconsistent with the verdicts of Not Guilty. The applicant was acquitted of Charges 9, 10 and 11 but found Guilty of Charges 12 and 13.

Ground 6 - [BL]: As to Charges 12 and 13, the Guilty verdicts are unreasonable or cannot be supported having regard to the evidence and in particular the evidence was so tainted, inconsistent, implausible and lacking in cogency and support as to render the Guilty verdicts unsafe.

6 The Crown did not oppose the grant of leave to file the amended grounds. Accordingly, I would grant the applicant leave to do so.

7 The three complainants were siblings. JL, then aged either 8 or 9, and HL, then aged 8, were sisters, and BL, then aged either 6 or 7, was their younger brother.

8 At the time of the alleged offending the applicant lived next door to the three children. They were friendly with JH, a child whom the applicant considered to be his 'step-daughter'.

9 So far as JL was concerned, her evidence was as follows. She claimed, in her VARE, that the applicant had touched, on a number of occasions, what she described as her 'mini'. She said that her 'mini' was the place where 'wee would come from'.

10 JL said that midway through 2009 she had been at the applicant's home when he gave her some doughnuts. She was watching television on the couch and the applicant asked her whether she wanted a 'cuddle'. She said no, but the applicant made her cuddle him, put her on his knee, and touched her vagina, over her clothing (charge 1 - indecent act with a child under 16 - guilty).

11 Two days later JL went to the applicant's house. The applicant touched JL with a vibrator (charge 2 - indecent act with a child under 16 - not guilty).

12 Sometime later, towards the early part of 2010, the applicant invited JL to come to his house. While she was seated on a couch he pulled her underwear down and touched her vagina with his fingers. She told him that she needed to go to the toilet. When she returned, he repeated the act (charge 3 - indecent act with a child under 16 - guilty).

13 On a further occasion, JL was seated on a couch in the applicant's lounge room watching television and completing a puzzle. The applicant picked her up and put her on his knee. He pulled her pants down and touched her on the vagina with his finger. HL and BL were present in the lounge room at the time. JL claimed that they were also touched by the applicant on the same day (charge 4 - indecent act with a child under 16 - guilty).

14 On a separate occasion, JL and her sister were sitting on a couch in the applicant's lounge room watching television. The applicant removed a vibrator and placed it on JL's vagina, on the outside of her clothing (charge 5 - indecent act with a child under 16 - guilty).

15 On the same day, JL saw the applicant take the vibrator from his pocket, pull down HL's pants and place it on HL's vagina (charge 6 - indecent act in the presence of a child under 16 - guilty).

16 HL said that she recalled an occasion when, while sitting on the applicant's couch, he touched her vagina over her clothing (charge 7 - indecent act with a child under 16 - not guilty).

17 On that same occasion, the applicant said to HL 'it's our little secret and if you tell your mum ... I'll bash her and I will set your house on fire and I'll bomb it' and 'smash up you and your house and your parents and I'll bash your whole family' (charge 8 - threaten to inflict serious injury - guilty).

18 BL said that he visited the applicant at his home, in order to play with JH, on the day before BL's grandfather's funeral. While he was sitting on the applicant's couch, after JH's mother had collected JH, the applicant inserted his penis into BL's anus (charge 9 - sexual penetration of a child under 16 - not guilty).

19 On the same occasion, the applicant lay down on the couch, positioned BL on top of him, and covered them both with blankets. He inserted a vibrator into BL's anus (charge 10 - sexual penetration of a child under 16 - not guilty).

20 Also on the same occasion, the applicant took the vibrator and moved it up and down over BL's penis (charge 11 - indecent act with a child under 16 - not guilty).

21 BL said that on another occasion, he remained at the applicant's house after his sisters had gone home. He claimed that the applicant made him a 'sleeping drink' consisting of orange juice and a 'sleeping tablet' which he said 'smelt like flowers'. He said the drink caused him to fall asleep. He claimed to have awoken to the applicant penetrating his anus with his penis (charge 12 - sexual penetration of a child under 16 - guilty).

22 BL said that on the same occasion, but shortly afterwards, he was lying on his side on the couch with the applicant lying behind him. The applicant was wearing headphones at the time. BL claimed that the applicant inserted a vibrator into his anus (charge 13 - sexual penetration of a child under 16 - guilty).

