R v B T [2004] VSCA 44

5. He pleaded not guilty to all of these charges and a trial was conducted at the conclusion of which the jury returned verdicts of guilty on 10 of them (1, 6, 7, 11, 12, 13, 14, 15, 16 and 17). The trial judge directed verdicts of not guilty on three counts (3, 4 and 5) and there were verdicts of not guilty on the remaining four (2, 8, 9 and 10).

8. After hearing a plea in mitigation of penalty on 11 April 2003, his Honour imposed an effective sentence of six years' imprisonment in respect of which a non-parole period of three years and six months was fixed.

11. The applicant now seeks leave to appeal against these convictions on the ground that:

"The verdicts returned by the jury upon the applicant's presentment are inconsistent, resulting in verdicts of guilt and convictions which were unsafe and unsatisfactory, thereby giving rise to a substantial miscarriage of justice."

"...this was a case in which the jury's assessment of the complainant's veracity and credibility was vital.

...

where a jury has convicted an accused upon the uncorroborated evidence of a complainant in relation to some, but not all, counts in a presentment relating to a series of alleged sexual offences, this casts doubt upon the jury's verdicts of guilty, which may constitute inconsistent verdicts. In cases of `oath against oath' (as in this case), the rejection of the complainant's evidence in relation to the counts upon which a verdict of not guilty was returned casts doubt upon the acceptance of the complainant's evidence beyond reasonable doubt on remaining counts. The verdicts returned in this case represent such an affront to logic and commonsense."

18. The proper approach to be adopted by an appellate court considering a case of claimed inconsistency of the kind asserted was the subject of attention by the High Court in McKenzie v. The Queen[1]

"... the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone ... is often cited as expressing the test ... : `He [the applicant] 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.' Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense .... Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted .... If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury .... In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt .... Alternatively, the appellate court may conclude that the jury took a `merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries ...

...

... 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'" (Citations omitted.)

25. Later in MFA v. R.[2], Gleeson, C.J., Hayne and Callinan, JJ. said_:_

"Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. ... In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed."

29. These concepts, although not always easy to apply, are relatively straightforward. Fundamental to their operation in a given case is the central role ascribed to the jury in our criminal process. This involves an acceptance of the proposition that unless some good reason emerges for doubting that this has occurred, the jury verdict will be treated as properly based upon compliance with the instructions given to them and the application of reason and common sense to the evidence. In the present matter, no complaint whatever has been advanced with respect to the adequacy or clarity of the instructions provided to the jury. Rather, as the extract from the written submissions of the applicant set out above makes clear, the claim is made, that as a matter of logic and common sense, the verdicts cannot stand together. It is against this background that the application must be considered.

Count 1 - That BT at Mount Waverley in the said State between the 25th day of December 1979 and the 31st day of January 1980 unlawfully and indecently assaulted L a girl under the age of sixteen years.

35. According to the complainant, (to whom I will refer as L), not long after Christmas 1979 when she was aged 11 years, she was with the applicant in the loungeroom of his home in Mount Waverley whilst he taped some music for her. She was wearing one of her favourite dresses and a pair of pink "Holly Hobby" underpants that she had received as a Christmas present from the applicant and his wife. She was sitting cross-legged on the floor opposite the applicant when he told her that she was beautiful and that she "turned him on". He asked "Let me have a look at what you're wearing as your undies." He then inserted his hand underneath the underpants and touched her on the vagina for about two to three minutes. She agreed that there were other family members in the general vicinity but that the applicant did not check their whereabouts before embarking upon this conduct.

38. The applicant stated in evidence that he moved into the premises on 26 January 1980 prior to the completion of renovations to the home. He denied that the incident occurred, stating that he did not have a tape-recorder in the early 1980s and had started taping music for the complainant and her siblings after the death of her father in May of that year. His evidence was supported by that of his wife who said that she purchased "Bonds" underwear and not "Holly Hobby" for the children and that this had occurred 12 months earlier. She believed that she bought tops for her nieces for Christmas in 1979. The applicant started taping music for the children after August 1980.

