Martin v R

Judgment

1. HOEBEN CJ at CL: Having considered the whole of the evidence, I agree with the conclusions of Beech-Jones J and the orders which he proposes.
2. HARRISON J: I have read and considered all of the evidence in the trial as well as the judgment of Beech-Jones J in draft. I have independently reached the same conclusions as his Honour. I agree with the orders that he has proposed.
3. BEECH-JONES J: On 12 March 2019, the applicant was arraigned in the District Court before a jury panel and Whitford SC DCJ on an indictment charging him with ten counts of having sexual intercourse with a child under the age of ten years, contrary to s 66A of the Crimes Act 1900, and two counts of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act. The applicant pleaded not guilty to all counts on the indictment.
4. On 19 March 2019, Whitford DCJ directed the jury to enter a not guilty verdict in relation to count 2 on the indictment. On 22 March 2019, the jury found the applicant guilty of counts 1 and 6 being the two counts of aggravated indecent assault, one concerning each victim ("AB" and "CD"). The applicant was found not guilty of the remaining counts. AB and CD are not the initials of the victims.
5. On 21 June 2019, the applicant was sentenced to an aggregate sentence of imprisonment of 3 years with a non‑parole period of 1 year and 8 months, commencing from 28 December 2018. The applicant will be eligible for release on parole from 27 August 2020. The indicative sentence for each count was two years imprisonment (Crimes (Sentencing Procedure) Act 1999, s 53A(2)(b)).
6. The applicant now seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 to appeal against his conviction on counts 1 and 6 on the following grounds: (i) That the jury's guilty verdicts with respect to counts 1 and 6 are inconsistent with the not guilty verdicts given for the remaining counts; and (ii) That the guilty verdicts were unreasonable and/or unsafe.
7. For the reasons that follow, I would uphold the second of these grounds in relation to count 1, set aside both convictions, enter an acquittal in relation to count 1 and order a new trial on count 6.
8. To address the grounds of appeal and explain my conclusions it is first necessary to describe the Crown case, the defence case and aspects of the trial.

Trial Evidence

1. AB and CD are the son and daughter respectively of the applicant's former de‑facto partner, SH. The incidents of abuse the subject of the counts on the indictment were alleged to have occurred in 1997. The evidence of AB and CD was admitted as tendency evidence in relation to each count on the indictment.
2. In about August 1996, the applicant and the complainants' mother, SH, commenced a relationship. The applicant began living with her, the complainants, and their older brother ("MC") in Yarraman, Queensland. They later moved to Newcastle. During the relevant period they lived in a home on Ross Street in Belmont, Newcastle and then at a home on the Pacific Highway in Belmont North.

