Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Barney v R [2023] NSWCCA 85 Hearing dates: 21 October 2022 Date of orders: 18 April 2023 Decision date: 18 April 2023 Before: Kirk JA at [1] N Adams J at [76] McNaughton J at [77] Decision: (1) Time for filing the application for leave to appeal is extended to permit the application to be made. (2) Grant leave to appeal. (3) Dismiss the appeal. Catchwords: CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Inconsistent verdicts — Applicant charged with 21 sexual offences against step-daughter over several years — Convicted of 12 counts, acquitted of remaining 9 counts — Reliability and credibility distinguished — Significance of issues of reliability and credibility to assertions of inconsistent verdicts — Rational explanation for acquittals on the basis of evidence that offences may have occurred outside dates particularised Legislation Cited: Crimes Act 1900 (NSW), ss 61J(1), 61M(2), 61P, 66C(1) Criminal Appeal Act 1912 (NSW), s 6(1) Evidence Act 1995 (NSW), ss 32, 38 Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jones v The Queen (1997) 191 CLR 439, [1997] HCA 56 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 R v Kirkman (1987) 44 SASR 591 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Saunders v R [2022] NSWCCA 273 TK v R (2009) 74 NSWLR 299; [2009] NSWCCA Watson v Foxman (2000) 49 NSWLR 315 Texts Cited: Peter McClellan, "Who is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 Category: Principal judgment Parties: Phillip Barney (Applicant) Rex (Respondent) Representation: Counsel: C O'Donnell SC and S Jeppesen (Applicant) A Bonnor (Respondent) Solicitors: Cambridge Law (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2017/20301 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 15 August 2018 Before: Judge O'Brien File Number(s): 2017/20301 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was found guilty by a jury in the District Court of 12 charges relating to the sexual abuse of his step-daughter over an extended period when she was 6 to 12 years old. The jury acquitted the applicant of nine further counts, four of which were directed acquittals in the course of the trial. He was sentenced to imprisonment for 12 years with a non-parole period of 9 years. He sought leave to appeal his conviction on the basis that the guilty verdicts were inconsistent with the not guilty verdicts. The two principal issues on appeal were: first, the distinction between reliability and credibility for the purposes of considering verdicts said to be inconsistent; and, second, the resolution of the contention in respect of each acquittal that each acquittal must have been premised on such a doubt as to the complainant's credibility or reliability such that the acquittals and convictions could not be reconciled. The Court (per Kirk JA, N Adams J and McNaughton J agreeing) granted leave to appeal but dismissed the appeal, and held: In respect of reliability and credibility: Where a contrast is drawn between the two concepts, credibility ordinarily involves notions of honesty and truthfulness in giving evidence, and reliability refers to a witness's ability to recall events accurately regardless of whether they are speaking honestly: at [17]. When a witness is found not to be credible in the narrower sense of truthfulness, this will often, but not always, taint the entirety of their evidence: at [19]. As to reliability, the fact that a witness gives evidence of some detail of an event which is undermined by a prior account they had given, or by some other evidence, does not establish that the witness necessarily is unreliable on all matters. That said, there can be situations where doubts about reliability affect the whole of a witness's evidence: at [21]-[22]. Both credibility and reliability can therefore be relevant to an argument of inconsistent verdicts: at [28]. Jones v The Queen (1997) 191 CLR 439, [1997] HCA 56; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA; IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, considered. In respect of the question whether the acquittals and convictions could be reconciled: The trial judge carefully directed the jury that in order to convict the applicant on each count, they needed to be persuaded beyond reasonable doubt that the particular offence to which a count related occurred within the time it was particularised as having occurred within. Each of the acquittals could be rationally explained on the basis that there was insufficient evidence to prove beyond reasonable doubt that each offence occurred within the date range particularised on the indictment: at [54], [57], [65]. Additionally, in respect of one of the counts which involved an indecency element, and therefore a possible mens rea element, there was evidence which provided a basis for the jury to have had a doubt about the applicant's state of mind: at [59]. In respect of some of the counts, there were inconsistencies in the complainant's evidence which could have been seen as going to the reliability of her recollection, such as to justify the acquittals. By no means, however, were they so significant as to suggest she was fundamentally an untruthful or unreliable witness: at [66]. JUDGMENT 1. KIRK JA: On 15 August 2018 the applicant, Phillip Barney, was found guilty by a jury in the District Court of 12 charges relating to the sexual abuse of his step-daughter over an extended period when she was 6 to 12 years old. The jury acquitted the applicant of nine further counts, four of which were directed acquittals in the course of the trial. He was sentenced to imprisonment for 12 years with a non-parole period of 9 years. He now seeks leave to appeal his conviction on the basis that the guilty verdicts were inconsistent with the not guilty verdicts. 2. The applicant needs an extension of time for seeking leave to appeal, which is not opposed other than on the basis that the appeal lacks merit. The delay is lengthy but some explanation has been provided by the applicant's solicitor. The delay was caused by a number of factors which were of a kind that should not preclude the applicant from having his application heard. The extension of time should be given. 