23 In relation to BL's evidence, the case put forward on behalf of the Crown was that the offences that were the subject of charges 9, 10 and 11 all took place on 29 March 2010. BL's evidence during the course of the Special Hearing was that the acts alleged under these three charges occurred three times, in the morning, in the afternoon, and in the late evening. The defence called the applicant's employer to give evidence. He adduced business records for that date showing, it would seem conclusively, that the applicant had been working between 7:00am and 2:00pm on that date, thereby contradicting BL in at least one material respect.

24 It should also be noted that BL claimed that he had seen his sisters being sexually abused by the applicant. He said, in the course of his VARE, that the applicant had played a pornographic video game known as 'Snatch the Match'. Under cross-examination, BL initially denied having viewed that game at his own home. However, he was contradicted, in that regard, by his mother and JL, and when their evidence was put to him, he acknowledged that he had indeed seen 'Snatch the Match' at his own home. He said that he had seen JL play the game, while HL was standing next to both of them. He denied that this was the only time he had ever seen the game, maintaining that the applicant had been playing it at the applicant's home as well.

25 There were other troubling aspects associated with BL's evidence. He said that on an occasion before he disclosed the applicant's offending to his mother, he had complained to her of a sore penis and bottom. He said that he had been taken to see a male doctor named 'Rachita' in St Albans. The informant gave evidence that there was no male doctor of that name in that suburb, although there was a female Dr Rachita. There was no evidence of any attendance by BL at the St Albans clinic.

26 BL's mother said that he had indeed complained of having a sore penis and bottom on one occasion in 2010. She took him to a doctor in relation to his penis, and he was diagnosed with thrush. That doctor put his sore bottom down to constipation.

27 In addition, at the time that BL made his disclosure to his mother, both his sisters were nearby. There had been discussions among the children regarding the applicant's behaviour and, in particular, the fact that the applicant had used a vibrator on the girls.

28 When interviewed by the police, the applicant denied the allegations. He said he had been good friends with the children's mother and that in the year preceding the allegations, he had had an affair with her. He had also had a falling out with another neighbour (who was a close friend of the children's mother) and he suggested that this neighbour may have put the mother up to having her children make complaints against him. He claimed that the children only rarely attended his house, and usually to play with JH. He accepted that both HL and BL might have stayed overnight at his house on one or two occasions. He denied ever having had possession of a vibrator at his home.

Inconsistency of verdicts as a ground of appeal

29 The principles that govern inconsistency of verdicts as a ground of appeal are well established.

30 In Avery v The Queen,[2] I endeavoured to set out, succinctly, the law on this subject. I noted that Gaudron, Gummow and Kirby JJ had said in a joint judgment in MacKenzie v The Queen:[3]

1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence or of being, in respect of the same property and occasion, both the thief and the receiver. There are other like cases. Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of 'differences in the evidence presented at the two trials' or 'the different views which the juries separately take of the witnesses'.

3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test:

'He 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.'

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries. The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin) observed:

'[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.'

We agree with these practical and sensible remarks.

5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case.'

6. The obligation to establish inconsistency of verdicts rests upon the person making the submission. But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.[4]

31 In MFA v The Queen[5] the principles laid down in MacKenzie were affirmed. The appellant, in that case, had been found guilty of two counts of sexual abuse against a youth, but acquitted of a further seven counts. The sexual acts to which the nine counts related were alleged to have occurred on four separate occasions. The counts upon which the appellant was convicted related to one particular occasion. The appellant argued that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence, and to the verdicts of not guilty on the other counts. It was submitted, that the acquittals involved the non-acceptance of the complainant's evidence which in turn impacted upon the complainant's evidence with respect to the guilty counts.