Count 6 - That BT at Mount Waverley in the said State between the 18th day of May 1980 and the 31st day of December 1980 on an occasion other than that referred to in Count 4 committed an act of gross indecency in the presence of L a person under the age of sixteen years.

42. This offence, L stated, was committed at her house on an afternoon in 1980. It was, she said, the applicant's practice to attend at her family home each afternoon for coffee. On one such occasion when her mother was out shopping, and no one else was present, she went to the toilet. Whilst there she heard the applicant call out "Where are you", and she responded by telling him that she was in the toilet. He then opened the door, entered and shut the door behind him. He opened his fly and exposed his penis and masturbated until he ejaculated into the toilet bowl. The applicant denied that the incident occurred and asserted that the toilet in the house was so small that if the door were opened while someone was seated the door would hit their knees.[3]

Count 7 - That BT at Mount Waverley in the said State between the 18th day of May 1980 and the 31st day of December 1980 on an occasion other than those referred to in Counts 3 and 5 unlawfully and indecently assaulted L a girl under the age of sixteen years.

46. L stated that on a week-night during the September school holidays in 1980, the applicant took his son ("K") and the complainant's brother ("G") to a roller skating rink in Mount Waverley. After dropping them off he returned to his home where the complainant, her mother and the applicant's wife were watching television. Before the rink closed at 9.00, the applicant said "I am taking L to pick up the boys". Her mother responded "No, don't take [her]" The applicant replied "[She] wants to come." He did not speak directly to L. They then travelled in the applicant's car to the rink. The boys were not at that stage waiting outside and he drove into a nearby cul-de-sac. He told L that they were going to go "parking". He explained that this meant kissing and cuddling and spending time together. He said he wanted to spend time with her. Whilst they were in the cul-de-sac the applicant told L to get into the back seat, which she did. He then entered the back seat and positioned himself so that her legs went across his legs. He pulled a blanket over them and unzipped her jeans which he pulled down a little. He then held up his middle finger and said "I'm going to put that finger into you." Her underpants were pulled down. He rubbed her vagina and inserted his finger which he moved around for about ten minutes. L noticed that the time was then 9.35 p.m. She said that it was late and that they had better go and pick up the boys. The applicant responded "Quick, we better go and get moving." They then drove into the street where the two boys were waiting. The applicant told them that he had been waiting but they had not seen him. He said that he parked in the cul-de-sac because he thought that they might have wandered down there. They arrived at the applicant's home at about 9.45 p.m. The complainant's mother wanted to know why they took so long and the applicant told her that the boys were late in coming out of the skating rink.

49. Again the applicant denied that this incident occurred and said that he did not recall picking up his son and the complainant's brother from the roller skating rink in 1980 after the death of the complainant's father although he did remember picking them up at a time when L's father was still in hospital. He denied insisting that L came with him when his wife was reluctant for her to do so.

52. The applicant's wife testified that she did not challenge the lateness of the applicant's arrival home from picking up the boys from skating and his son gave evidence that he could not recall his father ever picking him up from skating.

Count 11 - That BT at Mount Waverley in the said State between the 1st day of September 1980 and the 28th day of February 1981 unlawfully and indecently assaulted L a girl under the age of sixteen years.

56. The complainant stated that in the summer holidays of 1980-1981 she went frequently to the Waverley swimming pool. On one occasion she was there with the applicant, K and G. At one point the applicant held her close to him and she could feel that his penis was erect. He then sent the boys to the deep end of the pool saying "No questions asked, go and play in the deep end". He then asked L to "Touch me". He put his hands on her shoulders, pushed her underwater and held her head directly in front of his penis so that she could feel it in her mouth. She then bit him. She turned her head and saw the applicant's son swimming underwater towards them. She made eye contact with him and he looked back with a shock. K said to his father "What are you doing?" The applicant replied "What are you talking about?"

