R v GJL [2021] QCA 175

SUPREME COURT OF QUEENSLAND

CITATION: R v GJL [2021] QCA 175

PARTIES: R / v / GJL / (appellant)

FILE NO/S: CA No 191 of 2020 / DC No 164 of 2018

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 7 September 2020 (Dick SC DCJ)

DELIVERED ON: 24 August 2021

DELIVERED AT: Brisbane

HEARING DATE: 23 April 2021

JUDGES: Morrison and McMurdo JJA and Bradley J

ORDER: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant was charged with a number of sexual offences against his partner’s daughter – where the appellant was acquitted on five counts at an earlier trial – where the jury were unable to reach a verdict on the remaining twelve counts – where a retrial of the remaining twelve counts was by judge-alone sitting without a jury – where the appellant was convicted as a result of that trial on eight counts and acquitted on four counts – whether the learned trial judge erred in law in her treatment of the appellant’s prior acquittals – whether the learned trial judge failed to consider or give adequate reasons relating to certain evidence adduced at trial – whether there was a miscarriage of justice / Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67, cited / Gilham v The Queen (2012) 224 A Crim R 22; [2012] NSWCCA 131, cited / MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered / R v Carroll (2002) 213 CLR 635; [2002] HCA 55, considered / R v Darby (1982) 148 CLR 668; [1982] HCA 32, cited / R v FAR [2018] QCA 317, distinguished / R v Storey (1978) 140 CLR 364; [1978] HCA 39, applied / Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, considered / Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48, applied

COUNSEL: S C Holt QC, with A J Kimmins and M J Longhurst, for the appellant / D Nardone for the respondent

SOLICITORS: Mellick Smith & Associates for the appellant / Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: The complainant (JMT) and her mother met the appellant in the latter part of 1992. JMT was 12 years old at that time. Her mother started a relationship with the appellant after meeting him through work.
In early 1993, JMT and her mother moved in with the appellant at his house.
JMT said that once they had moved in with the appellant “he began paying more attention to me”. She described the attention as “tickling me, throwing me in the pool and just mucking around”. She said: “sometimes in the pool he’d accidentally maybe touch my breast when he threw me” and “sometimes my bum”.
JMT gave evidence that:(a)“sometimes after dinner we used to sit on the couch and he used to have his hand on my thigh”;(b)the appellant’s conduct of having his hand on her thigh underneath the doona on the couch occurred for approximately three weeks, before the conduct escalated; (c)“his hand got a lot closer and it was more on the outside of my [shorts] between my legs”; and(d)he was “touching my vagina on the outside of my pants” which occurred “about twice a week”.
JMT gave evidence that just before her 13th birthday the physical contact between herself and the appellant escalated to rubbing her breast (Count 2) and vagina (Count 3). It then continued in a similar manner before escalating to sexual intercourse. She stated that the conduct “involved him placing his hand down my actual shorts and underwear and touching my vagina” and that this “would always happen on the couch normally after dinner”.
JMT’s evidence was that the appellant would always be seated in the middle of the couch, between JMT and her mother, after dinner, with a doona covering their laps. The appellant would take his hand and “slowly manoeuvre it to place it – like, lift my shirt a little bit and then place his hand straight down the front of the shorts and underneath my underwear” before he “would insert his index finger but he’d have his whole hand cupping my vagina”. JMT said that this conduct occurred around twice a week unless she chose to sit somewhere else.
None of the contact referred to above (apart from that related to Counts 2 and 3) formed part of the charged acts.
About 22 years later JMT went to the police.¹ The appellant was charged with a number of counts of sexual offending, all of which occurred in 1993.
The first trial took place in November 2019. At that trial, one count was discontinued by the Crown, and the jury acquitted the appellant on five counts. The jury were unable to reach a verdict on the remaining 12 counts.
The remaining counts were:(a)count 1: maintaining a sexual relationship with a child;(b)counts 2 – 7, 9 and 16: indecent treatment of a child under 16, under care; and(c)counts 8, 10 and 17: rape.

Count 1

Count 1 was that of maintaining a sexual relationship with a child.

Counts 2 & 3

Counts 2 & 3 were offences of indecent treatment of a child, under 16, under care. They occurred approximately two weeks before JMT’s 13th birthday. Count 2 was particularised as the appellant rubbing her breast, and Count 3, rubbing her vagina.

Counts 4 – 8

Counts 4 to 7 were counts of indecent treatment and Count 8 was one of rape. The indecent treatment was: Count 4, touching JMT’s breast; Count 5, penetrating her vagina with his finger; Count 6, licking her vagina; and Count 7, licking her breasts.
Counts 4 to 8 are alleged to have occurred after JMT attended the appellant’s workplace for a short period of work experience during the Easter school holidays in 1993.
As to Count 8 (rape), JMT accepted in cross examination that she did not express any discontent to the penetration. She said “No, I just closed my eyes really tightly”.
The learned trial judge said this as to Count 8:³

“[116] To establish count 8 (rape), the prosecution must establish beyond reasonable doubt that the complainant was not consenting.

[117] The complainant blandly stated she did not consent to intercourse but not that she resisted.

[118] Without any criticism of the complainant, who was a child at the time, I am left with the impression that the complainant had a ‘relationship’ (not in the legal sense) with the accused.

[119] The complainant’s mother agreed that after she and the accused separated, the complainant was ‘unhappy’ and a ‘bit distressed.’ The complainant’s mother said ‘I believe she was having separation issues with [the complainant]’

[120] I do not accept the complainant’s mother’s evidence in its entirety, nor do I reject it entirely. I am not persuaded she is a totally reliable witness but I accept her evidence above, and it is both because of the bland denial of consent and the complainant’s apparent feelings for the accused that I am not satisfied beyond reasonable doubt that the complainant did not consent to Count 8.”

Counts 9 and 10

JMT, her mother and the appellant went to Bowen and stayed in a motel room which had one double bed and one single bed. JMT slept in the double bed with her mother and the appellant. The appellant was in the middle.
Counts 9 and 10 were alleged to have occurred at the motel in Bowen, whilst JMT was in the bed with her mother and the appellant. Count 9 was a charge of indecent treatment, being that the appellant penetrated JMT’s vagina with his finger. Count 10 was a charge of rape.
Explaining her acquittals on Counts 9 and 10 the learned trial judge said:⁴

“[136] The defence argue that there are differences in how the complainant and her mother remember the layout of the motel room. I consider this to be inconsequential, as it was nearly thirty years ago.

[137] There is also a discrepancy as to which side of the bed the complainant was on. This is also of no consequence. What is important, is that either way, according to both the mother and the complainant, the accused was in the middle.

[138] The complainant could not remember whether the defendant had clothes on during the night, but the photograph taken the next morning shows him to be naked.

[139] In her original statement, the complainant said “I could feel someone was touching me on the breast and vagina…”

[140] The complainant changed her original statement from alleging he touched her breasts to crossing out the word ‘breast.’ She agreed that in 1997 there was no reference to digital penetration.

[141] However, in her later statement she crossed out the words ‘the breasts.’ Importantly, in neither statement did she mention digital penetration of her vagina.

[142] For this reason, I am left with a reasonable doubt as to the particulars of Count 9.

[143] Whilst I am not prepared to find the accused guilty of count 9, it is because I am not satisfied that the complainant is accurate about that charge. This is because the complainant has not been consistent. On the other, the event happened decades ago when the complainant was a child. This inconsistency does not affect my general assessment of her as a witness.

[144] Further, for the reasons already stated above, I am not satisfied beyond reasonable doubt as to lack of consent on Count 10.

[145] I am satisfied the penetration occurred but I am of the view that the complainant must have been complicit to effect it in the circumstances.

[146] She did not alert her mother, despite her mother being very close by to her. I am not being critical of the complainant. She was a young, naïve child. I am left with the impression that she was somewhat infatuated with the accused.”

Counts 16 and 17

Count 16 was a charge of indecent treatment, alleging that the appellant rubbed JMT’s breasts. Count 17 was a charge of rape.
The appellant was convicted on Count 16 but acquitted on Count 17. Having reviewed the evidence on that count, the learned trial judge expressed her conclusion briefly:

“[174] ... for the same reason I have enunciated earlier, I am left with a reasonable doubt on the question of lack of consent. For this reason, the accused is acquitted on Count 17.”

Ground 1 – the previous acquittals

The main ground argued on the appeal was that related to the impact of the acquittals at the first trial (the previous acquittals). There is no present need to examine the evidence relating to those counts the subject of the previous acquittals. No aspect of that evidence became pertinent on the appeal.

Appellant’s submissions on appeal – the previous acquittals

Mr Holt QC, appearing with Mr Kimmins and Mr Longhurst of Counsel for the appellant, submitted that the learned trial judge’s reasoning excluded any possibility of the previous acquittals affecting the verdicts in the remaining counts at the trial:⁵

“28. The proposition that acquittals in these circumstances can legitimately affect verdicts on other charges is clear from the recent decision of this court in R v FAR where it was said that:

‘... the fact of those acquittals were additional matters which may reasonably have caused the jury to afford the appellant the benefit of the doubt in respect to the counts which verdicts of guilty were entered into at the trial. Accordingly, there was a miscarriage of justice’.