32 In dismissing the appeal, Gleeson CJ, Hayne and Callinan JJ rejected the notion that an earlier decision of the Court, Jones v The Queen,[6] stood for the proposition

that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility.[7]

33 Their Honours described that view as 'erroneous', adding that it

overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned ... [earlier in MFA]. Jones is not to be understood as establishing a set of legal propositions, separate or different from the test formulated in M [v The Queen (1994) 181 CLR 487], which must be applied in deciding whether a conviction on one or more counts of sexual offences, when the accused was acquitted on other counts, is unreasonable, or cannot be supported, having regard to the evidence.[8]

34 McHugh, Gummow and Kirby JJ also rejected that view of Jones, adding that '[i]t always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified'.[9]

35 The principles expounded in MacKenzie and MFA have been applied by this Court on numerous occasions.[10] The authorities make it plain that an applicant who relies upon inconsistency of verdicts as a ground of appeal bears a heavy onus. What must be shown is no less than 'an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty'.[11] If there is a rational explanation for the different verdicts arrived at, the Court will not readily be persuaded that the jurors forswore their oaths, and engaged in impermissible compromise.

36 The applicant's submission that there was nothing in the evidence that would justify treating charges 1, 3, 4, 5 and 6 (of which he was convicted) differently from charge 2 must be rejected. The evidence in support of charge 2 was much weaker than that in support of the other charges involving JL. Indeed, the trial judge would have been justified in withdrawing that charge from the jury.

37 In relation to charge 2, JL's evidence did not go much further than to say that the applicant, on the day in question, 'touched me with the vibrator'.[12] The paucity of that evidence stood in stark contrast with the detail given in relation to the charges on which the applicant was convicted. Charge 1, for example, spoke of his having touched the area of her vagina over her clothing. Charge 3 described his having pulled down her underpants and having touched that same area with his fingers. The same is true of charges 4, 5 and 6, each of which specified the vagina as being the area that was touched.

38 In these circumstances, it is by no means surprising that the jury convicted on five of the six charges concerning JL, but acquitted on charge 2.

39 The applicant submitted that JL was a very unsatisfactory witness. He supported that submission in the following way:

• There was a high risk of contamination or unconscious influence between JL and her siblings and their mother before the VAREs had been made to the police. JL conceded that all four of them spoke about what the applicant was said to have done to the children before going to the police.
• JL's evidence was vague and uncertain. She frequently claimed not to have had any memory of a number of matters.
• Initially, JL lied about whether the children had played 'rude computer games' at their own house.
• JL's evidence was unsupported in a critical aspect. Charges 5 and 6 concerned allegations that the applicant had touched both she and her sister with a vibrator, but HL gave no such evidence.

40 Unsurprisingly, there were significant deficiencies in JL's recollection, and she was by no means a perfect witness. In cross-examination, during the course of the special hearing, she was asked, repeatedly, whether she had discussed the applicant's behaviour towards her, and her sister and brother, with them, prior to going to the police.

41 JL initially claimed to have had no memory of having done so. However, she eventually acknowledged having spoken to her sister regarding the applicant's conduct. She was then reminded of what she had said during the course of her VARE. The transcript of her responses was put to her, and she then acknowledged that she had indeed spoken to her sister and brother about these matters some three days or so before attending at the police station. She also acknowledged that the discussion had gone on for about 20 to 30 minutes.

42 There was lengthy and extensive cross-examination on this point during the course of the special hearing. Over time, JL recounted more details of what had been said among them during their discussion prior to the initial complaint to the police. JL conceded that there had been some talk about a vibrator, as well as the threats that the applicant had allegedly uttered. There was also mention made of the game, 'Snatch the Match'. JL agreed that her brother had told her that the applicant had taught him how to play that game. There was also comment, by her brother, of having been given some 'orange medicine' by the applicant which made him woozy.

43 When first pressed about the game 'Snatch the Match', JL denied ever having played it on a computer at her home. She ultimately accepted that her answer in that regard had been incomplete, and that there had been an occasion when her sister and brother had been caught by their mother playing that game at their home. She had witnessed that incident.

44 Having said all that, these matters were fully explored before the jury. Although discredited as to some matters of a generally peripheral nature, JL adhered throughout to her account of the central matters in issue.

45 Given JL's age, and making due allowance for her understandable reluctance to admit that she, together with her sister and brother, had been accessing 'rude computer games' at their home, there was nothing about either the manner in which she gave her evidence, or its content, that suggests that her account of the applicant's conduct towards her was fabricated.

