Wade (a Pseudonym) v The Queen [2018] VSCA 304

Court of Appeal (Vic)|2018-11-16|Before: Mr J, Kyrou JA, Forrest JA

CRIMINAL LAW - Appeal - Conviction - Guilty verdict on one of six charges of indecent act with child under 16 - Whether guilty verdict unreasonable - Complainant and applicant first cousins - Alleged offending occurred when complainant between 7 and 10 years of age, applicant between 15 and 18 - Whether jury bound to have doubt about complainant's veracity and reliability - Appeal allowed - Judgment of acquittal entered - Criminal Procedure Act 2009 s 276(1)(a).

1 After a trial before a County Court jury on six charges of indecent act with a child under the age of 16, contrary to s 47(1) of the Crimes Act 1958, the applicant was found guilty on one of those charges (charge 2) and not guilty on the remaining charges. After a plea hearing, he was sentenced, without conviction, to a community correction order for 18 months.

2 The applicant and the complainant are first cousins - the applicant's mother and the complainant's father are siblings. The offending the subject of the six charges was alleged to have occurred between 1 January 2004 and 11 February 2007, when the applicant was between 15 and 18 years of age and the complainant was between 7 and 10.

3 The applicant seeks leave to appeal against the guilty verdict on charge 2 on the grounds that the verdict is 'unsafe or unsatisfactory' (ground 1) and 'inconsistent with the acquittals on the remaining charges' (ground 2).

4 Ground 1 is a shorthand reference to s 276(1)(a) of the Criminal Procedure Act 2009 ('CPA') which provides that the Court of Appeal must allow an appeal against conviction if the appellant satisfies the Court that 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'. For the purposes of s 276(1)(a), s 3 defines 'conviction' as including 'a finding of guilt by a court, whether or not a conviction is recorded'.

5 For the reasons that follow, the application for leave to appeal against the guilty verdict on charge 2 will be allowed, the verdict will be set aside and a judgment of acquittal will be entered.[2]

6 The particulars of the six charges on the indictment were as follows:

Charge 1: '[The applicant] touched [the complainant's] vagina while she sat on his lap'. This was a course of conduct charge.[3]
Charge 2: '[The applicant] touched [the complainant's] chest area while she sat on his lap playing Age of Empires'.[4]
Charge 3: '[The applicant] touched [the complainant's] chest area while she was lying on her back, prompting her to scream'.
Charge 4: '[The applicant] touched [the complainant's] chest area while she was sitting on his lap, prompting her to scream'.
Charge 5: '[The applicant] touched [the complainant's] chest area while she was sitting on his lap. [The incident] ended when there was knock on the door'.
Charge 6: '[The applicant] touched [the complainant's] breast after she confronted him'.

General observations about trial and witnesses

7 As we have stated, the alleged offending occurred between 2004 and 2007 when the complainant was between 7 and 10 years of age. She made a statement to police on 23 August 2015. She gave evidence on 8 and 9 March 2018, that is, between 11 and 14 years after the alleged offending. She was then almost 22 years of age. The trial took place on 7, 8, 9, 13, 14 and 15 March 2008. The jury returned its verdicts on 19 March 2018.

8 At trial, in addition to the complainant, the prosecution called her mother, her father, her maternal grandmother, her cousins, Kaitlyn, Teagan and Danielle, and the informant. Danielle is the applicant's sister.

10 Both the prosecutor and defence counsel told the jury that the case turned on whether the jury believed the complainant.

11 The defence case was that none of the incidents the subject of the charges occurred. Defence counsel put to the complainant in cross-examination that she had made up the allegations against the applicant. In his closing address, defence counsel invited the jury to reject the complainant's evidence on the basis of lack of credibility as well as unreliability.

12 Ground 1 requires this Court to conduct its own independent review of the evidence.[5] Ground 2 requires us to determine whether there was any rational explanation for the jury's not guilty verdicts on charges 1 and 3-6 and its guilty verdict on charge 2.[6]

13 We will first discuss the family arrangements of the applicant and complainant and refer to evidence of initial uncharged acts before discussing the evidence relating to charge 2. We will then consider the evidence relating to the other charges.

Family arrangements and complainant's evidence of uncharged acts

14 As we have said, at the time of the alleged offending the applicant was between 15 and 18 years of age. His parents separated when he was approximately five years old and he lived with his mother, his two brothers and his sister, Danielle, in a house in regional Victoria from about 1993 until he moved out in early 2007.

15 In that house, there was a master bedroom with an ensuite and walk-in robe, two other bedrooms, a study that was used as a bedroom, a large open living, dining and kitchen area and a second lounge room. In the master bedroom there was a desktop computer set up on a desk with a dining room chair to sit on.

16 At the back of the house, there was a three-car garage which had been converted into a granny flat. The applicant's maternal grandparents - who were the complainant's paternal grandparents - lived there.

17 The complainant's parents divorced in 1998, when she was about two and a half years old. She lived primarily with her mother and she would see her father, the applicant's uncle, every second weekend. In 2005, the complainant's father remarried and subsequently had three more children.

18 During the period of the alleged offending, the complainant would go with her father approximately once a month, or more frequently during school holidays, to visit her relatives living at the applicant's house. Sometimes they would stay overnight in her grandfather's caravan at the house. Occasionally, her father's brother and his children, Kaitlyn, Teagan and their two brothers would also visit. At the time the alleged offending began, Danielle was about 12 years old, Kaitlyn was about 8 years old and Teagan was about 5 years old. Sometimes all the cousins would play together, and sometimes the complainant would play with Danielle and the boys would spend time together.

19 At the time of the alleged offending, the applicant enjoyed playing games on the computer set up in the master bedroom and on various gaming consoles in the applicant's house. One of the games he played on the computer at the time of the alleged offending was Age of Empires. Sometimes, when the complainant visited the house, he would play it with her. The applicant's siblings and cousins were sometimes present and sometimes he and the complainant played the game by themselves.

20 When the applicant and the complainant played on the computer together, there was not always a chair for the complainant to sit on, and the applicant would offer for her to sit on his lap so that she could see the computer screen properly and reach the mouse and keyboard. She would sit on his lap facing the screen with one of her legs on either side of the applicant's legs, on the outside.

21 The complainant gave evidence about initial, uncharged acts. Her evidence in chief was that, when there was no one else in the room, the applicant began to touch her while she was sitting on his lap. When this happened, occasionally the door was open, occasionally it was ajar and occasionally it was closed.

22 In her evidence in chief, she said that the first places he started touching her were her back and then her chest, under her clothes.[7] She said he would feel her back, chest, and 'down to [her] stomach' and keep moving his hands as she played the computer game.[8] Neither she nor the applicant would say anything. She said that it felt very uncomfortable because it did not feel right, but that she did not understand what was happening. The applicant would touch her for varying lengths of time, sometimes 15 minutes.

23 The complainant's evidence was that, when this happened, she would occasionally say to the applicant that she did not like him touching her and he would then tell her that she could not play the game. She said that it was a 'compromise' and that she would 'deal with it' so that the applicant would play with her. He told her not to tell anyone and that she would get in trouble if she did.[9] Her evidence was that this touching occurred for over a year.