…

This brief review of the authorities makes clear (if necessary) the correctness of R v FAR in identifying the potential exculpatory effect of an acquittal in a case of this kind.

The Learned Trial Judge's reasoning excluded this form of reasoning by erroneous reliance on MFA v The Queen. As a result, her Honour failed to engage with the available use of the evidence for the benefit of the accused. Indeed, her Honour failed to identify how any of the principles that were identified were applied to the facts of this case as found.

This error in legal reasoning was contrary to the submissions of the Crown that acknowledged the fact that the acquittals could legitimately affect the proof of the Crown case, reliant as it was on the credibility and reliability of the complainant.

In accordance with the recent High Court decision in GBF v The Queen any irregularity or error in the trial will amount to a "miscarriage of justice" as that term is used in the third limb of the common form appeal provisions. Accordingly, the appeal must be allowed unless the Crown seeks to deploy the proviso, which would be inappropriate in a case relying, as this one did, on an assessment of credit.”

Respondent’s submissions on appeal – the previous acquittals

For the Crown, Mr Nardone submitted that there was no error and no miscarriage of justice. The essential points he made were:(a)the learned trial judge correctly directed herself that each count was to be considered separately and any reasonable doubt concerning the truthfulness and reliability of JMT’s evidence in relation to one or more counts must be taken into account in assessing the truthfulness or reliability of her evidence generally;(b)both parties below had submitted that the fact of the previous acquittal were additional matters which may reasonably cause the trial judge, as the arbiter of fact, to doubt as to the acceptance of the evidence of JMT on the remaining counts; and the prosecutor emphasised that the appellant was entitled to the full benefit of the acquittals in relation to the charges the subject of the trial;(c)in her Honour’s reasons, the trial judge referred to R v FAR⁶ and recognised that the fact of those acquittals were matters that may cause doubt; but R v FAR does not suggest that the existence of the previous acquittals is determinative;(d)in referring to MFA v The Queen⁷ the trial judge was doing nothing more than reasoning why the existence of the earlier acquittals did not lead automatically to a conclusion that JMT could not be believed;(e)the reasons of the trial judge do not evidence any suggestion that the evidence of the facts surrounding the matters which resulted in an acquittal were used in such a way as to suggest that those facts had occurred; nothing in the reasons of the trial judge that suggest that a view of the facts inconsistent with the acquittals was taken by the trial judge; and(f)the discussion of the principles in the reasons of the trial judge fall into two categories: (i) discussion of the general principles of law which apply to all criminal prosecutions and (ii) discussion of additional principles “to which I must have regard”; this shows that the trial judge had regard to the acquittals in assessing the remainder of the evidence.

Consideration – Ground 1

Consideration of this ground commences with identifying how it was that the evidence relating to the offences of which the appellant had previously been acquitted came to be adduced, as that sets the framework within which the question of full benefit of the acquittals can be analysed.

How evidence relating to previous charges was adduced

During the opening of the prosecution case it became apparent that JMT was going to give evidence relating to the offences of which the appellant had previously been acquitted, and the charge the subject of a nolle prosequi:⁸

“MR COKER: … Your Honour, that’s a fairly brief summary of the evidence you’ll hear from the complainant, focusing on the offending itself. She also, obviously, goes into a lot of the surrounding circumstances and events, and the timeframe as best she [can] recall when things occurred. I’ll just note at this point: your Honour is also going to hear in the course of the recording her testimony about a number of other allegations, which form the other charges on the indictment.

HER HONOUR: Which have been dealt with, in one way or another.

MR COKER: Yes, it – no. They’ve been left in, effectively, at the request of the defence. They’re not being led in support of the Crown case.

HER HONOUR: No.”

Three matters are important to note from that unchallenged statement. First, the defence requested that all the evidence relating to charges of which the appellant had been acquitted, be adduced at the trial. Secondly, the Crown Prosecutor expressly stated that such evidence was not being adduced in support of the Crown case. Thirdly, her Honour’s response revealed that she understood that that evidence was not being adduced in support of the Crown case.
Thus there can be no suggestion that the impact of the previous acquittals sounded in a way relevant to the admissibility of the evidence as to those charged acts. That evidence was adduced at the specific request of defence counsel on the trial in question here. So much was conceded by Mr Holt QC:⁹

“ … [the] evidence of the acts which underlay those acquittals or the allegations that underlay those acquittals was led in the trial before her Honour then a trial judge by agreement and indeed explicitly and overtly on the basis that they would provide a forensic advantage to the appellant on his appeal and an assessment of the matters which remained live.”

Trial judge’s approach to previous acquittals

The learned trial judge gave general directions of the standard kind, concerning the reception and assessment of evidence. The way in which the learned trial judge approached the assessment of evidence generally can be seen from the following directions her Honour acknowledged:(a)the issues that exist must be resolved by taking into account all of the evidence;¹⁰(b)the evidence to be accepted and rejected may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and an assessment of other evidence;¹¹(c)it is for her Honour to decide whether she accepted the whole of what a witness said, or only part of it, or none of it; the fact that her Honour might not accept a portion of the evidence of a witness does not mean that she must necessarily reject the whole of that witness’s evidence; her Honour may accept parts of it if she thinks it is worthy of acceptance;¹²(d)it is up to her Honour to decide whether she accepted particular evidence and if she did, what weight or significance it should have;¹³ and(e)the defence urged her Honour to give herself a Longman direction, in part because of the previous acquittals; her Honour did so.¹⁴
However, in addition to the general principles “which apply to all criminal prosecutions”, her Honour also referred to specific principles: “… to which I must have regard and I have dealt with them in the relevant parts of this judgment below.”¹⁵
It was as part of a recitation of the specific principles that the learned trial judge referred to impact of the previous acquittals upon the trial:¹⁶

“[24] The accused has undergone a jury trial in respect of the same matters. In the first trial, the jury found the accused not-guilty of counts 11, 13, 14, 15 and 18 on the indictment. Further, the prosecution entered a nolle prosequi in relation to count 12.

[25] Accordingly, the accused was discharged on those counts on the indictment.

[26] In R v FAR, the court considered what effect prior acquittals would have upon the offences tried at a subsequent trial, concluding:

‘…the fact of those acquittals were additional matters which may reasonably have caused the jury to afford the appellant the benefit of the doubt in respect to the counts which verdicts of guilty were entered into at the trial. Accordingly, there was a miscarriage of justice.’

This trial is a retrial of the counts that the previous jury were unable to reach a verdict upon.

[27] However, in undertaking an assessment of whether or not a jury’s verdict is unreasonable, regard should also be had for the fact that a verdict of not-guilty does not, of necessity, mean the jury found the complainant dishonest or unreliable. The jury may have accepted the complainant as reliable but had a reasonable doubt as to the defendant’s guilt on that count.

[28] In R v FAR, the judgment referred to the case of MFA v The Queen where Gleeson, Hayne and Callinan JJ stated:

‘In the case of sexual offences, of which there may be no objective evidence … A juror may consider it more probable than not that a complainant is telling the truth but requires something additional before reaching a conclusion of beyond reasonable doubt… 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, the 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 the 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 her evidence, than about others.’

Their Honours also noted that where a number of offences are alleged, this may appear.”

Submissions below on previous acquittals

In some respects, it is not surprising that the learned trial judge dealt with the previous acquittals as her Honour did. The submissions for the defence on this point went no further than this:¹⁷

“3. In the first trial, the jury found the Accused not guilty of Counts 11, 13, 14, 15 and 18.

The Prosecution entered a nolle prosqui in relation to Count 12.

In all, the Accused was discharged on Counts relating to alleged offending on three separate occasions namely:

i. Count 11 - Palm Island;

ii. Counts 12, 13, 14 and 15 - the ‘sega incident’ after the Palm Island trip;

iii. Count 18 - the incident involving [the appellant’s wife].

In R v FAR, the Court considered what effect prior acquittals would have upon offences tried at a subsequent trial, concluding:-

For the Crown it was submitted at trial that:¹⁸

“82. The complainant’s evidence in relation to what was Counts 11, 12-15 and 18 is before the Court. In general terms, these charges relate to an offence committed whilst on a boat trip with the defendant and [the complainant] (Count 11); a series of offences committed the day they returned from that trip (Counts 13-15); and an offence committed sometime after the defendant and [the complainant] had ended their relationship.

The defendant is entitled to the full benefit of the acquittals in relation to these charges. It is not submitted that they can or should be used in any way in support of the Crown case on the remaining charges.

It does not follow however that the previous acquittals throw into question the complainant’s credibility and reliability to such an extent that the Court could not be satisfied beyond a reasonable doubt that the defendant is guilty of the remaining charges.

Without devolving into speculation about why the defendant was acquitted of those charges, it can simply be observed that the jury would have received standard directions regarding the need to separately consider the charges. Clearly enough they did so, as evidenced by their acquittals on some charges and inability to reach a verdict on others.

It should also be observed, when considering what weight if any to place on those acquittals, that whilst the complainant’s evidence (which was recorded during the previous trial) was the same in both trials, the rest of the evidence was taken afresh and it should not be speculated upon as to what the evidence was on the previous occasion.”

