MG v R [2017] NSWCCA 14 | Case summary

Overview of Crown case at trial

The complainants were three sisters: Elizabeth (not her real name) born July 1995 (counts 5, 6, 7, 12 and 13); Mary (not her real name) born May 1996 (counts 1, 2, 3, 4, 8, 9, 10 and 11) and Helen (not her real name), Mary's twin sister, born May 1996 (count 14).
The complainants on their mother's side had an older half-sister Jane (not her real name) born March 1991. The applicant and Jane were in a domestic relationship from 2007 until 2011 with three children born of this union. The complainants also had a number of half-siblings on their father's side one of whom, Sue (not her real name), gave evidence of complaint with respect to Mary. Counts 1, 2, 3 and 4 - Mary
The applicant was convicted on counts 1, 2 and 3 while being acquitted on count 4. Those counts related to events which occurred at the residence of Jane and the applicant in a country town. The incidents happened at the end of the 2008/9 school holidays, shortly before Mary commenced year 7 in early 2009. Mary was aged 12.
Mary gave brief viva voce evidence in chief and her two interviews with police from the Joint Investigation Response Team (JIRT) were played to the jury. Mary was then cross-examined at length and re-examined. Mary said that counts 1, 2, 3 and 4 were the first occasion that the applicant sexually assaulted her.
Mary was staying with Jane because she was playing junior golf early the next morning at a local recreation club. Mary's mother dropped her off on a Saturday afternoon at about 4.30pm before she went to work. The applicant had been sending explicit text messages to Mary for some time after she received her own mobile phone for Christmas in 2008.
The applicant initiated the sexual activity that afternoon by sending Mary explicit text messages including pictures of his penis. The text messages sent to Mary that afternoon included requests from the applicant to touch her. Mary said that she always replied "no". In cross-examination Mary was asked about the content of the text messages received from the applicant that day. She said that the first text messages asked "Do you know what sex is?" and the second "Did [I] want to have sex with him?". She replied "No, I didn't know what it was" and "No I didn't want to". Mary was lying on the bed in the spare bedroom of the house using a PlayStation. Jane who was pregnant at the time was either in the bath or her bedroom.
On that occasion the applicant did the following: Touched Mary's vagina through her clothes. Asked Mary if she liked it (she said "no"). Put his hand in Mary's pants and touched her vagina. Touched the inside of Mary's vagina with two fingers which lasted about five to ten minutes (count 1/Guilty). Made Mary touch his penis and rub it up and down (count 2/Guilty). Forced his penis into Mary's mouth by pushing her head down onto his penis (count 3/Guilty). Ejaculated into Mary's mouth. Removed Mary's clothing. Made Mary lie down on the mattress. Climbed on top of Mary and pushed her legs apart. Pushed his penis into Mary's vagina, taking it in and out for about 10 minutes (count 4/not guilty). Told Mary not to tell anyone.
Mary said that the sexual intercourse (count 4) stopped when Jane called out to the applicant. Mary said that she "felt violated … like her body didn't belong to her anymore".
In cross-examination with respect to counts 1, 2, 3, and 4 Mary admitted that she did not know: If the light was on in the room where the events were happening. If the door was open or closed. Where she spat the ejaculate. How the applicant removed her clothing (yet insisting that he did remove it). Whether her pyjamas were two or one piece. Whether she was wearing underpants that night. Exactly where Jane was at the time of the sexual intercourse.
In cross-examination Mary was asked if she felt anything when the applicant pushed his penis into her vagina to which she responded "I don't know". Mary said that the applicant did not ejaculate in her vagina but agreed that he had just ejaculated in her mouth shortly before that. Mary said that the applicant's penis was hard when it was in her mouth but she did not know whether it was hard or soft when he placed it in her vagina. Although Mary said that the applicant had placed his penis "in and out" of her vagina, she was unable to say how many times he did that. Counts 8, 9, 10 and 11 - Mary
The applicant was acquitted on all of the counts. Counts 8, 9, 10 and 11 relate to Mary when she was aged 14. The acts giving rise to these counts occurred in the 2010 school holidays when Mary was at home alone on a rural property called located two kilometres outside the country town where the events giving to counts 1 to 4 occurred. Mary said that she remembered this incident because it was the last time that she had sexual contact with the applicant.
Mary gave evidence of being sexually abused by the applicant on 23 December 2010. Mary anchored the occasion in time with precision as she was watching a movie called "Deck the Halls" which was a Christmas movie screened from 7.30pm to 9.30pm that evening on a free to air TV channel. Mary said that the incidents on this rural property "were mainly like the last one, like the first incident … He did them all practically the same".