59. In his evidence the applicant denied that this incident had occurred. His son stated that he did not see his father engaged in sexual activity at the Waverley pool and specifically did not see the event described by the complainant. He stated that he was never sent away by his father whilst swimming up to him with the complainant in close proximity.

Count 12 - That BT at Ashwood in the said State between the 18th day of February 1981 and the 28th day of February 1981 unlawfully and indecently assaulted L a girl under the age of sixteen years.

63. On 19 February 1981, the complainant sustained an injury to her back after diving into a swimming pool. She was taken to the Chadswood Private Hospital in Ashburton. She remained there for three days. At about 7 p.m. on the second day she was visited by the applicant, K and two of her female friends. At one stage when she was alone in the room with the applicant he told her that she looked good in the hospital bed. She responded that she had a headache. He said "I know a cure for headaches" and put his hand under the bed clothes and underneath her nightgown and inserted a finger into her vagina. He moved it in and out saying "This will cure your headache." He stopped when K returned to the room.

66. The applicant gave evidence that he did attend the hospital whilst the complainant was a patient with the people named on each day she was there. However he denied that he sexually interfered with her on any such occasion.

Count 13 - That BT at Mount Waverley in the said State between the 18th day of February 1981 and the 28th day of February 1981 on an occasion other than that referred to in Count 11 unlawfully and indecently assaulted L a girl under the age of sixteen years.

70. A few days after being discharged from hospital, the complainant badly cut her left index finger while she was slicing an orange. She said that on the following day the applicant also cut his left index finger whilst sawing. This injury resulted in him being absent from work. He regularly attended at the complainant's family home in order to have her mother change his bandage. One such occasion when the complainant stayed home from school the applicant came to her room. He crept alongside a cupboard and turned to her and said "I'm a police officer". He then directed the complainant to follow his directions. He told her to lie on the bed. He said that he wanted to have "dry sex" with her. He lay her down on the bed and lay on top of her. They remained fully clothed. His penis was erect and he rubbed against her in a thrusting motion for about ten minutes.

73. The applicant denied that this incident occurred. He said that he had injured himself in the manner described but this had occurred in July 1976. A photo in which that injury could be seen and was printed in October 1976 had been taken. He said that his sister-in-law did not change the bandages. He did not injure his hand in a similar manner at any later time.

76. The applicant's wife gave evidence that he had cut his finger in 1976. Her sister did not change the dressing and he had sustained no subsequent injuries to his hand requiring bandaging.

Count 14 - That BT at Mount Waverley in the said State between the 18th day of February 1981 and the 28th day of February 1981 on an occasion other than those referred to in Counts 11 and 13 unlawfully and indecently assaulted L a girl under the age of sixteen years.

Count 15 - That BT at Mount Waverley in the said State between the 18th day of February 1981 and the 28th day of February 1981 committed an act of gross indecency in the presence of L a person under the age of sixteen years.

83. The complainant stated that after the conduct which constituted the subject of count 13 the applicant undid his fly, took out his penis and told her that he was going to put it inside her mouth and they would have oral sex. He then placed his penis in her mouth and moved it back and forth for a while. He then removed his penis and masturbated to ejaculation.

Count 16 - That BT at Mount Waverley in the said State between the 2nd day of March 1981 and the 31st day of December 1982 indecently assaulted L

Count 17 - That BT at Mount Waverley in the said State between the 2nd day of March 1981 and the 31st day of December 1982 raped L by introducing his penis into her vagina without her consent.