Reliance on R v FAR and erroneous reliance on MFA v The Queen

At the centre of the appellant’s contentions are two points:(a)that R v FAR stood as authority for the proposition that previous acquittals were additional matters which may reasonably cause a judge to afford the appellant the benefit of the doubt in respect to those counts on which verdicts of guilty were entered at the trial; and(b)the trial judge excluded this form of reasoning by erroneous reliance on MFA v The Queen; thus, the appellant was denied the full benefit of his previous acquittals, resulting in a miscarriage of justice.
Consideration of those points must occur in the context of what is meant when one says that the accused must get the full benefit of a previous acquittal.

Full benefit of a previous acquittal

In Washer v Western Australia,¹⁹ the accused was convicted of conspiring with X and Y, between 18 May 2000 and 2 June 2000, to possess methylamphetamine, with intent to sell or supply it to another. The alleged conspiracy related to a specific parcel of methylamphetamine which was purchased in Queensland but which, in the events that occurred, fell into the hands of the authorities before it reached Western Australia.
At an earlier trial the appellant had been acquitted of a charge that, between 13 April 2000 and 21 March 2001, he conspired with Z and Q to sell or supply methylamphetamine. The alleged conspiracy was said to have extended over about a year, and to have covered an ongoing business of the supply of drugs by the three conspirators to other persons.
The contended vice at the second trial was that the trial judge would not permit the defence to adduce evidence that the accused had been previously acquitted of a charge of conspiring to sell or supply methylamphetamine.
Washer was a case where the admissibility of the evidence was in issue. Here it is not, as the defence wished it adduced and the Crown acceded to that request. Therefore, what was said as to admissibility in Washer is not relevant for present purposes.
In Washer, Gleeson CJ, Heydon and Crennan JJ discussed the incontrovertibility of an acquittal:²⁰

“In whatever way the problem arises, and whether it takes the form of a question of admissibility of evidence, preclusion of proceedings, or the exercise of a discretion to stay proceedings, the underlying legal principles relating to double jeopardy require, in their application, an accurate identification of the effect of the earlier acquittal and its relationship to the later charge. Where the issue arises as one of the admissibility of evidence, then relevance is likely to be the focus of argument. Relevance will be decided in the light of the legal principles applicable to the prosecution and defence of the charge against the accused, as related to the facts and circumstances of the particular case. If, in this case, the appellant had a legal right, by reason of his acquittal, to be given the benefit of an assumption relevant to the assessment of the other evidence in the case, then evidence of the acquittal would be relevant. If the fact of the acquittal had some logical connection with the assessment of the probabilities concerning some fact or facts in issue, the evidence would be relevant. In either case, however, a decision about relevance requires consideration of the effect of the acquittal. Accepting that the appellant was entitled to ‘the full benefit of the acquittal’, the question is what that ‘full benefit’ entailed.”

In R v Storey,²¹ Barwick CJ dealt with questions of admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal, and then said:

“Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.”

In Rogers v The Queen,²² Deane and Gaudron JJ described the incontrovertible character of an acquittal as being founded upon “the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct”. Similarly in R v Carroll,²³ Gleeson CJ and Hayne J said that “the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final”.
In Washer the plurality referred to the decision of Barwick CJ in Storey, where his Honour said, in the course of discussing the question of admissibility of evidence of the previous acquittal in such a case:²⁴

“It is, of course, a res judicatum that the accused was acquitted: found not guilty of the offence charged. But, as I think, no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact a res judicatum.”

Barwick CJ went on to identify the benefit of the previous acquittal which was to be protected:²⁵

“But the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the prior occasion to canvass the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded as akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles. In my opinion, the remarks of Lord MacDermott in Sambasivam v Public Prosecutor Federation of Malaya, sufficiently established the basic principle though, as I have indicated, I would take the reference to res judicata to be confined to the fact of acquittal and not to extend to any fact supposedly found or denied in arriving at that verdict.”

The plurality in Washer also adopted what had been said by Gibbs J in Storey, as to the benefit derived from the previous acquittal:²⁶

“ … the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter. Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted.”

Gibbs J went on to identify what should occur when evidence that went to a previous offence of which the accused had been acquitted, was admitted at a subsequent trial:²⁷

“However evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted. Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged.”

The plurality in Washer examined the extent of what the previous acquittal stood for in terms of proof at the later trial:²⁸

“In this case, the prosecution did not ask the jury to accept that the conversations between the appellant and [Z] and [Q] showed the appellant making or pursuing an agreement with [Z] and [Q] that the three of them would supply drugs to other people. It asked the jury to accept that the appellant, at the time of the proposed importation from Queensland, was a drug dealer, and from that to infer, among other things, that he intended to sell or supply to others his share of the amount imported. It was neither explicit nor implicit in the acquittal at the earlier trial that the appellant was not a drug dealer. For the purposes of the law, the acquittal established that the appellant was not a party to a conspiracy with [Z] and [Q] to supply drugs to others; nothing more, and nothing less.”

The plurality explained how the evidence of the previous acquittal could have been dealt with in the subsequent trial:²⁹

“Let it be supposed that the jury had been informed that the appellant had been charged previously with being a party to an agreement (not related to the Queensland importation) with [Z] and [Q], that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men. That would have been a complete statement of what was involved in the benefit of the acquittal. There was no process of reasoning whereby that information would have made less plausible any step in the prosecution case as it was finally left to the jury. There was nothing more that the jury could properly have been told. If the jury had been told that the earlier acquittal established that the appellant was not a drug dealer, or that he was not talking about drugs in his conversations with [Z] and [Q], that would have been untrue. If the trial judge had told the jury they must give the appellant the full benefit of his acquittal without further explanation, that would have been mischievous.”

From Washer and Storey one can derive the following relevant principles:(a)the effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence; (b)the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted; the accused is to be taken as entirely innocent of the offence of which he was previously acquitted;(c)the accused must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or in any sense being treated as guilty;(d)the res judicata is confined to the fact of acquittal, and does not extend to any fact supposedly found or denied in arriving at that verdict;(e)no inference can be drawn from the acquittal that any particular fact was found or negatived by the jury so as to make that fact a res judicatum;(f)evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted;(g)however, evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted; where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged; and(h)the jury must be told what it means in the circumstances of the instant case to give the defendant the full benefit of the earlier acquittal.

The present case

R v FAR was cited as authority for the proposition that the fact of the previous acquittals were “additional matters which may reasonably have caused the jury [here, the trial judge] to afford the appellant the benefit of the doubt in respect to the counts which verdicts of guilty were entered at trial. Accordingly, there was a miscarriage of justice.”
The full passage from R v FAR needs to be understood. In R v FAR the evidence placed before the jury included evidence of events in respect of which there had been a previous acquittal. As to that the Court said:³⁰

“[138] The jury were properly directed as to the need to consider carefully the complainant’s testimony, and to have regard to any non-acceptance of that evidence in determining whether or not they accepted the complainant’s evidence on other counts beyond reasonable doubt. However, the evidence placed before the jury did not merely include evidence of acts which were uncharged acts. That evidence included evidence of acts which had been the subject of acquittals at the appellant’s previous trial.

[139] Although the jury were directed that they were not to use that evidence against the appellant ‘at all’, the jury was directed that the evidence was placed before them ‘solely to assist in your assessment of the complainant’s credibility. If you do not accept the evidence, then – in respect of those matters, then that finding would bear on whether or not you accept the complainant’s evidence relating to the charges which are before you, beyond reasonable doubt.’ Such a direction did not expressly direct the jury that if the jury accepted the complainant’s account in respect of those events, the jury could not use that account as evidence that those events had in fact occurred, thereby questioning or discounting the effect of those acquittals, bolstering the complainant’s credibility.

[140] The use of that evidence in that way would deprive the appellant of the full benefit of those previous acquittals. In the R v Storey, Barwick CJ said:

‘Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal, and not use the evidence in any way to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.’

[141] In the present case, the evidence was placed before the jury without objection and for a tactical forensic benefit of the appellant. No re-direction was sought by the appellant’s counsel. In those circumstances, the mere fact of a misdirection would not sustain an order setting aside the jury’s verdicts of guilty, unless the appellant established that, by reason of the misdirection, there was a miscarriage of justice in that he was denied a fair chance of acquittal.

[142] In circumstances where there was good reason for a jury to closely scrutinize the complainant’s evidence, it cannot be said that the failure to direct the jury to the effect that the appellant had been acquitted of those offences and that they could not use that evidence in a manner inconsistent with the full benefit of those acquittals, did not deprive the appellant of a fair chance of acquittal on Counts 1, 2, 5, 6, 9, 11 and 12.

[143] To adapt and adopt the words of Mason J [as His Honour then was] in Storey, the directions of the trial Judge:

‘did not give sufficient emphasis to the fact that the jury were bound to accept the verdict of acquittal…as the only possible view of the evidence relating to those charges; it was not open to them to accept a view of the facts inconsistent with that acquittal…the trial miscarried by reason of the trial judge’s omission to give the jury a correct direction on the effect of the acquittal and the use to which the prosecutrix’s testimony as to events…would be put’.