Mary said that the applicant came to the rural property to pick her up and take her to her grandmother's house in town. Mary thought that her mother was at work. The applicant sat next to Mary on the lounge and started sending her text messages "like before". In a text message the applicant asked if he could touch Mary. She replied by text message saying "No".
The applicant then reached over the lounge and did the following to Mary: Touched her vagina through her clothes. Moved to the two-seater lounge next to her. Removed her pants and underpants. Pulled his own pants down. Rubbed his exposed penis (count 9/not guilty). Touched her vagina (count 8/not guilty). Pushed two fingers into her vagina (count 10/not guilty). Climbed on top of her and pushed her legs apart. Pushed his penis into her vagina (count 11/not guilty).
Mary said that the applicant did ejaculate but she was not sure where as she "really didn't want to see where it went". Mary said that she "felt violated. I didn't feel as bad 'cause I was used to it by then". Mary said that she did not tell anyone at the time but eventually told her sister Sue at the beginning of 2012 and Sue's husband.
In cross-examination Mary confirmed that she was at home alone and that the applicant came to the rural property to pick her up to take her to her grandmother's house. She confirmed that while she was watching the movie, the applicant sent her text messages asking if he could touch her. She replied by text message "No". Mary could not remember why she was in the house alone on this occasion.
Mary said that the applicant had not sent her any text messages earlier that day but her mother had sent her a text to let her know that the applicant would come and pick her up. When asked in cross-examination to recount the narrative of the discrete incidents which formed a part of the episode at the rural property, Mary did not refer to the applicant masturbating in front of her.
Mary gave evidence of a number of other discrete occasions when the applicant either sexually abused her or indecently assaulted her. This evidence was received as context evidence. Count 5 - Elizabeth
The applicant was convicted on count 5.
Elizabeth gave evidence viva voce in the trial. Given her age, she did not participate in a JIRT interview but made two statements over a period of months. Elizabeth said that when she was 13 years old she moved to the rural property and received her first mobile phone around this time. The applicant contacted her on that phone.
Elizabeth said that around August 2009, after her fourteenth birthday and before Jane's child was born on 3 September 2009, she and the applicant "had sex". The applicant sent Elizabeth a message while she was seated across the lounge-room at the rural property which read "Do you want to have some fun or something like that". Elizabeth replied "Yes" by text message. Helen was present with them, sitting in the lounge-room "probably watching TV".
After Elizabeth said "Yes" to the proposed sexual encounter with the applicant she went to have a shower. She then returned to the lounge-room with a towel around her. Elizabeth told Helen to have a shower so that she and the applicant "could have sex".
Elizabeth walked into her bedroom and the applicant followed. She lay down on the bed with the towel still wrapped around her while the applicant took condoms out of his pocket, pulled down his pants and pulled the towel off Elizabeth. He then "climbed on top of me and put his penis in my vagina". Elizabeth described the applicant's penis as "hard". She could not remember what she felt, how long the intercourse lasted and was unsure whether or not the applicant ejaculated. The applicant stood up and asked where to put the condom. Elizabeth told him to put it in an empty chip packet. After this the applicant left the room.
Elizabeth was cross-examined extensively in relation to count 5. She insisted that it had occurred and remained consistent in her answers with respect to details of the incident. Elizabeth said that she went to the same house in a country town with the applicant, even after the events giving rise to count 5, "because at that stage I loved him". Counts 6 and 7 - Elizabeth
The applicant was acquitted on counts 6 and 7.
During the Christmas school holidays at the end of 2010 towards the beginning of the holidays, Elizabeth went to Jane's and the applicant's home in the country town. Jane was not present but her two children, L and M (who was only two months old), were at home. Elizabeth went to help the applicant look after them in Jane's absence.
Elizabeth stayed one night at the house and slept in a swag on the lounge-room floor. The next morning Elizabeth was on the lounge-room floor lying on her stomach in the swag. About ten minutes after she had woken up, the applicant came in and asked her for sex. Elizabeth said "No". The applicant left and came back to the lounge-room with a laptop and played "porn" on a DVD which he placed in front of Elizabeth. Elizabeth was wearing long pyjama bottoms and a singlet top.
The applicant did the following: Lay down beside Elizabeth. Climbed on top of her back. Pulled down Elizabeth's pyjama pants and underpants. Pushed Elizabeth's legs apart. Inserted his penis into Elizabeth's vagina (count 6/not guilty).