90. Approximately six weeks before Christmas 1982 L encountered the applicant, G and K in the back yard of her home. The applicant was showing something to the boys which he put away quickly as she approached. He told the boys to go and, although K protested, they complied. He then took a piece of paper from his pocket that, when unfolded, revealed a picture of a butterfly surrounded by drawings of copulating couples in different sexual positions. He told her that he would like to adopt all of those positions with her one day. He then took a handkerchief and a small hip flask from his pocket and said that he wanted her to see and smell something. The applicant poured fluid from the flask on to the handkerchief which he then pushed against her face. L then felt woozy and lost her sense of balance. He led her towards a brick fence. As she leaned against it he paced around saying "Shit, shit, shit, shit, I've given you too much." He then returned to her and positioned her against the wall before he assisted L in pulling down her jeans and underpants. He then dropped his shorts and underpants to the ground, his penis was erect and he said "Have a look at me, have a look, have a good look at me." The applicant helped L to squat down onto her haunches and inserted his finger into her vagina. He told her that he was not going to hurt her and pushed his penis into her. He then said that they would stop for now and that they would do more another time. He assisted her to her feet and they dressed. L asked the applicant what was in the handkerchief. He said that it was chloroform which only special people could obtain.

93. In his evidence the applicant denied that he owned a silver flask or had possessed chloroform. He denied showing pornographic images to the boys or sending them away and he denied that he was in that location alone with the complainant or that the incidents of which he spoke had occurred.

96. G, the complainant's brother, said that the applicant did not show him pornographic photos in the back yard of his parents' home and that he did not see the applicant with chloroform or a hip flask.

99. K, the applicant's son, gave evidence that his father never showed him pornographic images and could not recall being told to go away by the applicant when L arrived. K also said that he never saw the applicant in possession of a hip-flask and chloroform.

102. The applicant's wife gave evidence that to her knowledge her husband did not own a hip flask nor did he possess chloroform.

Count 3 - That BT at Mount Waverley in the said State between the 18th day of May 1980 and the 31st day of December 1980 unlawfully and indecently assaulted L a girl under the age of sixteen years.

107. L stated that in about September 1980 after the completion of renovations to the applicant's house, she regularly attended there with her mother and brother to watch a television program called "Prisoner" with the applicant's family. On one such occasion, during a break in this program, the applicant requested her to fetch a key from an upstairs bedroom. His son offered to get it but the applicant rejected this suggestion. She went to the bedroom and was followed by the applicant. He covered her mouth and imitated the Scottish accent of a prison officer who had raped a prisoner in that night's episode. He placed his hand underneath her top and cupped her breasts for about five minutes. They were interrupted by the sound of the applicant's wife coming up the stairs and he desisted. The prison officer, she said, was played by an actor who she identified as having appeared in television advertisements for a smallgoods manufacturer.

110. The informant gave evidence that an episode of "Prisoner" was put to air on 7 February 1985 in which a character called Frank Bourke, who did not have a Scottish accent, committed a rape and in another episode which was televised on 17 March 1982 a character called Jock Stewart, played by an actor who appeared in advertisements for "Don Smallgoods", committed a rape. This character had a Scottish accent and a sinister laugh.

113. The applicant denied that the incident occurred. There was no need to collect a key from upstairs. He was not in the habit of watching "Prisoner" and had not seen either of the episodes. He said that the door to the particular bedroom in the premises could be seen from the family room settee.

116. The applicant's wife stated that their son used to watch "Prisoner" regularly but that her husband and herself did not. It was not the custom of the complainant's family to come around to watch. She was unable to recall the conversation involving whether the complainant would collect a key from upstairs.

119. The applicant's son, K, stated that he recalled the episode in which the actor who appeared in the Don Smallgoods advertisements committed rape, however he did not recall a conversation with his father concerning a key. The family knew there was a copy of the key downstairs. He also agreed that from the settee one could see the main bedroom doorway.

Count 4 - That BT at Mount Waverley in the said State between the 18th day of May 1980 and the 31st day of December 1980 committed an act of gross indecency in the presence of L a person under the age of sixteen years.

123. According to L, a few weeks after this incident she was staying overnight at the applicant's home when he asked her to come into his bedroom. Her aunt was absent at the time. The applicant was sitting on the bed wearing his underpants. She sat next to him at his invitation. He told her about a pornographic book in the bedroom drawer. He then had a shower and returned naked with an erection and his underpants hanging from his penis.