[144] The fact of those acquittals were additional matters which may reasonably have caused the jury to afford the appellant the benefit of the doubt in respect of the counts for which verdicts of guilty were entered at trial. Accordingly, there was a miscarriage of justice.”

R v FAR differed from the present case. In R v FAR the jury were told that they could use the evidence adduced in relation to events in respect of which the defendant had been acquitted. They were directed that the evidence was there “solely to assist in your assessment of the complainant’s credibility”. And that was made clear by the direction that: “If you do not accept the evidence, then – in respect of those matters, then that finding would bear on whether or not you accept the complainant’s evidence relating to the charges which are before you, beyond reasonable doubt.”
Further, in R v FAR the vice as identified by this Court was that:³¹

“Such a direction did not expressly direct the jury that if the jury accepted the complainant’s account in respect of those events, the jury could not use that account as evidence that those events had in fact occurred, thereby questioning or discounting the effect of those acquittals, bolstering the complainant’s credibility”.

Here the trial judge was told, and accepted, that the evidence which was concerned with the events the subject of the previous acquittals was not relied upon by the Crown at all, and was being adduced solely at the request of the defence.
In my view, the learned trial judge cannot be demonstrated to have fallen into the error the subject of the comments by Barwick CJ in R v Storey, namely that “the jury must be duly warned that they must accept the fact of the earlier acquittal, and not use the evidence in any way to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal”.
Her Honour did not refer to the evidence relating to the acquitted counts in the reasons for judgment. When the evidence concerning Count 11 was to commence, the Crown made it clear that those counts were not before her Honour. Counsel for the defence sought to tender the particulars from the first trial to “assist your Honour in understanding what it was all about”.³² Her Honour responded that it was, rather, “what I’m not having to consider”, and those particulars were “pages that I’m not relying on”.³³
There is, therefore, no reason to suppose that this trial miscarried in the same way referred to by Mason J in R v Storey, namely: “the trial miscarried by reason of the trial judge’s omission to give the jury a correct direction on the effect of the acquittal and the use to which the prosecutrix’s testimony as to events…would be put”.
The appellant’s case placed considerable reliance upon this passage from R v FAR:³⁴

“The fact of those acquittals were additional matters which may reasonably have caused the jury to afford the appellant the benefit of the doubt in respect of the counts for which verdicts of guilty were entered at trial. Accordingly, there was a miscarriage of justice.”

The submissions proceeded on the basis that what was said was a principle extending beyond that particular case and served to define the full benefit of the acquittals in the present case. I respectfully disagree.
That passage must be understood in context. There are, in my view, four matters that reveal the limit of what was said.
First, in paragraph [139] of R v FAR the Court explained the vice in the lack of directions, namely that even though the jury had been told they could use the evidence in relation to the complainant’s credit, they were not told that if they accepted the complainant’s account in respect of the acquitted events, the jury could not use that account as evidence that those events had in fact occurred, thereby questioning or discounting the effect of those acquittals, bolstering the complainant’s credibility.
Secondly, in paragraph [142] the Court observed that “it cannot be said that the failure to direct the jury to the effect that the appellant had been acquitted of those offences and that they could not use that evidence in a manner inconsistent with the full benefit of those acquittals, did not deprive the appellant of a fair chance of acquittal”. The use referred to was that identified in paragraph [139].
Thirdly, the use of the word “may” shows the Court was making no definitive statement, but dealing with possibilities.
Fourthly, the last sentence and its use of the word “Accordingly” signifies that in the particular case under consideration the factor referred to in the first sentence was the reason for concluding that there had been a miscarriage of justice. That factor was confined to the evidence concerning the acquitted events in that case, the possible misuse of which gave rise to a miscarriage of justice.
What was said was not, in my respectful view, said as a qualitative assessment of the impact of the previous acquittals in R v FAR. What was being dealt with was the possibility that the absence of the appropriate direction may have had an impact upon the verdict because of the risk that the jury approached the evidence in the wrong way. The Court cannot be thought to have advanced a view of the impact in fact. To do so would be to usurp the jury’s role of the trier of fact.
Much less could it be seen as the Court making a qualitative assessment of the impact of previous acquittals in any other case.
It can only have been, and should be understood as, a statement about the possibility, in that case, that the previous acquittals might have had an impact on the jury’s assessment of the evidence.
The appellant’s submissions³⁵ also adopt a passage from which in turn adopted a passage by Gibbs J in :

“Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted”.

But that should not be taken further than was intended. In such a case the defendant is to be taken innocent of the offence of which he was acquitted. That is not the same as saying that the events did not happen.
The High Court said in MFA v The Queen³⁷ that a verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. Rather, it may simply reflect a cautious approach to the discharge of a heavy responsibility. And examples of that were given in the passage relied upon by the learned trial judge: (i) want of supporting evidence, (ii) the complainant had shown some uncertainty as to the matters of detail, (iii) the complainant had been shown to have a faulty recollection of some matters, or (iv) the complainant had been shown otherwise to be more reliable about some parts of her evidence, than about others.
The court in Washer commented upon the imponderables presented by the fact of a previous acquittal:³⁸

“[28] It is impossible to know why the jury at the earlier trial acquitted the appellant … It is not possible to tell; and it could not be suggested that the jury at the trial before Judge Wisbey should have been invited to re-examine the conduct of the earlier trial in order to reach their own conclusion about what the jury at the earlier trial must have decided.”

In Washer the court also referred with approval to the decision of Barwick CJ in Storey, and the passage set out in paragraph [47] above.
The same point was also made in Carroll, where Gleeson CJ and Hayne J said, in the course of discussing issues concerning the incontrovertibility of a previous acquittal:³⁹

“31. Although often seen as different sides of the same coin, as Deane and Gaudron JJ pointed out in Rogers v The Queen, autrefois acquit and autrefois convict reflect quite different considerations. Indeed, that must be so when it is recalled that a jury's finding of guilt depends upon the jury being satisfied beyond reasonable doubt that all elements of the charged offence have been proved, whereas the jury that entertains a reasonable doubt about any one of the elements of the offence is bound to acquit. Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial.

…

There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.”

In the present case the acquittals are not relevant to the facts in issue as the acquittals were in respect of other offences. True it is that they involved the same complainant and accused, and in some senses the conduct was similar, but the current offences (including Count 1, the maintaining charge) could be, and were to be, proved without any reference at all to the previous charges. In fact, as the Crown told the learned trial judge at the start, the evidence concerning them was being adduced only at the request of the defence, and that evidence did not form part of the Crown case.
In oral address Mr Holt QC put the submission that the vice in the learned trial judge’s approach could be expressed: “the question becomes, well, what did her Honour do with the acquittals? And the short answer is, it seems certain that she gave the defendant no advantage – forensic advantage as a result of them”.⁴⁰ The difficulty with that submission is that it assumes that the previous acquittals must necessarily result in a forensic advantage to the appellant. That is by no means clear when the Crown seeks to make no use of them in respect of its case, and the defence does not state what the advantage is.
The submission was again refined in oral address. It was put as:⁴¹

“ … there was a forensic advantage that we were entitled to that we were – that was [indistinct] that was taken from us by her Honour’s reasoning, and that her Honour didn’t grapple with because of this error, not that we were subjected to an improper forensic disadvantage, if I can put it that way.”

Pressed as to what the forensic advantage was and how it manifested in this case, the submission on behalf of the appellant was:⁴²

“ ... the advantage would operate in the sense that the trier of fact here, the trial judge sitting alone, would need to assess that evidence on the basis that those acts were not – or that those offences were not in fact committed by the defendant, …

…

It goes to credit and reliability. It goes to the assessment of the complainant.”

Then, identifying the complaint at the heart of the submission Mr Holt said:⁴³

“ … what her Honour seems to have done with a caveat that it’s difficult to discern from the reasons, seems to have done is to consider that the … principle in MFA, from a different context, applies here to allow her in effect to put that forensic [advantage] to one side and not deploy it or even consider deploying it because the reasons don’t go on in any way to do so in favour of our client.”

That submission was then made even more clear:⁴⁴

“ … what we say is the legal relevance is the forensic advantage that that necessarily assumed state of affairs, which is that those offences were not committed, has on an assessment of credibility and reliability in this particular context.”

As the Court in Washer said:⁴⁵

“In most cases, for a trial judge simply to tell a jury that an accused should be given the full benefit of his or her acquittal would convey little. A likely response would be a request from the jury for an explanation. At that stage, the trial judge would have to address the question earlier identified: what, in the particular circumstances of the second case, does giving the accused the “full benefit” of the earlier acquittal entail? The admonition cannot be left hanging in the air. There could be cases in which its meaning would be reasonably clear; in other cases it may be quite obscure. To use it without further explanation would always be dangerous, and sometimes positively misleading.”