46 In accordance with the principles laid down in R v Klamo,[13] I am satisfied that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. In arriving at that conclusion, I bear in mind that the jury had the primary responsibility of determining guilt or innocence, and had the benefit of seeing and hearing JL give evidence. I am not persuaded, using the language of Hayne J in Libke v The Queen,[14] that the jury 'must', as distinct from 'might',[15] have entertained a doubt as to her credibility, and therefore the applicant's guilt. I would reject this ground.

47 The applicant contends that it is inexplicable that the jury acquitted on charge 7, touching HL's vagina over her clothing, but convicted on charge 8, uttering threatening words.

48 In my opinion, this ground must fail. HL's evidence in support of charge 7 was, as the respondent submitted, weaker than that in support of charge 8. For example, when asked specifically about charge 7, HL had very little recollection of what had occurred. She was asked whether, on that occasion, the applicant had made her sit on the couch in his lounge room, and she replied that she could not remember. As to the threat allegedly made, she was clear and positive about it. She specifically denied having had the alleged threat implanted into her mind by her brother.

49 If it be thought incongruous that the applicant should be acquitted of the act of touching HL on the vagina, but convicted of having, shortly afterwards, threatened her with violence if she spoke to anyone about his conduct, there is an answer. On one view, and on a reading of HL's VARE, the threat of which she spoke may not have been related to the substance of charge 7, but rather, other conduct of a sexual nature, directed towards her on other occasions, by the applicant.

51 HL's evidence regarding charge 8 was clear and unequivocal. The nature of the threat that she described accorded, in broad terms, with the threats described by both JL and BL. For reasons similar to those that caused me to reject ground 2, I also reject ground 4.

52 Given BL's insistence that the offending that gave rise to charges 9, 10 and 11 took place, inter alia, on the morning and afternoon of 29 March 2010 (that being the day before his grandfather's funeral), and given the applicant's employer's unchallenged evidence that the applicant was working from 7:00am until 2:00pm that day, it was scarcely surprising that the jury would entertain a doubt as to BL's evidence regarding these offences.

53 For the reasons earlier discussed regarding the inconsistency grounds in relation to both JL and HL, I would reject ground 5.

54 This ground falls into a different category. BL was not merely an unsatisfactory witness, but one whose evidence could fairly be described as wildly improbable.

55 The first point to note is that BL's account of charges 9, 10 and 11 had to be false. There is no way that the applicant could have committed the offences described upon BL during the morning of 29 March 2010, and probably the afternoon as well.

56 Secondly, there was nothing, by way of medical evidence to support BL's allegations. He was aged only seven at the time. He claimed that the applicant had repeatedly inserted both his penis and a vibrator into his anus. It would be reasonable to expect that there would be some medical evidence to support that allegation. There was none.

57 Thirdly, whilst BL claimed to have seen a particular 'Dr Rachita' from St Albans Medical Centre, and to have complained to him that he had been anally penetrated, there was no such male doctor at that or any other clinic in the vicinity. There was a female medical practitioner, a Dr Rachita, and she had treated both JL and her mother. However, she had never treated BL.

58 Fourthly, enquiries revealed that although BL had been treated at the St Albans Medical Centre, he had never attended any doctor at that practice complaining of any sexual assault. He had, instead, been treated for thrush.

59 Fifthly, BL's allegation that prior to the offences that gave rise to charges 12 and 13, he had been given a 'sleeping drink' by the applicant which smelled like 'flowers', and caused him to fall asleep, was extremely doubtful. BL claimed that he had seen such medication, and was aware of its smell, because his mother had it in her possession at home. However, BL's mother swore that she had no sleeping medication of any kind at home, and certainly none that might have smelled like 'flowers'.

60 Sixthly, BL gave inconsistent accounts of what the applicant had allegedly done to him in relation to charges 12 and 13. His mother said that he had told her that the applicant had attempted to put his penis, and a vibrator, into BL's anus, but not that he had actually done so. BL's account to the police was, of course, different in that respect.

61 Seventhly, BL lied in his evidence about the 'Snatch the Match' computer game. When confronted with his sister, JL's admission that he had in fact played the game at home, BL lost control, got up, and walked out of the room in which his evidence was being recorded.