126. The applicant gave evidence that the complainant had never slept overnight at his home except for the single occasion following the death of her father. He denied that the incident occurred or that he had ever been alone in his bedroom with the complainant. His wife agreed that the only time at which L slept at the house was the one earlier mentioned following the death of her father. She stated that she had never seen pornographic material in their bedroom

Count 5 - That BT at Mount Waverley in the said State between the 18th day of May 1980 and the 31st day of December 1980 on an occasion other than that referred to in Count 3 unlawfully and indecently assaulted L a girl under the age of sixteen years.

130. The complainant stated that on the occasion of the previous count the applicant laid her back on a sheepskin rug next to the bed and he then lay on top of her and tongue-kissed her while touching her breast over her clothes. He stopped when his wife's car was heard in the driveway.

134. With respect to counts 3, 4 and 5, immediately prior to counsel's addresses, his Honour informed the jury:

"It's probably appropriate that I should tell you at this stage that as a result of some legal submissions that have been made I will be directing you, when you come to consider your verdict, that on counts 3, 4 and 5 I'll be directing you to return findings of not guilty in respect of those 3, 4 and 5 counts. I'll explain it in detail later on, but the chief reason is that the Crown must establish that those particular offences occurred within the time said that they occurred in the presentment. And you'll recall that there was concession or agreement made as to when the `Prisoner' episode was screened. And on my close reading of the transcript counts 4 and 5 are linked to count 3, and she said so, and it takes those there (sic) counts out of the time frame which ends in December of 1980."[4]

"As I indicated to you, this morning, I will direct you, as a matter of law - and I just invite you to make a note on your charge sheets, if you would - in the right-hand column, I think, is the best to do it - that on counts 3, 4 and 5, I direct you, as a matter of law, that you must return findings of not guilty. Briefly, the reason for that is this; that it is conceded - and properly so - by the Crown, that the episode of `Prisoner', whether it be the Frank, or the Jock episode, occurred some time after December of 1980, which is the cut-off date; and it is the obligation of the Crown to satisfy you beyond reasonable doubt that the event that they are charging the accused with occurred within that date. It is simply a matter of fairness. You are entitled to know, if you are accused, what the particular matter is we are talking about. Because the Crown focused, or the complainant [L] focused, on that addition (sic) of `Prisoner' - or whichever one it was - it is conceded by both parties that there was a confusion in [L's] mind as to whether she was marrying the two episodes into one; but in any event, it was either '82 or '85; and that when she gave evidence - and I need not take you to it, but I have had reference to the transcript - it was clear that, in respect of counts 4 and 5, she was asked whether those counts occurred shortly after, or several weeks after, count 3; and she said they did. So it is all fixed. So the time telescoped, as it were. For that reason, I have directed you to find the accused man not guilty of counts 3, 4 and 5."[5]

140. It is to be observed that these directions in no way touched upon the issue of the complainant's "veracity and credibility" although it was accepted that the offences could not have been committed within the period designated in the respective counts.

Count 2 - That BT at Mount Waverley in the said State on the 17th day of May 1980 unlawfully and indecently assaulted L a girl under the age of sixteen years.

145. The complainant stated that her father suffered a heart attack on 17 May 1980. At approximately 6.45 p.m. on that day she was sitting alone in the rear seat of an uncle's car when the applicant got into the vehicle, touched her on the outside of her clothing on her upper right thigh saying "Don't worry, I will be your father now". She said that on that night she slept at the home of her uncle.

148. In his evidence the respondent stated that he was at work on afternoon shift until midnight of the day on which the complainant's father sustained a heart attack. He was not contacted during that evening. The complainant's mother, her brother and the complainant slept at his house on that night and on the two following nights. He denied ever saying to the complainant "I'll be your father now" but stated that he said "We will look after you" to the family.

151. The complainant's brother gave evidence that he slept at the applicant's home on the night of his father's death. The evidence of the applicant that he was at work on that night was supported also by his wife who said that the complainant, her mother and brother slept at her home and that the applicant arrived home from work at about 1 a.m.