Elizabeth said that the applicant's penis was "hard". There was no conversation and the intercourse lasted until the baby M started crying when the applicant "got up and went and tended to her". Elizabeth got up, pulled her pants up and sat on the single seater lounge.
The applicant returned to the lounge-room and did the following: Locked the front door. Sat down in the recliner next to Elizabeth. Grabbed Elizabeth's right wrist and pulled her over to stand in front of him. Pulled Elizabeth's pants and underpants down. Pulled his own underpants down. Pulled Elizabeth down so that she was sitting on his penis which penetrated her vagina (count 7/not guilty).
Elizabeth described the applicant's penis as "hard". His penis remained in her vagina for about five minutes after which he got up and went somewhere. The complainant got up and pulled her underwear and pants back on. After this Elizabeth and the applicant went to a different country town to pay the bond on the applicant's and Jane's new house. Counts 12 and 13 - Elizabeth
The applicant was convicted on counts 12 and 13.
Jane and the applicant moved into a new house in a different country town. In January 2011 Elizabeth went to stay for three nights at the new house at the request of Jane and the applicant. Elizabeth said that the applicant had sex with her on the first and second nights of her stay (counts 12 and 13).
Elizabeth said that she went to bed on the first night at about 10pm. Jane and the applicant were still up. Elizabeth was sleeping in a swag on the floor in the child L's bedroom. Elizabeth woke up in the swag, the lights were off and she felt the applicant touching and spreading her legs.
The applicant then did the following: Pulled Elizabeth's pants and underpants down. Inserted his erect penis into Elizabeth's vagina for about 10 minutes (count 12/Guilty). Got up and left the room.
Elizabeth did not know: How long she had been asleep before the applicant came into the room. Whether or not the applicant ejaculated. Whether the bedroom door was open or closed when the sexual intercourse took place. What she had done that day.
Around the same time the following evening the applicant did "pretty much the same as the first night". The applicant climbed on top of Elizabeth, moved her legs apart and put his erect penis in her vagina. Count 14 - Helen
The applicant was convicted on count 14.
Helen gave evidence in chief in relation to count 14 by the playing of her JIRT interview, dated 23 February 2011. Helen said that she went to stay with Jane and the applicant just after they moved in to that house. Helen said that on the second night of her stay the applicant came into the bedroom where she was sleeping to check the infant L. Helen woke up to find the applicant pulling her legs open. Helen rolled over and went back to sleep. When Helen awoke the next morning the applicant wrote messages on his phone and showed them to her. The first message was that he "was in L's room mucking around with me …".
The applicant then wrote further sexually suggestive text messages to Helen including that he wanted her to go to bed that night with no pants on. That night when Helen went to bed she could barely sleep as she was anxious in case the applicant came in. She tucked the blankets around her. The applicant did come into the bedroom about four times and lifted the blankets and "kept pushing the blanket up my legs".
When Helen returned to the town where she lived, she complained to her mother's friend, Felicity Wilson, and then to her mother about what the applicant had done to her at the other country address. Other evidence Tendency evidence
The Crown relied upon tendency evidence which was identified as: The evidence of each complainant in support of each other's charges. Some of the context evidence (the shower incidents with respect to Mary). The touching of Mary under the blanket by the applicant. The call charge evidence.
The tendency was particularised as a pattern of behaviour that showed that the applicant had a "tendency to act in a particular way, namely to groom girls aged between 12 and 15 years for sexual exploitation and to have a particular state of mind, namely sexual attraction to girls of that age which he was prepared to act upon for his own pleasure".
Felicity Wilson and the complainants' mother gave evidence of the complaint by Helen. This complaint by Helen was made within hours of her return from Cowra. Sue and her husband gave evidence of the complaint from Mary. Call charge records
The Crown produced a number of documentary exhibits, including charge records for the mobile phone service used by Mary during the relevant periods of alleged offending in 2009 and 2010, showing a log of her incoming and outgoing calls and text messages (Exhibits V and W). Colour coding of the records showed which calls and messages were between Mary's phone and the various phone numbers registered in the applicant's name at those times. In the period 1 January to 31 March 2009 there was a total of 2580 calls and/or messages to Mary's phone from the four phones registered in the applicant's name. In the same period there was a total of 1,778 calls/messages from Mary's phone to those four phones. In the later period 1 November to 31 December 2010 there were only 19 calls/messages to Mary's phone from the two phones registered in the applicant's name and only two calls/messages the other way.
On 7 February 2009, which may be the date of counts 1, 2, 3 and 4, there was a consistent and high volume of text messages exchanged between the two.
