R v Cordell [2009] VSCA 128

2 The applicant, Edward Cordell, seeks leave to appeal against his conviction on three counts of rape and two counts of common assault of the complainant, 'BM'.

3 The Crown alleged that the applicant (then the complainant's domestic partner) struck her on the way to and throughout the couple's two week stay with the applicant's relatives at Seaspray, Victoria, in July and August 2006 and ultimately subjected her to successive oral, vaginal and anal rape after driving her to an isolated place at night. The Crown alleged that after the rapes, the applicant threatened to cut the complainant's throat and, two days later, struck her in their bedroom and then punched and knocked her over in the kitchen.

4 The applicant participated in an interview with police in relation to the allegations. He admitted punching the complainant in the kitchen, but denied that he had otherwise assaulted or threatened her. The applicant did not deny the acts of sexual penetration alleged to constitute the rapes, but asserted that they were consensual.

5 At trial, the complainant and a number of other witnesses, including relatives of the applicant and the medical practitioner who examined her after the alleged offending, gave evidence and were cross-examined. The applicant did not give evidence.

6 By Presentment No U01942197 filed on 24 October 2007, the following counts were preferred against the applicant:

Recklessly cause injury to the victim between 1 August and 5 August.

Possession of drug of dependence (cannabis) on 11 August 2006

Rape (penile penetration of complainant's mouth) on 11 August 2006

Rape (penile penetration of complainant's vagina) on 11 August 2006

Rape (penile penetration of complainant's anus) on 11 August 2006

Threat to inflict serious injury on the victim on 11 August 2006

Recklessly cause injury to the victim on 12 August 2006

Recklessly cause injury to the victim on 13 August 2006

Recklessly cause injury to the victim on 13 August 2006

7 The applicant pleaded guilty to count 10 (recklessly causing injury on 13 August 2006) and count 3A (possession of cannabis). The applicant pleaded not guilty to counts 1, 2, 3, 4, 5, 6, 8 and 10. The trial judge ultimately directed that the applicant be acquitted on count 8, as there was no evidence to support it.

8 On 31 October 2007 in the County Court at Sale, the jury returned guilty verdicts on the following counts:

9 The applicant was acquitted on counts 3, 7 and 9.

10 On 21 December 2007, the applicant was sentenced as follows:

Count 1 - two months' imprisonment

Count 2 - two months' imprisonment

Count 3A - convicted and fined $200

Counts 4 and 5 - five years' imprisonment

Count 6 - six years and six months' imprisonment

Count 10 - four months' imprisonment

11 One month of the sentences imposed on counts 1 and 2, six months of the sentence imposed on counts 4 and 5 and two months of the sentence imposed on count 10 were cumulated on the entirety of count 6, resulting in a total effective sentence of seven years and ten months' imprisonment. On count 6 the applicant was sentenced as a serious sexual offender. A non-parole period of five years and six months was fixed. A period of 53 days pre-sentence custody was reckoned as time already served. A retention order pursuant to s 464 ZFB(1) Crimes Act 1958 and a disposal order pursuant to s 77(1) Confiscation Act 1997 was made.

12 The maximum penalties applicable to the offences are as follows:

Counts 1 and 2 - Common assault contrary to the common law - five years' imprisonment pursuant to s 320 of the Crimes Act 1958.

Count 3A - Possession of a drug of dependence contrary to s 73(1)(b) Drugs, Poisons and Controlled Substances Act 1981, where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking - one year imprisonment.

Counts 4, 5 and 6 - Rape contrary to s 38(1) Crimes Act 1958 - 25 years' imprisonment.

Count 7 - Threats to inflict serious injury contrary to s 21 Crimes Act 1958 - five years' imprisonment.

Count 10 - Causing injury recklessly contrary to s 18 Crimes Act 1958 - five years' imprisonment.

13 The applicant seeks leave to appeal against conviction on the following grounds:

1. The guilty verdicts on Counts 4, 5 and 6 are unsafe and unsatisfactory having regard to the not guilty verdict on Count 7
2. The guilty verdicts on Count [sic] 1 and 2 are unsafe and unsatisfactory having regard to the not guilty verdicts on Counts 3 and 9
3. The learned trial judge erred in failing to give a Liberato direction
4. On Count 2 the jury ought to have been directed at the close of the Crown case to return a verdict of not guilty.

14 The applicant was born on 24 July 1968. In March 2006, when aged about 37, he was living in Queensland, where he commenced a relationship with the complainant, 'BM', a single mother of four children, who was aged 29. The parties lived together in Queensland, but several break ups and separations occurred. On one occasion, they broke up for two to three days and during a second, longer breakdown, the applicant moved out. The complainant then commenced a brief liaison with 'RB', a man who was known to both parties. After that liaison ceased the applicant and the complainant reconciled and resumed cohabitation. The applicant was aware, however, of the complainant's liaison with RB, which allegedly made him angry and jealous.

15 On Friday, 28 July 2006, the applicant and the victim left Queensland on a car trip to Victoria, planning to visit relatives. The applicant drove during the journey, which took several days.

16 On Monday, 31 July 2006, the applicant and the victim arrived in Melbourne, intending to drive on to Seaspray to stay with the applicant's relations there.

17 The complainant gave evidence that when the couple reached Melbourne, they got lost while she was navigating and the applicant became angry with her. He telephoned his mother to seek directions, but struck out and hit the complainant's leg about three times while driving. (That offending comprised count 1 (assault), of which the applicant was found guilty.)

18 The applicant then drove to Seaspray where the couple stayed with the applicant's half-sister, Tamara, and her family from 31 July to 13 August 2006, save for the weekend of 5 and 6 August 2006, when they stayed with other relations of the applicant in St Albans.

19 The complainant testified that the applicant generally hit her in the bedroom they shared when staying at his half-sister's house. The striking usually occurred in the morning after he had woken her up. According to the complainant, the applicant physically assaulted her on most days of their two week stay and verbally abused her, particularly in relation to the liaison with RB.

20 The complainant testified that she was struck every day save for Tuesday, 1 August (the day after her arrival in Seaspray, when she went shopping with the applicant's mother) and the weekend of 6 August, when they returned to Seaspray from St Albans. The complainant acknowledged that it was difficult for her to recall any specific instance of assault, as it happened so frequently. She nevertheless stated: 'I know I had one hit to the ribs which left me unable to sit or stand properly - without feeling uncomfortable' during the first week of the stay in Seaspray, in the morning. She reiterated that she was struck every day except for Tuesday 1 August and the weekend at St Albans.