24 The complainant gave evidence that the applicant's conduct progressed. She said that she began to feel 'a hardness' when she sat on his lap, which she now understands was his penis and that, although she 'can't 100 per cent say' she guesses that he had an erection.[10] In cross-examination, she conceded that in her report to police she had described a different 'progression', in which she felt the 'hardness' when she sat on the applicant's lap for six months before he began to touch her chest and back.[11]

25 The complainant gave general evidence regarding the frequency of the applicant's behaviour that was the subject of the charged and uncharged acts. She said that while he was not always at his house when she visited, on the occasions that they were both there, he would 'regularly' touch her.[12] She said that during the weekends that she and her father stayed overnight, it could happen a couple of times, but when asked whether it could be one or a few times, she stated that '[she] just [didn't] remember enough'.[13]

26 The applicant gave evidence that he sometimes played computer games alone with the complainant and that there were occasions when she sat on his lap. He also agreed that the door to the master bedroom was sometimes closed when he and the complainant were alone in the room. However, he denied that he had put his hand beneath the complainant's clothing and touched her chest, back or vagina. He also said that he never placed her on his lap so that she could feel his penis and never sat her on his lap while he had an erection.

27 The complainant gave the following evidence in chief in relation to charge 2:

I want to ask you about an event where you were playing the game called the Age of Empires? ---Yep, okay. Um, so again same pattern. I would be sitting on his lap. And he would put his hands under my clothes, things like that, and he put his hands down my underwear. And again it just, it runs the same course.

All right. Was there ever an occasion that struck you as different because of the temperature of his hands? ---Yeah, he had cold hands.

All the time or on a particular occasion? ---On a particular occasion.

All right. That's the particular occasion that I want ---? ---Yeah.

---that I'm asking about specifically? ---Yep, okay. Well, as I said, it's the same, the same progression. And I just - I remember feeling his hands, his hands on my body and they were just going under my underwear. And um, yeah, his fingers were cold. It was a horrible sensation.

On that occasion - if you like, the cold hand occasion? ---Yeah.

Whereabouts do you say that he touched you? ---So he touched me under my top as it - as I said, it follows the same progression. I'd be sitting on his lap and then he would go under my clothes and then he'd be on my back and my chest and then he would go to go under my underwear.

And do you say on that occasion that he touched you on or around your vagina? ---Yes.[14]

28 In cross-examination, the complainant gave the following evidence relating to charge 2:

Now, you were asked yesterday about a time when you had cold hands? ---Yes.

And it was identified as a particular occasion. We had questions by the learned prosecutor? ---That's correct, yes.

And what do you mean by the word 'particular'? What did you understand he meant? ---Sorry, can you rephrase the question?

HIS HONOUR: Particular of cold hands, or particular occasion?

[DEFENCE COUNSEL]: Particular occasion. So he asked you about a time when you had cold hands? ---Yeah.

And then said, 'It's a particular occasion, I want to ask you about it'? ---Okay.

Do you remember all of that happening? ---Yep.

When he said 'particular occasion' I don't presume that you understood he meant that the one occasion - the time that you remember when he had cold hands? ---Yes.

Yes. And you're aware that there's an occasion where you describe cold hands that you talk about in your statement to police? ---Yes.

Yes. And that's the time that we're talking about? ---Yes.

Not some other time, or other occasions? ---No.

No? All right? ---But, like, obviously - occasionally he does have cold hands, so.

Yes, but there was an occasion when he had cold hands that you say he touched you? ---Yes.

That you were asked about yesterday? ---Yes.

And that you talked to the police about in your statement? ---Yes.

And we're dealing with - that's the particular occasion? ---Okay, yes.

Yes? You agree with that? ---Yes.

You told us yesterday his fingers were cold? ---Yes.

It was a horrible sensation? ---Yes.

And he touched around your vagina? ---Yes.

With his cold fingers? ---Yes.

I take it that must have been a distinctive feature of this time when he touched you? ---Not particularly, but it - it is a feature.

It's distinctive, isn't it, that his hands were cold on this occasion - this particular occasion - as opposed to any other? ---On that occasion.

Yes? ---But there were other occasions, so.

It's not something that you would forget - that he had cold hands and that they'd come in contact with your vagina; is it? ---No.

Of course, you didn't tell the police that he'd touched your vagina on this occasion in your statement to them, did you? ---No.

You left that out? ---Yeah. I remembered it later.

When did you remember that? ---I can't give you an exact date.

Did you contact the prosecution or the police investigator and say, 'Look, there's part of this incident with the cold hands playing Age of Empires that I've left out'? ---I didn't think it was important.

What you told the police in your statement to them was about him using both his hands, 'and I was still playing the computer game. He continued to run his hands from my breast area down to my stomach'? ---Yes.

'And then around to my back and shoulders'? ---Yes.

'At the time I didn't understand what was happening'? ---Yes.

'But it felt weird and I didn't like it'? ---Yes.

'I remember his cold hands and his pudgy fingers, but don't recall anything else about this time'? ---That's right, yes.

That's what you told the police, isn't it? ---That's right, yes.

That you don't recall anything else about this time, yet you now say, 'I remember the horrible sensation of his cold fingers on my vagina'? ---Yes.

And you'd forgotten that when you told the police, yes? ---I hadn't recalled that part at the time, yes.

Hadn't recalled it? ---That's correct, yes.

What's the difference between having forgotten that and not having recalled it at the time? ---It's when the memory has come back.

And do your memories of these things come back to you? ---Sorry?

Have the memories of these incidents that you're describing to the jury come back to you? ---Some of them have, yes.

So some of these things are things that you - were not available to your memory and then have come back over time? ---That's correct, yes.

Including this, that a feature of this incident was that his cold fingers were touching your vagina? ---That's correct, yes.

That detail was not in your mind, not in your memory, not available to you when you made your statement to the police? ---No.

And it's come back since? ---Yes.

Are you able to tell us which parts have always been in your memory and which parts have come back into your memory? ---It's just that bit.

Just that bit? That's the only part? ---Yep.

...

[T]his occasion with Age of Empires and the cold hands, you can't link that to any external event or time in the household? ---No.

A particular year? ---No.

Is this the most you can say it happened sometime between 2004 and 2007? ---That's correct, yeah.

Any surrounding events on that day, what had happened before or afterwards? ---No.

Who was around in the house? ---No.

Whether it was a weekend or a school holiday? ---No.

Exactly how old you were? ---Not exactly, no.