The same call charge records showed that there were no text messages exchanged between the applicant's phone and Mary on 23 December 2010.
A friend of Mary's, a child at the time, was on the bus to Wedderburn on a school excursion with Mary who showed her a text message on her phone. The message came from "Matt" and she recalled the words "doggy style". Admissions to Messrs King and McGuigan
Mr King was a handyman who met the applicant in 2009. Mr King met Jane, the complainant's mother and knew of Jane's three younger sisters. He recalled a conversation with the applicant at a time when the applicant was working for him. The applicant asked him if he thought that one of Jane's younger sisters was attractive.
He replied "Yeah she is attractive but she is your partner's sister, number one and she's underage, number two". The applicant responded that he thought that he "had chances with them because they flirted with him …".
Mr King said that he thought the applicant "Sort of related to me and he I guess found that he was - I was someone he could talk to being older and he related to me that he had slept with one of the sisters and now I have confusion over who it was and I can't remember who it was …". Mr King said that the applicant told him that this had happened when "Jane was in the shower and that one of the sisters came onto him and started kissing him". Mr King said in his police statement that the applicant told him that he had "slept with the next sister down from [Jane]".
Mr McGuigan met the applicant in May 2009. Mr McGuigan subsequently became the licensee of the local hotel in April 2013.
A couple of months after they met, the applicant said to him "Guess what happened to me last night?". He went on to tell him that "[ER] went for a shower and one of her sisters went and jumped on his lap and he took her to the bedroom and they had sex". Mr McGuigan said "Isn't she under age?" and the applicant confirmed that she was. Mr McGuigan told him that he was a "sick fuck". The applicant told him that the sex was "awesome". The evidence of Jane
Jane could not recall an occasion when she left the applicant to look after the two children when she lived at a country town. She insisted in evidence in chief that she was always with the children at night. In cross-examination Janea greed that it was "possible" that late in 2010 Elizabeth could have stayed the night at her place and helped the applicant look after the children. Anchors in time
Records from the Central School confirmed that the camp at Wedderburn was held from 18 - 20 March 2009. The complainant's mother anchored the purchase of the mobile phones at Christmas 2008. Mary started at the Central School on 31 January 2002 and was in year 7 in 2009. The applicant rented premises in the country town from December 2008 until September 2009. Evidence from the recreation club indicated that Mary attended a golf day on 8 February 2009. Records from Channel GO confirmed that the movie "Deck the Halls" was screened at 7.30pm on 23 December 2010. Defence case at trial
The applicant did not give evidence at trial. Two statements which he made to the police on 10 March 2011 and 14 June 2012, which had been recorded audio-visually, were shown to the jury. The interview on 10 March 2011 related to the allegations by Helen and that on 14 June 2012 was related to the allegations by Mary.
In the 10 March 2011 interview, the applicant denied Helen's allegations. He said that if he had gone into Helen's room it was only to give the child L a bottle. The applicant denied sending text messages to Helen. He said that when he drove Helen home, everything was fine and she was talking to him.
In the interview on 14 June 2012 the applicant denied Mary's allegations. He described his relationship with Jane's younger sisters as "they were like little sisters to me until all this stuff started happening. 'Til I … got accused of doing stuff that I didn't. We - I might as well say - we supported them because their mother's got a bad gambling problem. So we had to buy stuff for them all the time". He said that he had never been alone with Mary at the house in the country town, but agreed that Jane was pregnant when they were living at that location. The applicant agreed that he had had various mobile phones and different numbers and said that sometimes they would be registered in ER's or his sister's names. He could not explain why one of the phones registered in his name was texting Mary's phone in November and December 2010 when he had said that he was not in contact with her then. He said he might have been texting her on Jane's behalf "because nine times out of tem she didn't have credit". Ground of Appeal
The applicant relied upon a single ground of appeal: The jury's verdicts of guilty on counts 1, 2, 3, 5, 12, 13 and 14 are unreasonable and cannot be supported having regard to the evidence and to the verdicts of not guilty on counts 4, 6, 7, 8, 9, 10 and 11. Counts 1 - 4
The applicant submitted that the events giving rise to counts 1 - 4 occurred, according to the evidence of Mary, in an unbroken sequence early in 2009. He submitted that because the jury found him guilty of counts 1 - 3 and not guilty of count 4, and having regard to the evidence, the addresses of trial counsel and the directions given to the jury, the only rational explanation for the verdict of not guilty in respect of count 4 is that the jury rejected Mary as a witness of truth.