3. It is difficult to succeed on the ground of inconsistent verdicts. This is not one of those unusual cases where inconsistency is established. In my view leave to appeal should be granted but the appeal should be dismissed. 4. In what follows I will first review the relevant principles, including as to a distinction between issues of credibility and reliability in this context, then summarise the circumstances of the case below, before addressing why the acquittals are not inconsistent with the verdicts of guilty. Principles Inconsistent verdicts 1. The ground of appeal in this case is as follows: That in all the circumstances the [guilty] verdicts of the jury … were unreasonable (having regard to the inconsistency between those verdicts and the verdicts of not guilty on the remaining counts) and not supported having regard to the evidence and therefore there was occasioned to the applicant a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). 1. The applicant raises the first limb of s 6(1) of the Criminal Appeal Act 1912 (NSW), being that the conviction was "unreasonable, or cannot be supported, having regard to the evidence". The ultimate question when invoking that limb concerns the reasonableness of the jury's decision: MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34] and [36], see also [44]-[51]. 2. In MFA members of the High Court referred to the decision in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, at 492-494, in which arguments that a verdict was unreasonable were held to require an appellate court to consider, upon the whole of the evidence, whether it was open to the jury to be satisfied of the accused's guilt beyond reasonable doubt: see MFA at [25] and [53]-[61]. However, where "the circumstance said to create unreasonableness is inconsistency, then a new dimension is added to the conventional M test": TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [135]. In such cases the inquiry is wider than in the M type of case and looks to "the whole of the facts and circumstances of a particular case" (TK at [124]), which "includes an examination of the significance of the acquittals, and what can be read into those verdicts" (TK at [127]). An appeal may succeed "notwithstanding that no such shortcomings or inadequacies [as required in M type cases] can be demonstrated" (TK at [126]). 3. Reflecting that distinction, in this case senior counsel for the applicant indicated that the gravamen of the appeal related to inconsistency of verdicts. This was not a case where the applicant otherwise suggested that it was not open to the jury to be satisfied of the accused's guilt beyond reasonable doubt. 4. It was also not suggested that there was any legal or technical inconsistency in the verdicts. Rather, what was alleged was factual inconsistency, for which "the test is one of logic and reasonableness" in considering whether the verdicts can be reconciled: Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 per Gaudron, Gummow and Kirby JJ at 366. If "there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted": ibid at 367. After identifying some proper ways in which such a reconciliation may be achieved, their Honours went on to say as follows (at 368, citations omitted; see also MFA at [86]): Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case." 1. Respect for the function of juries has led to a curial "reluctance to accept a submission that verdicts are inconsistent in the relevant sense": Mackenzie at 367; see also MFA at [49] and [51] per McHugh, Gummow and Kirby JJ. 2. There is a range of possible explanations for why a jury may reach different verdicts on different counts against the one accused, even in circumstances where the main or sole evidence against the accused is that of one complainant. Explanations which are consistent with a proper way of reconciling verdicts include the following (and see further R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [235]): 1. Juries are commonly instructed to give separate consideration to each count and are told that the evidence of any witness may be accepted in whole or in part. Thus it is unsurprising, and not necessarily inconsistent, that juries may reach different verdicts by carefully weighing up the evidence on each count. As Gleeson CJ, Hayne and Callinan JJ said in MFA at [34]: A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. 1. The jury may have taken "a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries": Mackenzie at 367. 2. Similarly, the jury may have exercised compassion, or a sense of proportion, by concluding that "although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number": Mackenzie at 367-8, quoting with approval R v Kirkman (1987) 44 SASR 591 at 593; see also MFA at [85]. 1. There are other explanations which indicate that the jury has not properly performed its function. Different explanations may lead to different consequences. The relief which is appropriate depends upon the facts of the particular case; "[i]t may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s)": Mackenzie at 368. If the likely explanation was that the jury had reached compromise verdicts, then the accused may have "received the benefit of an acquittal or acquittals to which he or she is not entitled" (TK at [134]), and the appropriate order may be to overturn the relevant convictions but order a new trial. However, if the only reasonable explanation for the acquittals was "doubt about the complainant's credibility", then "that doubt must be applied to the remaining counts" such that the convictions should be overturned and replaced with acquittals: TK at [137]. 2. There is no general rule that where multiple offences are alleged involving the one complainant, verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable and that the complainant is a person of damaged credibility: MFA at [35] and [89]; see recently eg Saunders v R [2022] NSWCCA 273 at [103]. The "significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case": MFA at [34]; see also Markuleski at [65]. 