21 In cross-examination, the complaint stated that no-one else saw the morning assaults which occurred in the bedroom. She initially testified that she did not tell anyone about them, and denied that the applicant was assaulting her when the applicant's half-sister asked about her crying and sounds heard coming from the bedroom. She testified that she proffered a false explanation for her crying, saying that she missed her children and the applicant had denied her access to cigarettes and money.

22 The complainant conceded that, contrastingly, at the committal hearing on 5 March 2007, she had stated that she told the half-sister of the assaults when asked about her crying. The complainant conceded that her testimony that she had never told the half-sister that the applicant was hitting her was mistaken. She conceded that she now could not 'remember much about what I was saying and not saying in Seaspray'.

23 The complainant reiterated that she went shopping with the applicant's mother on Tuesday 1 August and could not remember what happened on Wednesday 2 or Thursday 3 August. She said: 'as to the days, I wasn't even allowed my watch so I don't know time or days.'

24 When defence counsel put to the complainant that she was not assaulted during the second week at Seaspray, save for the last day, she maintained that she was also assaulted on other days of the second week, but acknowledged 'it's hard to put things onto days'.

25 On 11 August 2006, the applicant and the complainant were driving home at night to Seaspray from Sale, where they had visited the applicant's cousin. They took a detour down a dirt road to avoid a 'booze bus'.

26 The complainant gave evidence that the applicant, who was driving, accelerated the car and frightened her by driving fast.

27 The applicant then suddenly stopped the car in an isolated turn-off and told the complainant he was going to make her pay and was 'going to take what's mine ...' The complainant testified: 'I understood it that he was going to take my life. He then grabbed my hair.'

28 The complainant stated that the applicant then 'made threats and he said something along the lines of "What's wrong love, don't you want to fuck me and suck my cock. What's wrong with being in a relationship before it's not like we've never done it?"'

29 The complainant testified that she asked the applicant to stop because she was scared, but he grabbed her hair 'and then forced me down to give him a head job'. According to the complainant, he was seated in the driver's seat while she was in the front passenger seat of the car. He held her head onto his penis, which went into the complainant's mouth. The penetration lasted for about five minutes, while the applicant had one hand on the complainant's back and one hand on her throat. The complainant did not consent to the oral penetration and felt degraded.

30 The complainant testified that her side was bruised and sore from the above incident. She testified that the applicant then grabbed her and pushed her face into the passenger seat. He jumped over her and 'started having sex from behind'. He pulled down the complainant's jeans and g-string and put his penis into her vagina. She felt horrible and did not consent to the act.

31 The complainant testified that the applicant then said '"I want a tight fuck and I'm going to deflower your arse." Then he put it in my - then he tried to - then he put his penis in my bum and slammed it a couple of times really hard'. That hurt the complainant and made her scream. It was not done with her consent.

32 The complainant testified that the encounter ended when she jumped over to the back seat of the car. The applicant 'told me to get back in if I want to live - get back in the passenger seat, sit down and shut the fuck up 'cause he hasn't finished with me yet ...' 'He's telling me, that now we're looking for a place, he's gunna go tie me up to a tree and go back and get a whore and come back and fuck her in front of me and then slit my throat, and he was saying that it was my fault.'

33 The complainant testified that she felt really really fearful when the applicant threatened to cut her throat. She was aware that he had brought knives with him from Queensland but did not know if he had them in the vehicle or on his person. By that stage, the applicant had resumed driving.

34 The couple then returned to the applicant's half-sister's house at Seaspray.

35 The complainant testified that on return to Seaspray, the applicant told her to have a shower. He slept most of the next day (Saturday). On Sunday, 13 August, when the applicant woke up, he apologised to the complainant and asked her to forgive him.

36 The complainant testified that she replied, 'Well things can only get better.' The applicant then 'pretty much called me a "disrespectful bitch"'. The complainant could not remember exactly what he said, but testified that he hit her to the ribs, which made it very hard to breathe and felt sore. As a result, she could only stand in a really awkward position.

37 The complainant also stated that while they were in the bedroom, the applicant said something along the lines of 'Good, now I've made you feel good again and ha ha ha, to you'. She reiterated that he then called her a disrespectful bitch and hit her. The complainant said that she was in her night wear at the time. The couple occupied one of the children's bedrooms and there were children in the next room.

38 The complainant testified that she then went into the kitchen to make breakfast for the applicant and to help the applicant's half-sister and her six year old daughter make scones.

39 After the half-sister had left the kitchen, the applicant entered. The complainant testified that he told her 'we're going to rent a house here and I'm going to go to work, and he's going to stay at home and fuck his old friends, is that ok with you, love?'

40 The complainant testified that she did not reply, but instead turned away towards the refrigerator. With the child present, the applicant then knocked the complainant down, hitting her in the face and punching her from one end of the kitchen to the other. According to the complainant, 'then he came and kicked me up the bum'.

41 The child screamed and the applicant's half-sister returned to the kitchen. She saw the complainant lying on the ground. She told the applicant to get out. He complied and left the kitchen. The half-sister then telephoned her mother (who was also the applicant's mother) who subsequently arrived at the premises.

42 The applicant's mother and half-sister drove the victim to hospital to obtain treatment of her injuries, but en route, she requested them to stop at a police station in Sale, where she reported the alleged offences. The victim did not return to the care of the applicant's relations. Later that afternoon, she was examined by a medical practitioner, Dr Hides, in Sale. Dr Hides found evidence of physical injuries to the face, including bruising to the upper lip, abrasions inside the mouth and lips, lacerations to the wrists and forearms, bruising above the right knee, multiple bruises on the right thigh, lesser bruising on the left thigh and a superficial anal laceration consistent with recent anal intercourse. Dr Hides estimated the facial injuries to be the most recent and the leg injuries to be two or three days older. In cross-examination, Dr Hides conceded that the bruising could have been caused by trauma with a plastic toy. The applicant's half-sister had testified that her disabled son struck the complainant with a toy.

43 The applicant contended that the guilty verdicts on counts 4, 5 and 6 (the oral, vaginal and anal rapes on 11 August 2006) were unsafe and unsatisfactory by reason of inconsistency with the not guilty verdict on count 7 (the threat to cause serious injury which, on the complainant's account, occurred in the car as the couple was driving away from the scene of the rapes).

44 The complainant described the threat following the conclusion of the third rape thus:

He told me that he hadn't finished with me, he was laughing - oh, his laugh - laugh ...