In support of that submission the applicant relied upon inability of Mary to remember important factual matters (see [13] hereof) which she should have recalled had the events occurred as she asserted. The applicant relied upon the fact that no reference was made by Mary to the events that constituted count 2 when cross-examined. The applicant noted that when asked in re-examination why she had made no reference to those matters she responded "No. I don't know why I didn't mention that" (T.77.6).
The applicant relied upon the evidence of Jane that she never needed help in getting out of the bath even when she was pregnant. He submitted that no good reason was offered by Mary for why she did not call out to Jane as the events giving rise to counts 1 - 4 were occurring. The applicant submitted that the answers provided by Mary on this issue were unconvincing: "I don't know why I didn't. I guess I was scared. I didn't know what would happen if I did call out to her, what he'd do to me." (T.78.10)
The applicant relied upon the delay in Mary making any complaint in relation to these incidents despite being aware of Helen's allegations from some time in 2011.
The applicant submitted that when Mary's evidence in relation to counts 1 - 4 is viewed as a whole, the only plausible basis for reconciling the jury's different verdicts on those counts is that the jury formed an adverse view of the veracity of Mary's account with respect to count 4. The applicant submitted that the nature and quality of the evidence at trial in support of count 4 did not differ materially from the evidence in support of counts 1 - 3. In each case the evidence consisted solely of Mary's account as to what happened on the evening in question. The applicant submitted that her account with respect to each of counts 1 - 4 suffered from significant deficiencies in recollection.
The applicant submitted that the independent witnesses, Mary's school friend and Messrs McGuigan and King which were relied upon by the Crown, did not provide a reasonable basis for reconciling the various counts involving Mary. The applicant submitted that their evidence was of a general nature and did not support any of the specific counts brought against him involving Mary.
The applicant submitted that there were no particular features of Mary's evidence, or the surrounding circumstances in respect of counts 1 - 3, which might have provided a rational basis for differentiating between those counts and count 4, nor is there evidence corroborative of those counts. The applicant submitted that the jury's verdict of not guilty with respect to count 4 is indicative of them having doubts about Mary's credibility so as to render that verdict inconsistent in the requisite sense with the jury's verdicts on counts 1 - 3. Counts 8 - 11
The applicant submitted that Mary was able to give more detailed evidence as to the events giving rise to these counts than in respect of counts 1 - 3. She was able to identify the date, because the movie "Deck the Halls" was showing that night on free to air TV, i.e. 23 December 2010. She gave evidence of the applicant being seated near to her, touching her, touching the inside of her pants until he "hopped onto the two-seater lounge with me" and "removed my pants and then he raped me again" (T.45.4 - 8). She was able to say that he "pulled out before he had ejaculated" and that she then had a shower (T.45.45 - T.46.1). The applicant noted that Mary said that he had sent her text messages while these events were happening. The applicant noted that Mary made no mention at trial of him masturbating in her presence during this episode (being the subject of count 9). In re-examination she said that she had "forgotten to mention it" (T.77.32).
The applicant submitted that the nature of Mary's complaints in relation to these counts, the circumstances in which they occurred and the terms in which they were recounted did not vary materially from the evidence relating to counts 1 - 3. The applicant submitted that having regard to all the facts and circumstances, the only rational explanation for the jury's verdicts of acquittal in relation to counts 8 - 11 is that the jury rejected Mary as a witness of truth such as to cast doubt on the verdicts of guilty with respect to counts 1 - 3. Counts 5, 6, 7, 12 and 13 - Elizabeth
The applicant noted that the offences giving rise to these counts occurred on 3 separate occasions - August 2009, December 2010 and January 2011. He submitted that Elizabeth's explanation for her delay in complaining about his alleged conduct was not believable, e.g. "I just wasn't ready. I felt like it was my fault" (T.117.42). When Helen came forward with her allegations in January 2011, her mother asked Elizabeth whether anything similar had happened to her and Elizabeth responded in the negative (T.141.4). When asked in re-examination why she did not say anything to her mother, Elizabeth answered "I really don't know why I didn't" (T.141.16). She later agreed with the proposition that she was still blaming herself at that stage (T.141.38).
The applicant submitted that as with count 6, the acts constituting the sexual intercourse in counts 12 and 13 took place with Elizabeth lying on her stomach. In relation to count 7, Elizabeth had her back to him. The applicant relied upon what was said by defence counsel at trial in his closing address that nothing was said by Elizabeth in respect of those occasions about the applicant experiencing any difficulty in performing the act of penile vaginal intercourse while Elizabeth was in that position.