AB's Evidence

1. Counts 1 to 5 on the indictment concerned AB and counts 6 to 12 concerned CD. AB was born in 1987. His parents separated when he was 7 or 8 years old and his mother commenced a relationship with the applicant when AB was around 9 or 10.
2. The Crown led evidence from AB of conduct by the applicant against him when the family lived in Yarraman as context evidence. AB said that there was a power blackout and while he and CD were playing hide and seek with the applicant in the dark, the applicant put his hand down AB's pants and fondled his penis. When AB was asked how many times that had happened to him in Queensland, AB said "[o]nly a couple, like, probably a few times in Queensland. It wasn't a lot". AB said that there was an occasion (in Queensland) when the applicant entered AB's room "when he had a game he wanted to play". He wanted AB to stroke his penis and he (the applicant) touched AB's penis.
3. AB said that, after the family moved to Ross Street in the Newcastle area, the applicant entered AB's room at night and made AB stroke his erect penis. AB said the applicant was "still calling it a game at that point". This conduct constituted count 1 on the indictment being the aggravated indecent assault of which the applicant was found guilty. When AB was asked whether he could remember anything else happening that night, he said "not that particular night, no". In the Crown Prosecutor's opening address it was alleged that the applicant had also forced AB to fellate him at this time and that was the basis for count 2 of the indictment. There was no cross‑examination of AB on this topic. As AB did not testify to this allegation the presiding judge directed an acquittal on count 2. The discrepancy between the Crown Prosecutor's opening and the evidence of AB on this topic is one aspect of ground 2 of the appeal.
4. AB said that the abuse then escalated. He said that on one occasion the applicant twisted his arm behind his back and forced him to "put the [applicant's] penis into my mouth" until he ejaculated. This evidence was the basis for count 3 on the indictment being a charge of having sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act. The applicant was acquitted on this charge. AB said that the applicant told him to have a shower and get back to bed. He complied.
5. AB said that "there were other nights where [events] similar to that happened". He described another night when they were living at the Ross Street address where "I didn't want to do it anymore" and protested. AB said the applicant pulled his arm behind his back, pulled his pyjama bottoms down and put his penis into AB's anus. This evidence was the basis for count 4 on the indictment being another charge under s 66A of the Crimes Act. The applicant was acquitted on this charge.
6. In relation to the fifth count, which was another charge under s 66A, AB said that it took place "at the next house", ie the house in Belmont North. He said that by that time he had "learned to protest less, and let [the applicant] remove whatever piece of clothing he needed to". He said that the applicant removed his pyjama pants and "he put his penis into my anus". The applicant was also acquitted of this charge.
7. AB gave evidence of other uncharged acts which were admitted as context evidence in relation to counts 1 to 5. He said that there were other instances where he had to put the applicant's penis into his mouth and there were also several occasions on which he had to stroke the applicant's penis, both at the Ross Street and Pacific Highway addresses.
8. Sometime in 2015, AB approached the police after CD had done so. In July 2016 he participated in a recorded telephone call with the applicant in which the applicant denied that he had "molested anyone", including AB or CD.
9. Four further matters should be noted about AB's evidence.
10. The first concerns the timing and content of his complaints about the applicant. In his evidence, AB stated that he did not tell anyone what the applicant was doing to him at the time because "he threatened to do the same thing to [his] sister". In his evidence‑in‑chief, AB said that he believed the first person he told was his doctor, Dr Richard Pridham, in either 2015 or 2016 and he thought he also told the psychologist that Dr Pridham referred him to.
11. AB said that he disclosed "little bits and pieces" to a friend, Charlotte Kippax in the period prior to approaching the police. He told her that he had been sexually assaulted when he was younger and that he had been forced to perform fellatio. AB said that he "felt ashamed for a long time about what had happened and felt like it was somehow my fault, what had happened to me".
12. AB also said that just prior to reporting the matter to police, his spoke to his uncle LT, his brother, MC, his sister, CD and his mother, SH, about what had happened. He told LT that he had been sexually assaulted when he was younger but did not tell him "any fine details". AB said, "I was trying to let people know what was happening but I didn't want anyone to know the details". AB said that he blamed himself for what had happened to him and did not want others to think he was disgusting.
13. In cross‑examination, AB agreed that in 2005 when he was 16 years old, his mother told him that his sister, CD, said she had been abused. He agreed that he remembered he had been abused by the applicant who had also threatened his sister, but said he did not tell his mother. He also agreed that he saw a medical specialist about his right shoulder when he was 12 years old but never told the doctor that the applicant had dislocated it. He saw another doctor in 2015 about his shoulder and told him that the first time he dislocated it was when he was 11 "going down a slippery dip".
14. Second, as it is relied on by the applicant in relation to ground 2, it is necessary to note certain parts of AB's cross‑examination in which he referred to his memories being "repressed". Thus, at one point he was asked: "Q. [AB], is it correct that you have not always had a memory of sexual abuse by [the applicant]? A. It was repressed. Q. By that answer, it is correct that you did not always have a conscious memory of sexual abuse by [the applicant]? A. I didn't remember it for quite some years, yes. … Q. When you hear of [CD's] allegations [around 2005], you did not have a memory of being abused by [the applicant] yourself; is that right? A. At that time I did remember; it wasn't until I was older, I pushed it down. … Q. When you made a statement to police in February of 2016, you referred to your memories being repressed? A. Yes. Q. What did you mean when you said that they'd been repressed in that statement? A. That as I got older I pushed those memories down. Q. When you say you got older, what age? A. Into my late teenage years and young adult life. Q. So after you were about 16, hearing of [CD's] complaint? A. Yes Q. So you say you repressed those memories, and you chose not to speak up about your memories at the time you heard of [CD's] complaint; is that right? A. Yes."
15. The cross‑examiner then suggested that if AB in fact had such a memory at the time he heard of CD's complaint, "[he] would have spoken up and corroborated her?", which he denied ("No, I wouldn't have"). Later the cross‑examiner returned to this topic asking: "Q. You said earlier this morning that your memory had been repressed; that's right isn't it? A. Yes. … Q. When it was repressed, it was not something that you thought of; is that right? A. Yes. Q. You didn't know any details about it, you weren't consciously thinking about details of it; is that right? A. No, I wasn't. … Q. So you suggest that every detail that you have told the Court about resurfaced in one flash or memory; is that the case? A. It resurfaced over a few days. The memory would come back to me, and then it would, more details would come up."
16. Third, AB was cross‑examined about the existence or absence of other witnesses to the commission of offences by the applicant. AB said that he did not recall his brother, MC, being present in their shared bedroom at the Ross Street and North Belmont addresses when the applicant is said to have offended. He said he did not see any other member of the household when he showered at night, he did not know if anyone noticed him showering and no-one asked him about it.
17. Fourth in terms of a positive defence case, in cross‑examination AB denied the suggestion that he had fabricated the allegations in an effort to support CD in her claims. When asked if he considered it a possibility that it was someone other than the applicant that sexually assaulted him, AB replied, "[i]t was not someone else".