Did he say anything to you at that stage ---Yes, he's telling me that now we're looking for a place, he's gunna go tie me up to a tree and go back and get a whore and come back and fuck her in front of me and then slit my throat, and he was saying that it was my fault.

How did you feel when he threatened to slit your throat?---Really, really fearful.

45 The complainant stated that the threat was made after the car had started to move again. She did not know whether the applicant had any knives in the car or on his person.

46 The complainant confirmed in cross-examination that the threat was made 'after all of the intercourse incidents had occurred' and while the applicant was turning the car around. She conceded that on arrival at Seaspray, she briefly greeted the applicant's half-sister and, at the applicant's behest, retired to have a shower.

47 The trial judge charged the jury in relation to count 7 thus:

Before you could convict the accused on this count, you would have to be satisfied beyond reasonable doubt first of all that the accused threatened to slit BM's throat as she alleges ...

[As to] the words ... 'intending that BM would fear that the said threat would be carried out or being reckless as to whether or not BM would fear that the said threat would be carried out' ... The Crown does not have to prove that the accused actually intended to slit BM's throat, nor does the Crown have to prove that BM believed the accused intended to slit her throat.

What the Crown must prove is one of two things, either that the accused intended BM to fear that the threat would be carried out, or ... the accused believed that BM would probably fear that the threat would be carried out, and that's what the word reckless means in that context.

48 The trial judge reiterated 'so what it boils down to is this members of the jury, the Crown must prove that the accused believed that the threat would be carried out ... but went ahead anyway and made the threat to slit her throat'.

49 As to the element of serious injury, the trial judge stated 'I'm sure you would take little convincing that to have your throat cut would be a serious injury'.

50 His Honour concluded, 'Now if you're satisfied of all those things you will return a verdict of guilty but unless your are satisfied of each of those things your verdict will be a verdict of not guilty'.

51 The principles governing inconsistency of verdicts are uncontroversial and were recently summarised in R v JA:[1]

The established principles governing an appeal on the ground of inconsistent verdicts are set out in Mackenzie v The Queen,[2] in which the High Court reviewed the relevant authorities.

Where alleged factual inconsistency arises in relation to different jury verdicts on multiple counts, the test is one of logic and reasonableness.[3] Appellate intervention is justified only if the verdicts cannot stand together, in the sense that 'no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion.'[4]

Due to the respect accorded to the jury's traditional function, courts hesitate to reach a conclusion of inconsistent verdicts, and will avoid it if there is a proper way to reconcile the verdicts. Similarly, where there is some evidence to support the verdict said to be inconsistent, 'it is not the role of the appellate court ... to substitute its opinion of the facts for one which was open to the jury.'[5] If the outcome is explicable as a merciful verdict, intervention will not be justified.

It is otherwise if the difference in the verdicts is 'an affront to logic and common sense which is unacceptable and strongly suggests a compromise' or confusion in the mind of the jury. In that context, '[i]t is impossible to state hard and fast rules. "It all depends upon the facts of the case".'[6] Nevertheless, a conviction should not be set aside unless the inconsistency is sufficiently great to necessitate intervention to prevent a possible injustice.

MFA v The Queen[7] ('MFA') represents an instructive illustration of the application of the relevant principles. The High Court there rejected the appellant's contention that the guilty verdicts on two out of a total of nine counts of alleged sexual offences against a juvenile complainant were inconsistent, given the not guilty verdicts on the remaining seven counts.

In MFA there was, however, another witness to the conduct represented by the two counts which produced guilty verdicts. The witness' evidence, despite some discrepancies, essentially supported that of the complainant. Further, in contrast to most of the other counts, the counts on which the appellant was found guilty were not subject to a Jones v Dunkel[8] direction. The fact that all the non-guilty counts were unsupported by any relevant confirmatory evidence was thus a logical basis for sustaining the differentiation made by the jury.

In MFA, the High Court rejected the proposition (said to be supported by Jones v R)[9] that where multiple offences involving the one complainant were alleged, a guilty verdict on some of them necessarily indicated that the complainant was untruthful and if the jury disbelieved the complainant in respect of some incidents, the reasonableness of the guilty verdicts should be assessed on the basis that the complainant was a person of damaged credibility.[10]

McHugh, Gummow and Kirby JJ stated:

we would dissent from the proposition that Jones stands for a rule that, in cases of complaints of a number of sexual offences, a jury must either accept or reject the lot. It always remains for a court of criminal appeal whose jurisdiction is invoked to examine any differentiation in the verdicts to see if it can be justified. All that Jones decides is that, on the facts of that case, the necessary justification in logic and reasonableness was missing.[11]

In the present case, it was common ground that the only real issue at trial in relation to both counts 1 and 2 was whether or not the alleged conduct occurred. It was also common ground that nothing in the complainant's additional evidence in chief or cross-examination (which the jury had the advantage of seeing and hearing) added to or varied her VATE tape evidence on counts 1 and 2 so as to serve as a basis for discrimination between them.

Similarly, the applicant's generalised evidence and absolute denial in his record of interview of the allegations in all counts provided no basis of distinction between any of the counts.

In contrast to a case such as MFA,[12] in which there was a witness to the conduct comprising some counts, but not others, and a Jones v Dunkel direction in relation to some counts, but not others, in the present case, there was no unique feature or concrete, distinctive characteristic of either counts 1 or 2 capable of constituting an objectively demonstrable ground of differentiation.[13]

52 In the present case the applicant contended that the three rape counts and the threat to cause serious injury the subject of count 7 were properly to be seen as part of the same transaction or set of circumstances. The interconnection was, the applicant submitted, fortified by the complainant's testimony that threats both preceded and followed the rapes.

53 The applicant submitted that it was therefore apparent that the jury had not accepted the complainant's account of the incident as a whole, as (if they accepted that the threatening words were spoken) they must have been satisfied that the applicant intended or was reckless as to whether the complainant would fear that he would carry out the threat.

54 The applicant submitted that because the jury must have rejected the complainant's evidence about the incident as a whole, a finding that the applicant had committed the rapes was an affront to logic in the relevant sense and necessarily bespoke compromise. So much was underscored by the jury's request for further direction about satisfaction beyond reasonable doubt.

55 The test in this context is one of logic and reasonableness. Respect for the jury's function requires appellate restraint and the conviction will not be set aside if there is some evidence to support it or unless the difference in verdicts is an affront to logic and common sense, strongly suggesting compromise or confusion in the minds of the jury. Nor should the possibility of a merciful verdict be discounted.