In my view, the fact that the appellant’s purpose, in insisting that the evidence as to the earlier charges be adduced, was merely to attack the credibility and reliability of the complainant, defines what was necessary, in the particular circumstances of the present case, to give the full benefit of the acquittals. That was to direct that the appellant was entitled to the full benefit of his previous acquittals, which, in the particular circumstances where those acquittals were not relevant to the facts in issue, meant that the fact that the appellant had been previously acquitted was to be taken into account when assessing the credibility and reliability of JMT’s evidence.
In my view, her Honour’s directions in respect of the previous acquittals conveyed that:(a)this was a case where there had been a number of charges at the first trial, acquittals on some of them, and a nolle prosequi on one;(b)the current trial was only in respect of those charges where the first jury could not reach a verdict;(c)the appellant was entitled to the benefit of the previous acquittals;(d)a previous acquittal might, depending on the circumstances, cause the trier of fact to afford the appellant the benefit of the doubt on a particular charge;(e)the previous acquittals were therefore potentially relevant to acceptance of JMT’s evidence as credible and reliable; but(f)there were a number of reasons why a jury might acquit, but which did not necessarily reflect adversely on JMT’s credibility or reliability, including those identified in the passage from MFA v The Queen referred to in paragraph [74] above.
Given that the previous acquittals were not relevant to the facts in issue on the charges being tried, that direction was sufficient to identify that the appellant was entitled to the full benefit of the previous acquittals, but that in the circumstances of the case that benefit was limited to weighing them in the assessment of JMT’s evidence.
The learned trial judge gave herself that direction. It was, in my view, not necessary to repeat it each time a particular charge was considered. Rather, this Court should assume that her Honour obeyed that direction. In this respect the judge-alone trial should be subject to the same approach as is a jury trial, where the court assumes that a jury will follow the directions given to them.⁴⁶
Further, there was tangible evidence that her Honour did adhere to consideration of the previous acquittals in the course of her reasoning. As to Counts 2 and 3, her Honour said she had kept the Longman direction in mind when reaching a view about acceptance of JMT’s evidence.⁴⁷ It will be recalled that the direction had been urged by the defence in part because of the previous acquittals.

Ground 2 – failure to appropriately consider and/or give adequate reasons

This ground of appeal was based on the contention that her Honour erred by failing to appropriately consider, and/or give adequate reasons, with respect to certain evidence adduced at the trial, namely:(a)the evidence and reliability of JMT’s mother;(b)the evidence of the witness Van Pelt in relation to an alleged preliminary complaint; and(c)the credibility and/or reliability of JMT, particularly as such issues related to the proper application of the Markuleski direction.

Appellant’s submissions

Mr Holt QC made the following points in relation to this aspect of the case:(a)the Crown, in closing submissions, identified that “much, though not all, of the corroboration of the complainant’s evidence comes from the evidence of her mother”;(b)the Crown then relied heavily on many matters raised by the mother as supportive of findings of guilt against the appellant;(c)the appellant, in closing submissions, identified a number of matters which cast significant doubt on the credibility and reliability of the mother’s evidence; most significant was the sheer improbability that had the mother seen what she claimed to have seen at the time that she would not have done anything about it;(d)the learned trial judge made negligible reference to the evidence of the mother in her Honour’s reasons; the only reference came in the context of considering a particular charge; in that passage her Honour noted:

“I do not accept the complainant’s mother’s evidence in its entirety, nor do I reject it entirely. I am not persuaded she is a totally reliable witness but I accept her evidence above ...”;

(e)in a case where consideration of the mother’s evidence was of acute relevance, no reasons were given for her Honour’s comments about the reliability of the mother, nor did her Honour identify how such a finding impacted her Honour’s consideration of the counts other than the one under consideration; most importantly, her Honour did not explain at all which evidence of the mother she accepted and which she rejected; as a result, it is not possible by reference to the reasons to understand how this heavily contested evidence was deployed in the findings of guilt; and

(f)these were said to be an indication of the learned trial judge’s “failure to do the job that she was required to do in terms of the articulation of the reasons for ... the verdicts”.

Respondent’s submissions

For the Crown, Mr Nardone submitted that the mother’s evidence was not determinative of the assessment of JMT’s evidence:(a)despite the weight the prosecutor sought to attach to the corroborative evidence of JMT’s mother in supporting the credibility of JMT, the trial judge still concluded:

“I do not accept the complainant’s mother’s evidence in its entirety, nor do I reject it entirely. I am not persuaded she is a totally reliable witness but I accept her evidence above...”;

(b)by way of a broad summary it is clear from the reasons of the trial judge that she accepted JMT as an honest and reliable witness; the trial judge “found the evidence of the developing sexual relationship to be compelling”; further, the “complainant’s description is a logical, believable narration of the outset of what might have been almost innocent touching, through to a grooming period, culminating in serious offending”;

(c)when the trial judge found that the evidence of the mother was relied upon, she indicated in what way it was used or relied upon; by inference, the silence in relation to the evidence of JMT’s mother was an indication of a lack of reliance upon her evidence; and

(d)a finding in relation to the credibility of JMT was not adversely impacted by a finding as to the credibility of her mother; the suggestion that her mother made JMT go to police lacks substance; JMT indicated in evidence in chief that it was her mother that took her to the police station after she disclosed the offending to her mother; that gives context to the answer to the question as to why she went to police; it was never put to JMT that her mother put her up to fabricating the allegations.

Consideration

In the course of submissions on this point Mr Holt QC referred to three examples to highlight where he said that the mother’s evidence was of such a quality that the learned trial judge should have explained the use she made of it. The three examples were:⁴⁸(a)the mother gave evidence of herself, JMT and the appellant sharing a bed, then waking up to the appellant engaging in something which, at least by necessary inference, was a sexual activity with JMT, and the appellant then had claimed that he had the wrong girl;⁴⁹(b)secondly, she confronted the appellant after pulling a blanket off them, and finding him naked and with an erect penis in the immediate company of JMT;⁵⁰ and(c)thirdly, a request made by the appellant to JMT’s mother for a threesome, or a suggestion of a threesome with JMT.⁵¹
There are a number of reasons why, in my view, this contention must be rejected.
First, the mother’s evidence was, at best, only corroborative of JMT’s evidence. Therefore, acceptance of her evidence was not determinative of acceptance of JMT’s evidence as credible and reliable.
Secondly, the learned trial judge did deal with the mother’s evidence in various respects. For example, when dealing with the question of the use of a doona,⁵² and when dealing with the reasons for her Honour’s acquittal on Count 8.⁵³ The latter is instructive. It was the only point of her Honour’s reasons where the mother’s evidence was expressly weighed in the balance in terms of its acceptance or rejection. It is notable that when that occurred it resulted in a finding favourable to the appellant.
In that respect there is a paradox in the appellant’s submissions. On the one hand it is urged that the mother’s evidence was substantially supportive of that of JMT:⁵⁴

“There was evidence led from the mother about matters which, if they were accepted, wholly corroborated in effect what the – no, that’s an exaggeration – significantly corroborated what the complainants did in significant ways.”

Yet, the complaint is that her Honour did not explain how she did not take that evidence into account.
Thirdly, in paragraphs [115](m)-[115](s) below I have examined the trial judge’s approach to the mother’s evidence. In my view, that review of the Reasons demonstrates that her Honour gave an adequate explanation why she took into account the mother’s evidence, to the extent she did.

Evidence of Van Pelt

As to this aspect the appellant submitted that her Honour failed to appropriately consider the evidence of Van Pelt because:(a)her Honour stated the following in relation to his evidence:

“It appears from the transcript that the complainant’s first boyfriend was not asked to provide a statement until December 2016. The fact that he does not remember does not automatically lead me to the view that the conversation did not happen, therefore impacting on the complainant’s credibility. It is more likely that he was unable to correctly recall the conversation given the lapse of time.”

(b)such a finding was not reasonably open on the evidence of Van Pelt, which, on the issue, was:

“All right. In the course of your relationship with [JMT], do you have any recollection of her telling you about anything sexual that happened between her and a boyfriend of her mother?---I never had any conversations or information dealing to a specific event or anything like that. No. So I wasn’t privy to that sort of convo.”

(c)the response was an unequivocal and clear denial; there was no suggestion within his answer, nor was there any follow up questioning, which could give any grounding to her Honour’s finding that he was unable to recall correctly or had otherwise forgotten; and

(d)in turn, her Honour’s consideration of the passage form R v Van Der Zyden⁵⁵ was misplaced; this was not a case where there was an absence of a complainee (as was considered in the cited paragraph of Van Der Zyden), this was an instance of direct conflict between the evidence of JMT with another Crown witness.

For the Crown Mr Nardone submitted that the contention of error should be rejected because:(a)JMT’s evidence detailing the complaint made to the witness Van Pelt was brief; she indicated that she told him that her mother’s boyfriend had sex with her when she was younger; she was in tears and upset, and he consoled her; that was the only conversation she had with Van Pelt about those things;(b)in the context of the question asked of Van Pelt, his response was equivocal and does not amount to a clear denial that a conversation on this topic occurred with JMT; his answer was simply that he never had a conversation with JMT in which ‘information dealing to a specific event or anything like that. No. So I wasn’t privy to that sort of convo.’ (emphasis added);(c)his answer is consistent with the disclosure, limited in detail as it was, made by JMT; and(d)in her reasons the trial judge stated that Van Pelt, “testified he had never had any conversation with, or information from, the complainant about anything sexual happening between herself and her mother’s boyfriend”; this placed the evidence at a level higher than it ought to have been and less able to act as a buttress to the credibility of JMT; given the approximate 23 years that passed before Van Pelt provided a statement the trial judge still concluded that the evidence was not so damaging as to impact negatively on her assessment of the credibility of JMT; if the evidence of Van Pelt is read as it is submitted that it should be read, the evidence would serve only to support the credibility of JMT; as a result, no injustice or unfairness has been occasioned to the appellant.