So there's nothing beyond the computer game and the cold hands that you can point to that could help us find out or look into when this was or what else was going on? ---I just don't remember.[15]

Complainant's evidence relating to remaining charges

Charge 1: Course of conduct charge of indecent act - touching of vagina

29 The complainant gave evidence that after the uncharged acts referred to at [21]-[24] above, the applicant began to do more than touch her underneath her top. She said that there was an occasion when they were playing a computer game and 'it sort of formed like a pattern', in which she would sit on his lap and 'then he would start under [her] clothes ... [a]nd on this particular day he moved his hand further down and under[16]her] underwear'.16 She recalled saying that she did not like it and it was uncomfortable, 'But again it was the same of, "well then I won't play[17]ith you".'17

30 The complainant said that when his hand went lower, his finger 'touched around [her] vagina area ... near [her] clitoris area'.[18] On the first occasion that happened, she said it lasted for probably a couple of minutes, because she did not like it and was squirming. She gave evidence that the applicant did not say anything to her about what was happening, and the touching would simply stop and the applicant would return to playing the computer game. Her evidence was that the same behaviour took place on four or five occasions.

31 The complainant was cross-examined about aspects of her evidence regarding charge 1 which were not in her police statement. When she was asked about whether her memory had returned to her since she gave her police statement, she said that '[s]ome memories are ... [b]lended'.[19]

Charge 3: Indecent act - touching on chest while lying on back

32 The complainant gave evidence about an occasion during which the applicant touched her when they were not playing on the computer. She recalled that she was lying with her face up on the carpet in the master bedroom and 'he was sort of over and touching [her] ... [He was] over the top of [her] and ... feeling under [her] clothes' on the top part of her body.[20] His hand reached '[her] stomach when he was moving down ... [She] thought it was heading to under [her] underwear'.[21] She said that she got scared because it was different, gave a high-pitched scream, the applicant jumped up and told her to stop screaming, and she got up and ran out of the room.

33 She could not remember the events surrounding that occasion, other than that it occurred at some time between 2004 and 2007, 'the feel of the carpet', and that she would have been nine years old.[22]

34 In cross-examination about whether the first time that she screamed in response to the applicant touching her was a significant development, the following exchange took place with defence counsel:

So a significant moment? ---Yes.

Something that must be one of the parts of this that stands out in your memory? ---It's not really a stand-out. They're all about the same. It's just as traumatic and painful so.

Isn't this the case, that some of these things happened frequently and happened in similar ways, so they're blurred together? ---Yes.[23]

35 The applicant gave evidence that he had no knowledge of the incident described by the complainant.

Charge 4: Indecent act - touching on chest while sitting on lap

36 The prosecutor commenced his examination in chief in relation to charge 4 by asking the complainant whether she recalled an occasion when she was in the master bedroom playing 'the computer game' and the applicant touched her in a way that caused her to scream. The complainant said that, in that incident, she was sitting on the applicant's lap 'playing and it always follows the same pattern, he'd go under [her] clothes and ... his hand's gone to go under [her] underwear and so [she has] just screamed'.[24] She said that before his hand moved down towards her underwear, he was 'just touching all of [her] back and under [her] clothes and ... all [her] chest, and then his hand progressed down'.[25]

37 Her evidence was that after she screamed, the applicant pulled his hands out of her clothing, she got off his lap and left.

Charge 5: Indecent act - touching on chest while sitting on lap

38 The complainant gave evidence that on a different occasion she was sitting on the applicant's lap in the master bedroom, he had his hands under her top and was feeling around on her back, on her chest, and moving his hands. She said that there was a knock on the door, and the applicant 'really quickly' moved his hands out and someone came in.[26] She did not remember who came into the room and said that she 'sort of froze' and that the applicant continued to play the computer game.[27]

Charge 6: Indecent act - touching on breast after confrontation

39 The last instance of the alleged offending occurred not at the applicant's house but at the complainant's father's home, at a reception held after the christening of her half-sister on 11 February 2007. The complainant said that, on that occasion, as a result of the conversation described at [51] below, she found the applicant and spoke to him alone in a private laundry area.

40 The complainant gave evidence that she asked the applicant 'why he'd been doing this to [her]' and he responded to the effect of 'what are you gonna do about it' in an arrogant tone. She told him that if he ever touched her or her sisters again, she would 'tell everyone'.[28]

41 The complainant said that she then turned to walk away and the applicant came up behind her and grabbed her around her chest, with one of his hands on her left breast. She was unsure whether his hand went deliberately to her breast but said that 'he was doing the same thing as what he was normally doing ... Touching [her] inappropriately ... showing that he still has power to do that'.[29] She started kicking and screaming for him to 'get off' her.[30] He eventually let her go and she heard him laughing as she ran away.

42 In her statement to police, the complainant said that she was 12 or 13 years of age at the time of this alleged incident, however in her evidence in chief she said that she was 10 at that time. In cross-examination, she said that she was mistaken in her statement because she had thought that she was older.

43 The applicant gave evidence that he never touched the complainant in a sexual manner. He said that he attended the christening but that the alleged indecent act the subject of charge 6 did not occur, and that he did not recall any private conversation with the complainant on that day.

Evidence of complaint and other evidence not specific to any charge

44 Evidence was given by the police informant that the applicant had never before been charged with a criminal offence.

45 The complainant gave evidence regarding conversations that she had with members of her family about the applicant's alleged offending against her.

46 The complainant said that the first person that she told about the applicant's offending was her cousin, Danielle. Her evidence was that although she could not precisely remember the exact conversation, she told Danielle that the applicant had been touching her in a manner that was indecent, and Danielle told her 'to scream and to run'.[31] She gave evidence that she did not use the 'scream and run' tactic 'the first couple of times' that his behaviour would 'follow the same progression' because she was scared, but that she did start to scream and run as Danielle had suggested.[32]

47 In her evidence in chief, the complainant first said that she spoke to Danielle about the offending after describing the conduct the subject of charge 1. The prosecutor then questioned the applicant about the alleged offending the subject of charge 2, before returning to the topic and asking the complainant if 'after a time of this happening ... after this behaviour as [she had] described it to this point' she spoke to Danielle.[33] She said she spoke to Danielle rather than an adult because she was worried she would get into trouble.

48 The complainant gave evidence that the first time she screamed and ran was the alleged incident the subject of charge 3. However, she also said that she could not recall whether the incident the subject of charge 3 occurred before or after she had started to scream and run. When she gave evidence about charge 5, she said that she could not recall whether the incident the subject of charge 5 occurred before or after she started using the 'scream and run technique' and that she did not scream and run on every occasion.[34] In cross-examination, she stated that she was unsure whether the incident the subject of charge 3, or another occasion when she sat on the applicant's lap, was the first time she screamed and that it was 'a jumble of memory'.[35]

49 The complainant said that after she started to scream and run from the applicant, 'things started progressing back ... slowing down and then [she] just [started] using it more and more often' and then the applicant stopped touching her vagina.[36] She said he continued to touch her under her clothes but then as she screamed more often, he stopped doing that too until she would just sit on his lap. When she was about 10 years old, she decided that she would not sit on his lap anymore. Over time, she stopped 'hanging around him'.[37]

50 Danielle gave evidence that the complainant never spoke to her about the applicant touching her indecently, and that she would remember that conversation if it had occurred. Danielle said that the first time she became aware that the complainant had said that they discussed the alleged indecent touching was when she was interviewed by police.