56 In my opinion, there is no inconsistency between the guilty verdicts on counts 4, 5 and 6 and the not guilty verdict on count 7. Counts 4, 5 and 6 comprised fundamentally different offences and conduct from the subject matter of count 7. The contention that the alleged threat and the rapes were elements of a single 'transaction' was unpersuasive. It largely depended on the alleged threat (set out in para [32] above) prior to the rapes to establish that threats (including the subject matter of count 7) were inseparable from the rape incident.

57 The alleged threat prior to the rapes was, however, cryptic and vague, in contrast to the striking specific threat comprising count 7. The dissimilar threats delimit, rather than constitute part of, the rape incident they allegedly both preceded and followed.

58 Further, the alleged threat comprising count 7 was also temporally distinct from the rape conduct, which had clearly terminated at that stage. The vehicle was no longer stationary but was being driven from the site.

59 Thirdly, as the trial judge's charge made clear, the applicant's liability for count 7 required a particular mental element of intention or recklessness about the complainant's responsive fear.

60 The nature of the alleged threat to cut the complainant's throat was extreme, extravagant and, as Coghlan AJA observed in the course of the hearing, hyperbolic. The evidence did not establish that at the time the applicant possessed a knife or that the complainant believed him to possess one. The complainant described the applicant as laughing prior to making the threat.

61 The jury (although accepting the complainant's testimony that the applicant spoke the relevant words) may not have been satisfied to the requisite degree that he intended or was reckless as to the complainant fearing that he would carry out the extreme and extraordinary conduct threatened.

62 Nor was the not guilty verdict on count 7 the result of confusion or compromise. The jury's question in relation to reasonable doubt revealed that they had already reached a verdict on all counts save for count 7, in respect of which some jurors were not satisfied that the requisite standard of proof had been met.

64 The applicant submitted that the guilty verdicts on counts 1 and 2 were unsafe and unsatisfactory because they were inconsistent with the not guilty verdicts on counts 3 and 9. The jury was satisfied beyond reasonable doubt that the applicant assaulted the complainant on 31 July 2006 (when the parties were lost in their car en route to Seaspray) and on 2 August 2006 (during the first week's stay at Seaspray). They nevertheless gave not guilty verdicts on count 3 (recklessly causing serious injury between 1 and 5 August 2006 - the first week at Seaspray) and count 9 (recklessly causing injury allegedly in the bedroom on Sunday, 13 August 2006).

65 The applicant contended that the guilty and not guilty verdicts were an affront to logic in the relevant sense. The complainant's credibility and reliability were, he submitted, crucial and consistency required an all or nothing acceptance or rejection of her evidence, given that there were no other direct witnesses. There was no rational basis for selectively accepting only part of the complainant's account.

66 In my opinion, the different verdicts are not inconsistent in the relevant sense. Count 1 was alleged common assault on 31 July 2006. The complainant gave very precise testimony. She testified that the applicant, while driving, struck her with his left hand using a downward blow with the knuckles underneath (which she physically demonstrated) as she sat beside him in the front seat of the car.

67 Count 2 alleged common assault on 2 August 2006. Count 2 was particularised thus: '[the applicant] at Seaspray ... on the 2nd day of August 2008 assaulted [the complainant].'

68 The complainant gave evidence that she recalled the applicant hitting her 'a lot' after their arrival at Seaspray. He hit her 'on the head, on my torso, on my legs, grabbing my hair ... '. He accompanied the blows with verbal abuse. The complainant testified that the applicant generally hit her in the bedroom in the mornings after he had woken her up.

69 She recalled that during the first week at Seaspray, she was not struck on Tuesday, which she spent shopping with the applicant's mother. She stated that she was trying to remember a specific assault. She was asked about the Wednesday and if she could be specific about where she was hit. She replied: 'No, I can't - I'm trying to look back on it, but it's really - I know - I know I had one hit to the ribs which left me unable to sit or stand - without feeling uncomfortable.'

70 She stated that the hit to the ribs occurred during the first week at Seaspray.

71 When again questioned about an assault on that morning (Wednesday), she stated: 'I can't recollect ... I do know that I was hit every day apart from two days there. I do know that it was all in the parts of my body that could be covered.'

72 The complainant reiterated that during the first week she was not struck on the Tuesday morning, but was struck on the other mornings (necessarily including the Wednesday morning) leading up to the weekend.

73 The effect of the complainant's evidence-in-chief was that she was struck every morning of the first week apart from Tuesday, although she conceded that she could not specifically recall being hit on Wednesday; that she was stuck on the head and areas of the body concealed by clothing; and that on one occasion, she received a blow to the ribs which caused pain, but she could not recall on what morning she received that particular blow and could assign no particular date or sequence to it.

74 In his final address, in relation to count 2 the prosecutor stated:

Count 2 at p 55 - it has to be said in respect of count 2 there is no specific evidence as to what happened on the Wednesday morning in particular, other than her evidence at p 55 that Edward was cranky on that morning, saying that all women are dogs and that she gave general evidence of being struck frequently that week in the bedroom. It's for you to assess whether or not on the appellant's evidence you're satisfied there was indeed an assault on the Wednesday morning. Obviously, I suggest that you can be so satisfied.

75 In his charge, in relation to count 2 the judge stated:

That brings me to Count 2. Well now the incident that gives rise to this count allegedly occurred two days later on 2 August, and I'll take you to the evidence in a moment. But perhaps I should just introduce Count 2 by saying this, 'BM' said she was struck by the accused many times on different days. As you know she was sometimes vague about which blow was struck on which day. Of course the accused denies that he struck her on any occasion, other than on 13 August, in the kitchen. But she says she was hit many times. That will be a matter for you to consider, but so far - just bear with me. As I was saying, 'BM' was somewhat non specific about the nature of the assault which is alleged to constitute Count 2. She was unsure even if it occurred precisely on the Wednesday - 2 August was a Wednesday, I think I'm right in saying that.

But members of the jury you can treat Count 2 as relating to the first assault that allegedly occurred at Seaspray, because 'BM' says she was struck almost every day by the accused in that first week, though she can't say which blows were struck on which day. I'll refer in that regard briefly to the evidence. She was asked, 'Do you recall anything of the events of Tuesday or not?', that's the first full day they were there. She said, 'Tuesday, no' - this is at p.55, 'we spent most of that with his mum. We came into town and we went back', and Mr Sharpley said, 'What about Wednesday, Wednesday morning, do you recall events on that morning?', and she said - it's recorded here in the transcript, 'It was cranky on that morning'. I think she meant or perhaps said he was cranky on that morning. Mr Sharpley said, 'Cranky for any reason or not?', and she said, 'Because all women are dogs'. Question, 'Is that something he said?', 'Yes'. Question, 'Do you remember any particular events on the Wednesday morning?' She said, 'No, I can't', and she added in the answer to the next question, 'I remember Ed waking up every morning really cranky. I remember him hitting me a lot, on the head, on my torso, on my legs, grabbing my hair, degrading me, putting me down to his family'.

