Park v R

Ground 1 - Juror confusion as to the counts

1. The applicant's first ground of appeal is couched in the terms of s 6(1) of the Criminal Appeal Act 1912 (NSW), being that the conviction was "unreasonable, or cannot be supported, having regard to the evidence". Senior counsel appearing for the applicant indicated that the applicant's first ground was not a general argument that the jury must have entertained a reasonable doubt about guilt in light of the evidence as a whole, but raised two specific issues: 1. that the jury was confused about what was charged under what counts; 2. that the verdict of not guilty on Counts 1 and 1A, along with the inability to reach a verdict on Count 4, were inconsistent with the verdict of guilty on Count 2.
2. I will address the former point here and deal with the latter in the next part of these reasons.
3. The charges against the applicant were presented by the Crown in an inconsistent and confusing way. The indictment set out four counts: 1. Count 1 was for aggravated sexual touching under the then s 61KD(1)(a) of the Crimes Act, and concerned the alleged kissing. 2. Count 2 concerned the intercourse, and was for aggravated sexual assault under s 61J(1). 3. Count 3, which was expressly in the alternative to Count 2, was for sexual assault under s 61I. It related to the same events as Count 2 but without the circumstance of aggravation. 4. Count 4 was for aggravated sexual touching under s 61KD(1)(a), and concerned the alleged touching of the complainant's breasts.
4. The case was put to the jury as involving two further counts in the alternative to Counts 1 and 4, being the two aggravated sexual touching charges. These alternative counts - seemingly labelled "Count 1A" and "Count 4A" during the trial, although they did not appear on the indictment - were for offences of the same sexual touching but without the circumstance of aggravation (ie that the complainant was under the authority of the applicant). These counts arose under a different section of the Crimes Act, namely s 61KC.
5. Counsel for the Crown - who had not appeared at the trial - said that different prosecutors adopt different practices with respect to whether or not such alternative charges are put on the indictment or not. That may be so but in this case an inconsistent approach was adopted. There were three charges involving the same circumstance of aggravation. For one of those charges, Count 2, the alternative unaggravated charge was listed on the indictment (Count 3), but as regards Counts 1 and 4, the alternative charges were not listed, but described as Counts 1A and 4A. No justification for adopting this inconsistent approach was offered or is apparent. That approach is to be deprecated as being liable to lead to confusion. In this case, it is possible that there was some confusion for a time.
6. The jury commenced to consider its verdict at about 10:15am on Wednesday 16 February 2022. On that day, the jury sent the trial judge two notes, the first of which related to looking at the charges separately. The second note sought explanations in respect of the meanings of "under authority" and "in circumstances of aggravation", and requested that the judge repeat what was said about the "three levels of consent" (a point to which I will return below). Another two notes were sent the following day, Thursday 17 February. The first raised a further question about the relationship (going to the issue of being under authority). The second note, sent late that day, read "[w]hat happens if the jury cannot agree on any of the charges? All 12 cannot agree". A Black direction was given the following morning, on Friday 18 February. A further note was submitted after lunch that day, which read "[w]e are able to agree unanimously on one indictment at this stage". The trial judge simply thanked the jury for the note and asked them to continue deliberating on the following Tuesday (the jury did not meet on the Monday).
7. In fact the jury did not meet on the Tuesday, for medical reasons relating to one juror, but reconvened on Wednesday 23 February 2022. A note was received that day which read "[w]e are unanimous on one indictment. We are unable to come to a decision on the other indictments". The judge then asked some questions of the foreperson of the jury in court, under oath. The foreperson gave evidence that she believed the jury would be unable to reach a unanimous verdict, and she understood that to be the view of the whole jury. Her Honour then gave a majority verdict direction, and the jury retired again at 3.32pm.
8. Not long thereafter a further note was received which read: We are unanimous on one indictment. 11/12 on one indictment and undecided on all others.
9. Her Honour then gave a direction, which included the following: Could you please put in a note to me the following things. To tell me which count in respect of which you are truly unanimous. To tell me which count it is that you are 11 - 11 of you agree about. Please make it clear if it relates to counts 1 or 4, whether or not it is one that is on the indictment or the statutory alternative which includes - which does not have the element of being under authority. So I want to know if it relates to either of those two counts, which of those two you have reached a verdict in respect of. I think I described them to you as 1A and 4A, 1A and 4A being the fallback position that does not have that added element to it. If it is in respect of that matter I need to know. And so far as counts 2 and 3 are concerned, obviously enough that is an alternative, 3 is an alternative to 2, so I need if it related to that count I need to know which of those it is.
10. A note was then sent which read: 1A 11/12 on the alternate. 3 Unanimous. 4 Undecided.
11. In the context of a majority verdict direction having been given, the first entry suggests that a majority verdict had been reached on Count 1A. It was not clear if any verdict had been reached on Counts 1 or 2. If the jury was undecided on Count 4 then they may not have reached consideration of Count 4A.
12. The jury returned to the courtroom at 4.15pm. The following exchange occurred: HER HONOUR: Thank you, members of the jury, I have read your note. I just want to go through it step by step with you with the foreperson. Given that you plan to return a verdict in respect of count 1A, is it the case that you find the accused not guilty in respect of count 1? FOREPERSON: Yes. HER HONOUR: Given that you intend returning a verdict in respect - sorry, and count 1A is an 11/12 verdict, a majority verdict? FOREPERSON: Yes, that's right. HER HONOUR: Given that you have reached a verdict in respect of count 3, is it the case that you find the accused not guilty in respect of count 2 which is the alternative that has the added element of authority. FOREPERSON: Yes, that is correct. HER HONOUR: Sorry? FOREPERSON: On count 2. HER HONOUR: You have given me an indication of a verdict in respect of count 3 which is the alternative to count 2. FOREPERSON: Correct. HER HONOUR: So does it follow from that that you propose to return a verdict of not guilty in respect of count 2 and therefore have gone on to consider count 3? FOREPERSON: We have, we are undecided on count 2. HER HONOUR: Sorry, you are undecided about count 2? FOREPERSON: Correct. HER HONOUR: Right, that's the one thing that I needed to check. It is not a case of having made a decision about count 2, you are undecided on count 2 and have therefore gone on to consider count 3, is that what has happened? FOREPERSON: Correct.
13. It thus emerged that the jury had in fact reached a verdict of not guilty on Count 1, and had a majority verdict (it was not then apparent which way) on its alternate, Count 1A. Her Honour then speculated that because there was a conclusion on Count 3 (although the jury had not indicated which way), the jury had found the applicant not guilty on its aggravated equivalent, Count 2. The foreperson initially agreed with that speculative suggestion. But it was then clarified that in fact the jury was undecided on Count 2. The initial answer may have been due to nerves, or it may have been due to some confusion about the counts. By the end of the exchange, the situation seemed to have become clear.
14. In any event, the jury was then sent out for a short while in order for the trial judge to discuss with counsel how to proceed. When the jury returned, her Honour explained that she could not take a verdict on Count 3 while the jury remained undecided on Count 2. She asked the foreperson again whether the jury was undecided on Count 2, and that was confirmed. The judge then repeated that she would not take a verdict on Count 3. She said she also would not take a verdict on Count 1, nor generally in respect of an alternative unless satisfied that they would find the applicant not guilty in respect of the first alternative. She asked if that was clear. The foreperson said yes, but her Honour noted that one of the jury members was shaking his head, and so said that she would go through it "step-by-step".
15. Her Honour then went through the counts in order, explaining the relationship between each of the three aggravated charges and the three alternative charges, and that a verdict would only need to be taken in relation to each alternative charge if there was a finding of not guilty on the aggravated charged. Her Honour expressly addressed the fact that Count 3 was the alternative to Count 2. She noted that the alternatives to Counts 1 and 4 were not actually on the indictment, saying "I hope it is not confusing that the alternatives to count 1 and 4 are not on the indictment, but they exist as alternatives anyway". The trial judge went on to offer to set this out on a piece of paper the next day. It seems some jurors nodded at this suggestion. The jury was then excused for the day.
16. The next morning, Thursday 24 February 2022, there were submissions about what course to take in relation to a written document. The parties did not agree on the appropriate approach. The trial judge decided to give a further oral clarification. Around the same time the jury sent a further note asking two questions about the issue of authority. The jury returned to court just before 11am. Her Honour then asked the members of the jury to take out the indictment. She again stepped through each of the counts, including the alternative counts omitted from the indictment, doing so in similar terms to what she had done the previous afternoon. She then addressed the authority questions.
17. Later that morning the jury requested the transcript of that morning's directions, which was not yet available. A further note was then sent asking that the judge "repeat what you said this morning regarding authorities [sic] slower to enable some jurors to take notes". The jury was then recalled and her Honour went through the authority issue again.
18. That afternoon, the jury submitted a note indicating that they were in a position to deliver verdicts on all but Count 4, on which they were unable to come to a consensus. The jury returned and the foreperson gave evidence that the jury would not be able to reach a verdict in respect of Count 4 even with more time for deliberation. The foreperson also indicated that the verdicts they did have were majority verdicts.
19. The trial judge then said she would take the verdicts in respect of all counts except Count 4. The applicant was found not guilty of Count 1, not guilty of Count 1A, and guilty of Count 2. The guilty finding on Count 2 meant that no verdict in respect of its alternate, Count 3, was necessary, and none was taken. The jury was discharged in respect of Count 4.
20. In this Court the applicant referred to the confusing way in which the indictment had been framed. He then argued as follows: [T]he second verdict taken from the jury was a verdict of not guilty. That was treated as a verdict to the alternative count '1A', being the count of (unaggravated) sexual touching which was not a count on the indictment, and was an alternative count to the count of aggravated sexual touching (count 1). However, if the jury (and more precisely the foreperson) had been following the indictment, the second charge on the indictment was count 2, which was the charge of aggravated sexual intercourse without consent.
21. As I have said, I accept that the manner in which the indictment was framed was confusing. It is possible - although not clear - that it was a cause of the foreperson's confusion when she initially said, on Wednesday 23 February, that the jury had found the applicant not guilty on Count 2. Nevertheless, the foreperson immediately clarified the position. And not long thereafter the trial judge carefully stepped the jury through each of the counts, a process which she repeated the next morning. She noted that 1A and 4A were not on the indictment. These explanations made the position acceptably clear.
22. The actual words used when the verdicts were taken are not recorded in the transcript. The transcript simply records that the jury "returned with the following verdicts", and then lists (in upper case letters) "not guilty to Count 1", "not guilty to count 1A" and "guilty to count 2". In this regard, I note what Basten AJA, Garling J and R A Hulme AJ wrote when dealing with the applicant's bail application (Park v R [2022] NSWCCA 263 at [22]): We note the common practice upon taking verdicts from a jury that the question is posed: "So say your foreperson, so say you all?" (It requires some modification when a jury has been directed that a majority verdict may be returned.) Although that is usually not transcribed by the court reporter, there is no indication in the transcript of any dissent by any jury member as to what the foreperson had announced as the verdicts.
23. When asked about this point in the hearing of the application, the applicant's senior counsel stated that "it's the invariable practice that that process is applied in criminal trials and it didn't occur to me that that had not happened in this case". It may be presumed that the charges were read out to the jury and the verdicts taken in this conventional way. As noted in the bail judgment, there is no indication that any juror had dissented. That situation may be contrasted with what occurred on the afternoon of the Wednesday, where one juror had shaken his head to indicate that a matter was not clear to him, despite the foreperson having said that what had been said was clear.
24. There is no evidence to indicate that the "not guilty" verdict taken in respect of Count 1A was in fact intended to be in respect of Count 2. Moreover, after the taking of the verdicts, the trial judge said that "[i]n those circumstances I will not take a verdict in respect of count 3". Given that it had been explained to the jury more than once that this would be the consequence of a guilty verdict in respect of Count 2, one might have expected some remonstration or reaction from the jury if the "not guilty" verdict in respect of Count 1A was in fact meant for Count 2.
25. The applicant sought to rely on the earlier notes from the jury, saying: The verdicts were also inconsistent with what the foreperson told her Honour on 23 February 2022. The jury note (MFI 23) said '1A 11,12 on the alternate. 3 Unanimous. 4 Undecided' (SU 110). The foreperson later said, in answer to her Honour's questions, that the applicant was found not guilty of count one, that there was a majority verdict of 11/12 for the alternative count (count 1A). Initially the foreperson agreed that the jury found the applicant not guilty of count 2 and had reached a verdict on count 3. However, the foreperson subsequently said that the jury was undecided on count 2, had gone on to consider count 3, and was undecided on count 4.
26. I have already addressed the foreperson's changing what she said on Count 2. More generally, it is apparent from the exchanges referred to above that on the Wednesday the jury were undecided in respect of Count 2, but, having considered Count 3 (as it were in the hypothetical situation that they did not reach a decision as to Count 2), they had reached a unanimous conclusion in respect of Count 3. The jury never revealed what that unanimous conclusion was but, assuming that they acted consistently, then it must have been a conclusion of guilty relating to Count 3, where they were still undecided on the aggravating element of authority which arose on Count 2. That understanding is consistent with their subsequent requests for further directions on that topic. As to how such a conclusion sits with the results on Counts 1, 1A and 4, that topic is addressed further below. There is nothing in the notes or exchanges which indicates that the jury must have reached a conclusion at any stage that the applicant was not guilty on Count 2.
27. The applicant's argument that there is a real possibility that the jury was confused about what was charged under what counts is not made out.