The applicant submitted that it was incongruous that verdicts of not guilty were entered in respect of counts 6 and 7 which were said to have occurred when he was the only adult in the house, whereas he was convicted in relation to counts 12 and 13 which were said to have occurred about one month or so after counts 6 and 7 when Jane was at home and the events were said to have taken place in L's room where Elizabeth was sleeping on the floor. This was despite the unchallenged evidence of Jane that L would wake up in the middle of the night between 1 and 2am and one of his parents would come in to tend to him.
The applicant relied upon Elizabeth's evidence that she returned to his home to stay only two nights after the events, the subject of counts 12 and 13, were alleged to have occurred. The applicant submitted that notwithstanding these differences which might reasonably be thought to have weakened the reliability of Elizabeth's evidence as to counts 12 and 13 by contrast with the evidence of counts 6 and 7, the jury found the former counts proved beyond reasonable doubt and not the latter.
The applicant submitted that even if the jury relied upon the evidence of Helen in relation to count 14, as supporting the incidents giving rise to counts 12 and 13, this must still cast doubt on the credibility of Elizabeth.
The applicant submitted that having regard to all the facts and circumstances of the case, including all of the evidence, the conduct of the trial and the verdicts ultimately reached, there was no "coherent and rational basis" for distinguishing between the various counts involving Elizabeth other than a doubt as to the credibility of her evidence. The applicant submitted that Elizabeth's evidence with respect to counts 6 and 7 did not reveal any greater uncertainty as to detail than her evidence regarding counts 5, 12 and 13. There were no discrepancies in her account nor was she shown to have a faulty recollection of some matters relevant to those counts. The applicant submitted that the nature of her evidence differed only insofar as Elizabeth testified that she willingly participated in the episode underlying count 5. The applicant submitted that there was no independent or corroborative evidence of the acts constituting counts 5, 12 or 13 such as might provide a point of differentiation for those counts. The applicant submitted that the jury's selective acceptance of the evidence of Elizabeth reflected their doubt regarding Elizabeth's veracity, which doubt should have applied to all of the counts involving her. Count 14 - Helen
The applicant noted that according to the evidence of Helen, as a result of what he had written on his phone and passed to her, she was aware that he was likely to come into her room the next night. He submitted that Helen's explanation for not telling Jane was unconvincing. Helen said that she "didn't know what to do" (T.157.8) and said that Jane could not have done anything about it because she did not have her licence. The applicant noted that when it was put to Helen that Jane could have arranged for Helen's mother to collect her, Helen said "Yes I know but I was also scared and I didn't know what to say" (T.165.43).
The applicant relied upon differences between what Helen told Felicity Wilson and what she had told the police in her statement. It differed in terms of the extent of the applicant's alleged conduct with Helen in that she told the police only that the applicant had tried to push up her pyjama bottoms along with the blanket and to pull her legs apart.
The applicant submitted that Helen's evidence did not receive any support from Elizabeth's evidence concerning counts 12 and 13. The applicant's reasoning was that in circumstances where the jury's verdicts on counts 12 and 13 were unreasonable due to their inconsistency with the verdicts of acquittal, such reasoning would in turn compromise the jury's verdict on count 14. In other words, if the jury's verdict on count 14 was referable to evidence given by a complainant whom the jury had rejected as a witness of truth (i.e. Elizabeth), then that verdict is unreasonable and cannot be supported. Consideration Relevant principles
The correct approach in determining this ground of appeal is stated in SKA v The Queen [2011] HCA 13; 243 CLR 400 where the plurality (French CJ, Gummow and Kiefel JJ) said: "11 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". 12 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'." 13 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." … 14 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]
The particular problems arising from verdicts of acquittal and conviction on different counts were specifically considered in MFA v The Queen [2002] HCA 53; 213 CLR 606. The importance of the advantage possessed by the jury was stated by the plurality (Gleeson CJ, Hayne and Callinan JJ) as follows: "23 The case was one in which the jury's assessment of the three principal witnesses, the complainant, MA, and the appellant was vital. The alleged offences arose out of sexual activities between the appellant and boys of a much younger age. The activities were not brought to notice as a result of any complaint by the boys. When first approached by the police, they denied the activities. In court, they sought to explain this by fear and shame. Furthermore, in evaluating the effect of the evidence of MA, the jury were entitled to take account of his age at the time of the alleged events, and the possibility of some confusion on his part. None of this relieved the Court of Criminal Appeal of its responsibility in scrutinising the evidence, and making its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment, the Court would properly have been conscious of the fact that there were aspects of the case that would not be reflected adequately in the written record."
Later the plurality said: "34 Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie. They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It 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. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed."