Count 8 - That BT at Wantirna in the said State between the 18th day of May 1980 and the 31st day of December 1980 unlawfully and indecently assaulted L a girl under the age of sixteen years.

Count 9 - That BT at Wantirna in the said State between the 18th day of May 1980 and the 31st day of December 1980 on an occasion other than that referred to in Count 8 unlawfully and indecently assaulted L a girl under the age of sixteen years.

158. L gave evidence that during the September 1980 school holidays, the applicant took her, K and G to a drive-in cinema in Wantirna. There were two films shown on that night. During the first film, G and K sat in the front seat while the applicant and the complainant occupied the back seat. During the interval K was directed to go to the kiosk to buy food specified by the applicant. She said that the boy was reluctant and protested but, nevertheless, went with her brother to the kiosk. The applicant and she then moved to the front seat of the car. They snuggled together on the passenger side with the two blankets over them. The applicant pulled down her jeans and underpants. The boys returned and sat in the back seat of the car. Concealed by the blankets, the applicant rubber her vagina and inserted his finger into it. He moved her arm so that her hand touched his erect penis. He held it there for about two or three minutes. At the end of the films the boys went from the car to a bin to dispose of their rubbish. As they were doing so, the complainant pulled up her jeans and tidied herself. The applicant then drove to his own home where he dropped off his son. He then took the complainant and her brother to her family home. Her brother stepped out of the car and went into the house. The applicant and the complainant sat in the car and talked for another half-hour.

161. The applicant gave evidence that he had not been to the Wantirna drive-in, as asserted, but had taken the complainant, her brother and his son to the Clayton drive-in. They did not see the film "10" and he denied removing the complainant's jeans or penetrating her with his finger.

164. The complainant's brother stated that he did not see the applicant sexually interfere with the complainant or any sign that he had done so. The applicant's son stated that he saw the film "10" at the Clayton drive-in with the complainant, her brother and his father. He had never seen the applicant demonstrating affection for the complainant nor hugging her. Had he seen any sexual activity between the applicant and complainant he would not have condoned it or ignored it.

167. It should be noted that counts 8 and 9 were the subject of the following redirection by the trial judge:

"Counts 8 and 9, which are the drive-in counts - I use the expression `drive-in' because it is said in the counts that it occurred at Wantirna and [the complainant] said the Wantirna Drive-in. There was other evidence from [the accused] and [G], and I think [K], who said that they had been to the Clayton - and I think in the case of [G] - the Oakleigh Drive-in. Now the purpose of the prosecution in setting out these dates and setting out the place is to specify the event that is being focused upon that is the subject of a count. In other words, if an assault is committed in this building, it is complete even if the person is mistaken and it happened next door, or in this room next door is a better example. But you will bear in mind that [the complainant] said it was at the Wantirna Drive-in that it occurred. If you reach the conclusion that she is mistaken about that, but she is talking about the film `Ten', that seems to be pretty clear; and witnesses were asked specifically about that event, it really would not matter much where it was shown, if you were satisfied beyond reasonable doubt that the matters which are the subject of counts 8 and 9 occurred at a drive-in theatre, and during the course of such a film. That is the purpose of giving dates and places. Thus, as I say, if you were to conclude that [the complainant] is wrong about Wantirna, that it was somewhere else, but you are satisfied beyond reasonable doubt of the elements of the offence, then it would be open to you to return a verdict of guilty in respect of that count, counts 8 and 9."[6]

Count 10 - That BT at Melbourne in the said State between the 1st day of September 1980 and the 28th day of February 1981 unlawfully and indecently assaulted L a girl under the age of 16 years.