Ground 1 - Inconsistent verdicts

1. The second aspect of Ground 1 was the challenge to the conviction on the basis of alleged inconsistency of verdicts. The applicant's argument was that the verdict of guilty on Count 2 cannot be reconciled with the verdict of not guilty on Counts 1 and 1A, nor can it be reconciled with the absence of agreement on Count 4. The applicant pointed out that the three aspects of the conduct impugned - the kissing, touching of breasts and penile-vaginal intercourse - all happened within a short period of time. He says that the failure to convict in respect of Counts 1, 1A and 4 must have been in consequence of doubts about the complainant's credibility, and that such doubts ought also to have led to a verdict of not guilty in respect of Count 2.

Principles

1. The principles relevant to a ground of appeal raising an alleged inconsistency of verdicts involve some complexity. The judgment of Gaudron, Gummow and Kirby JJ in Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 provides a clear statement of core principles. Their honours distinguished between cases of legal or technical inconsistency and cases of factual inconsistency (at 366). The former encompasses verdicts which legally cannot stand together, such as where the accused was convicted both of an attempt to commit an offence and the completed offence. The latter encompassed situations of practical inconsistency. In such cases, "the test is one of logic and reasonableness".
2. Respect for the function of juries has led to a "reluctance to accept a submission that verdicts are inconsistent in the relevant sense": at 367; see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [49] and [51] per McHugh, Gummow and Kirby JJ. There can be a variety of reasons explaining the verdicts. 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": at 367. Proper ways of reconciling can include the possibility that the jury "took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries": ibid. That type of function can extend to the jury exercising compassion, or a sense of proportion, by concluding that "although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number": at 367-8, quoting with approval R v Kirkman (1987) 44 SASR 591 at 593; see also MFA at [85].
3. That is so even though for the jury to have so acted may have been contrary to what they were directed. Juries "cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them" (at 367). That does not mean that all apparently inconsistent verdicts can be explained away. Rather, appeal courts "should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty" (at 368).
4. Gaudron, Gummow and Kirby JJ concluded their discussion as follows (at 368, citations omitted; see also MFA at [86]): Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case."
5. Consistently with that approach, even where the evidence of a complainant forms the substance of the prosecution case, different verdicts do not necessarily require a conclusion that the verdicts are inconsistent. Harrison J gave a useful summary in Bussey v R [2020] NSWCCA 280: [56] In a case where there are mixed verdicts of guilty and not guilty and the complainant's evidence is the only evidence of an accused's guilt, a Court may (but not must) conclude the verdicts are factually inconsistent: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [33]. Where there is nothing in the complainant's evidence or the surrounding circumstances that provides an explanation for supposing that his or her evidence was more reliable in relation to those counts where a guilty verdict was entered than it was in relation to the count or counts where a not guilty verdict was entered, there is factual inconsistency: Jones v The Queen (1997) 191 CLR 439 at 453. This is because the jury's finding of not guilty on any count will have "damaged the credibility of the complainant with respect to all counts in the indictment": Jones at 453. [57] However, "(n)othing in Jones casts any doubt on the appropriateness of a jury accepting a witness' evidence in one respect, whilst retaining a reasonable doubt about the commission of events about which that same witness is the only substantive witness": R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [31]. … [59] In other words, the test is, "whether or not the failure of the jury to accept the complainant's version in one respect ought to have led … the jury to have a reasonable doubt with respect to other matters": Markuleski at [65].
6. In Saunders v R [2022] NSWCCA 273, at [103], Simpson AJA said the following, drawing on various prior decisions: It must now be accepted that different verdicts in trials of multiple count indictments do not necessarily signify disbelief of the complainant. The principles may be stated as: (i) juries are conventionally directed to give separate consideration to each count on an indictment, and are expected to comply with that direction; (ii) the onus of proof means that some juries might expect more than the evidence of a complainant before convicting - for example, some supporting or corroborative evidence; (iii) a verdict of not guilty does not necessarily imply that a complainant has been disbelieved; (iv) juries are entitled to exercise some discretion in considering that justice is served by convicting the accused of some only of the offences charged.
7. A question arises more generally about how the approach taken to inconsistent verdicts fits together with the case law on unsafe verdicts. Where inconsistency is raised, the appeal ground in question - as put in this case - is generally that the verdict of guilty is unreasonable and cannot be supported having regard to the evidence, thus invoking the first limb of s 6(1) of the Criminal Appeal Act. The ultimate question when invoking that limb concerns the reasonableness of the jury's decision: MFA at [34] and [36], see also [44]-[51]. In that case members of the High Court referred to the decision in M v The Queen (1994) 181 CLR 487 at 492-494, [1994] HCA 63, in which arguments that a verdict was unreasonable were held to require an appellate court to consider, upon the whole of the evidence, whether it was open to the jury to be satisfied of the accused's guilt beyond reasonable doubt: see MFA at [25] and [53]-[61]; note also R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [11].
8. In TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, Simpson J drew some careful distinctions between different types of cases, in particular in the context of sexual assault cases (with the agreement of Latham J at [204], and the apparent agreement of McClellan CJ at CL at [1]-[8]). First, her Honour distinguished between cases such as M v The Queen itself and those involving arguments of inconsistent verdicts such as was considered in Jones v The Queen (1997) 191 CLR 439, [1997] HCA 56: at [81], [119]-[138]. The former type of cases involve assessment of whether the verdict of guilty was open to the jury "upon the whole of the evidence" (at [124]). Where inconsistency is raised however "it is not unusual to find that little, if any, attention is paid to the quality of the evidence" (at [129]). In such cases the inquiry is wider than in the former category, and looks to "the whole of the facts and circumstances of a particular case" (at [124]), which "includes an examination of the significance of the acquittals, and what can be read into those verdicts" (at [127]). An appeal may succeed "notwithstanding that no such shortcomings or inadequacies [as required in M type cases] can be demonstrated" (at [126]). Her Honour made clear that she was not meaning to suggest that Jones type cases created "a separate entity of unreasonable verdict: that is expressly contradicted by MFA" (at [135]). However, "where the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test" (ibid).
9. This distinction has been referred to approvingly in, for example, Ganiji v R [2019] NSWCCA 208 at [14] per Basten JA, Button J and Lonergan J agreeing at [55] and [64] respectively. In this case the applicant's counsel indicated that this ground was relevantly put in terms of inconsistency rather than as a M v The Queen type of case.
10. The second distinction Simpson J drew in TK related to the types of cases in which inconsistent verdicts might be found: at [133]-[137]. Her Honour noted that there were various explanations that might be given for why different verdicts may be reached. For example, one explanation "is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged" (at [133]). Different consequences may flow from different conclusions by the appeal court as to the likely explanation for the different verdicts. If the likely explanation was that the jury had reached compromise verdicts, then the accused may have "received the benefit of an acquittal or acquittals to which he or she is not entitled" (at [134]). The correct order then is to overturn the relevant convictions but order a new trial. However, if (and only if) the Court considered that the only reasonable explanation for the acquittals was the jury having doubts about the credibility of the complainant, then the appropriate remedy was to apply the logic of that doubt to the remaining counts, such that the convictions should be overturned and replaced with acquittals.
11. It follows that in considering arguments about inconsistent verdicts the appeal court must also consider the likely explanation for any established inconsistency, in particular to consider if the only reasonable explanation was doubts about the credibility of the complainant.
12. In TK Simpson J also said the following at [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.
13. In Saunders Hamill J said of the suggestion that the focus must be on a rational explanation for the acquittal as opposed to the conviction that, "as subsequent decisions confirm, this generally is the correct approach. However, it is not an absolute rule": at [124], Ierace J agreeing at [133]. His Honour noted that Simpson J herself, in TK at [128], made clear the inquiry may "include matters outside the evidence" and "permit examination of circumstances that give 'insight' … into the jury's thinking". Basten JA has also emphasised the need to look at "the whole of the circumstances": Ganiji v R at [16], Button J and Lonergan J agreeing at [55] and [64] respectively. To come back to what was said in Mackenzie, at 366, "the test is one of logic and reasonableness". And, as said there at 368, there are no hard and fast rules; "[i]t all depends upon the facts of the case".

The issue here

1. The question here is whether as a matter of logic and reasonableness there is a proper way to reconcile the verdicts of acquittal on Counts 1 and 1A, in contrast to the conviction on Count 2. The applicant also sought to rely upon the jury's failure to reach a verdict on Count 4 as a further distinct basis for attacking the guilty verdict on Count 2. There was some dispute about whether that was an available argument. As will be seen, it is not necessary to address that issue here, although the failure to reach a verdict is part of the circumstances which may be considering in addressing the possible explanations for the acquittals versus the guilty finding.
2. As noted above at [18], there were three key issues at the trial: whether or not the complainant consented; if not, whether or not the applicant had the requisite mental element as to this lack of consent; and as regards Counts 1, 2 and 4, whether the complainant was under the authority of the alleged offender by reason of being his employee at the time of the alleged offences. Of those three issues, the Crown just focused on the mental element, saying "in relation to count 1 and 1A it may be inferred that the jury was not satisfied about the accused's knowledge of lack of consent". Nevertheless, something should be said briefly about the other two issues.
3. As regards the complainant's actual lack of consent - an element of each of the charges at issue - she denied consent as regards all of the conduct in question. Given the evidence, it would be difficult to discern any basis to conclude that the jury might rationally have drawn some distinction with respect to her lack of consent to the kissing, the touching of breasts, and the intercourse.
4. As regards the issue of authority, it is apparent from the series of notes from the jury (as referred to above) that this topic was the subject of some concern in the jury. However, the jury ended up convicting the applicant on Count 2 which included that aggravated element, so the jurors must have been satisfied of that element. There is no possible basis for suggesting that they might rationally have considered that the complainant was under the applicant's authority when the intercourse took place but was not immediately beforehand when the kissing occurred.
5. Turning then to the mental element, each of the offences at issue - under ss 61I, 61J, 61KC and 61KD of the Crimes Act - had an element that the accused knew that the other person did not consent to the relevant sexual activity. The statutory regime has been subject to a number of changes over the last few years (which may explain some of the confusion below). At the time of the alleged offences s 61HE of the Crimes Act addressed this element. Pursuant to subsection (1), it applied to all of the offences at issue here. Subsection (3) provided that there were three ways in which knowledge could be established: [the accused] knows that the alleged victim does not consent to the sexual activity if - (a) the person knows that the alleged victim does not consent to the sexual activity, or (b) the person is reckless as to whether the alleged victim consents to the sexual activity, or (c) the person has no reasonable grounds for believing that the alleged victim consents to the sexual activity.
6. Subsection (4) provides that for the purpose of making any such finding the trier of fact must have regard to all the circumstances of the case, including "any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity".
7. The Crown sought to give a rational explanation for the acquittals on Counts 1 and 1A on two bases. The first was an argument that the jury may have regarded the mental element as more exacting for Counts 1 and 1A (and 4) because of the way in which the trial judge had directed them. The second was that there was a possible basis in the facts for the jury to have been persuaded beyond reasonable doubt as regards the mental element on the sexual intercourse charge where they may not have been so persuaded as regards the other charges.