In cases such as this, the test established by s 6(1) of the Criminal Appeal Act "is unreasonableness not inconsistency". In TK v R [2009] NSWCCA 151; 74 NSWLR 299 Simpson J (with whom McClellan CJ at CL and Latham J agreed) observed: "135 … But it seems to me that, where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test. The issue is not only whether the verdict was open "upon the whole of the evidence". It is whether the verdict was open on the whole of the evidence, and having regard to all relevant facts and circumstances, including the circumstance that the jury acquitted on one or some counts, whatever (if anything) can be discerned as the explanation for the acquittals, and whatever insight can be gained into the jury's thinking and reasoning. It is only where the only reasonable explanation for the acquittals is doubt about the complainant's veracity that an appellate court would be obliged to take the approach taken in Jones (and in Norris). 136 In my view an appellate court ought to exercise caution before concluding that the explanation for differential verdicts is compromise. Inherent in that conclusion is the further conclusion that the jury has acted contrary to its duty, and contrary to the instruction it has been given. The criminal justice system depends upon its faith in juries adhering to their obligations, as explained to them, and acting in conformity with those obligations: see, for example, Mackenzie (at 367); R v Landsell (NSWCCA, unreported, 22 May 1995 per Gleeson CJ). It is only in circumstances where the evidence points, and points clearly, even unequivocally, to departure from those obligations that an appellate court will come to such a view."
Earlier in TK, Simpson J also said: "130 Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility."
It is clear from the authorities that the applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency arises to the point that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. The ultimate question concerns the reasonableness of the jury's decision and the significance of verdicts of not guilty on some counts on an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. In R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [219] - [221] Wood CJ at CL warned against assuming too readily that a difference in verdicts returned inevitably demonstrates a want of credibility in the complainant or central witness. His Honour noted that an acquittal does not amount to a positive finding that the act alleged did not occur or that the evidence of the complainant was rejected as a lie or as lacking in credibility.
The test is one of logic and reasonableness. The applicant must satisfy the Court that the verdicts cannot stand together, i.e. that no reasonable jury who applied their minds properly to the facts in the case could have arrived at that conclusion. 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.
As I observed in Wingrove-Pryce v R [2014] NSWCCA 290 (Adams and R A Hulme JJ agreeing): "45 As the authorities cited make clear, the fact that an acquittal has been entered does not necessarily mean that the jury disbelieved the complainant. It may simply mean that the jury was not satisfied beyond a reasonable doubt as to some element of the offence or, as was pointed out in MFA, the jury may be looking for some extrinsic element for corroboration." Application of principle to the facts Counts 1 - 4 - Mary
There is a logical and reasonable explanation for why the jury might not have been satisfied beyond reasonable doubt as to the occurrence of the incident described in count 4 (penile-vaginal intercourse). The evidence was that this had occurred after the applicant had digitally penetrated Mary's vagina, masturbated in front of her and then placed his penis in her mouth until he ejaculated. He then proceeded to place his penis in her vagina. In cross-examination Mary gave evidence that the applicant had already ejaculated before engaging in penile-vaginal intercourse.
There is a strong likelihood that the jury was not satisfied beyond reasonable doubt as to the occurrence of count 4 in those circumstances. This is not to say that such a sequence of events was physically impossible but experience would suggest that it was unlikely.
It is also of significance that defence counsel at trial specifically addressed the jury on this issue and the implausibility of Mary's answers with respect to count 4. He referred to Mary's answers that she did not know whether the applicant's penis was hard or soft, did not know how many times he inserted it and withdrew and that she did not know if she felt anything when the applicant inserted his penis into her vagina.
It was therefore not unreasonable for the jury to conclude that, given those discrete shortcomings in Mary's evidence with respect to count 4, they were not satisfied beyond reasonable doubt that the offence occurred. In using such an approach, the jury were doing no more than following her Honour's directions as to the burden and standard of proof and gave the applicant the benefit of the doubt on count 4 whilst convicting on counts 1, 2 and 3. Counts 8 - 11 - Mary
There was evidence before the jury that the date when counts 1 - 3 occurred was probably 7 February 2009 in that the records of the local recreation club indicated that Mary had attended a golf day on 8 February 2009. Similarly, there was evidence that the night on which the events in counts 8 - 11 occurred was probably 23 December 2010 since that was the night on which the movie "Deck the Halls" screened between 7.30 and 9.30pm. The importance of that evidence is that use can be made of the call charge records by reference to specific dates.