172. During the 1980/1981 Christmas holidays, the applicant, a distant relative of the complainant ("P"), took the complainant, her brother, the applicant's son and two of the complainant's cousins to a city cinema complex to see the "Rocky Horror Picture Show". The applicant and the complainant sat next to each other inside the cinema. After the movie commenced the applicant inserted his hand under her dress and placed his finger in her vagina. After leaving the cinema, they drove to St Kilda before returning to the complainant's home. The applicant, P and the complainant remained outside. The applicant directed P to "Give her a kiss". P demurred but the applicant insisted and P then leaned over and kissed the complainant on the mouth.

175. The applicant gave evidence that he had seen the "Rocky Horror Picture Show" in about December 1980 with his wife, his son, the complainant and her brother and possibly accompanied by two of the complainant's cousins. He had never been to the cinema with P. During the film he sat with his wife next to him and the children on the other side of her. A photograph depicting P and himself which the complainant asserted had been taken at that time was, he said, taken in January 1981 at a soccer match.

178. P testified that he had not seen the "Rocky Horror Picture Show". He however did see another film "Flying High" with the applicant, the complainant, the complainant's brother, the applicant's son and the complainant's two cousins. He agreed that he hugged the complainant once when she was upset and went to give her a non-sexual kiss but she turned her head.

181. The two cousins of the complainant gave evidence that they saw the "Rocky Horror Picture Show" with other people.

184. The applicant's wife said that she went to the "Rocky Horror Picture Show" with the applicant and a number of people including the complainant and one of the two cousins. P was not there.

187. The applicant's son has said that he saw this film with his parents, the complainant, her brother and two cousins. He saw "Flying High" with P on another occasion which he remembered because they went to St Kilda for coffee afterwards. His father was not present at that time.

191. I have provided only the very brief outline of the evidence relating to each of the counts but wish to point out that in doing so I have drawn very heavily on that set out in the applicant's written outline of submissions. There was a deal of other evidence adduced in respect of the particular accounts from both the complainant and the applicant and from witnesses with respect to the general background. Included in this material was evidence from the complainant that at the suggestion of the applicant they corresponded by means of coded communication. An example was tendered. Whilst the interpretation of the code proffered by the complainant was not accepted by the applicant, he was unable to ascribe any meaning to the communication. He accepted that they did indeed communicate in this fashion. He claimed that this had been done at the instigation of the complainant and that the notes did not relate to a sexual liaison.

194. An aunt of the complainant gave evidence that the applicant expressed a most unusual interest in her niece. On one occasion during the 1980 Christmas holidays when she was staying at the applicant's home, she looked outside from the breakfast table and saw him with his mouth against the complainant's face and his right hand on her breast or very close to it.

197. The applicant denied that he touched the complainant in this fashion.

200. A female cousin of the complainant stated that the applicant would often sit very close to L and they would whisper and joke together. She said that they had a "fairly exclusive" relationship.

203. The applicant stated that in mid to late 1981, on an occasion on which he was walking his dog with the complainant, she told him that she loved him and that when she grew up she was going to marry him. She would also call him repeatedly at work. He told his wife about this conversation, he said, and had limited contact with the complainant's family and had no contact whatsoever after the 1981 Christmas party which involved both families.

206. On the other hand, L said that in March 1981 she was travelling with the applicant in his car when he spoke about experiencing difficulties with his wife. He told her that she was constantly asking questions about L and himself and indicated that he thought his marriage was in trouble.

209. The jury would have been entitled to find that the relationship between the applicant and L was at least very close and, as counsel for the applicant in this Court accepted, there was ample evidence to support the inference that he was attracted to her.

213. In support of his assertion that the verdicts of guilty in this case should be regarded as unsafe and unsatisfactory, counsel for the applicant submitted that this was a case in which the jury's assessment of the complainant's veracity and credibility was vital. The argument rests upon the premise that the jury's verdicts of not guilty on counts 2, 8, 9 and 10 necessarily involved a finding on each occasion that L could not be accepted as honest or reliable.