3. There can be difficulties in identifying an explanation for why the jury reached the verdicts in question. The burden of persuasion in establishing inconsistency rests upon the applicant: Mackenzie at 368. Reliability and credibility 1. A question arises in this case as to the significance of doubts being raised about a complainant's reliability for the purposes of considering verdicts said to be inconsistent. The applicant here attempted to impugn the complainant's credibility and reliability. For example, in his written submissions the applicant contended that to "return guilty verdicts, the Jury must have found the complainant to be a truthful, credible and reliable witness with respect to Counts 1, 4, 7, 9, 10, 11, 12, 13, 14, 19, 20 and 21 but not so on Counts 3, 8, 16, 17 and 18". This broad attack was refined in oral argument, with senior counsel for the applicant accepting that the main attack was on reliability: it is acknowledged that really most of what I put to you on behalf of the applicant goes to reliability. We don't disavow credibility of course given that the evidence of the applicant was a plain denial of all of the allegations that were made but the reliability or lack thereof can be so great given context and this is one of them we submit that it does attract the proposition that is advanced in the ground of appeal and therefore would lead your Honours to uphold that ground of appeal and enter verdicts of acquittal as requested. 1. The difference between the two concepts was explained by Nettle and Gordon JJ in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [114] (citation omitted): The credibility of a witness was commonly understood [at common law] as meaning the "truthfulness" of the witness – whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness's ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time. 1. Thus, where a contrast is drawn between the two concepts, credibility ordinarily involves notions of honesty and truthfulness in giving evidence, and reliability refers to a witness's ability to recall events accurately regardless of whether they are speaking honestly. A witness can be credible but not reliable: they may honestly believe something to have occurred but nonetheless be mistaken. 2. The notions of "reliable" and "credible" are sometimes employed synonymously or with overlapping senses. If a witness's testimony is not credible that is sometimes expressed in terms of reliability, in the sense that the evidence cannot then be relied upon. Conversely, in the Evidence Act the "credibility of a witness" is defined in the Dictionary as including "the witness's ability to observe or remember facts and events" in giving evidence, thus encompassing notions of reliability: note IMM at [53]. 3. When a witness is found not to be credible in the narrower sense of truthfulness, this will often taint the entirety of their evidence. That said, there can be cases where doubts about credibility do not undermine the whole of the witness's evidence, for example where they had a motive not to tell the truth only on one particular issue. Further, issues of degree can arise with credibility. The trier of fact might conclude for example that in some evidence, only, "the complainant or central witness resorted to a degree of exaggeration in order to reinforce his or her account": Markuleski at [235(e)]. Such a case is obviously quite different from a case where one complaint is found to have been fabricated; such dishonesty may be so significant as to undermine the credibility of the whole of the complainant's evidence. 4. With respect to reliability, it is commonplace for a witness to be reliable in relation to some matters but less reliable in respect of others. That reflects the variability and inherent fallibility of memory; "[h]uman memory is not like a video recorder": Peter McClellan, "Who is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 at 665. As one respected judicial officer explained with respect to recall of conversations, but in a point of broader application about memory (Watson v Foxman (2000) 49 NSWLR 315 at 319 per McLelland CJ in Eq): human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 1. Given that reality, the fact that a witness gives evidence of some detail of an event which is undermined by a prior account they had given, or by some other evidence, certainly does not establish that the witness necessarily is unreliable on all matters. Thus in MFA, at [34], Gleeson CJ, Hayne and Callinan JJ accepted that reasons why a verdict of not guilty on one count does not necessarily imply a want of confidence in the complainant include the following: In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. 1. That said, there can be situations where doubts about reliability affect the whole of a witness's evidence. That may be so if a witness's reliability is diminished because of a neurological condition, for example, or if the witness appears generally to have a poor memory. 2. In general, an adverse view of the credibility of a witness is likely to have more far-reaching consequences than an adverse view of reliability. If a witness is prepared to be less than honest in giving evidence in a significant way, despite their serious obligations to be so, then it may be difficult to delineate what evidence is believable and what is not. As a result, all their evidence supporting the side they have an interest in supporting may be of suspect value to the extent it is uncorroborated, unless it can be explained and quarantined or discounted. In contrast, doubts about reliability are more likely to allow some delineation, for example based upon how long ago different events occurred, how significant they were to the person, or other circumstances which may explain why the witness may have a more or less clearly memory of different events, including simple fallibility. 