25Section 6(1) of the Criminal Appeal Act 1912 provides that a verdict may be set aside if it is unreasonable or cannot be supported having regard to the evidence. The test to be considered when determining if a verdict is unreasonable was recently confirmed by the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11] - [14]:
"The task of the Court of Criminal Appeal
It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself 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".
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'."
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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."
Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter.
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
"In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." (footnotes omitted)
26The Crown case was founded on the evidence of the complainant. Although other witnesses were called, they provided limited evidence in relation to the surrounding circumstances. The Crown case was dependent upon the jury accepting the complainant's evidence. In the course of the directions given by the trial judge her Honour made plain that in order for the jury to return a verdict of guilty for any of the counts on the indictment they would have to be satisfied beyond reasonable doubt that the complainant's evidence was the truth.
27The jury returned verdicts of guilty with respect to counts 1, 4-11 and 13 and verdicts of acquittal with respect to counts 2, 3, 12 and 14. It was submitted that, as a matter of "logic and reasonableness", the acquittals on counts 2 and 3 demonstrated that the jury approached its task in an unreasonable fashion and that, accordingly, the convictions on the remaining counts cannot stand: MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366-368 (Gaudron, Gummow and Kirby JJ); R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82 at [6] (Spigelman CJ, Grove J, Carruthers AJ agreeing).
28The applicant accepted that the not guilty verdicts for counts 12 and 14 can be reasonably explained on the basis that the jury was not satisfied beyond reasonable doubt that the complainant did not consent to the acts giving rise to those counts. In the course of their deliberations the jury sent a question to her Honour seeking elaboration about the legal definition of consent. At the time the events in counts 12, 13 and 14 took place the applicant was over the age of 16. Accordingly, consent was a significant issue in relation to those counts at trial. I am satisfied that the verdicts in relation to counts 12 and 14 can be explained by the fact that the jury were not satisfied in relation to the issue of consent. The verdicts of acquittal in relation to these counts do not form part of the applicant's argument under this ground of appeal.
29The applicant submitted that there was no logical basis on which the verdicts of not guilty in relation to counts 2 and 3 could be reconciled with the guilty verdicts in relation to the other counts.
30It was submitted that the complainant's evidence in relation to each count was detailed and that there was no apparent difference in the quality of her evidence on any particular count: AE v R [2008] NSWCCA 52 at [35] (Bell JA, Hulme and Latham JJ).
31The applicant emphasised that he had given evidence denying any sexual interaction with the complainant. Furthermore, he had said that it would be physically impossible for him to digitally penetrate the complainant because of the fact that following an accident his right wrist had restricted movement and his left wrist does not actually have a wrist joint.
32It was submitted by the applicant that the evidence in relation to the counts upon which he was convicted was of events that were not linked to a specific time or location, making it practically impossible for the applicant to adduce evidence to refute those allegations with any precision. However, it was submitted that when the complainant's evidence was referable to a specific time or event (as was the case with her evidence in relation to counts 2 and 3) and there was positive evidence refuting her evidence, the jury returned a not guilty verdict. This, it was submitted, raised concerns that the jury had improperly cast a burden of proof upon the applicant: R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 at [122] (Simpson J, McClellan CJ at CL and Latham J agreeing). It was submitted that once the jury were not satisfied beyond reasonable doubt of the veracity and accuracy of the complainant's evidence on counts 2 and 3, it must reasonably have harboured similar doubts in relation to the remaining counts.
33The applicant submitted that it could not be said that the Crown case in relation to counts 1 and 4-10 was any stronger than in relation to counts 2 and 3. There was no additional evidence that was capable of corroborating the complainant's account: see Moffitt v R [2002] NSWCCA 73 at [11] (Stein JA). It was submitted that such additional evidence as there was went to peripheral matters. Accordingly, it was submitted that there was no evidential basis for distinguishing between the various counts. The applicant invited consideration of R v Fry [2002] NSWCCA 127 at [18]-[19] where Ipp AJA said:
"Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. There are a number of possibilities which may have led to the jury acquitting the appellant on the second count. Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished his overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of his evidence concerning the incident, the subject of the second count.
It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first count. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that his evidence was more reliable in relation to the first count than it was in relation to the second count."
The applicant also referred to Jones v The Queen [1997] HCA 56; (1997) 191 CLR 439 at 455 where Gaudron, McHugh and Gummow JJ said:
"[N]othing in the complainant's evidence gave any ground for thinking that the quality of her evidence was higher in respect of the first and third count than it was in respect of the second count. When the credibility factor is combined with the uncorroborated nature of the complaints and the effect of the lengthy and unexplained delay in the making of the complaints, the convictions on the first and third counts can only be regarded as unsafe and unsatisfactory."
34It was further submitted that the verdict could not be explained on the basis that the jury was unwilling to place reliance upon the complainant's memory of events related to counts 2 and 3 because her memory may have been distorted by the passage of time. The jury accepted the complainant's evidence in relation to count 1. The applicant submitted that the events giving rise to this count must have preceded the events giving rise to counts 2 and 3. This submission is not strictly correct. The events giving rise to count 1 were alleged to have occurred between the dates of 30 October 1997 and 30 October 1998. The events giving rise to counts 2 and 3 were alleged to have occurred at a time that fell within the time period specified for count 1, namely between 3 and 9 April 1998. However, regardless of the specific dates, it is plain that the events giving rise to each of the three counts were alleged to have taken place within a similar time frame. Accordingly, it was submitted that the jury must have been satisfied that the complainant was able to recollect events which dated back to the time when counts 2 and 3 were said to have occurred.