CD's Evidence

1. As noted, counts 6 to 12 on the indictment related to CD. CD was born in 1990 and turned seven during 1997.
2. CD told the jury that one evening while they were living at the "first house", namely the Ross Street address, she and her two brothers were in the bedroom shared by their mother and the applicant and were watching television. Her brothers were sitting on the floor at the end of the bed. CD was lying on the bed on her stomach. The applicant entered the room and sat on the bed. He pulled CD to him so she was lying on top of him with her back touching his chest. He pulled a sheet over them before putting his hand into CD's underwear and touched her vagina. This evidence was the basis for count 6 on the indictment, namely, the other charge of aggravated indecent assault. The applicant was found guilty of this offence.
3. CD said that one night after the family moved to Belmont North, she was asleep in her room but was woken by the applicant getting into bed with her. She said that he cuddled her, kissed her on the neck, put his hand on CD's vagina and penetrated it with a finger. This evidence was the basis for count 7 on the indictment which was another offence under s 66A of the Crimes Act. The applicant was found not guilty of this offence.
4. CD said that the applicant then laid her on her back, placed himself on top of her and "tried to proceed to put his penis inside [her] vagina". When asked whether he succeeded, CD said "[n]o". CD said that afterwards the whole of her vagina was burning. She believed the pain was caused by the applicant's penis. This evidence was the basis for count 8 on the indictment which was another offence under s 66A. The applicant was found not guilty of this offence.
5. Afterwards, CD noticed spotting of blood on her underwear and bed. She said her mother noticed blood on the bed. CD told her mother that she picked a scab in her sleep. When asked why she didn't tell her mother what the applicant had done, CD said "[the applicant] is a scary man".
6. There was another occasion in the same house when the applicant again entered CD's room when she was asleep. The applicant cuddled her and touched her vagina before penetrating it with his finger. This evidence was the basis for count 9 on the indictment which was another offence under s 66G. The applicant was found not guilty of this offence. The applicant then put CD on her back and "tr[ied] to put his penis inside of [her] again". When asked if, based on what she felt at the time, the applicant had succeeded in putting his penis into her vagina, CD said "[n]o". CD said that she felt the same burning sensation of pain as she had on the earlier occasion. CD once again noticed blood from the incident but said her mother was unaware of it. This evidence was the basis for count 10 on the indictment which was another offence under s 66A. The applicant was found not guilty of this offence.
7. CD described another occasion of abuse after the relationship between her mother and the applicant had ended. She said the applicant was staying at a caravan behind an industrial building. CD said she was asleep on the main bed in the caravan when the applicant came in, laid down next to her and touched her vagina before penetrating her with his finger. This evidence was the basis for count 11 on the indictment which was another offence under s 66A. The applicant was found not guilty of this offence. CD said that the applicant put her on her back and tried to enter her vagina with his penis again. When asked if he had inserted his penis into her vagina, CD said "[n]o. Like you could feel just a slightness in there but not fully, no". That was the last occasion CD had any interaction with the applicant. This evidence was the basis for count 12 on the indictment which was another offence under s 66G. The applicant was found not guilty of this offence.
8. CD said that she first disclosed the applicant's abuse to her mother when she was about 14 years old. She was drinking and they got into an argument. CD told her mother that the applicant had abused her. Her mother then took her to the police. CD said she told police about "the first incident" referring to count 6, "around 2004/2005". As to what she told them, CD said "[j]ust that he put his hands down my pants, but I don't remember saying a lot to them about anything". CD said she thought the police "threw [her complaint] out because they said there was not enough evidence".
9. Between the time of the initial complaint to her mother (in or around 2004 to 2005) and her partner, MP, learning the details of her complaint when she made a statement to the police in February 2016, CD told her aunty MH and MH's daughter KH. CD said she told them she was "sexually assaulted, [but] didn't go into details". CD said she also told MP that "something happened to me as a child … sexually assaulted", but did not provide details to him before she made a statement to the police. CD did not recall having complained to her friend, Kelly West-Sooby, but said she might have told her. In cross‑examination CD said it would not surprise her if she had in fact told Ms West-Sooby about what the applicant had done "as they were close family to us". As to the suggestion that she later told Ms West‑Sooby that the applicant did not do it, CD said "[n]o, I never said that. I would never say that".
10. In cross‑examination, CD agreed that at the time she made the initial complaint to her mother she had an addiction to prescription painkillers and that she had been getting into trouble and was not going to school. When asked whether she was telling a lot of lies at that time, CD said "[y]es, I'd say that, yes". At the time, CD was taking anti-depressants because she was depressed. She obtained the painkillers from the medicine cabinet in her house. CD denied the pills had an impact on her judgment.
11. In a passage relied on by the applicant, CD was cross‑examined about her failure to disclose any further details of abuse by the applicant beyond telling her mother that she was touched by him. She was asked: "Q. … [w]hen your mother took you to the police after this you said no more than he'd put his hands down your pants; that's right, isn't it? A. Yes. Q. You didn't say any more than that because you couldn't recall any other details; isn't that right? A. At that time, yes. Q. When was it that you were - you had the recollection of other details? A. When I was about 15, 16 where I started to remember a lot more things and that's the main reason I moved to Brisbane. Q. Did you consider returning to the police and providing the police with those further details that you were remembering at 15 and 16? A. No. Q. You didn't disclose any of those details to any of the people who were in your life at that time; is that right? A. That's right. Q. You saw a psychologist for some time after you made that report to police; is that right? A. Yes, they put us into touch with some counsellors and, yes. Q. You didn't speak to the psychologist about those details that you say you then started remembering, did you? A. No, because honestly I didn't want to be there. Q. You didn't want to be there, did you say? A. No, I did not want to be at the counsellor, like that time when I was younger, I wanted to go home. I didn't want to talk to a stranger."
12. CD said that around the time her brother, AB, approached the police, he told her that he was sexually assaulted by the applicant "saying he was raped but he never went into details because I did not want to know". CD also recalled that AB also mentioned that his shoulder problem was caused by the applicant.
13. CD said that she remembered a boarder ("Gary") being at the house but did not remember him living with them. In relation to count 6, CD disagreed that it was possible that it was in fact "Gary" who had lay with her (in the bed) and put his hand into her underpants.
14. In relation to that part of her evidence that concerned counts 7 to 10, CD maintained that it was the applicant who had come into her room. CD said that she could still remember how the applicant smelt when he entered. In relation to counts 11 and 12, CD said that there may not have been a sleepover in the caravan but maintained that she fell asleep in the caravan.
15. Apart from the complaint to her mother about the first incident (ie, count 6), CD was asked in re-examination why she did not tell anyone about what the applicant had done until much later. She said, "I was scared, and I was going through a lot of teenage drama with everything that happened. I don't know why. I was very scared, and I didn't think anyone would help me".