3. Cases dealing with inconsistency of verdicts reflect the wider practice of overlapping usages of the two notions. Sometimes the language of credibility is employed, sometimes the language of reliability, and sometimes both. 4. For example, Jones v The Queen (1997) 191 CLR 439, [1997] HCA 56 involved three counts of sexual assault allegedly committed by a gymnastics coach against his pupil when she was 11 and 12 years old. He was convicted of the first and third counts but acquitted of the second. Gaudron, McHugh and Gummow JJ explained why the acquittal was inconsistent with the guilty verdicts on the other two counts (at 453, emphasis added): The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment. Implicit in the appellant's acquittal on the second count was a rejection of the complainant's account of the events which were said to give rise to that count. … Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count. … It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count. 1. The central conclusion was as to credibility in the sense of truthfulness. But it was then expressed in terms of reliability, seemingly in the broader sense that the evidence could not be relied upon because of the damage done to the complainant's credibility. 2. In TK Simpson J focused on credibility, explaining (at [130], see also [137]): Before Jones dictates that an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant's credibility. If such an explanation can be found, then Jones has no application. Finding such an explanation is not always easy. Determining whether a proposed explanation is a rational one, other than by reason of the complainant's credibility, can be even more difficult. The central question is whether the acquittals are attributable only, or principally, to doubt about the complainant's credibility. 1. In my view both credibility and reliability (used in the narrower senses) can be relevant to an argument of inconsistent verdicts. For example, there can be circumstances where doubt about reliability of evidence going to one count does undermine evidence going to another, such as where the evidence relied on for the two counts is largely the same: note MFA at [33]. There could also be cases where there was said to be a generic doubt about reliability. As was said in Mackenzie at 368 (see also MFA at [34]-[35] and [86]): "It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'." 2. The key issue is reliability in the broader sense of whether the evidence can be relied upon. Did an apparent finding that evidence was not reliable in the broader sense, to the extent that that is implicit in an acquittal, do necessary damage to the reliability of evidence going to other counts on which there were guilty verdicts? In practice, it is more likely that doubts about credibility (in the narrower sense) are likely to lead to a positive answer to that question than doubts about reliability (in the narrower sense). That is so for the reason given above at [23], namely that when the likely explanation of an acquittal is because of doubts about the complainant's credibility, it is less likely that the damage done to their evidence can be confined to that count only than if the acquittal can be explained in terms of a doubt about the complainant's reliability. Background 1. The applicant is the complainant's stepfather. The complainant was born in January 2002. The applicant commenced a relationship with the complainant's mother in 2007, and stayed at the complainant's home in the period between 2008 and 2014. They moved homes in October 2008 and the complainant commenced at a new primary school in 2009, in Year 2. She commenced high school in 2014. 2. In December 2014, after telling a friend's mother, and then her own mother, that the applicant had been abusing her, the complainant was taken by her mother to a police station, where she told the police that she had been touched by her stepfather. The following day, however, she said she was not yet ready to be interviewed about the matter and asked for more time. 3. Some eight months later, in August 2015, the applicant participated in a recorded interview with a Joint Investigation Response Team led by police (JIRT interview). She made allegations about abuse stretching over a number of years. The applicant himself then participated in a voluntary interview with the police. In January 2017, based on the JIRT interview, the applicant was charged with offences which ended up being Counts 1, 7-11 and 19-21. 4. In early February 2018, shortly before the applicant was first due to be tried, the complainant provided police with a written statement which detailed further allegations. Those allegations ended up being the subject of 12 further charges, being Counts 2-6 and 12-18. This material was not the subject of a further recorded interview. 5. The 21 counts on which the applicant was tried related to the period when the complainant was aged 6-12 years old, and were as follows: 1. 14 charges of indecently assaulting the complainant, being a person under the age of 16, pursuant to the then s 61M(2) of the Crimes Act 1900 (NSW); 2. 3 charges of sexual intercourse with a child between the ages of 10 and 16, under then s 66C(1); 3. 3 charges of aggravated sexual intercourse, under then s 61J(1); and 4. 1 charge of attempted aggravated sexual intercourse, under then s 61J(1) with s 61P. 1. The trial occurred in August 2018. The applicant chose to give evidence. As regards the complainant's evidence, the JIRT interview was played to the jury and she gave further oral evidence. In the end she did not give evidence in respect of Counts 2, 5, 6 and 15, being four of the 12 further charges added after the February 2018 statement. It seems that no application was made by the Crown under s 32 of the Evidence Act 1995 (NSW) to permit the complainant's memory to be refreshed, nor to seek to cross-examine her pursuant to s 38 of that Act. Given the absence of evidence the trial judge directed that the applicant be acquitted of those four counts. 2. Of the remaining 17 accounts, the jury: 1. found the applicant guilty of 12 charges, being Counts 1, 4, 7, 9, 10-14 and 19-21 (eight of which were for aggravated indecent assault, two for sexual intercourse with a child, and two for aggravated sexual assault); 2. acquitted him in respect of five charges, being Counts 3, 8 and 16-18. 