Consideration

In my respectful view, there is nothing in this point. There are several reasons for that conclusion.
First, JMT said she told Van Pelt that “my mother’s boyfriend had sex with me when I was younger”. That conversation occurred about 23 years before the trial. Van Pelt, who had made it clear his memory of that time was not strong, was asked if he had “any recollection of her telling you about anything sexual that happened between her and a boyfriend of her mother?”. His answer was: “I never had any conversations or information dealing to a specific event or anything like that. No. So I wasn’t privy to that sort of convo.”⁵⁶ Thus, Van Pelt did not reject the proposition that there might have been a conversation, just that he could not, 23 years after the event, recall one that involved any “specific event or anything like that”.
Secondly, I reject the submission that his response was response was “an unequivocal and clear denial”, and also there was no suggestion within his answer that he was unable to recall correctly or had otherwise forgotten. All he said was that he did not recall a conversation which involved “a specific event or anything like that”. And, by the time that answer was given he had already said four times that his memory was limited because of the 23-year interval.
Thirdly, in my view, her Honour did not mistake the effect of his evidence. Her Honour’s first comment as to the effect of his evidence was:⁵⁷

“The complainant’s first boyfriend, however, testified he had never had any conversation with, or information from, the complainant about anything sexual happening between herself and her mother’s boyfriend.”

The emphasised phrase is the qualification on the earlier part of the sentence. In context her Honour’s comment was accurate.
Even if that were doubted, her Honour correctly recorded the effect of his evidence shortly thereafter:⁵⁸

“It appears from the transcript that the complainant’s first boyfriend was not asked to provide a statement until December 2016. The fact that he does not remember does not automatically lead me to the view that the conversation did not happen, therefore impacting on the complainant’s credibility. It is more likely that he was unable to correctly recall the conversation given the lapse of time.”

In the circumstances there is no need to consider what was said about R v Van Der Zyden.

Markuleski direction and credibility of the complainant

On this aspect of the case Mr Holt QC submitted that the error was manifest in the following way:(a)the learned trial judge gave herself a Markuleski⁵⁹ direction in terms similar to the Benchbook;(b)her Honour acquitted the appellant in relation to Counts 8, 9, 10 and 17, with her Honour stating the following in relation to those counts:Count 8: her Honour was left with the impression that JMT had a “relationship” (not in the legal sense) with the accused; it was both because of JMT’s bland denial of consent and JMT’s apparent feelings for the accused that her Honour was not satisfied beyond reasonable doubt that JMT did not consent;Count 9: the acquittal was because her Honour was not satisfied that JMT was accurate about Count 9, and because JMT had not been consistent;Count 10: “for the reasons already stated above, I am not satisfied beyond reasonable doubt as to lack of consent on Count 10”; andCount 17: “for the same reason I have enunciated earlier, I am left with a reasonable doubt on the question of lack of consent”;(c)it is notable that the acquittals were not based on a mistake of fact on the part of the appellant, rather they were based on her Honour not accepting the evidence of JMT that she did not consent;(d)her Honour failed to identify whether, or how, her Honour's findings concerning JMT’s evidence, leading to the acquittals, was taken into account in assessing the other counts; and(e)her Honour noted that inconsistencies did not affect her Honour's general assessment of JMT, however, did not articulate why this was the case.
For the Crown, Mr Nardone submitted that there was no relevant error for these reasons:(a)after giving reasons as to why the trial judge accepted the honesty and reliability of JMT,⁶⁰ her Honour added that on the issue of consent she was left with the impression that JMT had a “relationship” with the appellant or that JMT was infatuated with the appellant;(b)the trial judge was not therefore satisfied that JMT did not consent; the trial judge made it clear in her reasons that the explanation for that was that JMT was a child at the time; the trial judge, however, accepted that the acts occurred as JMT described; the trial judge’s doubt related only to one element of the offence of rape; and(c)by highlighting reasons why the trial judge had doubt as to whether JMT was not consenting, the trial judge provided an implicit explanation as to why those acquittals would not impact her assessment of JMT’s evidence in relation to the other counts.

Consideration

At the core of this point are two propositions, that the learned trial judge: (i) failed to identify whether, or how, her Honour’s finding’s concerning JMT’s evidence, leading to the acquittals, was taken into account in assessing the other counts, and (ii) did not articulate why the inconsistencies in JMT’s evidence did not affect her Honour’s general assessment of JMT otherwise.
The learned trial judge’s reasons referred to the acceptance or otherwise of JMT’s evidence, and matters affecting that, in a number of places:(a)as to consent, it was for the prosecution to prove that JMT did not consent;⁶¹(b)in the charges of indecent treatment, consent was not an issue; “I must be satisfied beyond reasonable doubt only that the offending occurred. In the charge of rape, it is necessary that the carnal knowledge be without consent”;⁶²(c)“before making a finding of guilt, I must be satisfied beyond reasonable doubt of the elements of the offence of rape”;⁶³(d)the directions set out in paragraph [33] above;(e)each count must be considered separately and if the trial judge considered she had a reasonable doubt concerning the truthfulness and reliability of JMT’s evidence in relation to one or more of the counts, that must be taken into account in assessing the truthfulness or reliability of her evidence generally;⁶⁴(f)unchallenged directions as to how to deal with questions of motive and preliminary complaint evidence;⁶⁵(g)a meticulous examination of the evidence of JMT and her mother under the heading “Discreditable conduct and Uncharged Acts”;⁶⁶(h)that the fact that JMT did not refer to the doona being used in respect of Count 8, was because “she referred to the use of the doona predominantly in relation to uncharged acts”;⁶⁷(i)her Honour found “the evidence of the developing sexual relationship to be compelling”;⁶⁸ that evidence came from JMT;(j)that the concept of the use of the doona was a strange one if made up; the presence of the doona being used as a cover explains how the touching escalated without JMT’s mother knowing;(k)her Honour found “The complainant’s description is a logical, believable narration of the outset of what might have been almost innocent touching, through to a grooming period, culminating in serious offending”;(l)JMT’s evidence as to Counts 2 and 3 was not shown to be different from what she told the police; further, her Honour bore in mind the direction; and(m)her Honour recorded some of the mother’s evidence: “The complainant’s mother agreed that after she and the accused separated, the complainant was ‘unhappy’ and a ‘bit distressed.’ The complainant’s mother said ‘I believe she was having separation issues with [the complainant]’”;(n)more importantly, in the course of dealing with Count 8 her Honour provided reasons why she dealt with the mother’s evidence as she did:

“I do not accept the complainant’s mother’s evidence in its entirety, nor do I reject it entirely. I am not persuaded she is a totally reliable witness but I accept her evidence above, and it is both because of the bland denial of consent and the complainant’s apparent feelings for the accused that I am not satisfied beyond reasonable doubt that the complainant did not consent to Count 8.”

(o)there are several compartments to that statement which need to be recognised in order to understand the breadth of that finding:the first sentence deals with more than just the mother’s evidence in so far as it might touch Count 8; so much is plain from the reference to the fact that her evidence was not accepted “in its entirety”, but not rejected “entirely”; the second sentence gives a reason for that finding; it is that her Honour was “not persuaded she is a totally reliable witness”; the reference to reliability reflects, in large part in my view, the erosion of memory with the 21 year lapse of time between the events and giving her statement, and 26 years between the events and giving evidence;nonetheless, her Honour accepted the mother’s evidence that after she and the appellant separated, JMT was “unhappy” and a “bit distressed”, which the mother put down to JMT “having separation issues” with the appellant; andthat inferentially lent support to the finding that the “bland denial of consent and the complainant’s apparent feelings for the accused” prevented her Honour from being satisfied beyond reasonable doubt that JMT did not consent;

(p)having moved to Counts 9 and 10, her Honour recounted JMT’s evidence, including that those events occurred when JMT, her mother and the appellant were all sleeping in the same bed;⁷³

(q)her Honour then dealt with an inconsistency between the mother’s evidence and that of JMT; in the course of doing so her Honour accepted the mother’s evidence that the appellant was between the other two in bed;⁷⁴

(r)then, on Count 10 (the count of rape), her Honour said that “for the reasons already stated above, I am not satisfied beyond reasonable doubt as to lack of consent on Count 10”;⁷⁵ self-evidently that was a reference to the reasons for acquitting on Count 8: see subparagraphs [115] (n) and (o) above; in my view, it can be inferred that the finding on Count 10 again derived support from the mother’s evidence, and that conclusion is supported by her Honour’s findings in paragraphs [145] and [146] of her Honour’s reasons; and

(s)exactly the same result followed in relation to the remaining charge of rape (Count 17).⁷⁶

What that review shows is that the learned trial judge did give adequate reasons for the way in which she assessed the evidence of JMT’s mother, and the way in which it was accepted and used, or rejected. Importantly, the review shows that the learned trial judge explained the impact of the mother’s evidence on the acceptance or otherwise of JMT’s evidence.
Further, that review also demonstrates that her Honour articulated the reasons why she had doubt as to whether JMT was not consenting on the rape counts. In my view, by doing so the learned trial judge provided an explanation as to why those acquittals would not impact her assessment of JMT’s evidence in relation to the other counts, where consent was not an element. It was that the learned trial judge accepted that the events occurred as JMT said, but her Honour was not satisfied that she did not consent, probably because she was infatuated with the appellant or believed she was in a “relationship” with him.
Her Honour’s acceptance of JMT as a credible and reliable witness was explicit, and related to findings that: “[JMT’s] evidence of the developing sexual relationship [was] compelling”; and JMT gave a “logical, believable narration of the outset of what might have been almost innocent touching, through to a grooming period, culminating in serious offending”.
This ground fails.