Other Witnesses and Evidence

1. A police record dated 16 June 2005 relating to CD's initial complaint to police was tendered. It included the statement, "[CD] has stated to her mother that her ex-partner put his hands down her pants", that the person of interest and family had had no contact since 1997 and that the complaint "does not clarify what she means by 'put his hands down my pants'".
2. AB and CD's mother, SH, gave evidence. Relevantly she said her relationship with the applicant ended in September 1997 but she saw him on one occasion at a caravan park to "discuss about getting stuff out of storage where he was staying, and I ended up watching the 1997 football grand final", which she thought was at night. SH said that AB and CD accompanied her. SH was asked whether the children slept while they were there. SH replied "[n]ot that I'm aware of".
3. SH said that when CD was about 14, they were having an argument and CD said words to the effect of "[i]f [the applicant] had done to you what he did to me, you'd understand". CD told her that he had put his hands down her pants. SH stated that AB first mentioned abuse by the applicant about four or five years prior to giving evidence in 2019. SH said that AB told her that the applicant had "touched him as well", but AB did not elaborate except to say that the applicant had said that if "he didn't do what [the applicant] said that [the applicant] would go to his sister".
4. In cross‑examination, SH agreed that in 1997 when she had younger children she was "more attuned to what was going [on] in the house". SH said that she did not notice that AB was showering in the middle of the night or that the applicant was not in their bed on a "night that he was meant to be at home" or leaving the bed during the night at times that were "out of the ordinary". SH agreed that she washed her children's clothing and bed sheets but did not notice blood on AB or CD's clothing or bed sheets.
5. In his evidence, MC recalled there having been at least one power blackout when they were living at Yarraman during which MC and the complainants played a game of hide and seek with the applicant. MC recalled having visited the applicant's caravan with his siblings and his mother after she had separated from him. MC said they stayed overnight. MC recalled learning of CD's claims of abuse by the applicant when CD was "in her late teens or early adulthood". MC said that "a couple of years" prior to giving evidence in 2019 he received a call from AB in which he told him that he had been "raped" by the applicant, that "some form of abuse had happened at least once in Queensland" and while they were living in Newcastle but no further description was provided other than the applicant "holding his arms behind his back when some of the abuse may have taken place".
6. CD's partner, MP, stated that, towards the end of 2015 or early 2016, CD told him that she had been "sexually abused" but provided no further detail. He said that CD mentioned it shortly before she made her statement to police on 21 February 2016. He went with CD to the station and was called into her interview when she became upset.
7. Charlotte Kippax has been a friend of AB since 2015. She told the Court that AB told her that the applicant "raped" him, that AB was forced to "[s]uck his penis", that the applicant threatened him that if he did not do it he would force his sister to do the same thing and that he beat him. Ms Kippax recounted an incident at a nightclub in Brisbane where she found AB distressed and he said "[h]e [the applicant] found me, he's going to come and get me". AB's uncle, LT, told the Court that in, "2015 maybe", he was helping AB move to a new house when AB told him that the applicant "raped" him when he was younger, although "[h]e didn't give … specific details". LT said that AB "possibly" mentioned a shoulder injury. LT told the Court that AB said he had run into the applicant on a night-out which had "triggered all these memories again".
8. A cousin of the complainants, KH, told the Court that in 2007, CD moved to Brisbane and stayed with KH's family. KH said that during the year CD "said to me that something had happened to her sexually by her mum's boyfriend at the time, and she didn't want to talk about any details". KH said that in around 2013, when KH and CD were living together, CD told her about an occasion when her mother was at work and she and her brothers were watching a movie in bed with the applicant. KH told the Court that CD said that her brothers "were laying at the front of bed" and CD was "at the head of the bed". CD told KH that the applicant placed CD "on top of him, or asked her to lay on top of him, and then touched her vagina with his hand".
9. Gary Allerton rented a room at the Ross Street premises when SH, her children and the applicant lived there in 1997. He told the jury he worked as an interstate truck driver and was away for five or six days of the week. Mr Allerton accepted that he had a number of convictions for aggravated indecent assault. He denied having committed any sexual acts upon either of the complainants.
10. As noted, Kelly West-Sooby is a friend of CD's. She said that when they were about 12 years old, she "remember[ed] [CD] talking to [her] about being touched inappropriately". Ms West-Sooby was then asked: "Q. Do you remember what she looked like, at the same time she was saying those things to you? A. So, she was sitting behind me, and when I turned around to talk to her, she was, she had like her head down, and she had her shoulders slumped, and she couldn't look at me, like, she had her head down. So she looked very withdrawn, very like closed into herself. Q. When you say she was behind you, what were you actually doing at the time, can you remember, when you had this conversation? A. Yeah, we were playing on the computer downstairs. Q. You say you can't remember the exact words, but you're clear, are you, that the thrust of what she said was a person was what, or had what? A. Was touch - she mentioned being touched, and I can't remember if she said any specifics at the time, but the gist of the conversation was that she had been touched by someone, and that it wasn't a good thing, that I can remember. Q. Did she say who had done that? A. I can't tell you from my memory if she said any specific names, at that point in time. I just remember the conversation happening itself."
11. Ms West-Sooby said she told her mother what CD had told her. Ms West-Sooby said that she and CD discussed it several years later, when she was around 15. She recalled that she was at CD's house when CD became upset. When CD's mother started to explain why she was upset, CD interrupted her and said "she already knows" which Ms West-Sooby took to be a reference to the abuse. Ms West-Sooby said that at some point CD told her that the person who abused her was named "Darren". In cross‑examination, Ms West-Sooby denied that CD had ever told her that the applicant did not molest her and that she had told her mother that.
12. Kelly West-Sooby's mother, Shirley Hennessy, told the jury that in 1997 her daughter told her that CD had said to her that the applicant "touched her in places he shouldn't have" but that a few days later, Kelly told her that CD had told her that the applicant "didn't do it and that she wanted him to get into trouble".