The claimed explanation based on applying a different mental element standard

1. The Crown submitted that "the trial judge gave the jury detailed directions on knowledge as to lack of consent, recklessness as to consent and no reasonable grounds as to belief in consent as to Counts 2 and 3 (the alternative) but not specifically in relation to Counts 1 and 4". The Crown claimed that this direction "was to the applicant's advantage", because it meant the jury may have considered that the Crown needed to prove actual knowledge in relation to Counts 1 and 4, given that each count on the indictment was qualified by the phrase "knowing that she was not consenting".
2. In fact, not only was no positive direction at all given by the trial judge in respect of the mental elements of the offences the subject of Counts 1 and 4 (and their alternatives), the clear implication from the summing up was that there was no mental element for those charges.
3. When the trial judge turned to the elements of the offences in her summing up, she explained the elements of Counts 1 and 4 without mentioning the requirement for knowledge of lack of consent. When she turned to Counts 2 and 3 she referred to "that additional matter, that the accused knew that the complainant was not consenting", thus implying that that issue did not arise for the other counts. A short while later her Honour said "I am turning now to the issue in respect of counts 2 and 3, the element of the Crown being required to prove that the accused knew that the complainant was not consenting". Again, in context, the implication that this issue did not arise for the other counts was unmistakable. Her Honour then explained the three ways in which knowledge of lack of consent could be established.
4. As noted above at [24], in the course of their deliberations the jury sent a note asking for the judge to repeat what was said about the three levels of consent. Her Honour did so, in the course of which she indicated that what the Crown was required to prove on this issue was "of course obviously enough relevant only to counts 2 and 3 on the indictment". That effectively put beyond doubt that she was indicating that no such mental element arose for Counts 1 and 4.
5. Surprisingly, neither side raised a query about any of these directions, although the statutory provisions were clear in indicating that the same mental element, with the same three possibilities, arose for all of the charges in question.
6. Counsel for the Crown contended on appeal that, notwithstanding these directions, the jury nonetheless received guidance in respect of the mental elements of Counts 1 and 4 in the form of the wording of the indictment and because of remarks in the Crown's opening and closing addresses. The indictment did include the element of "knowing that she was not consenting" for each of the Counts, but without any reference to the three levels of knowledge. The solicitor advocate appearing for the Crown did correctly address the jury on the issue in her opening and closing submissions.
7. This argument can be no answer. Juries are assumed to have acted in accordance with the directions given to them by judges. In Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], Gleeson CJ and Gummow J explained that "[t]he system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges". In the same case McHugh J referred to the same assumption in more emphatic terms (at [31], noting his Honour was in dissent on the result): The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial.
8. Here, the jury was faced with an indictment which referred to the need for knowledge in generic terms, with submissions from the Crown which explained the issue correctly, and with a summing up by the trial judge which plainly implied that the jury did not need to find a knowledge element made out for the charges other than Counts 2 and 3. General principle indicates this Court should assume that when faced with this confusing picture the jury did as they ought and followed the directions from the trial judge.
9. That conclusion is reinforced by the fact that the trial judge had made clear at the commencement of summing up that she would "direct you as to principles of law that you must follow, to the extent they are different from the principles of law that have been said to you to date". Her Honour distinguished such "legal directions" from other "suggestions about how you might want to approach the evidence". When addressing on the elements of the offences she indicated that those were legal directions. The jury thus would have understood that they were to follow her directions even if this conflicted with what had been said earlier.
10. The implicit judicial direction that a mental element did not need to be established for Counts 1 and 4 (and their alternatives) fatally undermines the Crown's argument that the jury may have considered that the Crown needed to prove actual knowledge in relation to Counts 1 and 4 and their alternatives. The jury had every reason to think that there was one fewer element that needed to be proved for the counts in question, such that those charges could have been made out more readily. They had little reason to think that there was a more demanding mental element for those charges. Yet those were the charges on which the jury either acquitted or did not reach a verdict. The guilty verdict was reached on Count 2, for which the purportedly additional mental element was clearly explained. The first argument of the Crown does not offer a rational explanation for the verdicts.

The claimed explanation based on differentiation between the charges on the facts

1. The Crown's second attempt to provide a rational explanation for the acquittals involved an argument that the jury may have rationally differentiated between the facts relating to the charges. The Crown submitted as follows: Although the counts all arose from the same episode the evidence as to each of the offences was slightly different. The Crown case was that the complainant was so intoxicated that she did not have the capacity to consent. The complainant recalled the applicant kissing her but was unable to say anything. In contrast, it was the complainant's evidence she was blacked out at the time the applicant penetrated her vagina and woke up with his penis inside her such that she did not have the capacity to consent and the applicant must have known this. … The applicant said the complainant kissed him back showing positive signs. As this was the first act between the applicant and the complainant it may be that the jury were not satisfied beyond a reasonable doubt taking into account the directions of the judge that he did not know she was not consenting. However, even on the applicant's own account, it could not be said that he had taken steps to ascertain the complainant's consent to the sexual intercourse where she had said nothing, and his evidence was that she had held his hand and not said no. … a jury may have concluded that he did not take steps to ascertain the complainant's consent to sexual intercourse and therefore had no reasonable grounds to form his honest belief in consent such as to find him guilty of Count 2.
2. There is some force in these submissions. It is not necessary to go into the detail of the accounts by the complainant and the applicant. Suffice it to say that - leaving aside the issue of directions - there was some basis in the evidence to differentiate between the charges, such that it could be said that the jury might rationally have found Count 2 made out without having found Counts 1 or 1A made out. Notably, there was evidence from the complainant that she had passed out during the course of the sexual intercourse and that she only discovered that he had ejaculated on her after she woke up. If that evidence was accepted, there could not have been consent and it is difficult to see how the applicant could possibly have thought that there was. And the applicant's own evidence was that the applicant's eyes were, for some of the time, "[o]pen and close, open and close", albeit he attributed this to "[w]hen you kiss, you close your eyes, or sometimes you open".
3. However, the implicit premise of the Crown's argument is that the jury considered that knowledge in one of the three ways had to be established for all of the counts, and that they carefully considered the evidence and were not satisfied beyond reasonable doubt on Counts 1 and 1A but were so satisfied on Count 2.
4. I accept that that is a possibility in fact. But I do not consider that it is the type of possibility which is sufficient on appeal to reconcile the acquittals and the conviction in circumstances where the jury would not have considered it necessary to address the mental element of Counts 1 and 1A if the jurors had followed the directions of the trial judge.
5. As noted above, it is a base assumption of the law that juries comply with judicial directions. On that assumption, as I have explained, the jury would not have considered it necessary to address any mental element for Counts 1 and 1A (or Counts 4 and 4A). Gilbert was not a case concerning inconsistent verdicts. However, there are many such cases in which the assumption has been treated as applicable: eg TK at [6]; Jovanovski v Director of Public Prosecutions (DPP) (2009) 198 A Crim R 279; [2009] NSWCCA 284 at [21]; Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83 at [314] (see also [382]); Cullen v R [2022] NSWCCA 63 at [67]. These indications have been given in the context of assuming that the jury carefully followed the judge's correct directions such as, for example, to consider each count separately. This case involves applying the assumption to incorrect directions. But that does not change the assumption.
6. I noted above at [49] that in Mackenzie, at 367-368, Gaudron, Gummow and Kirby JJ accepted that "cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them". That statement related in particular to juries acting mercifully or compassionately by only finding the accused guilty on some counts though persuaded of guilt more broadly. It did not relate to juries deciding, for example, to prefer what the Crown said about the law over what the judicial officer directed. That being said, the statement reflects a pragmatic recognition that juries are human and complex and will not necessarily follow the directions of the trial judge in a slavish manner. For that reason, I accept that in this case there is a possibility that the jury reasoned in the manner suggested by the Crown. Even so, that does not suffice in my view to provide a reasonable explanation of why the jury acquitted on Counts 1 and 1A but convicted on Count 2.
7. That conclusion is reinforced by considering what the situation would be if the applicant here had been convicted on Counts 1, 1A, 4 or 4A. He would then have had an obvious and compelling basis for overturning the conviction on appeal, namely that the jury could be presumed not to have considered whether a necessary element of the offence had been made out. A failure to address the jury on an element of an offence which is in dispute is serious error. As four members of the High Court said in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [41]: The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury …
8. Thus any conviction on Counts 1, 1A, 4 or 4A would have been suspect. How, then, can acquittals be treated as reliable, explicable and consistent on a speculative assumption that the jury did something which would expressly have been assumed they did not do if the shoe were on the other foot? In Mackenzie, Gaudron, Gummow and Kirby JJ referred to there being "a proper way by which the appellate court may reconcile the verdicts" (at 367, emphasis added). Relying on the speculative assumption suggested by the Crown is not a proper way to reconcile the verdicts.
9. I am not, however, persuaded that the jury must have reached the verdicts on Counts 1 and 1A based on a doubt about the credibility of the complainant. It is a possibility, but so too is the position put by the Crown.
10. It is also possible that the verdicts represented a compromise. I tend to doubt that explanation, however, in circumstances where no verdict was reached on Count 4, and where the jury seemed to be acting carefully and thoughtfully in regularly seeking directions as to the law after they retired.
11. Another possibility is that the jury was simply confused as to what law applied with respect to the mental element for Counts 1 and 1A given the conflicting versions given by the Crown and the trial judge, and on that basis thought it safest to acquit the applicant on those counts. In contrast, the trial judge gave clear and correct directions on that element for Counts 2 and 3. But again, this is speculative.
12. I accept that it is a serious step to overturn a jury verdict based upon inconsistency of verdicts, and one to be undertaken only with some reluctance: see Mackenzie at 367; MFA at [49], [51]. In TK McClellan CJ at CL said at [8] that "[t]he significance of a finding by an appeal court that, although properly instructed as to the law, a jury's verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated". Here, however, the jury was not properly instructed as to the law.
13. In the end, this most unusual case does not fit neatly into any category of explanation. That is not altogether surprising, for the issue "always depends upon the facts of the case": Mackenzie, 368. There is significant tension between the acquittals and the guilty finding given the very short time period in which the events occurred. It is possible that the jury reasoned as the Crown suggested, but in light of the misdirections of the trial judge any such possibility is in my view not a proper way of reconciling the verdicts. On the peculiar facts of this case I consider that "the inconsistency rises to the point … that intervention is necessarily required to prevent a possible injustice": Mackenzie, 368.

Conclusion on this ground

1. Neither of the Crown's possible explanations for the different verdicts survives scrutiny. The Crown did not suggest that the acquittal on Count 1 could be explained as a merciful or compassionate verdict. That is not surprising given that there were only three actions impugned occurring within a short time period, and that it was the least serious (kissing constituting sexual touching with or without aggravation) on which there was an acquittal and the most serious (aggravated sexual assault) on which there was a finding of guilt. Ground 1 is thus made out to the extent that it is based on the inconsistency between the acquittals on Counts 1 and 1A on the one hand and the guilty verdict on Count 2 on the other. In that context it is not necessary to consider the argument of inconsistency based upon the jury's failure to reach a verdict on Count 4.