Question, 'The times you described being struck, where would this generally happen?' Answer, 'In the bedroom'. So members of the jury you can treat Count 2 as relating to the first assault that allegedly occurred at Seaspray, if you are satisfied of course that there was any assault at Seaspray other than on the Sunday morning, which the accused admits. That's obviously a fundamental issue you must first determine. But if you accept 'BM's' evidence that she was struck repeatedly in that first week, as she says she was, then you can treat Count 2 as relating to the first of those assaults, although obviously you would have to satisfied that the first of those assaults occurred within a day or two of them arising at Seaspray, because her evidence simply wouldn't hold together unless you were satisfied of that, because her story is that she was being struck repeatedly almost every day from the day they got there. So I repeat, you may treat Count 2 as relating to the first of those assaults if you are satisfied that she was assaulted in the way she alleged. So if you are satisfied beyond reasonable doubt that the accused struck 'BM' repeatedly as she alleges in that first week - I have already directed you as to what constitutes an assault, so you will apply those directions to that first striking during that first week if you are satisfied that it occurred, and in that event it would be open to you to convict the accused on Count 2. But of course unless you're satisfied beyond reasonable doubt that it occurred, you must acquit him. I think that's all I can usefully say about Count 2 members of the jury.

76 In his opening address in relation to count 3, the prosecutor alleged that the conduct comprising count 3 (which occurred between 1 August and 5 August (the first week at Seaspray) was a hit to the ribs. In his closing address, the prosecutor stated:

Count 3 at p 56 is one of the two incidents where she was struck to the ribs by Edward Cordell on her account. She says in respect of that at 56, she was hit to the ribs and the result of that was to leave her unable to sit or stand without feeling uncomfortable.

77 In his charge the judge stated in relation to count 3:

Count 3 arises from the following evidence given by 'BM', and I'm reading from p.56 of the transcript. The prosecutor asked her, "the assaults you're [sic] described - the striking you've described, do you say that happened on a number of occasions, or one or two occasions, or what?", and she said "Yes it happened quite frequently". She was asked, "Can you remember any specific one just in that first few days?". And she said, "No, I can't I'm trying to - I'm trying to look back on it, but it's really - I know I had one hit to the ribs which left me unable to sit or stand" - it says here probably, but "properly" I think it must mean, "without feeling uncomfortable".

She was asked, "was this in the first week you were there?", and she said, "Yes". So that is the incident which is said to constitute Count 3. Count 9 is allegedly another blow to the ribs, so Counts 3 and 9 both relate to blows allegedly struck to the ribs.

...

Now having explained what incidents are said to constitute Counts 3 and 9 - and obviously the first question for you when considering each of those two counts is are we satisfied beyond reasonable doubt that the blow to the ribs was stuck? That obviously is fundamental, but if you are satisfied beyond reasonable doubt that the blow to the ribs was struck, you go to the other words of the count. In that regard, I'm referring to the concept of injury.

For the purpose of Counts 3 and 9 it is alleged that injury was caused - and you'll note the difference between the words "injury" in Counts 3 and 8, and the words "serious injury" in Count 7. Counts 3 and 8 simply use the word "injury", and the definition of injury under our law includes any physical injury such as a bruise, but also includes pain and emotional trauma. So it's a very low threshold of injury. If you accept 'BM's evidence that each of these blows to the ribs was a painful blow, and that is the way she described them, that would be sufficient to constitute injury.

Well now I have explained to you what the word "recklessly" means when I directed you on Count 7 - threat to inflict serious injury, but let me repeat in the context of Counts 3 and 8, recklessly means that even though the accused did not actually intend to injure 'BM', he is regarded as having caused injury recklessly if he realised that to hit her in the ribs in the way he allegedly did would probably result in injury but went ahead anyway. I'll repeat that. To prove that the accused recklessly caused injury in relation to each of Counts 3 and 9, the Crown must prove first of all that the accused struck 'BM' in the ribs, and that when he did so he realised that to strike her in that way would probably result in injury, even if only pain, but went ahead anyway. Finally, you'll see in Counts 3 and 9 the words "without lawful excuse". Sometimes to strike somebody is justified, for example in self-defence, that would be a lawful excuse. But there is no suggestion, and could be no suggestion of lawful excuse in this case. Indeed the accused denies that the incident happened at all.

So if you're satisfied that the blows were struck the question without - the words "without lawful excuse" won't give you any difficulty - so the issues on Counts 3 and 9 members of jury are - I'm sorry, yes, the issues on Counts 3 and 9 are did the accused strike 'BM' in the ribs as she alleged on those two occasions, and you'll consider each of them separately, and if he did, did he realise that injury, even only in the form of pain, would probably result. If you're satisfied with those matters your verdict should be guilty. If you are not satisfied, it should be not guilty.

78 In my opinion, the different verdicts on the relevant counts are explicable. First, the complainant's testimony in relation to count 9 (on which the applicant was found not guilty) may have appeared significantly less reliable than her evidence on the other counts. Having testified at trial that the conduct comprising count 9 (striking her in the bedroom) occurred on Sunday 13 August prior to going into the kitchen, she then conceded that at the committal she had stated that the conduct occurred on Saturday 12 August and that on Sunday nothing happened until she was struck in the kitchen. The complainant apologised for being misleading about the matter. While the trial judge charged the jury that the different dates were not critical, the complainant's evidence in relation to count 9 constituted an obvious point of distinction which could have justified a different verdict of not guilty.

79 Although no distinction could be drawn between the credibility of the complainant's testimony on count 3 (on which the applicant was found not guilty) and on counts 1 and 2 (on which he was found guilty), she was unable to assign a particular date or sequence to the hit to the ribs. Although the prosecution identified count 3 as the hit to the ribs, it was open to the jury to consider that count 2 (the first assault at Seaspray) was the hit to the ribs, thereby precluding a further conviction for that assault on count 3. The not guilty verdict on count 3 may be explicable on that basis.