1. Four of the five non-directed acquittals related to counts which were the subject of the further charges laid after the February 2018 interview. Thus there were eight acquittals on those 12 additional charges. The only acquittal which arose from the original set of allegations based on the JIRT interview was Count 8, relating to the "smoothie incident". All the other JIRT-based charges led to convictions. The claimed inconsistency of verdicts A general attack on the complainant's reliability and credibility 1. The applicant made submissions directed to particular counts but also made a general attack on the complainant's reliability and credibility. It is useful to address the broader critique at the outset. 2. As noted above at [15], in the end the applicant's arguments were largely directed to the complainant's reliability (in the narrower sense). As explained, a difficulty facing this line of argument is that doubts about reliability are less likely to lead to the conclusion that all of a complainant's evidence should not be accepted. 3. The applicant contended that the complainant's evidence was unreliable because of her "poor memory" of the alleged assaults, which he said "could be seen in the delay in the initial disclosure of the complaints and the subsequent piecemeal disclosure", along with her failure to give evidence with respect to four of the allegations. The applicant referred specifically to the first delay between the original disclosure to police in December 2014 and the JIRT interview in August 2015, and to the second delay between the JIRT interview and the later statement in February 2018. 4. After the first disclosure, as noted, the complainant indicated that she was not yet ready to talk about the matter. She indicated that later she "felt … ready to go through it". 5. As to the second delay, the complainant accepted in cross-examination that she could have given the information disclosed in February 2018 in the earlier JIRT interview but chose not to. She accepted the cross-examiner's suggestion that she "chose to withhold information", but said that this was "[b]ecause it is my story to tell and I'll tell it when I'm ready and I wasn't ready to tell it". She agreed that that meant she had been "ready to talk about some things but not everything". That was said by the applicant to be inconsistent with the fact that the JIRT interview was "ostensibly … exhaustive". 6. It was entirely open to the jury to accept the complainant's explanations. With respect to the first delay, the context was that the complainant's disclosure to her mother occurred only after an attempt to run away from home, and her mother promptly taking her to the police. Engaging in a formal interview with police to accuse her stepfather of extended sexual abuse was a rapid escalation of events for her. It is hardly surprising that a child about to turn 13 may hesitate before taking that step. As the complainant's mother said, "[i]t was all very intimidating". That is all the more so in circumstances where the complainant gave evidence that she had not told her mother earlier than she did because her mother was happy and she did not want to get in the way of her happiness; she was frightened of what would happen after she told her mother; and her mother had had a child with her stepfather. 7. With respect to the second delay, the applicant did not describe any statement made by the complainant in the JIRT interview as a lie. And it is an overstatement to say that the complainant suggested that the JIRT interview was exhaustive. On the one hand, for example, when asked if she "ha[d] anything … else" she did say "not really that I can remember extremely clearly" and "that's all I can really think of at the moment". But shortly after that, when asked if there were other times that she could not remember, she said "[l]ike there's definitely been times where … I've been asleep, and not woken up to it, or something like that". 8. There is some force in the applicant's suggestion that that type of lack of certainty as to recollection is different from the complainant's evidence in cross-examination that she had chosen not to reveal these things in the JIRT interview. However, it was reasonably open to the jury to take a benign view of that evidence. They may have considered that the suggestion of deliberate withholding – as opposed to not remembering every incident at the time of the interview – was a somewhat exaggerated response from a teenage girl to being challenged in cross-examination. Or, if they accepted that evidence, they may reasonably have considered that it was understandable for a then 13 year old child to choose not to reveal, in a recorded police interview, every detail of abuse she alleged against her stepfather occurring over a six year period. Such a choice could reasonably be seen as casting no significant doubt over her credibility or reliability. 9. The applicant also said the complainant was unreliable because of "her failure to give any sworn evidence at all about four of the allegations", being the counts the subject of the directed acquittals. As a matter of common human experience some memories are clearer than others. And witnesses will not necessarily remember all parts of their story unprompted. So much is reflected in s 32 of the Evidence Act, which allows an application to be made to permit a witness to revive their memory "about a fact or opinion" by reference to a document. The complainant's failure to provide details of all of the 21 distinct complaints – in response to non-leading questions and where no application was made to seek to revive her memory by reference to her statement – does not provide a plausible basis for arguing that the jury should have rejected her evidence in toto. 10. The applicant also sought to make something of the fact that the Crown amended the indictment in the course of the trial, after the complainant had given evidence, so as significantly to expand the time periods in which certain offences were alleged to have occurred (for Counts 3, 4, 11, 14, 16-18 and 