62 Eighthly, BL described sexual behaviour on the part of the applicant towards his sisters which neither of them agreed had occurred. For example, he alleged that he saw his sisters place their hands on the applicant's penis, and also saw the applicant insert his fingers into their respective anuses. Neither girl alleged anything of the kind.

63 Ninthly, BL alleged that on the morning of 29 March 2010 (the date upon which the offences giving rise to charges 9, 10 and 11 were said to have occurred), he saw the applicant go into his bedroom and take vibrators out of a safe. As has already been noted, given the evidence of the applicant's employer, that simply could not have occurred on that morning. Further, BL acknowledged, under cross-examination, that he had been made aware, in early 2009, that the applicant's home had been broken into, and the safe in question stolen.

64 Tenthly, BL had ample opportunity to discuss his evidence with his sisters before going to the police. That left open the possibility of collusion, or subconscious contamination.

65 Eleventhly, BL gave evidence that he returned home from the applicant's house after 1:00am on the occasion upon which charges 9, 10 and 11 were alleged to have occurred. He added that he played computer games when he got home that night. His account directly conflicted with his mother's evidence to the effect that the children were not permitted to be out after dark, and that BL's bedtime was 9:00pm.

66 Lastly, I note the trial judge's report to this Court. His Honour, who is, of course, vastly experienced in the criminal law, observed that whereas he could see no merit in the inconsistency point regarding BL (largely for the reasons discussed earlier in relation to ground 5), he had serious concerns regarding BL's credibility.

[BL] was a winsome and intelligent child who presented extremely well. Despite that presentation, I was concerned about him being a truthful witness. Those concerns led me to deliver an unreliable witness warning. My reasons for concern are encapsulated in that warning, which doubtless, the Court will be taken to. Those concerns which I had about [BL's] evidence during the course of the trial continue to this day.

68 This is one of those rare cases where the jury, in my opinion, arrived at a verdict which was not reasonably open to them, on the evidence. In arriving at that conclusion, I have made allowance for the advantage that the jury had in seeing and hearing BL testify.

69 In my opinion, notwithstanding the deference normally, and properly, accorded to a jury verdict, there was a reasonable doubt, upon the whole of the evidence, as to the applicant's guilt on charges 12 and 13.

70 I would grant leave to appeal on this ground. I would further allow the appeal, set aside the convictions on charges 12 and 13, and instead enter judgment and verdicts of acquittal on those charges.

71 This leaves me to deal with the consequences of that conclusion so far as the remaining charges are concerned. The problem that arises is that the judge permitted the Crown to rely upon the evidence of BL as being cross-admissible in relation to the charges involving JL and HL. That being so, the possibility that the jury may have used their findings in relation to BL in coming to their verdicts on the other charges cannot be excluded.

72 In these circumstances, it cannot be said that there was no substantial miscarriage of justice in relation to those remaining charges. I would, accordingly, set aside the convictions on charges 1, 3, 4, 5 and 6 (JL) and charge 8 (HL) and order that, in respect of those charges, a new trial be had.

[1] At the time of the commission of these offences, s 45 of the Crimes Act 1958 (Vic) provided for a maximum penalty of 25 years' imprisonment if the child was, at the time of the offence, under the age of 10. That was an aggravating circumstance that had to be separately pleaded and proved, as it was in this particular case. Section 45 now provides that the aggravating circumstance is established if the child is under the age of 12.

[2] [2014] VSCA 86.

[4] Ibid 366-8 (citations omitted) (emphasis added).

[5] [2002] HCA 53; (2002) 213 CLR 606 ('MFA').

[7] MFA [2002] HCA 53; (2002) 213 CLR 606, 618 [35].

[10] See, eg, R v Ware [1997] 1 VR 647; Pavitt v The Queen [2007] NSWCCA 88; (2007) 169 A Crim R 452; R v JA [2008] VSCA 169; Choudhary v The Queen [2013] VSCA 325; Andrew v The Queen [2013] VSCA 333.

[11] MacKenzie (1996) 190 CLR 348, 368.

[12] JL VARE, 20 August 2010, answer 22.

[13] [2008] VSCA 75; (2008) 18 VR 644.

[14] [2007] HCA 30; (2007) 230 CLR 559.