80 A further point of distinction is that unlike counts 1 and 2 (common assault) counts 3 and 9 required the Crown to establish that the applicant had an intention or recklessness in relation to the injury.

81 In R v Pota,[14] Kaye AJA (with whom Maxwell P and Buchanan JA agreed) stated that the offence of recklessly causing serious injury has two principal elements. First, the injury must have been caused by the accused. Secondly, 'at the time at which [the accused] caused that injury, [the accused] must have realised that his action would probably cause serious injury and have acted regardless of those consequences'.[15] Those observations apply equally to recklessly causing injury.

82 In contrast, according to the most 'frequently cited'[16] definition of James J (with whom Lord Parker CJ and Bridge J agreed) in Fagan v Commissioner of Metropolitan Police, common assault is:

any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence... [and] the actual intended use of unlawful force to another person without his consent.[17]

83 Archbold, Criminal Pleading, Evidence and Practice 2009 states:

The term "assault" is frequently used to include both an assault and a battery. This can lead to confusion between the two offences. Strictly, "assault" is an independent offence and should be treated as such. An assault is any act - and not a mere omission to act - by which a person intentionally - or recklessly - causes another to apprehend immediate unlawful violence.[18]

84 As Coghlan AJA observed in the course of the hearing before us, given the evidence of the applicant's extraordinary relationship with, and general demeanour towards, the complainant, it was open to the jury to find that he lacked the necessary state of mind for a conviction on counts 3 and 9. Conversely, the jury was entitled, on the evidence, to accept that the complainant did not consent to the acts constituting counts 1 and 2. Further, although pain would constitute a sufficient injury to sustain a charge of recklessly causing injury, the physical evidence of injury not clearly attributable to counts 5, 6, 7 and 10 was relatively slight. The jury may not have been satisfied as to that element of the offence.

85 It follows that in my opinion, the different verdicts on the relevant counts are not an affront to logic. Ground 2 is not established.

86 The applicant contended that the trial judge's undisputed failure to give a Liberato direction resulted in a miscarriage of justice.

87 In Liberato v The Queen,[19] Brennan J (with whom Deane J agreed in relation to granting special leave, contrary to Mason ACJ, Wilson and Dawson JJ) stated:

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.[20]

88 The applicant contended that although the trial judge gave the standard direction on the onus and standard of proof relatively early in the charge, he subsequently stated that the complainant was a crucial witness in the case, as was not unusual in cases of the kind, and directed the jury that they 'must obviously scrutinise her evidence with particular care'.

89 The applicant contended that as the complainant and the applicant gave radically different versions of events, a direction to scrutinise the complainant's evidence was not enough to convey the prohibition on simply choosing between their differing accounts. A Liberato direction was required, and (as demonstrated by jury's questions about the standard of proof beyond reasonable doubt) would have given the jury a clearer understanding of the standard of proof in criminal matters.

90 In R v BDX,[21] Vincent and Weinberg JJA (in their joint judgment) stated that the need for a Liberato direction is to be determined by evaluating the charge as a whole. Their Honours considered that in R v BDX, where the jury was repeatedly instructed of the need to be satisfied of guilt beyond reasonable doubt and where no Liberato direction was requested, it was not necessary to a fair trial.

91 In R v BDX, Nettle and Redlich JJA (in their joint judgment) emphasised that a Liberato direction is required when the jury has been left with the impression that they must believe the accused's evidence in order to have reasonable doubt. In such a case, a clear and unequivocal direction about the criminal onus and standard of proof would be necessary, so that the jury would not mistakenly consider the 'choice' between witnesses to be the real question or decisive of whether the prosecution had proved its case. Nettle and Redlich JJA did not consider that a Liberato warning was required in R v BDX because the trial judge had not 'overlaid'[22] directions on the burden of proof or raised questions about a choice between conflicting witnesses which may have misled the jury.

92 In my opinion, that was also true of the present case. The trial judge clearly and repeatedly instructed the jury on the need to be satisfied beyond reasonable doubt in relation to each separate charge and each element thereof. Although it was manifestly a case in which the complainant's evidence was crucial and conflicted radically with the applicant's version of events in his record of interview, the charge, considered as a whole, neither expressly nor indirectly created an impression that the case could properly be resolved by choosing between belief in either the complainant's or the applicant's account. Nor did the charge suggest that disbelief of the applicant would be sufficient for a guilty verdict, relieving the Crown of the onus to establish guilt beyond reasonable doubt. The judge's instruction to scrutinise the complainant's evidence with care and his observation that her evidence was crucial cannot, in the context of the charge as a whole, reasonably be construed as an oblique licence to decide the case on the basis of whose account the jury believed, or to find the applicant guilty simply because they did not believe him.

93 Moreover, in contrast to the typical case requiring a Liberato direction, the present case did not involve a contest of oath against oath, as the applicant did not give evidence at trial.

94 Most significantly, given the liberal, clear and repeated directions on the standard of satisfaction beyond reasonable doubt and the absence of any credible basis for inferring that the jury had any misapprehension a Liberato direction is designed to dispel, such a direction was neither requested by defence counsel nor necessary to ensure a fair trial

95 A Liberato direction was therefore not required. In my opinion, ground 3 of the appeal is not made out.

96 The applicant applied for and was granted leave (which was unopposed) to add the following further proposed ground of appeal:

On Count 2 the jury ought to have been directed at the close of the Crown case to return a verdict of not guilty.

97 He relied in that context on the evidence, the prosecutor's final address and the judge's charge in relation to count 2 set out above.

98 The applicant submitted that although the applicant described being struck frequently during the first week and described a blow to the ribs, she was unable to recall any specific occasion when she was assaulted.

99 In such circumstances, the applicant submitted that the trial judge's instruction that the jury could treat count 2 as relating to the first assault at Seaspray did not overcome the difficulties identified in S v R,[23] because there was no way that the specific act constituting the offence charged in count 2 could be identified and distinguished from all the other, similar conduct alleged.

100 In S v R, the accused was charged (decades after the alleged offending) with three counts of carnal knowledge of his young daughter. The conduct comprising each count was specified to be on a date unknown between 1 January and 31 December in three nominated years.

101 There were no further particulars or identification of the act the subject of each count. The complainant gave evidence of two specific incidents, being the initial act of a sexual kind and the first occasion of sexual intercourse. She testified that there were numerous other acts, but she could not remember their details or frequency.