Ground 2 - Inadequate Liberato direction

1. The applicant's second ground of appeal asserts that the trial judge erred in not giving a full Liberato direction. The applicant requires leave to argue this ground pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules, as no objection was taken at the trial to the direction given.
2. As a majority of the High Court explained in De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [7], "[i]t is Brennan J's dissenting reasons which are the source of the Liberato direction in Liberato". Those reasons included the following (Liberato v The Queen (1985) 159 CLR 507 at 515; [1985] HCA 66): When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
3. The majority in De Silva noted that "[t]he Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence" (at [11]). However, their Honours considered that such a direction may also be appropriate as regards a record of interview with the accused if the trial judge perceives there is a real risk that the jury will reason that the accused's answers in the record of interview can only give rise to a reasonable doubt if they believe them.
4. The majority in De Silva then went on refine the direction as follows (at [12]): … it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
5. Unsurprisingly, that formulation is echoed in the NSW Criminal Trial Courts Bench Book, which suggests the following model direction in cases where a Liberato direction is appropriate (at [3-600]): First, if you believe the accused's evidence [the account relied on by the accused in his/her interview with the police], obviously you must acquit. Second, if you find difficulty in accepting the accused's evidence [the account relied on by the accused in his/her interview with the police], but think it might be true, then you must acquit. Third, if you do not believe the accused's evidence [if you do not believe the account relied on by the accused in his/her interview with the police], then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused's guilt beyond reasonable doubt?
6. In this case, where the applicant had given evidence, the trial judge raised with counsel whether a Liberato direction was sought. It was. There was no dispute below or on appeal that such a direction should have been given in this matter.
7. The direction given by the trial judge was in the following terms: There is a separate direction I need to give you in regard to the particular way you deal with the accused's account. Where in this case it turns essentially on a conflict between the complainant's evidence and the denial given by the accused, particularly the matters that are the direct subject of the allegations occurring in the shop, when assessing who you believe in respect of that evidence, even if you prefer the evidence of the complainant over the answers given by the accused, you should not find the accused guilty unless you are satisfied beyond reasonable doubt about the truth and reliability of the complainant's evidence. Even if you do not positively believe the accused's evidence you cannot find against him if the evidence is such that you still have a reasonable doubt about whether or not these offence[s] or any of them occurred. Your rejections of his denials are not proof of the fact, that is why the case depends on your being able to accept the complainant beyond reasonable doubt on these key elements. That is to say a verdict of guilty or not guilty does not depend on you making a choice between each version, even though you have two versions, because you must bear in mind the onus of proof that the prosecution has. Of course if you accept the accused as honest and reliable that is the end of the matter, you would return a verdict of not guilty. However if in the end, having considered his evidence, you cannot come to a view about who to believe or where you simply are not convinced beyond reasonable doubt about what happened, in either of these situations you would be obliged to return a verdict of not guilty because it would necessarily mean that the Crown has failed to prove its case to that high standard and you have been left, taking all of the evidence in to account, with a reasonable doubt.
8. The applicant's complaint is that her Honour's directions did not capture the substance of what was set out in the second and third aspects of the direction as set out in De Silva and the Bench Book.
9. As to the second limb, the complaint is that the direction did not include words to the effect of "if you do not accept the accused's evidence but you consider that it might be true, you must acquit".
10. The applicant invoked Hewitt v R [2021] NSWCCA 227 at [62], where Payne JA (with whom Garling and Wright JJ agreed) said as follows: I am unable to accept the Crown's submission that the trial judge's directions, considered fairly and as a whole, left no room for the possibility of any misapprehension by the jury of the matters referred to by Brennan J in Liberato. I do not agree that the trial judge's failure to adopt the specific form of words used in the Criminal Trial Courts Bench Book, drawn from Liberato and De Silva, was permissible.
11. Contrary to the argument of the applicant, I do not understand this passage to indicate that no deviation whatsoever is permitted from what is contained in the formulation in the Bench Book. That would be a surprising view given that the Bench Book itself does not use identical words to the authoritative guidance set out in De Silva. And High Court judgments are not statutes. Even within that judgment, the majority said that "it is preferable" that the direction be given as they expressed it. Directions should be calibrated to the case at hand. Moreover, directions to a jury, like any communication, must be understood in context. Payne JA, in the passage extracted, indicated as much in referring to the need to consider the directions "fairly and as a whole". The ultimate issue is always likely to be whether the particular direction establishes error sufficient to uphold the appeal. Thus Payne JA went on to say that "[t]he instruction given by the trial judge did not explain those matters sufficiently", and that there "was an error of law with the result that the trial miscarried" (at [64], emphasis added). What the passage does serve to underscore is that in cases where a Liberato direction is warranted, any material departure is likely to be of concern.
12. Here, the trial judge's departure from the second element of the direction was significant. The Crown points out that her Honour did say that "[e]ven if you do not positively believe the accused's evidence you cannot find against him if the evidence is such that you still have a reasonable doubt about whether or not these offences or any one of them occurred". But the Crown acknowledged that that statement did not invoke the notion of thinking that, although not positively believed, the jury thought what he said might be true.
13. The three aspects of the Liberato direction cover three points on the spectrum of belief with respect to what the accused has said. The first aspect addresses positive belief; the third, positive disbelief. The second aspect recognises that there an area between these two, where the accused's version is not actually believed but nor is it wholly rejected. Here, whilst her Honour did go on to refer to where "you cannot come to a view about who to believe", that does not quite capture the same point. Further, the statement relied on by the Crown also did not capture the directness of the command that the jury must acquit the accused if they think his account might be true.
14. Given the need to explain in this case the significance of the applicant having given evidence, and what might be drawn from having various degrees of belief in what he said, there is a real chance that the departure affected the jury's verdict. It can also be said that the accused lost a chance of acquittal, such that leave to raise this point should be given pursuant to rule 4.15 despite the lack of protest at the time from counsel representing the applicant: note eg Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24].
15. As to the third aspect, the applicant complains that her Honour's directions did not include words to the effect of "if you do not believe the accused's evidence you should put that evidence to one side" and then "the question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt". The Crown accepted (wrongly, as it turns out) that the trial judge did not say the first of these points, although it says that that was how the Crown addressed. What the Crown put in address below was not in quite the same terms: it was said that the jury would have no difficulty in rejecting his evidence, such that "[y]ou can put his evidence to one side". In any event, there is a material difference between the Crown making that submission and the judge giving a direction.
16. The Crown again relied on the fact that the trial judge said that "if in the end … you cannot come to a view about who to believe or where you simply are not convinced beyond reasonable doubt about what happened, in either of these situations you would be obliged to return a verdict of not guilty", and then referred to the "high standard" of reasonable doubt. The trial judge did direct on the onus and standard of proof earlier in her summing up in terms which were not the subject of complaint. Yet, in dealing with the issue of the significance of the applicant having given evidence, her Honour did not make the point in this context about putting his evidence aside if they disbelieved him and then still considering whether the standard was met. The Crown submitted that in this case it may be that a direction about setting the accused's evidence aside would have been confusing to the jury given that the Crown itself relied on parts of the applicant's evidence, such that it was not suggesting his evidence should be wholly set aside. There is some force in this submission. Any direction must be moulded to the circumstances of the particular case. That said, the point could still have been made of setting aside his account to the extent that it was not believed, and then considering the remaining question of whether evidence that they accepted proved his guilt beyond reasonable doubt.
17. Her Honour also did say that "[y]our rejections of his denial are not proof of the fact, that is why the case depends on your being able to accept the complainant beyond reasonable doubt on these key elements". That went some of the necessary way of achieving the point of the third aspect, namely that disbelief of the accused's account does not of itself answer the question of whether the case is proved beyond reasonable doubt.
18. Yet there is a simpler answer to this argument by the applicant, albeit not one drawn to the Court's attention by either side on the appeal. Somewhat earlier in the summing up the trial judge had directed on the position if the jury thought that the applicant was lying, and said: Even if you conclude that the accused is lying about things, you cannot convict him on that lie alone. As the Crown said to you and indeed I think [counsel for the accused] said to you, if you reject his evidence either because you think it is unreliable or because you think he is lying about it or it is inaccurate, that rejection of his evidence does not lead to proof in the Crown case. So what you would do is simply put that material to one side and then on what you have that you accept, decide whether or not you are satisfied beyond reasonable doubt.
19. In substance this covers the third aspect of the Liberato direction. It is perhaps unfortunate that it was not given at the same time as addressing the issue of how to deal with the applicant's account. Nevertheless, the substance of the third aspect of the requisite Liberato direction was communicated by the trial judge. As six members of the High Court said in Hargraves v The Queen (2011) 245 CLR 257; [2011] HCA 44 at [46], leaving aside the issue of a judge referring to an accused having an interest in the outcome of a trial, "[w]hether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury" (and see further at [47]-[49]). I would not uphold this aspect of the applicant's argument.
20. Nevertheless, ground 2 is made out based upon the failure to direct the jury in terms of the second aspect of the Liberato direction.