The call charge records for early February 2009 are fully consistent with Mary's evidence as to communications between the applicant and her by means of texts. It is difficult to reconcile the sheer number of those communications between a man in his early 20's and a 12 year old girl with anything other than some form of sexual grooming. In particular, the records for 7 February 2009 show a high level of texting exchange between the applicant and Mary in accordance with the evidence which Mary gave.
By way of contrast, counts 8 - 11, which according to Mary were initiated by prior text messages from the applicant, were not supported by the call charge records in relation to text messages occurring on 23 December 2010. Specifically, there was no record of any text message exchange between the applicant's phone/s and Mary on that date.
For a jury conscious of what had been said to them by English DCJ in her Murray direction this was a piece of objective evidence which they could use to assist them in their deliberation as to whether or not they were satisfied beyond reasonable doubt as to the occurrence of the incidents in counts 8 - 11.
In addition, despite what Mary had said to the police in her recorded JIRT interview, in cross-examination at trial she failed to recount the applicant masturbating (count 9) and then digitally penetrating her vagina (count 10) before having penile-vaginal intercourse with her. In cross-examination Mary also left out a significant part of the narrative underpinning those counts. Despite Mary's explanation in re-examination that she had forgotten to recount those incidents, this provided another reasonable and logical basis for the jury not being satisfied beyond reasonable doubt as to the occurrence of the incidents described in counts 8 - 11 without necessarily forming a positive view that Mary was not telling the truth. Counts 5, 6, 7, 12 and 13 - Elizabeth
An analysis of the evidence relating to these counts highlights what is lacking in relation to counts 6 and 7 when compared with the three counts in respect of which the applicant was convicted. In relation to count 5 the evidence of Elizabeth could be fairly described as evidence against her interest and certainly evidence which it must have been difficult for her to give. Not only was she a willing participant in the offending but she took steps to facilitate its occurrence by ensuring that Helen was having a shower at the time. One of her explanations for why she did not make any complaint until quite late is that she felt that the occurrence of the incidents in the counts was her fault. Not only is this feeling of guilt a common reaction in child victims of sexual assault but it is consistent with her high level of co-operation in the occurrence of the offence.
There are also other aspects of the evidence which support the evidence of the applicant in relation to count 5. Messrs King and McGuigan were told by the applicant of an incident involving Jane having a shower. While that is different to the evidence of Elizabeth as to what occurred, the association of the sexual contact about which the applicant boasted with someone who was not involved, having a shower establishes a clear connection with her evidence. It is also significant that in his police statement Mr King said that the applicant had identified the sister with whom he had had sex as "the next sister down from [Jane]" (T.263). The "next sister down from" Jane was Elizabeth.
In order to assess Elizabeth's evidence as to counts 12 and 13 one has to have regard to the evidence of Helen. Helen was clearly believed by the jury. She was the only sister to make a complaint within a short time of the incident occurring. It is significant that the description of the applicant's actions leading up to the offending which gave rise to count 14 is very similar to the description given by Elizabeth in respect of counts 12 and 13. It is also important that the offending in counts 12 and 13 occurred shortly before that in count 14.
Once the jury was satisfied beyond reasonable doubt as to the occurrence of the offending in count 14, that would almost certainly have the effect of providing support for the evidence of Elizabeth as to what had occurred some days previously, particularly given the similarity in the applicant's actions on those occasions. It is clear from the evidence of Helen that the presence of the baby L in the room did not dissuade the applicant from his offending. If that were the situation with her, it was also likely to be the situation when Elizabeth stayed in the same room thereby removing as an issue that such conduct on the part of the applicant was inherently improbable because of the presence of the baby.
When Elizabeth's evidence concerning the matters in counts 6 and 7 is compared with the evidence relating to counts 5, 12 and 13 it lacks the elements of corroboration which exist in relation to those other counts. This provides a reasonable and logical explanation for why the jury might not have been satisfied beyond reasonable doubt as to the occurrence of the incidents in counts 6 and 7 without the jury necessarily disbelieving Elizabeth. Conclusion
On the basis of the above analysis and when looking at the totality of the evidence and its nature and quality there was no reasonable or logical basis for why the jury should have experienced a reasonable doubt as to the guilt of the applicant in relation to the counts upon which he was convicted. Put another way, there was a reasonable and logical basis in the evidence for the jury to be satisfied beyond reasonable doubt that the applicant committed the offences for which he was convicted.
The order which I propose is that leave to appeal against conviction be granted but that the appeal be dismissed.
JOHNSON J: I agree with Hoeben CJ at CL.
LATHAM J: I agree with Hoeben CJ at CL.

MG v R

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