51 The complainant said that she also discussed the applicant touching her with her cousins Kaitlyn and Teagan, in the wine cellar of her father's house after her half-sister's christening. She said that she told them that the applicant had been touching her indecently and 'described a little bit about what he'd done', after which she decided to confront him.[38] The complainant said that after the confrontation between her and the applicant referred to at [39]-[41] above, she returned to Kaitlyn and Teagan and told them what had happened. In cross-examination she agreed that they were '[39]etty horrified'.39

52 Kaitlyn gave evidence that when she was 12 or 13 years of age she had a conversation with the complainant in the wine cellar at the complainant's father's house during a family gathering to celebrate the christening of the complainant's half-sister. Teagan was also present. She said that the complainant told her that she had been touched inappropriately by the applicant, but that at the end of the conversation they decided to go and play with the rest of the group. She did not recall any discussion about what should be done about the applicant, or the complainant coming back and telling them that the applicant had touched her again. In cross-examination, Kaitlyn agreed that it would have been a 'dramatic thing' and it was 'probably' the case that she would remember it, if it had occurred.[40]

53 Teagan also gave evidence about being in the wine cellar with the complainant and Kaitlyn. She recalled that the topic of their discussion was a statement by the complainant that the applicant had touched her sexually. She said that on one occasion, which may have been in the wine cellar, she, the complainant and Kaitlyn had decided that they 'would do something about it when [they] were [all] 18'.[41] Teagan's evidence was that she did not recall anything else about the day of the christening. In cross-examination, Teagan agreed that she had been shocked during the committal hearing when she had heard that the complainant had said that she had returned and told her and Kaitlyn that the applicant had touched her again.

Complaints to the complainant's parents and maternal grandmother

54 The complainant's evidence was that when she was 18 or 19 years of age she told her grandmother that the applicant had 'been touching [her]'.[42] She said that she made the complaint after she returned from an appointment with her psychologist, whom she saw because she suffered from anxiety and panic attacks, and in the context of her grandmother telling her about a relative who had been sexually assaulted. She said that she felt that she finally had the opportunity to say something and told her grandmother that the same thing had happened to her.

55 The applicant's maternal grandmother gave evidence about the complaint that the complainant made to her in February 2015. She said that during a conversation about the complainant's psychological health, she told the complainant that it sounded like her psychologist was only treating her symptoms. The complainant then started crying and said that the applicant had interfered with her. The complainant's grandmother said that the complainant did not tell her any details about what the applicant had done, but asked her not to tell the complainant's mother. The complainant's grandmother said that despite that request she told the complainant's mother.

56 The complainant's grandmother was cross-examined about the complaint. She denied that she had told the complainant that someone in her family had suffered sexual abuse at any time during the conversation. She said that during her conversation with the complainant about her psychologist she had said that she was tired of the complainant's psychologist only treating the complainant's symptoms, and said that 'there just has to be a problem', which precipitated the complaint.[43]

57 The complainant gave evidence that she told her mother about the alleged offending approximately two weeks after she had told her grandmother and subsequently made a report to police. The evidence from the complainant's mother was that the complainant had said that she had been assaulted by the applicant, that it had predominantly happened in the study, and that he had 'touched her private parts' but 'that was really all [the complainant] told [her]'.[44]

58 The complainant's father gave evidence that in early 2015 the complainant told him about the nature of her allegations about the applicant in 'very broad' terms with 'nothing specific'.[45] He said that the complainant had told him that 'it started very early', around the age of three or four.[46] He also said that she told him about a confrontation at the christening at which she asked the applicant to apologise and that he had said 'it will be my word against yours', but did not say that anything else had happened.[47] Regarding her father, the complainant gave evidence that he 'is known to be not as fatherly as can be'.[48]

Evidence about the complainant's upbringing and health

59 The complainant's mother and maternal grandmother gave evidence that from a very young age the complainant was educated about not letting anyone touch her 'private parts',[49] and was told that if it happened she should tell someone in her family. This message was constantly reinforced. The complainant's evidence was that she did not recall any such conversations, but that they probably did occur.

60 It was put to the complainant in cross-examination that these conversations would have been a perfect opportunity for her to tell her mother about the applicant's offending. She said that she did not do so because 'the behaviour was grooming and ... [she] was very young and it was someone that [she] trusted that was doing it'.[50]

61 In cross-examination, the complainant agreed that, after one occasion that she alleged she had been touched by the applicant, she had soreness in her vagina and complained to her mother about it. She said that her mother asked whether anyone had been touching her, and she lied and denied that anyone had done so because she was 'terrified' and did not want to get into trouble.[51] She said that she was scared of her mother. She agreed that this conversation would have been 'the perfect opportunity to say something' but she did not do so because she was very young and the applicant had told her that she would get in trouble if she told anyone.[52]

62 Evidence was given by the complainant's mother and grandmother that the complainant had a strawberry allergy which would cause a genital rash.

63 The complainant's mother said that the complainant had a genital rash on approximately six occasions when she returned home after spending time with her father, which she assumed had been caused by the complainant eating strawberries. The complainant's mother did not recall any occasion when the complainant said that she had a sore vagina without a rash being present. Her evidence was that she had never asked the complainant whether someone had touched her private parts and that it would have been 'a very unusual enquiry'.[53]

64 The complainant's grandmother gave evidence that the complainant, when she was growing up, had various illnesses such as very bad headaches, stomach aches, diarrhoea, vomiting and aches and pains in her legs and body. She was asked whether the complainant was the 'type to play them up or play them down' and responded that '[the complainant] thought that she had a brain tumour with the headaches, she thought she had stomach cancer with her stomach aches and vomiting, and she thought she had thrombosis in her legs from all the aches and pains'.[54] She said that while the illnesses were legitimate, the complainant thought they were worse than they were, and the doctor had said that there was nothing wrong with the complainant.

65 There was also evidence from the complainant's grandmother that the complainant had said that her mother did not give her sympathy when she was sick. The complainant's grandmother gave evidence that she thought these statements were unfair and exaggerated and that the complainant's mother gave the complainant a lot of attention.

66 The jury retired at 11:35 am on Thursday 15 March 2018. At 4:17 pm on the same day, the jury asked the following question:

Does a 'course of conduct' charge carry the same or different weight to other charges on the charge sheet?[55]

The answer to that question strictly speaking is no. All the charges are of committing an indecent act with the child under the age of 16, to whom he's not married - and they should all be viewed as standalone charges, separately as I indicated to you - don't lump them together - you view them each on a separate basis. And it would be wrong to say that any one charge is - carries more weight or is more important than any of the others.

However, it is true that with a course of conduct charge there's an additional requirement that you have to be satisfied beyond reasonable doubt about and that is that the - that the - there is a course of conduct established here. That is more than one example or more than one instance of the conduct alleged. Whereas with the remaining five charges they're merely put to you on the basis of one instance in each of those cases.