Ground 3 - Inadequate direction as to delay in complaint

1. The applicant's third ground of appeal is that the trial judge erred in directing the jury that "any delay in complaint of itself is not relevant to an issue of credibility". The applicant contends that this direction unjustifiably removed from the jury's consideration the possibility that the complainant's delay was relevant to credibility. The direction in question was given by the trial judge because of a request by the solicitor advocate appearing for the Crown, which request was based upon a significant misunderstanding of s 294 of the Criminal Procedure Act 1986 (NSW).
2. That provision relevantly read as follows as at the date of the trial: (1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest - (a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or (b) delay by that person in making any such complaint. (2) In circumstances to which this section applies, the Judge - (a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and (b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and (c) must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning.
3. Here there was no dispute that the section applied, as evidence had been given of some delay in the complainant making her complaint. Whilst the offences are said to have occurred in the early hours of Sunday 4 October 2022, the complainant did not contact the police until 11 October 2020. She continued to work shifts before making her complaint, she had invited a group of friends to dine at the restaurant on Tuesday 6 October, and her complaint was made soon after the argument with the applicant and his mother on 11 October. Between the alleged offending and the making of the complaint there was evidence that the complainant recounted to her friend Naomi that "I might have [had] sex with him, but I don't remember". The applicant's trial counsel relied on all this evidence.
4. In accordance with s 294(2)(a) and (b), the trial judge gave the following direction: You should bear in mind that any delay in complaining does not necessarily indicate that the allegation is false, there may be good reasons why a victim of sexual assault may hesitate in making or refraining from making a complaint about it.
5. Soon afterwards, at the start of the lunch break and in the absence of the jury, the solicitor advocate for the Crown sought a redirection: I certainly heard your Honour indicate that the absence of complaint or delay in complaining does not necessarily indicate the allegation is false and that there may be good reasons why someone delayed but I did not hear your Honour indicate that a delay in complaining is not relevant to the victim's credibility, so that's subsection (c), 294(2)(c).
6. The trial judge asked if counsel for the applicant took any issue with that course, to which the answer was no. After lunch, the trial judge then gave the following direction: Just to finish off something I said before lunch so far as complaint and delayed complaint is concerned: you might recall that I said to you that a delay in complaint might arise in both the truthful and untruthful accounts and therefore because that is the case, any delay in complaint of itself it not relevant to an issue of credibility.
7. No complaint was made about this direction by counsel for the applicant.
8. The plain implication of the Crown's submission below was that the trial judge had not complied with s 294(2)(c). That was in error. That paragraph prohibits the giving of a direction that delay in complaining is relevant to credibility unless there is sufficient evidence to justify such a direction (and no such direction was sought by the applicant's counsel below). The paragraph does not require the giving of a direction that delay in complaining is not relevant. Unless the further specific direction is given that delay is relevant to the victim's credibility based upon a conclusion that there is sufficient evidence to justify such a warning, the issue of whether delay is relevant to that issue is a matter open for the jury to consider.
9. The applicant submitted that the additional direction given was "a specific direction which had the effect of telling the jury to ignore what … defence counsel had been putting to the jury about the effect of the delay in complaint on the complainant's credibility". Defence counsel below had sought to make much of the delay in reporting and what had occurred in between. For example, he said that "[t]his is the complainant who says she was sexually assaulted and abused by her boss, two days before she invited her friends to the shop", where she was "[s]itting down with the boss again, she was consuming alcohol herself". And a bit later he said: Next day, well, on the same day, when she woke up, she didn't go to the police station, she went to the chemist to buy a pill, so the contraceptive pill, then returned to work where her boss is, instead of going to the police station. So, she returned to work as if nothing had happened, in my submission. … You heard evidence from the manager … there was no discussion about what happened. She didn't tell anyone about that, in the shop, apart from Naomi, which I will get to in a minute. She didn't tell Chris about the incident. She worked the next five days with no issue. She didn't tell anyone about, well, she didn't. There's no evidence that she told this to anyone else at home or her friends - no one else. So, until - well, that's until she called police on 12 October [sic: 11 October], after the sushi incident happened. Again, her behaviour, after the offence occurred, it's totally, in my submission, inconsistent with someone who was sexually assaulted by her boss.
10. It is clear that points such as these were directed to undermining the credibility of the complainant's account.
11. On appeal, the Crown conceded that the direction was erroneous insofar as it mistook the effect of the provision but contended that no injustice resulted. The Crown suggested that the limitation of the direction to "delay in complaint of itself" meant that the direction was "at a high level of generality" and did not touch upon "how delay may be relevant to the credit of the complainant as applied to the facts of the case". The distinction is artificial. The jury was entitled to assume that the direction was given because it was significant to the case.
12. The Crown submitted that the direction did not effectively take the defence submissions away from the jury. It was said that the defence submissions were not just addressed to delay in complaint, "but more significantly were directed to the fact that in this case the complainant has returned to work with the applicant in the days afterwards, which it was submitted was inconsistent with someone who had been sexually assaulted". The Crown also referred to evidence of what the complainant told her friend Naomi, and said "[t]hese were not examples of delay 'of itself' but examples of other aspects of the complainant's post offence behaviour". The difficulty with this submission is that these aspects of the defence case were intimately bound up with evidence of the delay in complaint. Again, it is artificial to attempt to divorce them. For the trial judge to direct the jury that "any delay in complaint of itself it not relevant to an issue of credibility" created a real risk of undermining a central feature of the applicant's defence.
13. The Crown submitted that the "delay in complaint was a matter that featured in the address of counsel ... and his submissions were repeated by the trial judge in the summing up". That argument does not answer the complaint. As explained above, juries are taken to have complied with directions given to them. The jury must be taken to have complied with the trial judge's direction, notwithstanding any argument put to them by the defence.
14. The Crown pointed out that later in her summing up the trial judge said the following: The accused invites you to regard the complainant's post alleged offence behaviour and ask yourself whether that is consistent with somebody who was assaulted in the way that she now says and in particular her account of how much she was working.
15. However, the ameliorative effect of this direction is undermined by the fact that this part of the summing up was introduced as being a reminder of what had been said in closing addresses by the two sides. This portion of the summing up was thus not of the same status as the direction impugned. Taken as a whole, and in light of the significance of the issue to the applicant's defence below, there was a real risk that the erroneous direction affected the jury's verdict and that the accused lost a chance of acquittal.
16. Because no objection was taken to the direction below, leave to rely upon this ground is required under r 4.15. As noted, the solicitor advocate below mistakenly misrepresented the effect of s 294(2)(c). It is apparent that both the applicant's counsel and the trial judge relied on what she said, apparently without checking the legislation. Thus this was not a case where the absence of any objection to directions to the jury on the part of trial defence counsel can be taken to indicate that there was no injustice to the accused in the atmosphere of the trial: cf ARS v R [2011] NSWCCA 266 at [148].
17. Ground 3 is made out.

Should there be a retrial on Count 2?

1. For the above reasons I would grant leave to appeal to the extent that that is necessary, uphold the appeal, and quash the conviction and sentence on Count 2. The question then is whether this Court should order a retrial in relation to that count. Both parties accepted that the Court had a discretion whether or not to do so. A range of factors may be relevant to the exercise of that discretion: see eg Castagna v R [2019] NSWCCA 114 at [190]-[204].
2. The applicant gave two reasons against ordering a retrial on Count 2. The first related to any finding that the verdicts were inconsistent, as raised by ground 1. Whereas a conclusion that a verdict is unreasonable in M v The Queen type cases will lead to acquittal, that is not necessarily the case where the appeal is upheld because of inconsistent verdicts: see eg TK at [81]. In Mackenzie, at 368, Gaudron, Gummow and Kirby JJ said: It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.
3. Sperling J said in R v Bonat [2004] NSWCCA 240 at [106(1)] that "[t]here is no hard and fast rule. It all depends on the circumstances of the case."
4. In this unusual case I do not consider that an acquittal "merely carries forward the logic" of the other verdicts. As indicated above at [85], I do not consider here that the apparent inconsistency between the verdicts indicates that the jury must have had doubts about the credibility of the complainant, such that acquittal is required: cf TK at [135]-[137]. As discussed, there are grounds in the evidence on which the jury might have differentiated what result should follow for the different counts. If the jury had been correctly directed on the mental element that may well have led to a rejection of ground 1. The fact that it was not leads to the ground being upheld. But it does not necessarily lead to the conclusion that the jury, by the logic of its verdict on Counts 1 and 1A, should have also acquitted on Count 2.
5. The second reason given by the applicant against ordering a retrial was that he "has already served a substantial part of his sentence". He was sentenced to a prison term of 2 years and 6 months commencing on 20 April 2022 and expiring on 19 October 2024, with a non-parole period of 1 year and 3 months expiring on 19 July 2023. It may be accepted that that may be one relevant factor.
6. On the other hand, there are factors militating against the applicant's arguments: 1. His parole period is part of his sentence and should not be ignored in this regard. 2. The charge is a serious one. 3. The jury did not reach verdicts on Counts 4 and 4A, so there could be a retrial on those charges anyway. Those charges are not minor. 4. I do not accept the applicant's characterisation of the prosecution case on Count 2 as a weak one. I agree with the Crown's characterisation of it as reasonably strong, including because of the objective evidence of the high degree of intoxication of the complainant along with the applicant's own evidence as to the absence of any stated communication of consent. 5. This is not a case where the prosecution would be seeking to run a different case the second time around.
7. In the circumstances there should be an order for a new trial pursuant to s 8 of the Criminal Appeal Act. Of course, the Crown retains its discretion as to whether or not to maintain the prosecution.
8. The orders of the Court should thus be as follows: 1. Leave to appeal is granted (to the extent necessary) and the appeal is upheld. 2. The appellant's conviction and sentence on Count 2 are quashed. 3. There be a new trial on Count 2. 4. The proceedings be listed in the arraignment list in the District Court on 21 April 2023.
9. WALTON J: I have had the considerable advantage of reading the draft judgment of Kirk JA in this matter. I agree with the orders proposed by his Honour and his Honour's conclusions and reasons with respect to Grounds 2 and 3 of this appeal. I also gratefully accept his Honour's discussion of the facts and circumstances of the incident giving rise to the charges brought against the applicant.
10. However, I have reached a different conclusion to his Honour as to Ground 1. Whilst I accept the conclusions reached concerning the issue of juror confusion about what was charged under each count, I regrettably have reached a different conclusion as to the challenge brought under Ground 1 so far as that ground was predicated upon a contention there was an inconsistent verdict between the verdict of not guilty for Counts 1 and 1A and the verdict of guilty for Count 2, and between the absence of agreement on Count 4 and the guilty verdict for Count 2. I would, therefore, reject Ground 1 of the appeal for the reasons which follow.

There exists a rational explanation for the jury's acquittals on Counts 1 and 1A

1. Overall, I will conclude that there was a rational explanation for the jury's acquittal of the applicant on Counts 1 and 1A, namely, that saliently different facts and evidence were provided to the jury which enabled them to distinguish between the applicant's guilt for Count 2 (the intercourse - aggravated sexual assault) and Counts 1 and 1A (the kissing - sexual touching with or without aggravation).
2. Before elaborating upon the basis for that conclusion, I propose to discuss the principles dictating the approach whereby an appellate court is to search carefully for any rational explanation for a jury's acquittals in a case of allegedly inconsistent verdicts, and if such a rational explanation is found, an appellate court is not required to find the verdicts are inconsistent because they "may not be unreasonable" (R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151 'TK' at [128]). Simpson J (as her Honour then was) provided the following discussion of principle in TK, which is pertinent to this case (my emphasis in underlining, original emphasis in italics): 128 […] 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. […] 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… 133 Doubt about credibility of a witness is not the only available explanation for acquittal on one or more counts on an indictment, even in circumstances where the prosecution depends entirely or very substantially upon the evidence of that witness - invariably, in a trial involving sexual offences, the complainant. One alternative explanation is the possibility of the jury delivering a merciful, or compassionate, verdict, where, for example, it is perceived to have taken the view that an episode of criminality justifies one, or a smaller number, of charges and convictions, in place of a multiplicity that has been charged. That this possibility may appropriately be taken into account was reaffirmed as recently as 2002, in MFA. Another possible explanation is compromise amongst a divided jury: see R v Crisologo (1997) 99 A Crim R 178. An appeal court will examine all relevant circumstances to determine the most likely explanation for differential verdicts. 134 Where the correct explanation is compromise, the accused person has received the benefit of an acquittal or acquittals to which he or she is not entitled. That is because a jury acting in accordance with its duty ought, if it be the case, to declare its inability to reach a unanimous (or, since May 2006, an appropriate majority) verdict. It is then a question for the Director of Public Prosecutions whether the accused person is to be tried again. 135 Mackenzie, Jones and Norris all appear to have proceeded upon the basis that, absent the acquittals, the evidence adduced was sufficient, and was not relevantly tainted, to support the convictions. I do not mean to suggest that Jones creates a separate entity of unreasonable verdict: that is expressly contradicted by MFA. It is also clearly contradicted by the last paragraph in the joint judgment in Jones itself. 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. 137 As I have already mentioned, the Jones approach comes into play only if there is no rational explanation for the diverse verdicts. It is in that circumstance that the court must determine whether the only reason for the acquittals is doubt about the complainant's credibility; (if so, then that doubt must be applied to the remaining counts); or whether the jury has exercised its inherent right to correct what it sees as unfairness in the criminal process; or, finally, whether a divided jury has compromised. If compromise is the favoured explanation, then, as I have indicated above, the accused person has received an unwarranted bonus in the acquittals and the correct order is an order for a new trial on those counts on which the jury convicted. 138 This requires the appellate court to examine the evidence for an explanation or explanations, other than scepticism about the complainant's credibility, for the acquittals.
3. I draw attention to the following points in the application of these principles to the current case: 1. As contemplated in TK above, every inquiry of this kind into whether there exists a reasonable explanation for a jury's acquittals necessarily involves an extrapolative process of deducing that which can "be discerned" about why the jury reached their verdict. When undertaking this process, an appellate court is to examine all the available evidence and is entitled to have regard to all the facts and circumstances of the case which provide insight into the jury's thinking, including the directions which were provided to them and the arguments which the parties presented to them. 2. Before proceeding further, I acknowledge that Kirk JA accepts at [78] of his Honour's judgment that "[t]here is some force in [the Crown's] submissions" concerning the possibility that the jury rationally differentiated between the facts relating to Counts 1 and 1A and Count 2. His Honour accepts at [89] that "[i]t is possible that the jury reasoned as the Crown suggested". On the face of those conclusions which, with respect, I accept, there exists a rational explanation for the jury's acquittals. However, his Honour concludes that this possible avenue of reasoning taken by the jury "is not a proper way of reconciling the verdicts" "in light of the misdirections of the trial judge". 3. In my view, there is a reasonable explanation for the jury's acquittals based on differentiation of the facts presented to them. Even if this explanation did not exist, as the discussion in TK above indicates, there would be a further recourse before this Court would be required to find that the jury's verdicts were inconsistent, namely, the accepted right of a jury to acquit based on compassionate or merciful grounds, based on their innate sense of justice as opposed to legal technicality. As will be explained below, this avenue, in the alternative, can be logically deduced on the facts as a second plausible explanation for why the jury reached a reasonable verdict on the acquittals and a verdict which should not be disturbed because the duty of the jury has been properly performed.