Applicant's Denials

1. As noted, the jury heard a recorded telephone call between AB and the applicant in which he denied "molesting" anyone. He also participated in a recorded interview with police in Queensland on 3 July 2016 in which he also denied the allegations made by each of the complainants. The applicant did not give or call evidence.

The Summing Up and Jury Question

1. For the purposes of this appeal it is necessary to note six matters about the summing up. First, at the outset the trial judge advised the jury that the "critical issue" concerned the "reliability" of AB and CD's evidence and "whether, in circumstances where it is not independently supported by evidence that has no connection to them, you can be satisfied beyond reasonable doubt in relation to any of the counts on the indictment that relate respectively to each of them". Later, the trial judge explained that there were two aspects of a witness' evidence, honesty and reliability, such that a "witness can be perfectly honest" but "inaccurate", in that "what they say occurred simply never happened". The trial judge told the jury that in assessing the accuracy of a witness' evidence it "might consider" whether their account is "supported by other evidence" or whether the "witness [has] provided a consistent account of a particular incident".
2. Second, the jury was advised to give separate consideration to each count which meant it was "entitled to bring in different verdicts in relation to different counts", although any differentiation had to be based on logic and reason and it could "not compromise in relation to [its] verdicts".
3. Third, the jury was reminded that it was entitled to accept all of a witness' evidence, reject all or accept part and reject other parts. Later, the jury was advised that if it found that "a complaint was made by a complainant to one or more of [the] complaint witnesses that substantially corresponds with what that complainant told you in evidence had been done to them, then you can use the evidence of what was said in that complaint as some evidence that an assault did occur in the manner alleged by the particular complainant".
4. Fourth, the jury was given a direction concerning the effect of the delay in the applicant being notified of the allegations against him in responding to the Crown case (see Longman v R (1989) 168 CLR 79; [1989] HCA 60).
5. Fifth, the trial judge gave the jury a detailed "tendency direction" in relation to the evidence supporting all eleven counts, the critical part of which was as follows. "So before you can use the evidence of one or more counts in relation to one complainant as evidence available in your consideration of other counts relating to that same complainant or the other complainant in the way the Crown ask you to use it, you must make two findings beyond reasonable doubt as I have said. Firstly you must be satisfied beyond reasonable doubt that a particular count is made out and you have to determine that by reference to all of the evidence but disregarding any consideration of any questions of a tendency and ask yourselves whether you are satisfied beyond reasonable doubt that that count has been proved. If you are satisfied beyond reasonable doubt that one of the offences occurred then you go on to consider a second matter, that is whether or not Mr Martin in fact had this tendency the Crown asserts he did and you ask yourselves whether, from the act or acts that you found proved beyond reasonable doubt, you can infer or conclude that the accused had the tendency that the Crown alleges to engage in sexual acts with children. If you cannot draw that inference or conclusion beyond a reasonable doubt then you must put aside any suggestion of tendency and disregard it entirely in your consideration of the balance of the counts." (emphasis added)
6. The "tendency the Crown asserts" as referred to in this passage was a tendency to "engage in sexual acts with children".
7. Sixth, the jury was given a "Markuleski direction" (R v Markuleski (2001) 52 NSWLR 82) as follows: "Related to that I have directed you that you must consider each count separately and I have also told you that giving separate consideration to the individual counts means that you are entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there Is a logical reason for those differing outcomes. So if you were to find the accused not guilty on any count or counts, particular because you had doubts about the reliability of a particular complainant's evidence, you would have to consider how that conclusion about the reliability of that complainant's evidence affected your consideration of each of the other counts because as has been emphasised, the issue critical to the determination of each of the counts on the indictment is the reliability of the evidence of a particular complainant to whom a particular count relates."
8. These aspects of the summing up assume particular significance in light of a question asked by the jury on the day following the conclusion of the summing up, namely: "If a claimant (or claimants) are believed 100% but there is no corroborating evidence from others for a specific incident (or incidents) and the claimant(s) are felt to be reliable can a verdict of guilty be given?"
9. The trial judge answered that question as follows: "The short answer to your question is yes but just to remind you about the directions I gave you yesterday, you are perfectly entitled to convict on the uncorroborated evidence of a complainant. Given the fact that there is just the one witness to the events, I directed that you must carefully scrutinise their evidence but if, having given careful scrutiny to the evidence, you are satisfied beyond reasonable doubt then you are entitled to convict, based on that evidence and that evidence alone. If, for any reason, the absence of any corroborating evidence gave rise to a reasonable doubt in your mind then the existence of that reasonable doubt obviously would preclude a conviction and the appropriate verdict would be 'not guilty'".
10. Later that afternoon the jury provided a note about the progress of its deliberations. In response, the trial judge gave a "Black" direction concerning the resolving of differences of views before adjourning for the day (see Black v The Queen (1993) 179 CLR 44; [1993] HCA 71). The following morning the jury returned with its verdicts.

First Ground of Appeal: Inconsistent Verdicts

1. As noted, the first ground of appeal is that the jury's guilty verdicts with respect to counts 1 and 6 are inconsistent with the not guilty verdicts for the remaining counts.