21). For example, the period in which Count 3 was said to have occurred was altered from the initial dates of 1 January 2011 to 25 December 2011, to the date of the complainant's birthday in January 2010 to the same date in 2013. The amendments reflect the fact that the evidence the complainant gave in court differed somewhat, as to dates, from the evidence she had been expected to give. That gave defence counsel an opportunity to seek to undermine the complainant's evidence, which was taken. But the fact that somewhat different accounts are given at different times by any witness, let alone a teenager seeking to recall details of extended alleged sexual abuse, is neither surprising nor uncommon. The complainant gave evidence that she was unsure when various incidents occurred (see eg below at [51]-[52] and [64]). The significance of those variations were a matter for the jury to assess. As discussed below, some of those variations seem to explain some of the acquittals. The existence of such variations does not necessarily – and does not in this case – cause general damage to the credibility or reliability of the witness. 11. Neither of the two delays, nor the failure to give evidence in court of four of the allegations, nor the inconsistency as to dates, requires a conclusion that the jury must have or should have considered the complainant to be a generally untruthful or unreliable witness. 12. It is necessary, then, to turn to consider whether each of the five non-directed acquittals can be reconciled with the convictions as a matter of logic and reasonableness. Count 3 – one of the swing incidents 1. Count 3 was a count of indecent assault. The allegation was that, while the complainant was playing on a swing set in the backyard of the family home the applicant touched her breasts, stomach and vagina, on the outside of her clothes. The complainant said in examination-in-chief that "there were two incidents on the swing. One where I did fall off and I hit my head and another where he just poked and prodded me until I cried." The incident when she fell off the swing was apparently the subject of Count 2, although no further evidence was given about that particular incident, and hence an acquittal was directed on that charge. The applicant denied touching the complainant in the manner the applicant described. 2. As the Crown submitted, a rational explanation for the acquittal on Count 3 concerns the timing of the alleged offence. It was originally alleged to have occurred in the course of 2011, but after the applicant's evidence the indictment was amended to cover the period between the applicant's 8th and 11th birthdays (January 2010 to January 2013). In examination-in-chief, the complainant explained that she was "eight – nine – ten at the absolute most" when the incident occurred. When asked what made her think she was that age she said: It was around that period of time where a lot of the incidents happened. I wasn't quite old enough to understand that everything was, everything that was happening shouldn't be happening. That's why I didn't vocalise a lot of my negative answers so yeah, it's a bit of a grey area. A lot happens to me in those couple of years but yeah. 1. In cross-examination she was asked about her written statement in which she said "I think it would have been around the time I was in grade 4 at school which was 2011" (recalling that this allegation had not been raised in the JIRT interview). When challenged about the wider span of dates which she eventually gave in evidence, she said: "in between those three years, it is a very grey area for me. It's a time that I'd preferably don't – don't remember so a lot gets jumbled up." When asked whether she was "absolutely sure" that the incident occurred, but whether she was "muddled as to dates", she agreed. 2. The complainant's mother, who gave evidence, was asked about when the family had a swing set. She said that the complainant's grandparents "gave it to us when we were at – living at [the first house]; we may have only had it for about six months to a year after we moved into [the second house]. Not long." She went on to explain that the swing set rusted very quickly, so they disposed of it. She said there was nothing else in the backyard after the swing set was removed. She also earlier gave evidence that the family moved to their new residence in October 2008. That would mean that, on her evidence, the swing set was removed by the end of 2009 at the latest. The accused similarly gave evidence that the swing set was removed after six months or a year because of rust. 3. It is quite possible, then, that the jury were of the view that the offence did occur but prior to January 2010. There is thus a rational – indeed, compelling – explanation as to why they may have had a reasonable doubt that the particular offence was committed within the date range alleged in the amended indictment. This would accord with the careful directions which the trial judge gave as to the need to focus on the specific charges (emphasis added): [Y]ou must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charged on the indictment. The Crown is not charging a course of misconduct by the accused but has charged particular allegations arising out of what the complainant says was a course of sexual misconduct. You are concerned with the particular and precise occasion alleged in each charge and you will recall that earlier in this summing up, I took you through all of those 17 counts, identifying the date range and the allegation. You must not reason that, just because the accused may have done something wrong to the complainant on some or other occasion, he must have done so on the occasions alleged in the indictment. You cannot punish the accused for other acts attributed to him by finding him guilty of the charges in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law. 1. Having a doubt as to whether the incident occurred within the period alleged does not undermine the credibility or reliability of the complainant more generally. Count 8 – the "smoothie incident" 1. Count 8 was a count of indecent assault involving an allegation that the applicant, while clothed, rubbed his penis against the complainant while she was having difficulty operating a blender, making a smoothie, at the kitchen bench at home. It was the only one of the five non-directed acquittals that arose from allegations first raised in the JIRT interview. 