Conclusion

As both grounds of the appeal have failed, I propose the following order:

Appeal dismissed.

McMURDO JA: I agree that this appeal should be dismissed. However, my reasons for rejecting the first ground of appeal differ from those of Morrison JA.
The appellant was first tried, in 2019, by a judge and jury on 17 counts of sexual offending against the same complainant. She was the daughter of his then partner. The offences were alleged to have taken place in 1993, when the complainant was 12 to 13 years old. The outcome of that trial was that the jury acquitted the appellant on five counts and were unable to reach a verdict on 12 counts. The appellant was re-tried, by a judge alone, on those 12 charges. He was convicted on eight of them, and acquitted on the remaining four.
At the first trial, the complainant was examined and cross-examined via a video link. At the second trial, recordings of that testimony were tendered and constituted the entirety of her evidence. As a result, the evidence of the complainant at the second trial included her evidence of acts of the appellant which were the basis for the charges on which he had been acquitted.
That evidence was included by the prosecutor at the request of defence counsel. In his opening address, the prosecutor told the trial judge that the evidence was not being led in support of the Crown case. The evident strategy of defence counsel was to provide a basis for an argument that, by reason of the acquittals, the judge would have to accept that the complainant had not told the truth about these events, thereby detracting from her credibility or reliability about the events which were the subject of the second trial. That was the way in which defence counsel sought to use the evidence, and the fact of the acquittals, in his closing address to the judge. Defence counsel did not suggest that the acquittals were probative of a fact in issue. Rather, the suggested relevance of the evidence was limited to the complainant’s credibility or reliability as a witness. Most importantly, the evidence of those 12 counts, if accepted by the judge, would not have put in question the correctness of the acquittals.
The prosecutor’s response to that argument can be seen from this extract from his written submissions to the trial judge:

“83. The defendant is entitled to the full benefit of the acquittals in relation to these charges. It is not submitted that they can or should be used in any way in support of the Crown case on the remaining charges.

The suggested relevance of the previous acquittals was accepted by the prosecutor. The prosecutor’s argument was that the complainant’s credibility and reliability was not so damaged that the judge should be left in doubt about the guilt of the appellant on the charges which she was to consider.
The judge’s consideration of the previous acquittals began with a quotation from this Court’s judgment in R v FAR.⁷⁷ In that case, as in the present one, a jury in the appellant’s first trial had been unable to agree on an number of the counts, and had acquitted him on others. Those charges, like the present ones, were a series of alleged sexual offences committed by the appellant against the same complainant as a child. This Court set aside the convictions and ordered a new trial, because it held that the jury had been given inadequate directions on the use which they could make of the previous acquittals. The judge quoted this passage from the judgment of Boddice J in FAR:

“[144] The fact of those acquittals were additional matters which may reasonably have caused the jury to afford the appellant the benefit of the doubt in respect of the counts for which verdicts of guilty were entered at trial. Accordingly, there was a miscarriage of justice”

The trial judge’s reasons continued:

“[27] However, in undertaking an assessment of whether or not a jury’s verdict is unreasonable, regard should also be had for the fact that a verdict of not-guilty does not, of necessity, mean the jury found the complainant dishonest or unreliable. The jury may have accepted the complainant as reliable but had a reasonable doubt as to the defendant’s guilt on that count.

[28] In R v FAR, the judgment referred to the case of MFA v The Queen where Gleeson, Hayne and Callinan JJ stated:

“In the case of sexual offences, of which there may be no objective evidence … A juror may consider it more probable than not that a complainant is telling the truth but requires something additional before reaching a conclusion of beyond reasonable doubt… 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, the 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 the 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 her evidence, than about others.”⁷⁸

The prosecutor’s submission, that the appellant was “entitled to the full benefit of the acquittals,” employed the words of Barwick CJ in Garrett v The Queen.⁷⁹ In that case, the complainant and the accused had a long-standing sexual relationship, in the course of which, the complainant alleged, the accused raped her in 1975. He was charged, tried and acquitted. Some months later, in 1976, the complainant alleged he again raped her. His defence to that charge was that she had consented to the intercourse. The prosecution tendered evidence of the alleged 1975 rape, and the charge and the acquittal. The relevance of this evidence was said to have been that those events made it improbable that in mid-1976, the complainant would have consented to intercourse. The High Court held that the evidence was inadmissible. Some of the judges also held that the jury had been misdirected on the effect (or otherwise) of the acquittal. The trial judge had directed the jury, in effect, that the acquittal of the accused was “neutral” on the question of whether what occurred in 1975 was an act of rape. Barwick CJ, with whom Stephen and Mason JJ agreed, said:⁸⁰

“It is apparent, in my opinion, that the trial judge, in an understandable endeavour to dissuade the jury from embarking on a consideration of the facts relating to the former charge of rape, did in substance tell the jury that the acquittal of the applicant was a neutral fact. But it was not neutral and, if the prosecutrix were rightly permitted to give the evidence she gave, the acquittal was a dominant fact of which the applicant was entitled to full credit. To have said that the acquittal was neutral was to deny the applicant the full benefit of the acquittal and not to lay that emphasis upon it for which the circumstances called.”

(emphasis added).

Barwick CJ set out passages from the trial judge’s summing up which included the following passage, from which it can be seen what he meant in describing the substance of the direction as being that the acquittal of the appellant was a “neutral fact”:⁸¹

“The fact is that we do not know and cannot know the basis of the jury's verdict [in the previous case], and we are not to speculate about it. We are not trying that case; we are trying this one. We do not know whether the verdict means that the jury thought the accused was innocent in the true sense, or whether they thought the charge was not proven. We do not know whether they believed Miss Golding or not. … So you are to draw no inferences either for or against the accused or for or against Miss Golding from the fact of that prosecution and its outcome.”

Barwick CJ went on to explain why an acquittal is not neutral:⁸²

“The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: it is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, if the Crown had sought to establish by the evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible.”

In R v Storey,⁸³ the respondents were tried for rape, having been acquitted at an earlier trial of forcibly abducting the complainant with intent that she be carnally known.⁸⁴ Their defence to the charge of rape was consent. The Victorian Court of Criminal Appeal quashed the conviction for rape and ordered a new trial on the ground that the Crown was seeking, in effect, to establish that the accused were guilty of the crime of which they had previously been acquitted. By a majority of four to three, the appeal was dismissed. As was observed in the later case of Washer v State of Western Australia,⁸⁵ the headnote to the report of the case fairly summarises the consensus as being that evidence tending to show an accused was guilty of an offence of which he has been acquitted may be admitted if it is otherwise relevant and if the jury can be and is directed not to interpret it in such a way as to deny the acquittal.
In his judgment in Storey, Barwick CJ said:⁸⁶

“The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. …

…

[T]he citizen must not be twice put in jeopardy, that is to say, … must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty.”

In his judgment in Storey, Gibbs J said:⁸⁷

“From this survey of the authorities it will have been seen that there is a well-established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. … Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. … Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged.”

In Rogers v The Queen,⁸⁸ the High Court held that the doctrine of issue estoppel was not applicable to criminal proceedings, and therefore, was not the basis for the principle which was discussed in Garrett and Storey. In Rogers, at an earlier trial in 1989, the prosecution had sought to rely on admissions by the accused in records of interview. The trial judge excluded that evidence on the ground that the statements were not made voluntarily. The accused was then acquitted on two of the four charges which were the subject of that trial. He was later indicted on eight further counts. During this second trial, the prosecution sought to rely upon two of the records of interview, which had been excluded at the first trial, in support of its case. A majority of the Court held that the tender of the records of interview would be a direct challenge to the ruling at the earlier trial, by which the evidence was excluded, and would therefore be an abuse of process. Justices Deane and Gaudron held that the tender of the records of interview constituted a direct challenge to the earlier determination, a challenge which jeopardised public confidence in the administration of justice by undermining “the incontrovertible correctness of the verdicts of acquittal returned in 1989”.⁸⁹
In R v Carroll,⁹⁰ the respondent was tried for murder, where he gave sworn evidence denying that he had killed the deceased. The jury’s verdict was that he was guilty of murder, but the Court of Criminal Appeal quashed the conviction and ordered that a verdict of acquittal be entered.⁹¹ Some years later, he was charged with perjury, which was said to have been constituted by his sworn denial that he had killed the deceased. He was found guilty by the jury of perjury. The High Court held that the perjury indictment was an abuse of process and should have been stayed by the trial judge. Gleeson CJ and Hayne J said that there was a manifest inconsistency between the charge of perjury and the acquittal of murder, arising because the prosecution based the perjury charge solely upon the respondent’s sworn denial of guilt.⁹² Their Honours said that “the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings …”.⁹³ Their Honours continued:

“Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z [[2000] 2 AC 483], R v Arp [[1998] 3 SCR 339] and R v Degnan [[2001] 1 NZLR 280] are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.”