Principles

1. The applicant bears the burden of establishing inconsistency of verdicts (Mackenzie v The Queen (1996) 190 CLR 348 at 368; [1996] HCA 35; "Mackenzie"). In a case such as this, where it is not said that the verdicts are "legal[ly] or technical[ly]" inconsistent, the relevant test is "one of logic and reasonableness" (Mackenzie at 366); that is, to establish this ground the applicant "must satisfy the court that the verdicts cannot stand together" in the sense that "no reasonable jury who applied their mind properly to the facts in the case could have arrived at that conclusion" (R v Stone, unreported, 13 December 1954, Devlin J; cited in Mackenzie id). If there is a proper way by which the appellate court may reconcile the verdicts then the Court may conclude that the jury properly performed its function (Mackenzie at 367). However, there is also "a residue of cases … where the different verdicts returned by the jury represent … an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty" or "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". Where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice then the relevant conviction will be set aside (Mackenzie at 368).
2. There is no general rule that in cases where several offences depend upon the evidence of a single complainant, an acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant's credibility was undermined in respect of the counts upon which it has returned guilty verdicts (MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [35] and [89]; "MFA"). This is so because where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the evidence of each witness may be accepted in whole or in part. Further, the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require "some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant" (MFA at [34]). Hence in MFA, Gleeson CJ, Hayne and Callinan JJ observed (at [34]): "… [a verdict of not guilty] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. 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. …" (emphasis added)

Consideration

1. Counsel for the applicant, Mr Moutasallem, contended that the jury's verdict of guilty on count 1 in relation to AB was inconsistent with the not guilty verdicts on counts 3 to 5 and that the verdict of guilty on count 6 in relation to CD was inconsistent with the not guilty verdicts on counts 7 to 12. It was submitted that the "credibility and unreliability" of the two complaints must have been impugned for the jury to return the not guilty verdicts. Even though CD's various disclosures to other witnesses concerned an allegation that the applicant touched her vagina, it was submitted that they could not logically explain the verdicts concerning the counts that relate to her. In relation to AB, it was submitted that there "was not a scintilla of corroborative evidence" supporting count 1 in that none of AB's complaints asserted he was forced to stroke the applicant's penis. Instead, to the extent they can be considered corroborative evidence, the complaints concerned allegations of "rape" and "fellatio" which was alleged with counts 3 to 5 but the applicant was acquitted on those counts. It was submitted that the inconsistency between the verdict on count 1 on the one hand and those counts is so "glaring" that intervention is necessarily required to prevent a possible injustice. It was further submitted that any such finding would also impugn the guilty verdict on count 6.
2. I do not accept this submission. When the verdicts are considered in light of the evidence, the directions and the jury's question then, as submitted by the Crown, a logical and reasonable explanation for the differential verdicts in relation to CD emerges. The question posed by the jury suggests that either AB or CD or both were considered to be both honest ("100% believable") and possibly accurate witnesses, but the jury was seeking "something additional" before being prepared to convict the applicant. In relation to CD, there was the complaint she made of touching by the applicant to Kelly West‑Sooby when they were twelve years old (see [52]), as well as a consistent history of complaints about touching since then. On its face, Ms West‑Sooby's evidence appeared to provide persuasive detail of an occasion when CD complained about being touched. The evidence of CD's mother was that, around that time, CD complained to her that she had been touched by the applicant and that was consistent with the police record dated 16 June 2005 (see [43]). KH gave evidence of a complaint by CD around 2007 followed by a complaint in 2013 that clearly supports count 6 (see [50]). Given the question asked by the jury, the verdict on count 6 is best explained by the jury finding CD's evidence to be "100% believable" and her evidence on count 6 is supported by her complaint to a school friend a few years later and to others in the years since. This is an example of the reasoning outlined in the passage from MFA at [34] extracted above.
3. The same reasoning does not apply to the verdicts concerning AB. AB did not make any complaint until around 2015 (see [45] and [49]) and none of those complaints concerned an incident of his being forced to touch the applicant's penis. The closest was a complaint to his mother that the applicant had touched him (see [45]). As noted by Mr Moutasallem, if anything AB's complaints were more consistent with aspects of counts 3 to 5. However, the Crown submitted that "something additional" followed from the availability of tendency reasoning and specifically the support for AB's evidence on count 1 that could be derived from the evidence on count 6. Hence, the Crown submitted: "If the jury were satisfied beyond reasonable doubt that the applicant committed count 6, they were entitled to find beyond reasonable doubt that, at the relevant time, the applicant had a tendency to engage in sexual acts with children in the nature of indecent touching. It follows that the jury were entitled to find that the existence of that tendency lent support to count 1 on the indictment, but not counts 3-5 which concerned acts of penetration."
4. In oral submissions, Mr Moutasallem contended that the availability of tendency reasoning could not justify the difference in verdicts between count 1 on the one hand and counts 3 to 5 on the other for two reasons. First, he submitted that tendency reasoning was available in relation to counts 3 to 5 yet the applicant was acquitted on those counts. Second, he submitted that there was a difference in the gender of the two victims of counts 1 and 6 and a difference between the relevant conduct, namely, the touching of the applicant's penis by the victim with count 1 and the forced touching of the victim's vagina by the applicant with count 6.
5. These points do not address the reasoning outlined in [70] above which moves from the verdicts concerning the counts that relate to CD to the counts that relate to AB. The tendency direction first required the jury to be "satisfied beyond reasonable doubt that a particular count [was] made out" before the evidence in support of it could be used to support tendency reasoning on other counts. The only such count concerning CD was count 6. That count concerned a form of sexual touching. Consistent with the admission of all the evidence as tendency evidence, a decision that was not challenged, that evidence was capable of having "significant probative value" in relation to counts 1 and 3 to 5 (Evidence Act 2005, s 97(2)). However, it was capable of having even greater weight in relation to count 1 as opposed to counts 3 to 5 given that it involved a form of sexual touching. The points of distinction between count 6 and count 1, relied on by Mr Moutasallem, are not without substance and they will be considered with ground 2. However, they do not undermine the conclusion that there is a logical and reasonable basis to explain the different verdict on count 1 to those for counts 3 to 5 such that it can be concluded that the jury properly performed its function in this respect (Mackenzie at 367).
6. It follows that I do not accept that the verdicts are inconsistent.
7. This ground of appeal does not raise a "question of law alone" and thus it follows that leave to raise the ground is required (Criminal Appeal Act, s 5(1)(b)). I would grant leave but reject the ground.