216. When considering this submission, it is important to bear in mind that there has been no suggestion advanced that the jury may not have been fully and properly instructed by the trial judge in relation to all relevant matters of law and fact which arose in the trial, including the need for separate consideration of each count. In his charge, his Honour emphasized the fact that there was no evidentiary support for any of the specific allegations made by L and was astute to ensure that the jury remained mindful in that situation of the onus and burden of proof. At one point he instructed them:

"Now in this case, as I have said, you determine the question of the guilt or otherwise of the accused on the evidence before you. As has been pointed out, largely, this case is one in which the complainant has given sworn evidence before you as to certain things that she said the accused effected upon her. These matters, the accused man says, simply did not occur. Save for the episode which [the complainant] described in the swimming pool when she said that she was under the water and she bit the accused's penis, and you will remember the evidence - that [K] was in close proximity, under the water or whatever - there was no other witness who saw or heard any of these matters which [the complainant] alleges, so that you have [the complainant's] account and you have the accused's account. What I am about to tell you is very important. It is not a question of choice between two different accounts. Do not fall into that trap, tempting as it may appear, because it is not the law. The critical question in this case for your answer is this: are you satisfied of the guilt of the accused beyond reasonable doubt? Has the prosecution satisfied you beyond reasonable doubt of the guilt of the accused? That onus is not satisfied by your selection or preference for one version over another. In this case, the Crown proffer [the complainant] to you as a witness upon whose evidence they rely to establish the guilt of the accused. Obviously, an acceptance of her evidence is not dependent upon a rejection of the accused's evidence, because it is her evidence that the Crown relies upon. I repeat, the law places no obligation upon the accused to satisfy you that his evidence is truthful. It is for the Crown to prove the guilt of the accused. There may be elements in the accused's evidence which support the Crown case, but it is not his obligation to disprove the Crown case. You must be satisfied on all of the evidence, beyond reasonable doubt, of each of the elements of these offences."[7]

I also observe that these instructions were reinforced by the provision of an appropriate Longman[8] instruction in relation to which no complaint has been made before us. Nor has it been contended that there was insufficient evidence to support any of the verdicts of guilty returned against the applicant.

221. In my opinion the complaint made on behalf of the applicant lacks substance. It would appear to be clear beyond dispute that, contrary to the applicant's contention, the jury must have regarded L as an essentially honest witness. They accepted her evidence, although unsupported with respect to any of the specific allegations made, on 10 of the 14 counts left for their consideration. They had been directed to return verdicts of not guilty on counts 3, 4 and 5 for the reasons set out earlier which clearly did not involve the rejection of L as credible. The direction to

the jury to acquit on these counts was based upon the concession by the Crown that the offences could not have been committed within the period designated in the presentment. Of course, it did not follow that L had to be disbelieved as to the occurrence of the incidents at all, or even that serious doubts had to arise at this level. The jury may, consistent with this position, have concluded that similar difficulties existed in relation to each of the four counts where verdicts of not guilty were returned. I have earlier drawn attention to the judge's redirection on counts 8 and 9 which pointed to this possibility. They may have formed the view that with the effluxion of time, some confusion may have developed in the complainant's mind as to when and under what circumstances the particular incidents occurred or at least have not been prepared to find beyond reasonable doubt that the complainant's recall of the specific incidents was accurate. There is certainly nothing in the evidence or in the verdicts themselves which is capable of supporting the contention that the verdicts of guilty represent an affront to logic and common sense or that the jury did more than honour their obligation to consider each count separately in the light of the obligation resting upon the prosecution to establish the guilt of the applicant on the particular count beyond reasonable doubt before a verdict could be returned against him.

230. I agree with the reasons of Vincent, J.A. and the order he proposes.

235. For the reasons stated by Vincent, J.A. I would refuse the application for leave to appeal against conviction.

[1] MacKenzie v. The Queen (1996) 190 C.L.R. 348 at 366-368 as per Gaudron, Gummow and Kirby, JJ.

[2] MFA v. R. [2002] HCA 53; (2002) 193 A.L.R. 184 at 192.

[3] The jury had a view of the premises.

[8] [1989] HCA 60; (1989) 168 C.L.R. 79.