102 None of the particular counts was linked to either of the specific acts to which the daughter testified. Her evidence was 'equivocal as to whether the first act of intercourse took place before or during the period mentioned in the first count in the indictment'.[24]

103 Although the form of pleading was proper on its face, and the counts were not bad for insufficiency of particulars, the evidence called by the prosecution disclosed more than one offence during each of the three years. The prosecution was not put to its election for the purposes of identifying the specific occasions on which it relied.

104 The accused was convicted and ultimately appealed to the High Court. The majority (Dawson, Toohey, Gaudron and McHugh JJ) considered that the appeal should be allowed, as the trial involved a substantial miscarriage of justice.

[N]otwithstanding that each count in the indictment charged the applicant with one offence only, the evidence revealed a multiplicity of offences with nothing to identify any one of them as the offence with which the applicant was charged in any particular count.[25]

106 Dawson J stated that although the counts were framed in a permissible way, given the evidence of multiple offences in each of the relevant years, any one of which could have answered the count, there was latent ambiguity and:

... obvious embarrassment to the applicant in having to defend himself in relation to an indeterminate number of occasions, unspecified in all but two instances, any one of which might, if it occurred in one of the relevant years, constitute one of the offences charged.[26]

107 The occasions were unspecified and the accused had no opportunity to answer them as he might have done were they specified.

...the whole of the evidence was, in effect, evidence of propensity which could not be related to the offences charged because of the lack of identification of those offences. In other words, the prosecution case sought to go no further than to establish that an incestuous relationship existed ... a particular kind of propensity ... and to assert the guilt of the applicant upon three unspecified occasions during the existence of, and upon the basis of, that relationship.[27]

109 In Dawson J's view, convictions were obtained 'upon evidence of propensity unrelated to a specific offence upon an identified occasion'.[28]

110 Gaudron and McHugh JJ, in a joint judgment, observed that there was no evidence to link either of the two acts of which the daughter gave evidence to any of the specified periods.[29] Their Honours concluded that the accused was prejudiced by the latently duplicitous counts, not simply because he may have been denied an opportunity to call alibi evidence, but because he was effectively required to defend himself in respect of each occasion when an offence might have been committed. He was also denied an opportunity to test the credit of the complainant by reference to surrounding events or circumstances.

111 In DPP v His Honour Judge G D Lewis & anor[30] ('DPP v Lewis'), the Court of Appeal held that counts based on a course of conduct 'between dates' some 20 to 25 years prior to the prosecution were sufficiently particularised when identified as 'the first occasion', to the exclusion of all other occasions.

112 Tadgell JA (with whom Ormiston and Charles JJA agreed) distinguished S v R because, in DPP v Lewis, the act of the first occasion was specifically charged and was charged alone. Moreover, the circumstances alleged in respect of any one count of sexual abuse were readily distinguished from the circumstances alleged in respect of any other count.

113 Tadgell JA nevertheless warned that identification by reference to a first occasion would not always be sufficient. His Honour stated:

In any case where it is sought to found a criminal charge on an incident in a series occurring over a period, there being neither a known date nor any unique physical feature to distinguish the incident from others in the series, there is an obvious difficulty in providing particulars. The difficulty is likely to be compounded when the period during which the series of incidents occurred is lengthy or long-past, or when the allegations are said to form a pattern of sexual abuse. S. v R. [1989] HCA 66; (1989) 168 C.L.R. 266 exemplified the problem, where convictions upon three unparticularised counts of incest were set aside.[31]

114 In R v DWB,[32] the accused was presented on various counts of sexual abuse of two children under the age of 16, which allegedly took place over a 14 year period. Several counts were said to be representative. Each count was framed on the basis that the alleged conduct took place during a period of some years between specified dates. The offending was alleged to have commenced in 1971 and ended in 1984, that is, decades before the accused was charged. A number of the counts were particularised by describing the conduct alleged as 'the first occasion'.

115 In R v DWB, neither complainant had 'any recollection of any specific occasion on which the offence charged within these 'first occasion' counts took place. Neither complainant could differentiate between the 'first occasion' and any other occasion.'[33]

116 The Crown submitted that if the jury were satisfied that the accused had engaged in systematic abuse over a long period, there must logically have been a first occasion and it was immaterial that neither complainant could identify it.

117 The accused contended that that the Crown was essentially relying on a notional rather than an actual first occasion, and there was no evidence capable of supporting a conviction in relation to any of the first occasion counts, as the jury could not be satisfied that he had committed the specific act. Any conviction would be based on propensity reasoning.

118 Vincent and Weinberg JJA and Mandie AJA stated that:

Where the Crown alleges a course of conduct 'between dates', it will always be a question of degree as to whether the evidence led possesses sufficient particularity to enable the subject of the actual count to be identified. When the count is particularised on a 'first occasion' basis, the evidence must enable that first occasion to be distinguished from all others.[34]

119 Their Honours considered that the first occasion mode of particularisation (permitted in DPP v Lewis in relation to a similar type of conduct allegedly repeated throughout the period designated in the count) would 'not overcome the difficulties identified in S v R unless there is some way that the specific act that constitutes the offence charged in any particular count can be identified and distinguished from all other similar conduct.'[35]

120 Vincent and Weinberg JJA and Mandie AJA endorsed the qualifications stated by Tadgell JA in DPP v Lewis and the analysis in R v Baker; ex parte Attorney-General of Queensland ('R v Baker'),[36] a decision of the Queensland Court of Appeal.

121 In R v Baker, the Court of Appeal held that counts of indecent dealing and rape of a girl under 12 during a two year period and a five year period 'between dates' were not sufficiently particularised by any identifiable, objective, external fact or event.

122 Mackenzie J (with whom McMurdo P and Williams JA agreed) stated that whether an act specified as a 'first occasion' of a series of essentially identical acts was sufficiently particularised to identify the charge would depend on the circumstances.

For example, if a complainant alleged that two offences occurred in a similar way in the same room of a house during a recent period while the complainant was staying with relatives for a short holiday, but was unable to identify specific dates, it could hardly be correct to deny that identification of one of the alleged acts as the first and one as the last provided sufficient particularisation.

In that example, the circumstance that the offences were recent minimises the risk that an accused person will have lost the means of testing the complainant's allegations adequately. On the other hand, where there has been a long delay, the period in which the particular offence is alleged to have occurred is lengthy and there are insufficient features in the evidence which would enable an accused person to identify a particular occasion upon which the act is alleged to have occurred an accused person will have no real means of testing the complainant's allegations.[37]

124 In R v DWB, Vincent and Weinberg JJA and Mandie AJA concluded that there was no means to identify the specific act charged as the offence in any particular count or to distinguish it from the other, similar conduct. There was no evidence to support the 'first occasion' count as formulated and particularised. The accused thus faced an impossible situation in the absence of certainty about what charge he had to meet.[38] An acquittal should therefore have been directed on the relevant counts.