Second Ground of Appeal: Unreasonable Verdicts

1. As noted, the second ground of appeal is that the guilty verdicts on counts 1 and 6 were "unreasonable and/or unsafe", that is the verdict is "unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act, s 6(1)).

Principles

1. The test to be applied in determining this ground of appeal is whether, having assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the appellant's guilt to the criminal standard (M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63; "M"; MFA at [58]; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [11]). In exercising that function this Court must "not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box" (Pell v The Queen [2020] HCA 12 at [37]; "Pell"; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]). That said, "[i]t 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" (M supra). This was explained in Pell as follows (at [39]): "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." (emphasis added)
2. In light of the different verdicts reached in relation to multiple counts relating to the same victims, it is necessary to state how this ground relates to ground 1 of the appeal. This was addressed by Simpson J in R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [119] to [138] ("TK"). Her Honour addressed the application of the test in M to the circumstances where the contention that the verdict was "unreasonable, or cannot be supported, having regard to the evidence" includes resort to both the differential verdicts returned by the jury and the evidence adduced at the trial. Her Honour observed (at [127] to [128]): "What is implicit in that paragraph of MFA is that, where unreasonableness of a verdict of guilty is asserted by reason of a mix of verdicts, the inquiry is wider than that stated in M. In M no question of inconsistency arose, and, in cases of that sort, the inquiry is as to the adequacy of "the whole of the evidence" to support the verdict. In cases of the Jones variety, a further dimension is added - the "circumstances" of the particular case. That goes beyond "the whole of the evidence" and includes an examination of the significance of the acquittals, and what can be read into those verdicts. That is not, on my reading, an adoption (for inconsistent verdict cases) of the most commonly quoted M test. The foundation for the test stated in MFA is not confined to "the whole of the evidence" but incorporates "all of the facts and circumstances of the particular case". That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. 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. The inquiry may also permit examination of circumstances that give "insight" (Mackenzie), to the extent that is permissible, into the jury's thinking. Having regard to the willingness of the jury, in this case, to disclose its reasoning (through its regular communications) and, more particularly, to the unusual circumstances showing a degree of dissension during the process of deliberation, that is here of some considerable relevance." (emphasis added)
3. This passage, with its emphasis on inquiring into any "explanation, not for the convictions, but for the acquittals", has been consistently followed in this Court (eg Jafary v R [2018] NSWCCA 243 at [37]; Walker v R [2019] NSWCCA 4) and was not the subject of dispute on this application. It appears to be the logical consequence of this approach that once the verdicts are reconciled then the balance of the consideration of unreasonableness proceeds in accordance with that reconciliation including what it might reveal about the jury's assessment of a complainant's evidence (see AH v R [2019] NSWCCA 152 at [64]-[65] per Simpson AJA). If that is correct then there is a potential tension with the statement from Pell extracted above in that it might reveal that the jury did not assess a complainant to be "credible and reliable" at least in every material respect. It is not necessary to consider this further, because, for the reasons given in relation to ground 1, in this case the analysis of the evidence, directions and jury's question is consistent with the above statement from Pell in that it supports proceeding "upon the assumption that the evidence of [both] complainant[s] was assessed by the jury to be credible and reliable". Hence, the issue is 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" (Pell at [39]).