So in that sense they're different but it would not be right to assume that one was more important than the others or carried more weight than the others. There's just that additional requirement in Charge 1 that is not present in Charges 2 to 6 inclusive.[56]

68 The jury delivered its verdicts at 2:57 pm on Monday 19 March 2018.

Ground 1: Guilty verdict on charge 2 is unsafe and unsatisfactory

69 In Mejia v The Queen, this Court summarised the principles applicable to the ground that a jury verdict is unreasonable or cannot be supported having regard to the evidence in s 276(1)(a) of the CPA as follows:

In order to establish the ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge on which he was convicted. It is not sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about the applicant's guilt. Rather, the critical question is whether, on the evidence, that the jury must (as distinct from might) have entertained a doubt about the guilt of the applicant. Ordinarily, in that respect, a doubt experienced by an appellate court may constitute a doubt which the jury ought also to have considered. However, it is important to bear in mind that the jury has the primary responsibility of determining guilt or innocence, and that in that respect the jury enjoys a substantial advantage in seeing and hearing the evidence as it is given in the atmosphere of the criminal trial, which is an advantage not shared by an appellate court. Where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury's advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[57]

70 The applicant submitted that there were a number of factors which, taken together, meant that the verdict of guilty on charge 2 was not reasonably open to the jury.

71 The first of those factors was the quality of the complainant's evidence on charge 2, which he submitted was vague, inconsistent and the product of recovered memories. The applicant contended that the complainant's evidence in chief regarding the incident the subject of charge 2, which is set out at [27] above, was general evidence about what he allegedly 'would' do, rather than evidence directed at that particular incident. He argued that although the complainant gave some evidence about 'cold hands' in response to a leading question from the prosecutor, her evidence then returned to generalities and use of the word 'would'. The applicant also argued that there was an inconsistency between the complainant's evidence that he had touched her on or around her vagina during the charge 2 incident, which was a memory that had come back to her over time, and her police statement in which she did not say that he had touched her vagina area.

72 The second factor was that there was no forensic, medical or eyewitness evidence to support the complainant's allegation that the incident the subject of charge 2 had occurred. The applicant submitted that the complaints made by the complainant were general in nature and could have related to any of the charges.

73 The third factor was that evidence was given which contradicted the complainant's evidence about charge 2. The applicant contended that evidence was:

(a) the complainant's mother's evidence that she had never asked the complainant whether anyone had touched her private parts after she had said that her vagina was sore;

(b) Danielle's evidence that she never had a conversation with the complainant in which the complainant said that the applicant had touched her and she had told the complainant to 'scream and run', and that she would have remembered such a conversation;

(c) the complainant's father's evidence that in 2015 the complainant told him that the offending had commenced when she was 3 or 4 years old; and

(d) the complainant's evidence that she was 10 years old when the offending the subject of charge 6 had occurred, and that at the time she made her police statement she had mistakenly believed that she was 12 or 13 at the time of that alleged offending.

74 The fourth factor was that the complainant's memory of the period of the alleged offending was impaired. The applicant submitted that was so because the complainant was very young at the time of the alleged offending and was giving evidence up to 14 years after the alleged incidents. He also contended that the impairment of her memory was indicated by her admission that some of her memories were 'blended'. The impairment was also said to be evident in her lack of memory about being taught to tell a family member if anyone touched her inappropriately, despite the evidence of her mother and grandmother that this lesson was impressed upon her from an early age and throughout her childhood.

75 The fifth factor was the significant delay in the matter being brought to trial and the consequent forensic disadvantages for the applicant.

76 The final factor was that the applicant had no criminal record, and gave evidence denying the offences.

77 The Crown submitted that the verdict on charge 2 was not unreasonable, was supportable having regard to the evidence, and that the jury was not required to acquit. It contended that the sum of the complainant's evidence, that she was a somewhat isolated child who was scared of her mother, not close to her father, and was groomed, in that she was offered the ability to play on the computer 'but at a price', had an objective appeal to it.

78 Regarding the applicant's first factor, the Crown contended that it was open to the jury to infer, from the complainant's evidence set out at [27]-[28] above, that she was speaking specifically about the incident the subject of charge 2. That was said to be because, when giving evidence about that charge: she first identified that it was an occasion when he touched her back, chest and vagina when she was playing Age of Empires; further narrowed her evidence to an occasion when the applicant touched her on her back and chest under her clothes and his hand went under her underwear and touched her vagina; and finally specified that this was an occasion when the applicant also had cold hands. The Crown argued that, while the complainant then returned to giving evidence in terms of what the applicant 'would' do, she had nevertheless provided sufficient particularisation of charge 2 to identify a specific incident of offending.

79 The Crown submitted that while the complainant had sometimes given evidence about what the applicant 'would' do, in relation to charge 2 she gave evidence about 'an occasion that struck [her] as different' because of the applicant's 'cold hands', and her evidence indicated that this was 'a particular occasion' that stood out in her mind. Accordingly, the Crown contended, it was open to the jury to find that this particular incident occurred.

80 Regarding the inconsistency between the complainant's evidence and her police statement, in which she had not said that the applicant had touched her vagina during the incident the subject of charge 2, the Crown submitted that it was open to the jury to accept the complainant's explanation that she had not recalled that the applicant had touched her vagina during that incident when she gave her statement to police. Equally, the Crown argued that the complainant may not have expressly stated in her police statement that he touched her on her vagina during the alleged charge 2 offending because she had described such behaviour in relation to charge 1, and stated that the charge 2 offending followed the same 'pattern'. The Crown argued that, in any event, it had never been put to the complainant that her police statement was exhaustive.

81 Regarding the applicant's second factor, the Crown contended that there was general evidence that was supportive of the allegations, namely, the complaint evidence and the evidence from the applicant that the complainant spent a considerable amount of time alone with him, sitting on his lap, while playing computer games including Age of Empires.

82 The Crown submitted that the matters relied upon by the applicant as contradictory in his third factor, when examined closely, were explicable. It argued that:

(a) The evidence of the complainant and her mother was consistent in that it established that the complainant had complained of a sore vagina, including after access visits with her father, perhaps due to her strawberry allergy, and that the complainant had been taught about the issue of people touching her private parts. Given the passage of time and the complainant's youth at the time of the relevant events, the Crown contended, it was understandable that the complainant's evidence about these issues did not entirely align with that of her mother or may have been conflated.

(b) It was not contradictory that the complainant had not told her mother about the alleged offending, because the complainant had provided explanations as to why she did not, namely that: the applicant had told her that she would get into trouble; and she was scared of her mother.

(c) The jury may not have accepted Danielle's evidence that she had never told the complainant to scream and run, since Danielle had also stated that it was at least possible that she had told her mother, even before knowing the nature of the allegations against the applicant, that she would 'deny everything'.[58]

(d) The complainant's father had not been firm in his answer that the complainant had told him the alleged offending began when she was 3 or 4 years of age. It submitted that his evidence was only that 'it started very early ... around those sorts of ages', and it had been his 'impression' at the time of his conversation with the complainant that it began when she was 3 or 4.[59]

(e) The complainant's statement to police that she was 12 or 13 years of age at the time of the christening was not material in the light of Kaitlyn and Teagan's evidence that they discussed the applicant's behaviour in the wine cellar on that day.