125 In the present case, the conduct comprising count 2 was not, in terms, alleged to have occurred between dates. Nor was it particularised as the 'first occasion'. Rather, it specified a date, Wednesday 2 August 2006.

126 Count 2 is distinguishable from the counts discussed in S v R and R v DWB. It is a 'first occasion' count only in the sense that the judge instructed the jury that despite the complainant's lack of specific recollection of Wednesday 2 August, they could treat count 2 as the first occasion on which she was struck at Seaspray. Although other, similar conduct was alleged (and count 3 alleged offending 'between 1-5 August 2006'), count 2 did not require the applicant to defend himself in relation to a number of unspecified occasions. It was particularised by reference to a date and problems of latent duplicity and autrefois convict due to a series of indistinguishable acts alleged to have occurred within a 'between dates' period did not arise. Therefore it was unnecessary for the evidence to permit the offending comprised in count 2 to be distinguished from other occasions.

127 If, contrary to the above, count 2 constitutes a first occasion count attracting the principles of S v R and R v DWB, it was nevertheless sufficiently particularised, given its context and circumstances.

128 In R v Baker, Mackenzie J expressly contemplated that references to the first and last occasions of offending conduct which occurred during a recent short holiday would identify the offences with sufficient particularity.

129 In R v Baker, Williams JA also considered that where there was a small number of alleged incidents within a short timeframe, a description as a 'first occasion' could well provide sufficient differentiation.

130 Both Mackenzie J and Williams JA considered that, in such circumstances, the accused was unlikely to be deprived of the means of testing the allegations.

131 In the present case, the conduct in question comprised a small number of alleged events within a recent short timeframe (a week). This was not a case of sexual offending alleged to have occurred over a lengthy period long ago.

132 Count 2 related to common assault, which, in contrast to specific types of sexual assault, may entail generalised touching or striking. The complainant described being struck to the head and to parts of her body covered by clothes. She identified days (all days save Tuesday and the weekend), the place (the bedroom) and the usual time (the mornings on waking). The complainant's description of being struck was (save for the blow to the ribs) fairly general, but not to the extent that a defence could not be prepared.

133 The evils considered in S v R and R v DWB did not arise. The applicant (whose defence was that none of the assaults alleged during that week occurred) was not prevented from knowing the case he had to meet or denied an opportunity to call alibi evidence or to test the complainant's credit by reference to contemporaneous events.

134 On the evidence, it was open to the jury to find, as they did, that the applicant assaulted the complainant on 2 August 2006 at Seaspray as alleged in count 2.

Application for leave to Appeal against Sentence

136 Before us, the applicant did not press the application for leave to appeal against the sentence, which appeared moderate.

137 In my opinion, the application for leave to appeal against conviction should be dismissed.

138 I agree with the orders proposed by Dodds-Streeton JA and for the reasons she has given in her judgment.

[1] [2008] VSCA 169, [46]-[56] (Vincent, Dodds-Streeton and Weinberg JJA) (citations in original).

[2] (1996) 190 CLR 348; [1996] HCA 35.

[3] Mackenzie v The Queen (1996) 190 CLR 348, 366.

[4] Devlin J in R v Stone (Unreported, 13 December 1954) cited in Mackenzie v The Queen (1996) 190 CLR 348, 366.

[5] Mackenzie v The Queen (1996) 190 CLR 348, 367.

[7] MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53.

[8] (1959) 101 CLR 298; [1959] HCA 8.

[9] (1997) 191 CLR 439; [1997] HCA 12.

[10] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 618.

[11] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 632.

[12] See also R v Ware [1997] 1 VR 647, in which a separation of time and circumstances between the counts on which the applicant was found guilty and those on which he was acquitted explained the different verdicts; R v Upton (2000) 116 Crim 298 (NSW CCA) in which a guilty verdict on a charge of having intercourse with the complainant without consent was held not to be inconsistent with acquittal on a charge of, at the same time, administering a stupefying drug to her; R v RAT (2000) 111 Crim 360 (NSW CCA) in which not guilty verdicts on some counts of indecent assault or carnal knowledge of the complainant but guilty verdicts on the other counts were held to be inconsistent, as the different verdicts were explicable on the basis of different issues and different evidence referable to the different charges.

[13] See also R v Hansen [2002] SASC 208; (2002) 84 SASR 54 (CA), in which the appellant's conviction on certain counts of unlawful sexual intercourse was held to be inconsistent with the jury's rejection of the complainant's evidence in relation to other counts on which the appellant and another person were acquitted; R v RCC (2002) 133 Crim 352 (NSW CCA), in which a guilty verdict on one count of assault was held to be inconsistent with guilty verdicts on other counts of assault and unlawful sexual intercourse, in circumstances where the complainant gave uncorroborated evidence on all counts (which were clearly linked events) and there was nothing in the evidence to explain the differences in the verdicts; R v Smillie (2002) 134 Crim 100 (CA) in which it was held that guilty verdicts on some counts of arson and fraud were inconsistent with not guilty verdicts on other counts, given the lack of appreciable difference in the quality of the relevant witness' evidence on all counts; BG v State of Western Australia (2005) 152 Crim 207, in which it was held that there were inconsistent verdicts in relation to certain counts of unlawful detention and sexual offences, on the ground that no reasonable jury could have found that the complainant lacked credibility with respect to some counts, but not others.

[14] [2007] VSCA 198.

[16] Criminal Charge Book (Judicial College of Victoria), 7.4.4.1.1.4.

[17] Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, 444. The definition of James J was approved by the Court of Appeal in AG Reference (No 6 of 1980) [1981] EWCA Crim 1; [1981] QB 715, 718 (Lord Lane CJ reading the opinion of the court, with Philips and Drake JJ).

[18] PJ Richardson (ed), Archbold, Criminal Pleading, Evidence and Practice 2009 (first published 1822, 2009 edition) 19-166 (citations omitted).

[19] (1985) 159 CLR 507; [1985] HCA 66.

[21] [2009] VSCA 28.

[23] (1989) 168 CLR 266; [1989] HCA 66.

[30] [1997] 1 VR 391.

[32] [2008] VSCA 223.

[36] [2002] 1 Qd R 274; [2001] QCA 059.

[38] R v DWB [2008] VSCA 223, [37].