There is "a proper way" by which the verdicts may be reconciled, allowing this Court to "conclude that the jury performed their functions as required" (Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 'Mackenzie' at 367).

1. The phrase "a proper way" (to reconcile verdicts) derives from the judgment of Gummow, Gaudron and Kirby JJ in Mackenzie. Their Honours do not explicitly define "proper", but its meaning may be ascertained by reading the phrase in context, and in light of their Honours' discussion of principles concerning when an appellate court is entitled to find inconsistent verdicts.
2. In my view, the use of the word "proper" in Mackenzie is not to be taken as a term of strong limitation such that an appellate court is being encouraged to deem otherwise reasonable explanations for allegedly inconsistent verdicts "improper". Rather, the plurality was, in my view, cautioning appellate courts not to cometoo quickly to a conclusion that verdicts are inconsistent if there can be found any legitimate explanation for how the jury arrived at their verdict. This is supported by the first and third sentences of the relevant passage from Mackenzie below (at 367-8, my emphasis in italics): 4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense (31). Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted (32). If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury (33). In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt (34). Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries (35). The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation (36). Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman (37), in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed:

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

1. It is also appropriate to look to their Honours' subsequent point of analysis, in which they introduce the notion of "a residue of cases" where different verdicts can not properly be reconciled, and again emphasise the high bar for finding that different verdicts are so impossible to reconcile that the performance of the jury's duty is likely to have been compromised. These concepts come from the following passage in Mackenzie (at 368; my emphasis in italics): 5. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty (38). More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law (39). It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside (40). It is impossible to state hard and fast rules. "It all depends upon the facts of the case".
2. Thus, the "proper" reconciliation of verdicts is likely to be found in cases where the verdicts are not "so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion" (Eugene Ewaschuk, Criminal Pleadings and Practice in Canada, (1983, Canada Law Book Limited) at s15.212, cited in Mackenzie n 40 at 368). For example, it has been held by Simpson J in R v James [1999] NSWCCA 191 ('R v James') at [66] that where, as was the case in Jones v The Queen (1997) 191 CLR 439, "the only reasonable explanation for the differing verdicts was doubt about the complainant's credibility" "[t]hat does not provide a proper way of reconciling the verdicts." In fact, counsel for the applicant, in written submissions, relied upon this precise quotation from Simpson J in R v James. However, ultimately, this does not help the applicant's case because, as I analyse in detail below, there exist reasonable explanations for the differing verdicts aside from doubt about the complainant's credibility.
3. In my view, the case before this Court does not fall within the "residue of cases" where different verdicts cannot be properly explained because not only is there a reasonable explanation for the different verdicts, but there is no strong suggestion that the performance of the jury's duty has been compromised or that the verdicts must necessarily be found inconsistent in order to prevent a possible injustice. No practical or material injustice can be said to have been done to the applicant concerning the acquittals he has received for Counts 1 and 1A. The trial judge's failure to explicitly direct the jury as to the element of knowledge for these accounts has resulted in no miscarriage of justice which could be material to this appeal, or was material to the outcome of the verdicts in a manner which the applicant would seek to contest, insofar as the applicant was not found guilty of the counts pertaining to which a direction was omitted, and was found guilty of Count 2 where the judge gave full and accurate direction concerning all elements of the offence.
4. Simpson AJA's exposition of Mackenzie in Cullen v R [2022] NSWCCA 63 ('Cullen') at [42] - [43] excerpted below (my emphasis in italics) lends support to the proposition that an ascertainment of whether there is a proper way by which an appellate court may reconcile verdicts requires the application of the foundational principle that the function of juries should be respected by appellate courts who should be reluctant to find inconsistency of verdicts: 42. Their Honours then noted that the obligation to establish inconsistency rests on the person making the submission, and that, where inconsistency is found between a verdict or verdicts of acquittal and a verdict or verdicts of guilty, the appellate court may not (statute apart) disturb the acquittal, and concluded, that in such a case: "It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case." (proposition 6, p 368). 43. A countervailing consideration, stated in proposition 4, lies in the respect for, and general satisfaction with, the function of juries, leading to a reluctance to attribute inconsistency to different verdicts. Their Honours said: "… Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count, a function which has always been open to, and often exercised by, juries. […]"