83 Regarding the applicant's fourth factor, the complainant's allegedly impaired memory, the Crown submitted that the trial had not been run on this basis, but rather the applicant's defence had been that the complainant was a liar. Nevertheless, it contended that the memories that she gave evidence about were ones that she would be unlikely to forget, despite the passage of time.

84 The Crown contended that the complainant's concession that some of her memories were 'blended' was understandable and may, in fact, have impressed the jury for its candour and honesty, causing the jury to reject the applicant's defence that the complainant was dishonest. It equally contended that the complainant's failure to remember being taught by her mother and grandmother about inappropriate touching, her concession that those conversations probably occurred, and her explanation as to why she did not disclose the offending during those discussions may have contributed to a positive finding about the complainant's credit.

85 Regarding the applicant's fifth factor, the Crown submitted that a forensic disadvantage direction was given to the jury and that, in any event, the applicant's forensic disadvantage did not require the jury to have a reasonable doubt about the veracity of the complainant's evidence about charge 2.

86 Regarding the applicant's final factor, the Crown contended that although he did not have any previous convictions, that was only of limited assistance to him, particularly in circumstances where he had confirmed important contextual aspects of the complainant's evidence.

87 The Crown submitted that any doubt this Court may have about the veracity or reliability of the complainant's evidence in relation to charge 2 could be assuaged by the advantage that the jury enjoyed of seeing and hearing her and the other witnesses give evidence.

89 In the context of the evidence as a whole, it was not open to the jury to be satisfied beyond reasonable doubt of the truth and reliability of the complainant's evidence in support of charge 2. As the jury could not find the applicant guilty of the offending the subject of that charge without the complainant's evidence in relation to it, the guilty verdict cannot be supported having regard to the evidence.

90 The complainant's evidence in chief in support of charge 2 was generalised and principally directed at a pattern of behaviour and continuum of conduct, rather than being specific and directed at a discrete incident of offending. This is apparent not only from the complainant's use of the word 'would' or a contraction of it on six occasions but also from her references to 'same pattern', 'same progression' and 'same course' in relation to charge 2. The strong impression the complainant conveyed was that she was conflating the events that she described. This impression is reinforced by the complainant's statements that 'some memories are ... [b]lended'[60] and that it was 'a jumble of memory'[61] and her agreement when asked whether 'some of those things happened frequently and happened in similar ways, so they're blurred together'.[62]

91 It is true that the complainant said that the events that she described occurred '[o]n a particular occasion' that struck her as being different because the applicant had cold hands. However, immediately after saying that the events occurred on a particular occasion, she reverted to describing the events as 'the same progression' and said 'I'd be sitting on his lap and then he would go under my clothes and then he'd be on my back and my chest and then he would go to go under my underwear'.[63] Further, in cross-examination, the complainant stated that the applicant had cold hands on other occasions and that this was not a 'distinctive feature' of the offending the subject of charge 2.[64] Playing the Age of Empires computer game was also not a distinctive feature of charge 2, as the complainant agreed with the prosecutor's proposition that the incident the subject of charge 4 also occurred while she was sitting on the applicant's lap playing 'the computer game'.[65] In the context of the evidence as a whole, the clear inference is that the game was Age of Empires.

92 Our conclusion that the complainant was not giving evidence about a discrete event which she recalled because of any particular distinctive feature is reinforced by the fact that her description of the alleged offending at trial differed from the description she gave in her police statement. If the complainant genuinely remembered the event, it would be expected that she would remember the most serious aspect of the offending, namely, the applicant touching her vagina. Yet, she made no mention of such touching when she spoke to the police. This omission cast serious doubt on the reliability of the complainant's evidence. Her explanation that she had forgotten about the touching of her vagina but that her memory of it had been restored by the time she gave evidence was implausible. It is more likely that she was conflating the offending she alleged in relation to charge 1 with that relating to charge 2.

93 It is not surprising that the complainant's evidence was vague and general. She gave evidence in March 2018, when she was almost 22 years old, about events which were said to have occurred between 11 and 14 years earlier when she was aged between 7 and 10. The impairment of the complainant's memory of that period of her life was supported by her inability to remember that it was repeatedly impressed upon her from an early age and throughout her childhood that if anyone touched her private parts, she should complain to a family member.

94 The complainant performed poorly in cross-examination. Defence counsel was able to expose a large number of key inconsistencies in her evidence as well as important departures from the statement she gave to police and the evidence she gave at the committal. Some of her evidence came across as entirely implausible. An example is her evidence that, although there were adults 'floating' around the applicant's house, no one responded when she screamed at the top of her lungs upon being touched by the applicant during the incidents the subject of charges 3 and 4.[66] Her father gave evidence that 'you'd definitely hear something if someone was screaming' in the master bedroom and that if he had heard the complainant screaming in distress, he would 'be in there instantly'.[67]

95 It is also significant that there was no independent evidence which supported the complainant's allegations in relation to charge 2. The complaints she made to her parents, her grandmother and her cousins Kaitlyn and Teagan were general in nature and those witnesses disagreed with the complainant's version of the conversations she had with them. Her other cousin, Danielle, denied that the complainant had made any complaint to her. The evidence of the complainant's father, that she had told him that the offending commenced when she was 3 or 4 years of age, was also damaging because it contradicted her evidence that the offending occurred when she was between 7 and 10.

96 The fact that the applicant was of good character and gave evidence denying the allegations against him was also an important feature of the evidence before the jury. The applicant made many concessions - including that he had the opportunity to offend when he was alone with the complainant - and presented as a credible witness.

97 In the dynamic atmosphere of a criminal trial, the advantage enjoyed by the jury in seeing and hearing the evidence, including that of the complainant, ought not be underestimated. After making all sensible allowances for this Court's relative disadvantage, we are unable to resolve our doubts about the complainant's credibility and reliability. We have significant unresolved doubts about whether the events said to constitute charge 2 actually occurred.

98 For the reasons expressed, we consider that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on charge 2. The guilty verdict on that charge will be set aside and a judgment of acquittal will be entered.

99 Our conclusion in relation to ground 1 means that it is not strictly necessary for us to discuss ground 2. However, as ground 2 was the subject of detailed submissions before us, we will consider it.