35It was submitted that the apparent ability of the complainant to recollect events was borne out by the manner in which she gave evidence. The applicant referred to R v RCC [2002] NSWCCA 347; (2002) 133 A Crim R 352 at [7] where Sully J said:
"[The count] alleged, once again, an episode of violent conduct, the incidents of which were clear, uncomplicated and vivid. Once again, there was... no room for a supposition that the complainant was honestly mistaken in her recollection of, and in her recounting of, the incidents particular to the count."
36The applicant emphasised that the evidence given by the complainant in relation to counts 2 and 3 was of a similar standard to the evidence the complainant gave in respect of the other counts: R v Qin [2008] NSWCCA 189; R v Markuleski (2001) 52 NSWLR 82, 101 Spigelman CJ, quoted with approval in R v Parbery (2003) 141 A Crim R 43, 55 at [42] per Buddin J:
"There are cases in which nothing at all appears to differentiate the complainant's evidence, which the jury accepted beyond reasonable doubt, from the evidence which the jury did not so accept. In such a case the MacKenzie test of "logic and reasonableness" is not satisfied."
37Furthermore, it was submitted that it could not be said that there was any distinction in the way in which the various allegations were reported, or the complaints made. It has been accepted that consistency of the allegations made by a complainant in relation to one offence rather than another may explain why a jury convicts an accused in relation to the former, but acquits in relation to the latter: see R v JJT (unreported, NSWCCA, 3 December 1997) at 6 (Gleeson CJ). However, again it was submitted that in the applicant's case the various counts could not be distinguished on this basis.
38It was further submitted that short of the positive evidence that the applicant was able to put forward in relation to counts 2 and 3, there was no distinction between the various counts. All counts involved sole reliance upon the complainant's account, which was flatly denied by the applicant. As Sully J said in Sgardelis v R [2006] NSWCCA 338 at [51]-[52]:
"[T]he trial was conducted both by the Crown and by the defence in completely clear and completely consistent terms respectively; and those competing cases were starkly and diametrically opposed. There were no shades of grey in either of the competing cases. One was a case of clear and consistent refusal of consent; the other was a case of clear and consistent consent; or, at the very least, a reasonable, clear and consistent perception of clear and consistent consent.
I acknowledge, of course, that the jury was not bound to accept either the whole of the complainant's evidence or the whole of the appellant's case at trial. I apprehend, however, that the triteness of that proposition ought not to be permitted to obscure the need for a jury when accepting part only of a particular body of evidence to discriminate upon the basis of reason rather than that of raw intuition."
39It was submitted that it could not be said that "the jury may have formed the view that a verdict of guilty on the main count was sufficient to reflect the applicant's culpability": Rylands v R [2008] NSWCCA 106; (2008) 184 A Crim R 534 at [48] (Mason P) citing with approval R v Markuleski at [75]-[77] (Spigelman CJ), at [227]-[230] (Wood CJ at CL); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34] (Gleeson CJ, Hayne and Callinan JJ). It was submitted that counts 2 and 3 each related to one of numerous incidents alleged by the complainant and it could not be said that the conduct was encompassed in the remaining charges, particularly in the light of the fact that count 3 represented the first allegation of sexual intercourse. Given the age of the complainant, this was a particularly serious allegation. The applicant accepted that it was significantly more serious than the first count (which, by comparison, alleged a "mere touching") and of which the applicant was convicted. There would also be no reason why the jury would perceive counts 2 and 3 to be less serious than, for instance, counts 4 and 5. Similarly, nor could it be said that the particular acquittals were as a result of a compromise on the part of the jury: R v TK at [133]-[134] (Simpson J).
40In conclusion, it was submitted that there is no "proper way by which" the acquittals on counts 2 and 3 can be reconciled with the convictions on the remaining counts: Mackenzie v The Queen at 366 (Gaudron, Gummow and Kirby JJ).
41In arriving at this conclusion, it was submitted that it was appropriate to have regard to a number of other features of the case. In R v Bonat [2004] NSWCCA 240 Sperling J said at [116]:
"Having regard to the totality of relevant factors - the factually inconsistent verdicts, the complainant's evidence being wholly uncorroborated, the discrepancies in the complainant's evidence, the delay in complaint and the appellant's unshaken denials - the convictions do not stand the test of logic and reasonableness required by the authorities."
42It was submitted that this case exhibits many of the same features as Bonat. In particular the applicant emphasised that on 20 March 2004, the complainant attended the police station, stating the applicant had assaulted her. When giving a statement two days later the complainant said "[the applicant] has always been good to me and has never physically abused me before". The applicant submitted that this statement is highly significant as the complainant had moved out of the applicant's house by the time the statement was made and would no longer have been under a compulsion to conceal the applicant's alleged wrong-doing. However, the allegations of sexual assault were only made some 2 years later, in May 2006.
43Therefore, it was submitted that verdicts of acquittal should be entered in relation to each count of which the applicant was convicted.