2. The Crown identified two possible rational explanations for the acquittal on Count 8 other than a doubt about the complainant's credibility. The first related to timing. The offence was particularised as having occurred in 2013 when the complainant was in Year 5, which is what some of her answers in the JIRT interview indicated, although she also said in that interview, "Um, 14, 13, 12, yeah, um, 2013, or 2012. Sorry, my memory, and my math is really terrible". The complainant's mother said in cross-examination that she had no recollection of the complainant making smoothies before starting high school in 2015. The mother also explained that she first purchased a blender about two months prior to the birth of her first child with the accused in 2014, which places the purchase of the blender in February or March 2014. Just as for Count 3, the jury may well have believed the applicant but, for good reason, doubted whether the offence occurred in 2013 as alleged in the indictment. 3. The second possible explanation for the acquittal identified by the Crown concerned a component of the indecency element of the offence. In his summing up the trial judge explained: the Crown must prove beyond reasonable doubt that the assault was indecent. The word "indecent" means contrary to the ordinary standards of respectable people in the community. … For an assault to be indecent it must have a sexual connotation or overtone. If the accused touches the complainant's body or uses his body to touch the complainant in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent. … If you find the assault does not carry a clear sexual connotation or overtone, the Crown must prove beyond reasonable doubt that the accused's conduct was accompanied by, or went hand in hand with his intention to obtain sexual gratification. 1. As the Crown submits, the jury may have found that there was a reasonable possibility that "while the complainant was not mistaken that the applicant put his arms around her, she was mistaken that he intentionally rubbed his penis against her bottom for sexual gratification". There was some basis for such a view in the evidence. The complainant gave evidence that the applicant "kind of rubbed his penis against my butt, um, like, it was discretely" (emphasis added). This evidence from the complainant herself could have provided a basis for the jury to have had a doubt about the applicant's state of mind. 2. Both of these points provide a rational explanation for the jury acquitting the applicant on Count 8. Neither implies a general conclusion that the complainant was untruthful or fundamentally unreliable. Counts 16, 17 and 18 – the allegations as to attempted fellatio 1. Counts 16, 17 and 18 all relate to the one incident. The complainant gave evidence that on one occasion at night, and whilst she was sleeping, the applicant attempted to insert his penis into her mouth. Her evidence was that she woke up when he pushed his penis through her lips, and that she clenched her teeth so as not to "let him get past my teeth". In examination-in-chief she said she kept her eyes closed and that she was pretending to be asleep most of the time. She said one of the applicant's hands was on her chin and the other on his penis, and that at one point he guided her hand to his penis. 2. Count 16 alleged sexual intercourse without consent. Count 17, in the alternative to Count 16, alleged attempted sexual intercourse without consent. Count 18 was for indecent assault and concerned the alleged action by the applicant of placing the complainant's hand on his penis. 3. In cross-examination she was challenged about some inconsistencies between the February 2018 statement which she gave to police and her evidence. She said that she did in fact open her eyes briefly. She accepted that there was some inconsistency between her two accounts as to what the applicant had done with his hands. She accepted that in her police statement she said he made her hand rub his penis but she had not described such a motion in her evidence-in-chief. She accepted that she had not mentioned in her court evidence him ejaculating, but in her statement had said that she thought with the benefit of hindsight that he had done so, although she did not necessarily know what ejaculation was at the time. 4. Again, the Crown suggests that a rational explanation for the acquittal lies in a doubt about the timing of the offences. Counts 16, 17 and 18 were particularised (after amendment) as having occurred between 1 January 2012 and 31 December 2013, when the complainant was in Years 5 and 6. Her evidence in cross-examination as to when the offending occurred was as follows: Q. I now want to ask you some questions about the time when you say you were in bed asleep and the accused, you say, attempted to put his penis into your mouth. A. Yes. Q. Remember telling us about that yesterday in your evidence? A. Yes Q. Just remind me, when did that occur? A. I'm unable to tell you. Q. Unable to tell me the year? A. Yes. Q. Season? A. Yes. Q. What age you were? A. I'm unable to tell you all of the above. Q Including what year you were in, correct? A. Yes. Q. Was it before or after [your half-brother] was born? A. Before. 1. The complainant's half-brother was born in May 2014. The Crown suggests that the jury may have considered it reasonably possible that the offence occurred before 2012 or in early 2014, before the complainant's half-brother was born. Whilst not as clear a basis for a doubt as the bases identified in respect of Counts 3 and 8, this is a rational basis to explain the acquittal. That is especially so given the earliest offending on the indictment was in 2009, and the complainant was unable to recall in what year the offending the subject of Counts 16, 17 and 18 occurred. 