The way the trial ran substantiates a reasonable explanation for the acquittals

1. As discussed above, the starting point in the authorities is that a high threshold must be passed before a finding of inconsistent verdicts. In Mackenzie at 366 the test of Devlin J in R v Stone (Court of Criminal Appeal (England), 13 December 1954, unrep) was approved by Gaudron, Gummow and Kirby JJ: [The appellant] must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. (My emphasis in italics).
2. It cannot be said that "no reasonable jury who had applied their mind properly to the facts" in this matter could have acquitted the applicant for Counts 1 and 1A and convicted the applicant for Count 2. The first reason for this is that, as the Crown submitted, different facts were presented by both the applicant and the complainant concerning Counts 1 and 1A and Count 2. The evidence differed as to how the complainant responded to the action (kissing) forming the basis of Counts 1 and 1A and the action (intercourse) constituting Count 2. Concerning the kissing, the complainant stated that she was conscious but could not speak because she was so incapacitated, and the applicant stated that she kissed him back. Concerning the intercourse, the complainant stated that she did not know what was happening during the initiation of the intercourse and only woke up during the act of intercourse. The Crown correctly contended the applicant must have known this and the applicant himself conceded that he made no attempt to ask the complainant orally if she consented to intercourse either before or during the act. Below I excerpt the relevant sections of the Crown's written submissions on this appeal which ably summarise the relevant evidence and some elements of the applicable law: 38. In determining whether verdicts are logical and reasonable, an appellate court must take account of the direction given to the jury in a trial of multiple counts that they are to give separate consideration to each count. It must also take account of the direction that they are entitled to accept a witness's evidence in whole or in part (MFA v The Queen (2002) 213 CLR 606 at [34]). A verdict of "not guilty" does not necessarily imply any "want of confidence" in the complainant but may simply reflect the cautious approach to the discharge of a heavy responsibility and the want of supporting evidence, (MFA at [34]). … 41. A further logical basis to distinguish between the verdicts for Count 1 and Count 2 arises from the complainant's evidence as to her level of consciousness. Although the counts all arose from the same episode the evidence as to each of the offences was slightly different. The Crown case was that the complainant was so intoxicated she did not have the capacity to consent. The complainant recalled the applicant kissing her but was unable to say anything. In contrast, it was the complainant's evidence she was blacked out at the time the applicant penetrated her vagina and woke up with his penis inside her such that she did not have the capacity to consent and the applicant must have known this. 42. Furthermore, the task for the jury was not to choose between the version of the complainant and the version of the applicant. The jury's task was to determine whether they accepted that the elements of each count had been proved beyond a reasonable doubt, having regard to the evidence of the complainant and any corroborating evidence. 43. Where an accused chooses to give evidence, his or her evidence falls to be evaluated in the same manner as any other witness: Robinson v The Queen (1991) 180 CLR 531; [1991] HCA 38. The jury were told that they were entitled to accept some parts of a witness's evidence and to reject others (SU 7). The jury were therefore entitled to accept some parts of the applicant's evidence and to reject others. 44. The applicant said the complainant kissed him back showing positive signs. As this was the first act between the applicant and the complainant it may be that the jury were not satisfied beyond a reasonable doubt taking into account the directions of the judge that he did not know she was not consenting. However, even on the applicant's own account, it could not be said that he had taken steps to ascertain the complainant's consent to the sexual intercourse where she had said nothing, and his evidence was that she had held his hand and not said no. This was referred to in the Crown closing address (T416) that this was not a reasonable basis to believe the complainant would have sex. The Crown highlighted that on his account there had been no conversation between them leading to the sexual intercourse (T417). 45. That is, while the jury were not satisfied beyond a reasonable doubt the applicant knew the complainant was not consenting to the kissing, even on the applicant's own account, a jury may have concluded he did not take steps to ascertain the complainant's consent to sexual intercourse and therefore had no reasonable grounds to form his honest belief in consent such as to find him guilty of Count 2.
3. A footnote to the Crown's submission in [38] of this extract (after the citation of MFA) states that: The trial judge gave the jury directions on each of these principles, see T16/02/2022; SU 77 and 15/02/2022 SU 4-5; SU 13 respectively.
4. In oral and written submissions counsel for the applicant sought to argue that "the evidence against the applicant was effectively identical" in relation to each count. No persuasive detailed analysis of the evidence was provided to establish why the evidence should be taken to be "effectively identical" despite the fact that the evidence differed with respect to Counts 1 and 1A as opposed to Count 2 in a manner that was salient to separately establishing the applicant's guilt for each count. The applicant's submissions stated that "the only direct evidence implicating the applicant came from the complainant, and only the complainant". This does not answer the fact that the complainant said different things with respect to her consciousness, memory of, and physical response to, the kissing as opposed to the intercourse, and the applicant also said different things about the facts which led him to presume the complainant consented to the two different sexual acts.
5. Counsel for the applicant also sought to blur the kissing and the intercourse into an "intertwined" single incident taking place within the space of an hour. In oral submissions it was submitted that this posed a problem for distinguishing the complainant's level of consciousness at the time of one act compared to another act. This submission plainly cannot be accepted as temporal divisions were made in the evidence presented before the jury, namely that the kissing commenced before the intercourse, and there remains a commonsense differentiability and division between the two acts which the jury was entitled to make regardless of how close in time they occurred, and regardless of whether the kissing continued during the intercourse.
6. As the Crown correctly submitted, the jury may well have found the applicant guilty on Count 2 because they concluded the applicant did not take steps to ascertain the complainant's consent to sexual intercourse and, therefore, had no reasonable grounds to form an honest belief that the complainant consented. I note that, in response to a jury note on 16 February 2022 requesting the trial judge to "please repeat what was said about 3 levels of consent", on that same day the trial judge stepped through "the three ways that the Crown can establish that the accused knew that the complainant was not consenting." The trial judge clarified the difference between consent and knowledge of lack of consent and seemingly went on to state (the transcript is not grammatically complete, which may be due to the exigencies of speech or some error of transcription) that the latter (knowledge of non-consent) was "obviously enough relevant only to counts 2 and 3". The trial judge finished her exposition of the three levels of knowledge by stating that "Finally, the Crown can prove knowledge of the complainant's lack of consent if you are satisfied beyond reasonable doubt that he had no reason to believe she was consenting." Hence, it is plausible, as the Crown has submitted, that the jury directly applied this direction and found that the applicant had no reason to believe the complainant was consenting to the intercourse constituting Count 2 and was therefore guilty of Count 2.
7. But, as per the authority clearly stated by Simpson in TK at [130], the appropriate question for an appellate court to ask when determining whether differing verdicts are necessarily inconsistent is whether there exists a reasonable explanation for the jury's acquittals. In addition to the differences in evidence between the counts summarised above, I note as pertinent an observation made during the course of argument to the effect that a reasonable person might think the consent required for a kiss may arguably be of a much lower standard than the consent required for vaginal-penile intercourse. In my view, not only is it plausible and reasonable if the jury differentiated upon the evidence going to the different counts, but it is also plausible and reasonable if the jury applied a different standard with relation to the two different types of sexual act for the types and clarity of indications that the complainant needed to have given for the applicant to know she did not consent, and the types of steps the applicant needed to take in order to ascertain whether she consented.
8. It was open to a reasonable jury applying their mind properly to the different facts they were provided with to find that knowledge of lack of consent was made out for Count 2 but not for Counts 1 and 1A. This is the case notwithstanding the trial judge's failure to clearly direct the jury that knowledge of lack of consent was a requisite element of the offences in Counts 1 and 1A. The jury nonetheless heard the Crown correctly argue that knowledge of lack of consent was necessary to convict the applicant of Counts 1 and 1A, and it is plausible that the jury applied this element of knowledge even though the trial judge failed to reinforce the Crown's statement or give directions accordingly. The Crown's instructions to the jury that knowledge of non-consent was relevant to all the Counts are excerpted below.
9. On Wednesday 2 February 2022 in the Crown's opening address the jury were told that the elements of Count 1 were (my emphasis in italics): "That the accused (a) knowing the complainant was not consenting; (b) sexually touched the complainant; and (c) did so in circumstances of aggravation, namely while the complainant was under the authority of the accused." (Court Book page 108). They were also instructed about the "three ways to establish that the accused knew the complainant wasn't consenting" and that they must "consider whether the accused knew she wasn't consenting" to "the three sexual acts" (Court Book page 109). They were instructed that the elements of Count 4 were "exactly the same as the elements of Count 1" (Court Book page 110).
10. On 14 February 2022 in the Crown's closing address the jury were told: It is the Crown case that the accused knew she was not consenting to the acts engaged in with her, and the Crown submits that you can be satisfied of any one of the three bases of knowledge in relation to consent… The elements for each of the three charges on the indictment are the (1), the physical conduct occurred, (2) without the complainant's consent (3), that the accused knew she wasn't consenting, and (4) the complainant was under his authority at the time… The focus of your deliberations will need to be on whether you're satisfied that the complainant wasn't consenting and whether you're satisfied the accused knew she wasn't consenting…
11. The Crown then elaborated upon the three available bases of knowledge, making clear that knowledge was relevant to "each of those three alleged sexual acts" (namely, the kissing, the touching of the breasts and the intercourse).
12. In the trial, counsel for the defence twice explicitly agreed with this approach by the Crown on 14 February 2022 (at Court Book pages 548 and 568). At Court Book page 548 counsel for the defence states that "the real issue in this trial" is "secondly, whether the accused had a belief that the complainant was consenting". This implicitly suggested, as the Crown explicitly stated, that the issue of the accused's knowledge of consent applied to all the counts being considered in the trial.
13. 14 February 2022 was the day immediately preceding the day when the trial judge commenced the summing-up, and therefore these statements made by both the Crown and the defence counsel were likely to have been fresh in the jury's mind when the summing-up commenced.
14. Even if the jury did not acquit the applicant on Counts 1 and 1A for the precise reason that they knew knowledge of lack of consent needed to be proven and was not, there are other reasonable explanations for the acquittals arising from the different facts and circumstances of Counts 1 and 1A as opposed to Count 2. The trial judge directed the jury to apply "common sense" when considering the element of consent (Court Book page 625), and the jury may have taken a "common sense" approach to determining that the applicant was not guilty of the crimes of sexual touching or aggravated sexual touching (with respect to the kissing).
15. The jury may have arrived at a "common sense" or "gut" conclusion that the act of kissing was not a criminal offence, and/or that the applicant was not criminally culpable for it, perhaps justified by reasoning that what he did with respect to the kissing was "not that bad" or "not bad enough to be a crime" because the facts did not indicate that her lack of consent was apparent enough. That is, even if the jury did not realise that knowledge of non-consent was a requisite technical element of the offence of sexual touching, despite the Crown's contentions on this point, they may well have effectively applied the element of knowledge anyway just by way of differentiating the kissing act based on the different facts concerning how the complainant appeared to the applicant to be reacting. The jury may well have believed that because the complainant was not completely passed out (discernible from the complainant's own testimony that she remembered the kissing) during the kissing, as she was during at least the initiation of the intercourse, that she may have appeared to be consenting to the kissing, but not to the intercourse.
16. There is also a reasonable basis to conclude that the jury took into account the applicant's evidence that he believed the complainant kissed him back and deduced from this that she may have appeared to consent to the kissing, a semblance of consent which did not extend to the intercourse.
17. In further support of leaving a verdict that has been arrived at in this way undisturbed, the discussions by Gaudron, Gummow and Kirby JJ in Mackenzie at 366-367 and Simpson J in TK at [133] indicate that it is "open to" a jury to take "a "merciful" view of the facts upon one count" - to apply "their innate sense of fairness and justice in place of the principles of law". Gaudron, Gummow and Kirby JJ at 367-8 agree with the remarks in Kirkman which caution appellate courts against being "too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty".
18. Counsel for the applicant, in written submissions, contended that the jury could not have taken a "merciful" view of the facts "to find the applicant guilty of a less serious charge" because the applicant was found guilty of the most serious charge he faced, namely Count 2. This cannot be accepted for two reasons. Firstly, this contention distorts the language of Mackenzie which does not state that a jury, in taking a merciful view of the facts, must find an accused guilty of a charge less serious than the most serious charge the accused faces, but states that a jury may take "a "merciful" view of the facts upon one count", which may be, as in this case, a count that is less serious than another count which the jury convicts upon. (My emphasis in italics.) Secondly, this contention invites an assessment of "mercy" in a vacuum, in which "mercy" by a jury would consist of acquittal of the most serious charge an accused faces. In contrast, the mercy which a jury is capable of meting out must always be interdependent with the facts they are faced with. This present case could be considered one where the jury has adopted a "merciful" view only in those counts where the facts (or as in the present case, the facts in contention) actually merit mercy, for present purposes namely Counts 1 and 1A.
19. Even if I did accept that this present case is not obviously one where the jury has applied mercy, a conclusion that the jury plausibly and reasonably came to a common-sense assessment that the applicant was not guilty of Counts 1 and 1A finds support in the authorities on inconsistent verdicts. The following remarks from Spigelman CJ in Markuleski at [76] - [77] are instructive in this regard (my emphasis in italics): 76 This particular application of the principle that an appellate court should respect the constitutional role of the jury, must be given careful consideration in cases alleging inconsistency in verdicts. There are often a number of possible explanations for divergent verdicts that do not necessarily give rise to a doubt about the complainant's credibility on all counts. For example, where there is contradictory evidence on one count but not on others, the jury may well have taken the view that there was no point in adding yet another verdict of guilty, so that it was unnecessary to fully consider the conflicting evidence. 77 Considerations of this character appear to lie behind this Court's judgment in R v Kiskarpati (NSWCCA, 4 November 1998, unreported) in which three counts of sexual intercourse without consent and one count of common assault were alleged to have occurred on the same occasion. The allegations relating to the sexual offences involved digital penetration, cunnilingus and vaginal intercourse. The appellant was convicted of the count of vaginal intercourse and acquitted of the other two sexual offences. Hidden J with whom McInerney and Ireland JJ agreed concluded: "… I think it sufficient to say that the jury may have taken a practical view of the whole encounter and decided that those two verdicts of guilty, that is, in relation to one charge of sexual intercourse without consent and in relation to the charge of common assault, were sufficient to reflect the appellant's culpability."
20. These remarks are relevant to the present case in two respects. First, Counts 1 and 1A can be seen through the prism of there being salient contradictory evidence on the question of whether the applicant knew the complainant did not consent (for example, whether or not the complainant kissed the applicant back). The jury may legitimately have considered "it was unnecessary to fully consider the conflicting evidence" (Markuleski at [76]) concerning Counts 1 and 1A, given that there was no such contradictory evidence, on, for example, the fact that the applicant took no steps to ask the complainant whether she consented to the intercourse constituting Count 2, and because they were able to determine the applicant's guilt for Count 2.
21. Second, I refer to this Court's discussion of the "practical view" of the jury in R v Kiskarpati (Court of Criminal Appeal (NSW), 4 November 1998, unrep) ("Kiskarpati") at 6, quoted above. Kiskarpati resulted in this Court supporting the right of the jury to have taken a practical, common-sense approach. As in this matter, the jury in Kiskarpati acquitted on the less serious charges.

The assumption that the jury followed the trial judge's directions (as expressed in Gilbert v R (2000) 201 CLR 414 'Gilbert v R') is not conclusive of the question concerning whether they might in fact have reasonably come to the conclusion to acquit.