In Washer v The State of Western Australia, the appellant had been tried and acquitted on a charge that, between April 2000 and March 2001, he conspired with two men to sell or supply methylamphetamine. He was subsequently tried and convicted of conspiring with two other persons to possess methylamphetamine with an intent to sell or supply it. The period of the second alleged conspiracy was between 18 May 2000 and 2 June 2000 (thereby, within the period of the previous charge). At his second trial, the prosecution led evidence that had been led at the previous trial. The prosecution relied upon that evidence from the previous trial to prove that the appellant was, at the relevant time, a dealer in drugs. The evidence also went to disprove a suggestion that in recorded telephone conversations, the appellant had been talking about things other than methylamphetamine. The evidence of some of the recorded conversations went beyond mere propensity evidence.⁹⁵ The appellant sought to adduce evidence of his acquittal at that trial. The evidence was not admitted. The High Court held, by a majority,⁹⁶ that evidence of his acquittal in the earlier trial was not admissible in the later trial.
Gleeson CJ, Heydon and Crennan JJ there said:⁹⁷

“In whatever way the problem arises, and whether it takes the form of a question of admissibility of evidence, preclusion of proceedings, or the exercise of a discretion to stay proceedings, the underlying legal principles relating to double jeopardy require, in their application, an accurate identification of the effect of the earlier acquittal and its relationship to the later charge. Where the issue arises as one of the admissibility of evidence, then relevance is likely to be the focus of argument. Relevance will be decided in the light of the legal principles applicable to the prosecution and defence of the charge against the accused, as related to the facts and circumstances of the particular case. If, in this case, the appellant had a legal right, by reason of his acquittal, to be given the benefit of an assumption relevant to the assessment of the other evidence in the case, then evidence of the acquittal would be relevant. If the fact of the acquittal had some logical connection with the assessment of the probabilities concerning some fact or facts in issue, the evidence would be relevant. In either case, however, a decision about relevance requires consideration of the effect of the acquittal. Accepting that the appellant was entitled to “the full benefit of the acquittal” the question is what that “full benefit” entailed.”

As to “the effect of the earlier acquittal”, their Honours said:⁹⁸

“It was neither explicit nor implicit in the acquittal at the earlier trial that the appellant was not a drug dealer. For the purposes of the law, the acquittal established that the appellant was not a party to a conspiracy with [the alleged co-conspirators in that case] to supply drugs to others; nothing more, and nothing less.”

They added:⁹⁹

“Let it be supposed that the jury had been informed that the appellant had been charged previously with being a party to an agreement … with [those co-conspirators], that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men. That would have been a complete statement of what was involved in the benefit of the acquittal. There was no process of reasoning whereby that information would have made less plausible any step in the prosecution case as it was finally left to the jury. There was nothing more that the jury could properly have been told.”

Similarly, Hayne J identified the effect of the earlier acquittal as follows:¹⁰⁰

“The appellant's acquittal on that earlier charge is incontrovertible. He did not, between those dates, conspire with [the co-conspirators] to sell or supply methylamphetamine.”

Having identified the effect of the earlier acquittal, those judges then discussed its relationship to the later charge. Gleeson CJ, Heydon and Crennan JJ said that had the jury been told of the acquittal, and that they should therefore act on the basis that there had been no agreement to supply made between those three men, “[t]here was no process of reasoning whereby that information would have made less plausible any step in the prosecution case as it was finally left to the jury.”¹⁰¹ Similarly, Hayne J said:¹⁰²

“[K]nowing, and accepting, that the appellant did not [conspire with those men to sell or supply methylamphetamine], says nothing about whether he conspired with persons other than [those men] to possess some other drugs. And unless a logical connection was identified between the fact of his acquittal on the earlier charge and some fact in issue at his later trial, evidence of the fact of the acquittal (or of the fact that there had been a trial that resulted in that verdict) was irrelevant at the later trial.”

The other member of the Court in Washer, Kirby J, held that the trial judge ought to have admitted the evidence of the appellant’s acquittal, but agreed in the outcome because, in his view, the case was one for the application of the proviso.¹⁰³ Kirby J defined the presently relevant principle, and the considerations of policy upon which it is founded. Citing the decision of Barwick CJ in Storey, Kirby J said:¹⁰⁴

“[44] This Court has hitherto affirmed a principle that: “Where evidence which would tend to prove [an] earlier charge or some element of it is admitted in [a] subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to … question or discount the effect of the acquittal.”

[45] This principle is founded on considerations of legal policy upheld by the common law. It was conventionally observed in the Crown's prosecution practice. The reasons for the principle include a recognition of the conclusiveness of an acquittal, as between the parties to an earlier criminal adjudication, so that the acquittal is treated as binding in all subsequent proceedings in respect of matters necessarily inherent in that adjudication. However, the principle also gives effect to a wider protection of an accused from repeated vexation arising out of similar or overlapping evidence. A further foundation for the rule is the principle of public policy whereby courts respect the institution of jury trial; treat the jury of citizens as the “constitutional tribunal” of fact in matters committed to their verdicts; and regard a jury's verdict of acquittal in a criminal trial as legally equivalent to a determination in law that the accused is innocent of that accusation.”

(citations omitted.)

After an extensive discussion of the history of the development of this principle, Kirby J concluded as follows:¹⁰⁵

“Conclusion: using acquittal as a shield: The result of this review of authority, principle and policy is, in my view, this. The courts below (and now a majority of this Court) have adopted an unduly narrow approach to the rule which, in a second trial, following an earlier acquittal, permits an accused (1) to prove before the second jury the fact of the earlier acquittal; (2) to seek by evidence and argument to demonstrate that inherent in the earlier acquittal was a decision adverse to the prosecution on the particular evidence and argument that it wishes to offer in the second trial; and (3) to secure from the judge at the second trial directions that the acquittal at the first trial is to be given "full effect" and is not to be undermined or disregarded by the use made there of the identical or similar overlapping evidence.”

The expressions of the principle by the High Court in the cases I have discussed are consistent in describing the context in which the principle will operate. It can be seen from these authorities that the relevant principle can be conveniently referred to, but not sufficiently defined, by saying that an acquittal is incontrovertible. That incontrovertibility is the effect in law of an acquittal, when put against evidence and argument presented by the prosecution in a subsequent proceeding. That contextual aspect reflects the nature of the principle as one of the underlying legal principles relating to double jeopardy.¹⁰⁶
The authorities in the High Court have also established the content of what is meant by the “full benefit” of an acquittal. The requisite assumption is that the accused person was entirely innocent of the charge of which he was acquitted.¹⁰⁷ That means more than that the accused may not have committed that offence. What must be assumed, where this principle is engaged, is that the accused did not commit that offence. For example, in Washer, the principle would have required an assumption, in the subsequent trial, that the accused was not a party to a conspiracy as was alleged in the first trial. The incontrovertibility principle, where it operates, does not merely establish a possibility that the accused person was innocent.
To the extent that it was held otherwise in Gilham v The Queen,¹⁰⁸ I respectfully disagree. It may be noted that in Gilham, the Court relied upon the High Court’s judgment in R v Darby.¹⁰⁹ However, Darby was concerned with the impact of an acquittal on the subsequent trial of an alleged co-offender, not the effect of an acquittal on a subsequent trial involving the same defendant. It may also be noted that although reference was there made to Washer, the Court in Gilham did not refer to the passages from Washer to which I have referred at [138] and [139] of these Reasons.
The trial judge in this case appears to have accepted that the principle was to be applied. By her reference to the passage in MFA v The Queen, she was in error. MFA was not a case involving this principle; it was a challenge to verdicts of guilty, as unreasonable or unsupported having regard to the evidence. In that context, the significance of the verdicts of acquittal, in the same trial, was considered. In that context, the significance of the acquittals was affected by what a verdict of not guilty did or did not necessarily imply. The principle of incontrovertibility is applied in a different context. It is applied to verdicts of acquittal from a previous proceeding, to preclude the prosecution in a later case from impugning the correctness of those verdicts.

Footnotes

She had made an original complaint in 1997, but withdrew it in 1998. She saw police again in 2015. ↩
R v GJL [2020] QDC 213. ↩
Reasons below at [116]-[120]. ↩
Reasons below at [136]-[146]. ↩
Appellant’s outline paragraphs 28 and 40-43; internal citations omitted. ↩
[2018] QCA 317. ↩
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53. ↩
AB 25 line 39 to AB 26 line 4. ↩
Appeal transcript T1-3 lines 16-20. ↩
Reasons below [15]. ↩
Reasons below [16]. ↩
Reasons below [17]. ↩
Reasons below [18]. ↩
Reasons below [53]-[54]. ↩

At a glance

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Cases Cited (13)