2. More generally, the concessions made by the complainant about inconsistencies between her police statement and her evidence could have led the jury to have given the applicant the benefit of the doubt on these charges, even if they were inclined to believe her. Those inconsistencies – which were in fact not that substantial – could have been seen as going to the reliability of the recollection. By no means were they so significant as to suggest she was fundamentally an untruthful or unreliable witness. Reconciling the acquittals with the guilty verdicts 1. The analysis above illustrates that for each of the non-directed acquittals there was an entirely plausible explanation for the jury's verdict specific to the evidence relating to those allegations. As discussed above, the applicant's critique mainly related to issues of reliability (in the narrower sense). The issues addressed above were specific to the particular counts. There is no sound basis to suggest that those issues damaged the complainant's credibility, nor the reliability of other parts of her evidence. The applicant did not suggest that, leaving aside the claimed significance of the acquittals, it was not open to the jury to be satisfied beyond reasonable doubt on the guilty counts. 2. The verdicts are reconcilable as suggesting that the jury approached the task of assessing the evidence on each count with care, as they were directed to do. That the jury was attentive to the need to address each count is supported by the fact that, during a short break immediately after the Crown had finished addressing, the jury sent the judge a note asking if Count 13 was "still valid as no evidence was discussed in the Crown summary". Counsel for the Crown then explained that she had overlooked that count, which she then addressed. 3. Senior counsel for the applicant did suggest in this Court that if the basis for the acquittals was the temporal issues identified above then several of the guilty verdicts ought to have been acquittals for the same reason. Counsel referred to Count 1, which concerned an allegation that the applicant committed an act of indecency while driving the complainant to school in 2009 or 2010. He pointed to the fact that the complainant had said that the applicant had been driven in the applicant's ute on that occasion, but the applicant had not bought such a ute until the end of 2009 (although in 2009 he did drive a Jeep). Yet that still left 2010 in which the offence might have occurred. Any inconsistency was one which fell within the two-year period for which the offence had been particularised, in contrast to the position with respect to Counts 3 and 8 and potentially 16-18. 4. Other temporal arguments made by the applicant with respect to various of the counts on which guilt was found related to the fact that the complainant's evidence led to the indictment having to be amended to expand the date range captured. That argument was addressed above at [47]. 5. The applicant made some other attacks on the credibility or reliability of the complainant, but none of any significance. For example, some criticism was made of the fact that the complainant had given inconsistent accounts of how she had disposed of a large soft toy monkey that she had been given by the applicant, and which she had at times used to protect herself from the applicant's advances, being whether she had burned it or had instead mutilated it and thrown it out. The significance of such minor inconsistencies was a quintessential matter for the jury. 6. The applicant also submitted that the complainant's evidence with respect to Counts 10 and 14 was no stronger than the evidence for Counts 16-18. But assessing the evidence on the different counts was a matter for the jury, and, as noted, it was not submitted that it was not open to the jury on the evidence to be persuaded of the applicant's guilt on those counts beyond reasonable doubt. 7. In the analysis above I have addressed general arguments of the applicant relating to the two delays in complaints, the lack of evidence on four counts, and the need to expand the time periods alleged in the indictment for various offences. I have also addressed the five non-directed acquittals. For the avoidance of doubt, consideration of all of the applicant's arguments together, and taking account of all the evidence in the case, does not lead to a different conclusion. That the complainant's evidence contained some inconsistencies and omissions is a common feature of trials. It is even less surprising here given the lengthy period in which the events in question occurred, the significance of what occurred, and the age of the complainant at the time they were said to have occurred. As senior counsel for the applicant himself accepted, "any person in the position of the complainant may well be considered to remember some things better than others". 8. In sum, the applicant has not established that the nine acquittals, individually or cumulatively, can only reasonably be explained by concluding that the jury must have had a general doubt about the complainant's credibility or reliability, or that the jury otherwise failed properly to perform its role. His ground of appeal has thus not been made out. Orders 1. The orders of the Court should be as follows: 1. Time for filing the application for leave to appeal is extended to permit the application to be made. 2. Grant leave to appeal. 3. Dismiss the appeal. 1. N ADAMS J: I have had the significant advantage of reading the judgment of Kirk JA in draft. Having considered the evidence at trial and the arguments put in this Court I am not satisfied that the guilty verdicts were inconsistent with the acquittals such as to lead to a conclusion that the convictions were unreasonable. 2. McNAUGHTON J: I have had the advantage of reading in draft the judgment of Kirk JA. Having considered the evidence myself, for the reasons given by his Honour I agree that the verdicts are reconcilable and that the applicant's ground of appeal is not made out. I agree with the orders his Honour proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 April 2023