100 The summary of the principles relevant to ground 2 in paras [101]-[107] below is adopted from this Court's judgment i[68]Mourkakos v The Queen.68

101 In MacKenzie v The Queen,[69] Gaudron, Gummow and Kirby JJ (with whom Dawson and Toohey JJ relevantly agreed in a separate judgment) set out the following principles for determining whether a guilty verdict is unreasonable and cannot be supported on the whole of the evidence because it is inconsistent with a verdict of not guilty on another charge:

(a) A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency.[70]

(b) In a criminal matter, factual inconsistency may arise both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events.[71]

(c) In a criminal matter, where the inconsistency arises in the jury verdicts on different charges, 'the test is one of logic and reasonableness'.[72] However, due to the respect that courts have for juries, appellate courts are reluctant to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed its functions as required, that conclusion will generally be accepted.[73]

(d) In a criminal matter, the appellate court may take the view that the jury simply followed the judge's instruction to consider separately the evidence on each charge and to apply to each charge the requirement that all of the elements must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one charge. It is open to a jury to apply in favour of an accused its innate sense of fairness and justice by, for example, finding the accused guilty of less than the full number of charges on the indictment even if all of them have been technically proved. However, 'mercy' on the part of a jury will not always be sufficient to justify apparent inconsistency between verdicts on different charges.[74]

(e) There will be cases where the different verdicts returned by the jury represent 'an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty'.[75] More commonly, it may suggest confusion in the minds of members of the jury or a misunderstanding of their function, uncertainty about the distinction between the offences, or a lack of clarity in the judge's instructions on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. In some cases, it may be appropriate for the appellate court to enter a verdict of acquittal on the charge upon which the accused has been convicted in order to carry forward the logic of the jury's verdict of not guilty on the other charge.[76]

(f) The onus of establishing inconsistency of verdicts rests on the party alleging the inconsistency.[77]

102 In MacKenzie, the jury found the accused guilty on one charge of perjury and not guilty on another charge of perjury. The High Court concluded that the inconsistent verdicts were not 'so repugnant and irreconcilable that they invite, or require, intervention.'[78]

103 In MFA v The Queen,[79] the appellant was found guilty of two charges involving sexual offences against the complainant and not guilty of seven charges involving sexual offences against the complainant. He appealed on the ground that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence and to the verdicts of not guilty. He contended that the verdicts were factually inconsistent because, if the jury had rejected the complainant's evidence on seven of the charges, there was no logical or reasonable basis on which it could have accepted his evidence on the other two charges.

104 The High Court dismissed the appeal. Gleeson CJ, Hayne and Callinan JJ held that there was an obvious explanation for the differences in the jury's verdicts: a witness gave evidence which, in some respects, supported the evidence of the complainant in relation to the two charges upon which the appellant was found guilty but no witness gave evidence in support of the complainant's evidence about the events that were the subject of the charges upon which the appellant was found not guilty. In those circumstances, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on two charges while acquitting him of the remaining seven charges.

105 Their Honours stated that, where it is alleged that a guilty verdict on a charge is unreasonable and cannot be supported on the whole of the evidence because it is inconsistent with the verdict of not guilty on another charge, the question for the appellate court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the former charge.[80] The test is unreasonableness, not inconsistency.[81] Their Honours said that the significance of the verdicts of not guilty on some charges had to be considered in the light of both the facts and circumstances of the case, and the context of the role of juries.[82]

106 In a separate judgment, McHugh, Gummow and Kirby JJ applied the principles in MacKenzie and concluded that there was a logical and reasonable basis for the different verdicts.[83]

107 In Avery v The Queen,[84] Weinberg JA reviewed MacKenzie and MFA and stated that they make clear that 'if there is a rational explanation for the different verdicts arrived at by a jury, it will not lightly be inferred that the jurors have forsworn their oaths, and impermissibly compromised'.[85]

108 The applicant submitted that there was a factual or logical inconsistency between the verdicts returned by the jury, such that no reasonable members of the jury, who had applied their minds properly to the facts of the case, could have arrived at verdicts of not guilty on charges 1 and 3-6, and guilty on charge 2.

109 The applicant contended that was so because the prosecution case in relation to all charges turned on the complainant's credibility and reliability, and no reasonable jury could have distinguished between the complainant's reliability and credibility on charge 2, and the other charges. He argued this was because: there was no forensic, medical or eyewitness evidence to support the complainant's evidence on any charge; the complainant's evidence was general in nature; the first corroborated complaint was made on the day of the last alleged offence; Danielle contradicted the complainant's account of the complaint to her in its entirety; the complainant's evidence of her complaint to Danielle, even if accepted, did not establish whether it was communicated before or after charge 2; and the complainant's memory regarding charge 2 was of the same poor quality as the evidence regarding the charges of which he had been acquitted.

110 Regarding inconsistency with charge 1, the applicant submitted that it was not open to conclude that the jury reached a verdict of not guilty on that charge because it was satisfied that only one of the alleged incidents that comprised that course of conduct charge had been established beyond reasonable doubt. That was because, he contended, the complainant's evidence was of the conduct being a pattern of behaviour that was repeated four or five times, and therefore the incidents must have stood or fallen together.

111 The applicant argued that, in some respects, the complainant's evidence about charge 2 was of even poorer quality than that of the other charges. In particular, he emphasised the complainant's recollection in her police statement that the applicant only touched her on the upper part of her body, which was inconsistent with her evidence at trial that he had touched her on the vagina on that occasion, which she agreed was a detail of the offending that had 'come back into [her] memory' after she made her statement to police in 2015.[86] He argued that, in contrast, the complainant gave more detailed evidence regarding features of some of the other charged instances, such as lying on the floor, screaming and the knock on the door, which made those occasions more distinctive than charge 2.

112 The applicant submitted that the unreliability of the complainant's evidence on charge 2 gives rise to a factual inconsistency in the verdicts because their effect is that the jury must have rejected the complainant's evidence on charges 1, and 3-6, but accepted it in respect of charge 2. He submitted that, in circumstances where there were no surrounding circumstances or corroborating evidence that supported the complainant's account of charge 2 such that it might be viewed differently by the jury, it was not open to the jury to be convinced beyond reasonable doubt of his guilt on charge 2.

113 The applicant argued that the illogicality of the verdicts strongly suggested compromise by the jury. That was so, he contended, in the light of the fact that the jury took two and a half days to reach its verdicts after a trial of only two and a half days, and the question that it asked late in the afternoon of 15 March 2018. According to the applicant, that question disclosed that the jury was concerning itself with the potential sentencing consequences of any guilty verdict.

114 The Crown submitted that the jury's verdict of guilty on charge 2 and verdicts of not guilty on the remaining charges could be rationally explained. It relied on the following:

(a) The verdict on charge 1 was explicable on the basis that the jury was not satisfied that a relevant course of conduct had been made out. This was so in the light of the span of 3 years for the charged period, the limited number of incidents described as occurring in that period, and the complainant's evidence that, in response to a question from her mother, she denied that she had been touched on her vagina.

(b) The verdicts on charges 3-5 could be distinguished because the alleged offending the subject of those charges all occurred after the complainant had spoken to Danielle and therefore the complainant's evidence was of a different quality. The incidents the subject of charges 3-5 involved interruption of the touching episodes by the complainant's screaming or a knock on the door and therefore the jury may not have been satisfied that the applicant had touched the complainant for the duration or in the manner described by her.

(c) The verdicts on charges 3-5 could also be distinguished from charge 2 on the basis that the conduct the subject of those charges was a brief touching of the complainant's 'chest' rather than her 'breast' (charges 4 and 5), or touching on the 'top part of [her] body' albeit under her clothes (charge 3) such that the jury may not have been satisfied of the element of indecency on those charges.