Consideration

1. The written submissions in support of this ground in relation to count 6 pointed to the "evolution of [CD]'s complaint" being a reference to the contrast between her complaints through the years of being touched and her complaints about the conduct that formed the basis of counts 7 to 12 that emerged after her disclosure to her mother when she was "about 15, 16". They also contended that CD's evidence that there was blood on her clothes and bed sheets in relation to counts 8 and 10 "was not corroborated by the evidence" of CD's mother (see [31] to [33] and [46]).
2. Neither of these matters amount to any form of "inconsistenc[y], discrepanc[y] … inadequacy" (Pell at [39]) or other reason to doubt either the honesty or accuracy of CD's evidence especially in relation to count 6 even allowing for the reasoning reflected by the Markuleski direction. CD's mother did not corroborate her evidence about blood on her underwear or sheets. However, I do not regard her denials of seeing blood stains as contradicting CD's evidence or even rendering it less probable. CD did not assert that her mother saw the blood stains, the size of the blood stains was not explored in evidence, nor was any other matter developed that would make it probable that a parent of three children looking after a busy household would notice such a stain. As already stated, CD's complaints about being touched were consistent over the years and her evidence in relation to count 6 was powerfully supported by Ms West‑Sooby's (detailed) evidence of a complaint. It is correct that more detail of other abuse emerged after the disclosure to her mother. CD addressed that in her evidence in the passage extracted at [38] above.
3. Having reviewed and assessed the whole of the evidence that was before the jury, it was open to the jury to be satisfied of the applicant's guilt to the criminal standard; that is I am not satisfied that the jury must as distinct from might, have entertained a doubt about the applicant's guilt (Libke v The Queen (2007) 230 CLR 559 at 596-597; [2007] HCA 30).
4. In relation to count 1 and AB, the written submissions raised four particular matters in support of the overall contention that the applicant's conviction on that count was "unsafe".
5. The first matter is that it was contended that there was reason to doubt the "reliability" of AB's evidence because he did not "come up to proof" on count 2. As noted, count 2 was an allegation that the applicant had also forced AB to fellate him at the same time as the events the subject of count 1. The Crown made the allegation in opening but in his evidence AB denied that anything further happened after he was forced to touch the applicant's penis. There was no cross‑examination of AB on the discrepancy between the Crown's opening and his evidence on this topic. This was understandable as otherwise AB might have proffered evidence to resurrect the count. However, the consequence of that forensic choice is that there was no evidence before the jury that AB had ever made a statement that was inconsistent with his denial that anything further happened at the time of the occurrence of count 1, much less that he was ever proffered any opportunity to address any alleged inconsistency between any such statement and his evidence. As the approach in M is addressed to the evidence led at the trial, it follows that this contention does not advance the attack on AB's honesty or reliability.
6. The second matter relied on was that AB did not advise the doctors he saw about his shoulder what the cause of the injury was. By itself this is not a matter of great moment but it needs to be considered with the third matter which concerns his evidence of "repressed memory" and the absence of any disclosures of his abuse by the applicant over a long of period. AB's evidence of his memory is set out above ([24]). The use of the phrase "repressed" was his own and represents no more than his characterisation of how he dealt with his experiences and how he recalled events rather than some description of memories that emerged from hypnosis (cf Curran v R [2020] NSWCCA 171 at [98] to [108]). Nevertheless, AB's failure to say anything in 2005 when his mother told him his sister had been abused casts some doubt on his credibility. By that time he was around 18 years old and the threat to his sister had dissipated. Moreover, what is noticeable about his disclosures in 2015 and 2016 is that none of them corresponds to the allegation with count 1 that he was forced to touch the applicant's penis. His disclosure to Ms Kippax in 2015 was of fellatio and not touching.
7. The fourth matter relied on by the applicant concerns the evidence of AB's mother that she did not notice that AB was showering late at night or that the applicant was ever away from bed for anything "out of the ordinary" (see [46]). Unlike the evidence in relation to CD's blood stains, this is something that SH can be expected to have noticed. I accept that this uncontradicted evidence is matter that makes AB's evidence to that effect less probable (Pell at [46]), although it is far from definitive.
8. None of this material provides a basis for doubting the jury's assessment that AB was an honest witness, however, the same cannot be said for its assessment of his reliability. In effect, with count 1 AB gave evidence of an event that he did not tell anyone of until he spoke to the police twenty years later, in circumstances where there were many occasions before then when it is expected he would make disclosures to his family and those close to him. When AB ultimately made disclosures to such persons they did not concern count 1 and, to an extent, the uncontested evidence of his mother affected the probability of his account being reliable. Lastly, there is the availability of tendency reasoning by relying on AB's evidence supporting count 6 to support count 1. While I consider that tendency reasoning is capable of providing a logical and reasonable basis for reconciling the verdicts in relation to AB, given the differences in the conduct the subject of count 6 compared to count 1 such reasoning does not overcome the doubts that I consider that the jury must have entertained about the reliability of AB's account in relation to count 1. It follows that I am satisfied that the jury must have entertained a doubt about the applicant's guilt on count 1.
9. I would grant leave to the applicant to raise ground 2. I would dismiss the ground in relation to count 6 but uphold the ground in relation to count 1.

Consequential Relief

1. It follows from the above, that the conviction on count 1 must be set aside and a "verdict of acquittal" entered (Criminal Appeal Act, s 6(2)).
2. Mr Moutasallem contended that, even if both grounds were rejected in relation to count 6, if ground 2 was upheld in relation to count 1 then the conviction in relation to count 6 had to be set aside as well. He contended that this was so because the tendency direction set out above meant that there was a realistic possibility that the jury relied on its conclusion in relation to count 1 to conclude that the applicant had the requisite tendency and then used that conclusion to support a conviction on count 6. While the analysis in this judgment has attributed the reverse reasoning to the jury, ie count 6 supported count 1, the reasonable possibility that the jury so reasoned cannot be excluded. If it did then it utilised an unreasonable finding in relation to count 1 to support tendency reasoning. For that reason, the conviction on count 6 cannot be sustained.
3. Ordinarily this would result in an order for a new trial (Criminal Appeal Act, s 8(1)). However, Mr Moutasallem next submitted that, as the applicant has almost completed the custodial portion of his sentence, a verdict of acquittal should be entered.
4. Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support it (Spies v The Queen (2000) 201 CLR 603; [2000] HCA 43 at [104]). Mr Moutsallem's submission raises a significant matter in favour of entering an acquittal (Jiminez v The Queen (1992) 173 CLR 572 at 590; [1992] HCA 14 per McHugh J). If the applicant was to be retried on count 6 and convicted there is no realistic possibility of his receiving a further custodial sentence for this offence. Further, it can be accepted that facing trial for a second time so long after the subject events and after the first trial could impose a significant burden. However, the charge is relatively serious and there is a strong public interest in the due prosecution and conviction of offenders (R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [49]; "Taufahema"), as well in not usurping the role of the Director of Public Prosecutions ("DPP") in deciding to prosecute and the role of the jury in determining the guilt or innocence of an accused (Taufahema at [51]). Overall, I consider the decision as to whether to place the applicant on trial should be left to the exercise of the DPP's discretion rather than pre‑empted by this Court.
5. Accordingly the orders I propose are: (1) Grant leave to the applicant to raise grounds 1 and 2 of his notice of appeal. (2) Allow the appeal. (3) Quash the convictions. (4) Enter a verdict of not guilty in relation to Count 1. (5) Order a new trial in relation to Count 6. (6) List the matter in the District Court Arraignments List at Newcastle on 24 September 2020.

Amendments 05 August 2020 - Amendment made to beginning of quote at [68]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020