1. In the present matter this Court was not referred to any authorities indicating that this assumption must still be applied, especially when an appellate court is tasked with searching for any reasonable explanation for a jury's verdicts, notwithstanding the existence of facts to the contrary which indicate that the jury might not have followed the trial judge's directions alone. Nonetheless, I gratefully acknowledge that Kirk JA cites, at [81] of his Honour's judgment, four cases (TK, Cullen, Jovanovski v Director of Public Prosecutions (DPP) (2009) 198 A Crim R 279; [2009] NSWCCA 284, Hawi v R (2014) 244 A Crim R 169; [2014] NSWCCA 83) where the assumption has been treated as applicable to a question of inconsistent verdicts. As his Honour notes, these cases all concern the application of the assumption to leave the jury's verdicts undisturbed.
2. In my view, this is significant because these cases marry the assumption that a jury has followed the judge's lawful directions with the basal premise that a jury's verdicts should be respected by appellate courts wherever this is possible without permitting a miscarriage of justice. Returning to the circumstances of this matter, considerable caution should be exercised before applying the different assumption that a jury has only followed a judge's directions where that judge has omitted to explicitly make a direction required by law (in this case, a direction as to the requisite element of knowledge of non-consent pertaining to Counts 1 and 1A).
3. Aside from the factual bases for not applying this assumption in the present case, which I elaborate below (namely, that the jury did receive correct instructions on the element of knowledge in the indictment and the Crown's argument, and also that there was no contradictory, explicit direction given by the trial judge as to the relevance of knowledge to Counts 1 and 1A, but only an implication which the jury is unlikely to have deduced), there are principled bases for not applying this assumption in the present case.
4. In my understanding of the discussion in Gilbert v R at [13] and [31], the assumption that juries obey the trial judge's direction is valorised and justified, not because it is in the empirical world always the case, but by its instrumental effect in allowing "[t]he system of criminal justice" (which affords juries the prime responsibility of determining questions of fact) to proceed on a justified basis, without constant doubt as to the legitimacy and competency of jurors to decide such fateful questions (Gilbert v R at [13])
5. There is no similar principled justification for applying the assumptions, as would be required in this case, that an omission of a direction to a jury, and the surrounding language of the judge's off-hand remarks which make clear this omission, creates something akin to an affirmative, albeit implicit, judicial direction which a jury must be presumed firstly to notice, secondly to deduce the ramifications of, and thirdly to apply to the exclusion of more explicit direction as to the law received during the course of argument.
6. I note that the discussion of Gilbert v R by McClellan CJ at CL in TK at [6] describes this assumption that juries understand and follow the directions of trial judges as "the starting point for any analysis" - a starting point which may be disproven by the facts of a particular case, for example, if an applicant proves "that there has been a miscarriage of justice" because a jury has not followed a trial judge's correct directions.
7. In this matter there are strong factual reasons that this assumption (if there be a proper basis for applying the assumption to the effect that a jury's verdict is disturbed, rather than respected) is displaced. The trial judge directed the jury that they needed to be satisfied that the applicant knew the complainant did not consent to the offences constituted by sexual intercourse (Counts 2 and 3). It is true that at several points in the transcript her Honour implied that knowledge of consent is only relevant to Counts 2 and 3. But her Honour never explicitly directed the jury that knowledge of consent does not apply to Counts 1 and 1A. It is an open question whether the jury picked up upon the niceties of her Honour's language - whether they either noticed the implication in the first place, or secondly whether they drew the conclusion that, therefore, knowledge of consent was not to be taken into account with respect to Counts 1 and 1A. For example, the clearest statement of that kind of implication is when her Honour says at p 656 of the Court Book "So far as proving [knowledge of lack of consent] - and of course obviously enough relevant only to counts 2 and 3 on the indictment". As I noted earlier in my judgment, this statement is not grammatically complete, and what follows "of course" is arguably a throw-away line or aside which a jury might not take to heart or appreciate the full significance of.
8. Counterbalancing a possible implication arising from her Honour's summing up, namely that knowledge of consent was only relevant to Counts 2 and 3, there were other moments in her judgment where her Honour explicitly referred toknowledge of non-consent being relevant to all the sexual conduct, that is including the sexual touching (kissing) constituting Counts 1 and 1A. At p 627 of the Court Book her Honour stated (my emphasis in italics): But you are entitled to draw inferences if those inferences properly arise and if no other reasonable inference is open to you, to conclude from any other facts such as the state of the complainant's intoxication, her lack of response the Crown says, to prove that the accused must have known and that he did in fact know that she did not consent to any sexual conduct […]
9. At page 633, while summarising the Crown case, her Honour stated (my emphasis in italics): The Crown says that there was no conversation between the accused and the complainant and that he took no steps to ascertain whether she was consenting to any of the sexual activity. The Crown says that the accused knew she was not consenting to that sexual activity or that he was reckless as to whether or not she consented or had no reasonable grounds for believing that she consented to the sexual activity.
10. In addition to these two references, there were three further moments where her Honour implied that knowledge of non-consent was relevant to the kissing constituting Counts 1 and 1A. This implication arose when her Honourmentioned the evidence the applicant gave concerning the complainant kissing him back in the context of the applicant's knowledge of her non-consent or his belief that she consented (pages 625, 628 and 637 of the Court Book). In the statements below made by her Honour to the jury, her Honour did not restrict the issue of knowledge or belief of non-consent to the act of intercourse but either explicitly extended it to "all" the sexual conduct or "those things [sexual acts]" in the plural (pages 637, 629) or left it unlimited so that knowledge could plausibly have appeared to the jury as being relevant to all the sexual conduct her Honour juxtaposed it with, including the kissing which constituted Counts 1 and 1A: Page 625: Turning now to this issue about consent and indeed whether or not the accused knew the complainant was not consenting […] The defence relies on the fact that […] she kissed him back… Page 628-9: The accused says that the complainant gave indications that she was consenting […] that she kissed him back with her tongue when he kissed her […] and so he honestly and reasonably believed her to be consenting. The Crown says that you would accept the complainant, that she was in no way in any position to consent, that the accused must have realised and had no reasonable basis for not or alternatively that he was reckless given her high state of intoxication, and her lack of response to those things and that you would have no trouble concluding that she was not only consenting but that the accused knew it. Page 637: You are reminded that the accused gave detailed evidence and on the issue of consent that the accused's case is that she was, in fact, consenting, that she was awake, that she nodded when he asked her whether he wanted her to be his girlfriend [sic], that when he kissed her she kissed back […] all consistent with the fact of consent and leading also into his belief that she was consenting… (My emphasis in italics.)
11. It is conceivable that the jury might have taken the references to the complainant kissing the applicant back as being relevant only to establishing knowledge of consent for the intercourse. But it is equally plausible that they treated it as relevant to establishing that the applicant did not know the complainant did not consent to the kissing constituting Counts 1 and 1A.
12. The five references excerpted above in which her Honour indicated (albeit with differing degrees of clarity) that knowledge is relevant to all the sexual activity, must be considered in the light of the arguments put to the jury by the Crown who instructed that knowledge was necessary for Counts 1 and 1A. Taken together, the totality of the oral submissions and the judge's directions may well have led the jury to think about the question of whether the applicant knew the complainant did not consent to the kissing, and knowledge may have been treated by the jury as an element of the offence either consciously and explicitly or pragmatically without precise awareness of legal technicality. Moreover, the indictment which the jury were provided with stated as an element of Count 1 that the applicant was "knowing that she [the complainant] was not consenting".
13. The jury appear to have been provided with the indictment in written form which they had ready access to during the course of oral submissions when counsel referred them to the indictment. This is indicated by the Crown's statement in their opening address (page 109 of the Court Book) which directs the jury to "note by looking at the indictment" and to "look at those emboldened words" on the indictment.
14. It is also relevant that, at page 649 of the Court Book, her Honour instructed the jury that they "are entitled to return different verdicts to different counts if there is a logical reason to do so on the evidence." On 16 February 2022, the jury submitted a note (Court Book page 724) asking whether Counts 1, 2 and 4 were to be looked at separately, asking "ie 1. could be not guilty but 4. could be guilty?" This provides some limited insight into the approach of the jury as early as 8 days before the trial judge's summing up concluded on 24 February, revealing that they were directly concerned about whether they were legally permitted to reach different verdicts for different counts. This approach of the jury was reinforced by the summing up. This is one point in favour of the reasonableness of the jury having reached different verdicts on different counts- that it was not an outcome they came to willy-nilly, but one which they deliberately sought and received instructions on from her Honour.
15. I extract below the conclusion of McClellan CJ at CL in TK at [8] (my emphasis in italics): The significance of a finding by an appeal court that, although properly instructed as to the law, a jury's verdict of guilty on some counts cannot be accepted because they acquitted on other counts should not be underestimated. There will be cases where the jury's verdicts bear no analysis other than the decision making process has miscarried. But of itself the fact of the inconsistencies may merely support a conclusion that the jury has accepted its obligations and carefully turned its mind to decide each individual count, rather than indicate that the decision making process has miscarried.
16. I note that McClellan CJ at CL does not specify that a jury need be "properly instructed as to the law" by the trial judge, although this is arguably an implication that can be drawn from his Honour's observations. What is not necessarily implied is that the caveat in this passage from TK that a jury should be "properly instructed as to the law" requires that proper instruction to come exclusively from the direction of the trial judge and not from a combination of sources as it appears to have done in this case, namely, the indictment, the Crown's argument and the defence counsel's agreement on this point, and five references by the trial judge to the applicability of knowledge to all the sexual acts, all in the context of an omission in the direction given by the trial judge. Moreover, even if this were not accepted, it is a separate question as to whether a lack of proper direction by the trial judge must necessarily, in and of itself, result in a finding that verdicts are inconsistent and should be disturbed when this finding would not otherwise be reached. This is not a case such as those described by McClellan CJ at CL "where the jury's verdicts bear no analysis other than the decision-making process has miscarried." This is rather a case where the differing verdicts indicate that the jury has "carefully turned its mind to decide each individual count". The verdicts therefore should not be disturbed, and are not rendered manifestly unjust, inconsistent, or lacking any reasonable explanation, solely because the trial judge omitted to clearly or properly direct the jury as to the element of knowledge in Counts 1 and 1A, an omission which caused no harm to the applicant's interests.

Conclusion on the alleged inconsistency between Count 2 and Counts 1 and 1A

1. In summary my conclusions are: 1. The principles deriving from a line of authority (including, notably, Mackenzie and TK) explicate the limited circumstances when appellate courts may find that verdicts are inconsistent. These principles inform the conclusions I have reached. 2. The phrase "a proper way by which the appellate court may reconcile verdicts" in Mackenzie at 367 needs to be interpreted in a way which is consonant with its context and with the principle of respect for juries which underpins this area of law. In this case there is such "a proper way" to reconcile the different verdicts. 3. The jury's verdicts are not inconsistent because a reasonable explanation can be postulated for the jury's acquittals on Counts 1 and 1A. 4. This finding was supported by my analysis of both the different evidence presented to the jury concerning Counts 1 and 1A as opposed to Count 2, and the directions of the trial judge (as well as the oral submissions of the Crown and the defence during the trial) which indicated to the jury that the applicant's knowledge of the complainant's non-consent was relevant to finding guilt on Counts 1 and 1A, despite the failure of the trial judge to explicitly direct the jury to treat knowledge as an element of these counts.

Conclusion on the alleged inconsistency between Count 2 and Count 4

1. As to the issue of the jury's failure to reach a verdict on Count 4 (Aggravated sexual touching (under authority)) which pertained to the applicant's touching of the complainant's breasts, I first note that the question of inconsistency between a verdict and a failure to reach a verdict is a complex area of law. I respectfully agree with the analysis of Bathurst CJ at [235]-[248] and Bell P (as his Honour then was) at [310]-[311] of Daaboul v R [2019] NSWCCA 191 ('Daaboul'), namely that inconsistency between a failure to reach a verdict on one count and a verdict of guilty on another count will likely only occur in the "very limited circumstances" where the outcome "is an affront to logic and common sense and suggests a compromise by the jury of its duty". (I quote, in that respect, from Bathurst CJ at [235] and [240] of Daaboul.) This high threshold has not been met in this matter.
2. As in my analysis above of the different evidence that was provided concerning Counts 1 and 1A and Count 2, there was likewise saliently different evidence provided by the complainant pertaining to her level of consciousness during the actions constituting Count 4 as opposed to Count 2. As the Crown submitted, the complainant recalled the touching of her breasts and this implied that she was conscious during that action, while she implied that she was not conscious at the time of penetration by stating that she did not know the applicant was initiating intercourse.
3. The touching of the breasts constituting Count 4 was also temporally divisible from the intercourse constituting Count 2. Like the kissing constituting Counts 1 and 1A, the complainant's breasts were touched prior to the initiation of intercourse, as revealed by the applicant's statements at Court Book page 374, and during cross-examination of the complainant at Court Book page 192. The complainant's evidence suggested that she was conscious at least some of the time, even if her eyes were closed, when her breasts were touched, stating at Court Book page 145: So, I felt he was grabbing my boobs and the other parts, I felt that and then I tried to stop him and then I tried to kick him - kick him from my feet, but it just - I - I -I thought my - in my head and I thought inside that I want him to stop, right, and then it just - I even thought I went for that in action, but it just my feet wasn't moving. Like, I - my eyes couldn't even open, but I did feel he was touching me, yeah, grabbing me.
4. The complainant stated that, in response to the applicant touching her breast, "That point, I wasn't able to say anything. I was still - I told you my eyes - I - it wasn't even open. Like, I can't open my eyes." (Court Book page 86). During cross-examination counsel for the applicant quoted this statement by the complainant before putting to her that she knew what the complainant was doing when he initiated intercourse. The applicant denied this, stating "No, I didn't know." (Court Book pages 201-202).
5. These differences in evidence, amongst others, reveal that different facts were presented to the jury concerning Count 4 as opposed to Count 2 which mean that, by a mere examination of the resolutions of Counts 2 and 4, it cannot be found that there was an affront to logic and common sense or a suggested compromise of the jury's duty in the jury reaching a guilty verdict on Count 2 but no verdict on Count 4.

Conclusion

1. In the result, Ground 1 should be rejected.
2. It follows that it is unnecessary for me to consider whether a finding of inconsistent verdicts should result in this matter in a retrial. In my view, upholding of Grounds 2 and 3 should result in retrial and there is no proper basis for operation of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) to uphold the convictions if Grounds 2 and/or 3 were made out essentially for the reasons given by Kirk JA.
3. SWEENEY J: I agree with Kirk JA.

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