(d) The verdict of not guilty on charge 6 was explicable on the basis that the jury was not satisfied that the applicant's touching of the complainant's breast was indecent, as distinct from accidental.[87]

115 The Crown submitted that although there may be some circumstances in which juries reach verdicts that are an affront to common sense, and permissibly apply their innate sense of mercy and do not deliver verdicts of guilty on all charges, it submitted that this case did not fall within either of those categories because the verdicts were rationally explicable. Regarding the jury's question, it contended that the question was a difficult one, and that there is no basis for this Court to give it any weight.

117 It is always open to a jury to accept some parts of a witness's evidence and reject others, however, in the circumstances of this case, there was no rational basis for any distinction to be drawn between the complainant's evidence in support of charge 2 and her evidence in support of charges 1 and 3-5.

118 As we have already said in the context of ground 1, the complainant stated that the alleged offending the subject of the six charges followed the 'same pattern', 'same progression', and 'same course', that some of her memories were 'blended', and that it was 'a jumble of memories'.[88] The offending that she described for each of the charges was similar in nature. It involved touching on the upper part of her body under her clothing, sometimes extending to her stomach and beneath her underwear. All but the last incident of offending occurred in the master bedroom of the applicant's house. None of the offending was supported by independent evidence.

119 In these circumstances, there was nothing distinctive about the complainant's evidence in support of charge 2 which provided a rational reason for the jury to accept that evidence and reject the evidence in support of charges 1 and 3-5. As we explained in the context of ground 1, the applicant's cold hands and the playing of the Age of Empires computer game were not features that were unique to charge 2.

120 The complainant gave evidence of features of some of the other charges which may be said to be sufficiently distinctive so as to cause her to remember those incidents. They included: the complainant feeling the texture of the carpet while she lay on the floor when the offending the subject of charge 3 allegedly took place; the knock on the door which caused the applicant to cease the offending the subject of charge 5; and the different location and circumstances of the offending the subject of charge 6. Yet, the jury rejected the complainant's evidence in support of these charges and accepted her evidence supportive of charge 2 notwithstanding the absence of unique or distinctive features.

121 We accept the Crown's submission that the not guilty verdict in relation to charge 6 is explicable on a basis other than the jury's rejection of the complainant's evidence. The alleged offending the subject of that charge occurred in such circumstances that the jury could have concluded that it was not satisfied beyond reasonable doubt that the touching of the complainant's breast was deliberate as distinct from accidental.

122 Charge 1 had the unique feature of being a course of conduct charge, and thus required the jury to be satisfied of an additional element in order to find the applicant guilty. However, this does not provide a rational explanation for the different verdicts between that charge and charge 2. That is because the nature of the offending the subject of the four or five instances of offending covered by charge 1 were of a similar nature and those instances, in turn, were very similar to the offending the subject of charge 2. There was no rational, objective basis for the jury to distinguish between any of those four or five instances or between those instances and the offending the subject of charge 2.

123 The fact that the jury's sole question after retiring[89] related to charge 1 has not assisted us in determining ground 2. The applicant's submission that the question disclosed that the jury was concerning itself with the potential sentencing consequences of a guilty verdict in relation to charge 1 is speculative.

124 We reject the Crown's submissions about the bases upon which the jury could rationally distinguish between the alleged offending the subject of charge 2 and the alleged offending the subject of charges 3-5. As is evident from the particulars of the charges set out at [6] above, charges 2-5 alleged that the applicant touched the complainant's 'chest area'. There was simply nothing in the evidence that would have enabled the jury, acting reasonably and in accordance with the judge's directions, to have concluded that the touching in the context of charge 2 was indecent whereas the touching in the context of charges 3-5 was not indecent.

125 We also reject the Crown's submission that the timing of the alleged offending relative to the advice that the complainant said she received from Danielle to scream and run is capable of providing a rational basis for distinguishing between charge 2 and charges 3-6. The timing of the alleged conversation with Danielle was not entirely clear. In any event, there was nothing in the alleged conversation that gave the complainant's evidence of the offending the subject of charges 3-6 a less reliable quality than her evidence of the offending the subject of charges 1 and 2.

126 For the above reasons, we are unable to discern any rational reason for the jury to accept the complainant's evidence in support of charge 2 and to reject her evidence in support of charges 1 and 3-5. The different verdicts are irreconcilable and defy common sense. Regrettably, it appears that the jury impermissibly compromised.

127 For the above reasons, the application for leave to appeal against the guilty verdict on charge 2 will be granted, the appeal will be allowed, the guilty verdict on charge 2 will be set aside and a judgment of acquittal will be entered.

[1] To ensure that there is no possibility of the identification of the victim of alleged sexual offending, this judgment has been anonymised by the adoption of a pseudonym in the place of the name of the applicant.

[3] Clause 4A(1) of sch 1 to the CPA defines 'course of conduct charge' as 'a charge for a relevant offence that involves more than one incident of the offence'. A 'relevant offence' includes the offence of indecent act with a child under 16.

[5] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 461-2, 465-6, 473-4, 478-9; M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 405-6 [11]-[14]. See the principles summarised at [69] below.

[6] See the principles summarised at [101]-[107] below.

[7] Transcript of Proceedings (8 March 2018) 63.

[8] Transcript of Proceedings (8 March 2018) 63-4.

[9] Transcript of Proceedings (8 March 2018) 64-5.

[10] Transcript of Proceedings (8 March 2018) 65.

[11] Transcript of Proceedings (9 March 2018) 127-9.

[12] Transcript of Proceedings (8 March 2018) 70.

[13] Transcript of Proceedings (8 March 2018) 70.

[14] Transcript of Proceedings (8 March 2018) 67-8.

[15] Transcript of Proceedings (9 March 2018) 133-6, 138.

[16] Transcript of Proceedings (8 March 2018) 65-6.

[17] Transcript of Proceedings (8 March 2018) 66.

[18] Transcript of Proceedings (8 March 2018) 66.

[19] Transcript of Proceedings (9 March 2018) 140.

[20] Transcript of Proceedings (8 March 2018) 71.

[21] Transcript of Proceedings (8 March 2018) 73.

[22] Transcript of Proceedings (8 March 2018) 71.

[23] Transcript of Proceedings (8 March 2018) 108.

[24] Transcript of Proceedings (8 March 2018) 74.

[25] Transcript of Proceedings (8 March 2018) 74.

[26] Transcript of Proceedings (8 March 2018) 77.

[27] Transcript of Proceedings (8 March 2018) 78.

[28] Transcript of Proceedings (8 March 2018) 87.

[29] Transcript of Proceedings (8 March 2018) 89.

[30] Transcript of Proceedings (8 March 2018) 89.

[31] Transcript of Proceedings (8 March 2018) 69.

[32] Transcript of Proceedings (8 March 2018) 69-70.

[33] Transcript of Proceedings (8 March 2018) 68.

[34] Transcript of Proceedings (8 March 2018) 77.

[35] Transcript of Proceedings (8 March 2018) 110.

[36] Transcript of Proceedings (8 March 2018) 76.

[37] Transcript of Proceedings (8 March 2018) 82.

[38] Transcript of Proceedings (8 March 2018) 86.

[39] Transcript of Proceedings (8 March 2018) 146.

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