Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Palmer v R [2018] NSWCCA 205 Hearing dates: 10 September 2018 Decision date: 21 September 2018 Before: Basten JA at [1]; McCallum J at [74]; Bellew J at [75] Decision: (1) With respect to ground 2, refuse the appellant leave to appeal pursuant to the Criminal Appeal Rules, r 4. (2) With respect to ground 1, grant the appellant leave to appeal. (3) Dismiss the appeal. (4) Vary the sentence imposed in the District Court so that it provides: (a) With respect to count 2 on the indictment, sentence the offender to a term of imprisonment for 3 years, comprising a non-parole period of 18 months to commence from the date of these orders or such later date on which the appellant is first taken into custody, together with a balance of term of 18 months. (b) Note that, either pursuant to the direction given by the trial judge pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the offender is entitled to be released at the expiration of the non-parole period to serve the remainder of his sentence on parole. (c) Note further that the earliest release date pursuant to this sentence is 20 March 2020 or the date 18 months from the date the offender is taken into custody, if that be not the date of the orders. Catchwords: CRIME – conviction appeal – unreasonable verdicts – whether conviction inconsistent with acquittal on another count – whether rational basis upon which jury could distinguish counts – relevance of disproportion between time taken for trial and time jury reserved – relevance of trial judge's assessment of verdict CRIME – conviction appeal – leave to appeal – jury directions – apology in recorded telephone conversation between complainant and accused – whether conclusion apology was an admission reasonably open to jury – whether objection taken to direction at trial – whether leave required – whether leave should be granted – Criminal Appeal Rules, r 4 Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L Bail Act 2013 (NSW), ss 22, 61, 62 Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 Crimes (Administration of Sentences) Act 1999 (NSW), s 158 Criminal Appeal Act 1912 (NSW), ss 2, 5, 11, 18 Criminal Appeal Rules, rr 4, 20 Cases Cited: ARS v R [2011] NSWCCA 266 Black v The Queen (1993) 179 CLR 44; [1993] HCA 71 Cottrell v R [2012] NSWCCA 117 Drysdale v The Queen [2015] NSWCCA 135; 251 A Crim R 557 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Mansaray v R [2015] NSWCCA 40 McCann v R [2014] NSWCCA 79 R v Kirkman (1987) 44 SASR 591 R v Sloane [2001] NSWCCA 421; 126 A Crim R 188 Rolfe v The Queen [2007] NSWCCA 155; 173 A Crim R 168 Shamoun v R [2015] NSWCCA 246 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Zhang v R [2015] NSWCCA 82 Category: Principal judgment Parties: George Michael Palmer (Applicant) Regina (Respondent) Representation: Counsel: J Agius SC (Applicant) H Roberts (Respondent) Solicitors: Uther Webster & Evans (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2015/314482 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2018] NSWDC 50 Date of Decision: 13 February 2018 Before: Hatzistergos DCJ File Number(s): 2015/314482 Judgment 1. BASTEN JA: On 11 October 2017 the applicant, George Michael Palmer, was convicted on one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). On 13 February 2018 he was sentenced in the District Court to imprisonment for 3 years, comprising a non-parole period of 18 months and an additional term of 18 months. [1] The sentence was directed to commence on 13 February 2018; however, the sentencing judge granted him bail on that day pending determination of a proposed appeal. As a result, he has served no time in custody referable to the conviction. 2. Despite the condition that he prosecute the appeal expeditiously, a notice of application for leave to appeal was not filed until 21 June 2018. The grounds of appeal were as follows: "1. The verdict of the jury was unsafe and unsatisfactory and amounts to a miscarriage of justice in that it was inconsistent with the other verdicts of acquittal and, in particular, with the verdict of acquittal on count 3 and there is no logical and reasonable basis for the inconsistency. 2. The trial judge ought to have directed the jury that to the extent to which the appellant expressed an apology in the pretext phone call the apology cannot be used as an admission of guilt by the appellant in relation to any of the counts charged in the indictment." 1. Ground 1 requires an assessment of the manner in which the trial was conducted, and the evidence; it cannot be said to involve "a question of law alone". Ground 1 therefore requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). For reasons explained below, the ground was reasonably arguable and therefore an appropriate matter upon which to grant leave. (Mr Palmer will be identified as "the appellant" or, in relation to the trial proceedings, "the accused".) 2. It is logical to address ground 2 before ground 1. Before addressing either ground, it is necessary to provide an outline of the factual case presented at trial. Factual background 1. In addition to the charge giving rise to the conviction the accused was charged with two counts of indecent assault contrary to s 61L of the Crimes Act. The three incidents formed a series of events which occurred on the morning of Sunday, 20 September 2015. An evaluation of the evidence as to what occurred on that day must include consideration of the prior relationship between the complainant and the accused. (i) the prior relationship 1. Since 2010, when the complainant was some 22 years of age, she had rented a property in Blacktown of which the accused was the manager. The complainant occupied the two bedroom house with her two young children. In 2012 the accused moved into a house in the same block, having separated from his wife. On more than one occasion, the accused expressed a hope that he and the complainant could live together. On occasions he tried to kiss her or touch her. They continued to stay in touch after the accused moved to Mt Druitt. 2. In addition to managing the property in which she lived, the accused had arranged for the complainant to buy a small car owned by his first wife. The complainant agreed in cross-examination that she had given evidence that he controlled things in her life, namely: [2] "He was the independent property manager for my house so from my point of view he had a lot of control over whether I had a safe place to stay with my children and he also had control over my car, which was my means of getting to work. … It made me uncomfortable as well that he had a relationship with most of the other tenants so I felt like he was a person of influence in a lot of my friends lives as well." 1. In late 2014 the complainant commenced a relationship with a young man referred to by the accused as the "inconvenient boyfriend person". The complainant resisted attempts by the accused to arrange dinner when he knew that her boyfriend was away. 2. By September 2015, the complainant "was 27 years old and the accused was turning 62". [3] On 19 September 2015 the accused sent her a message suggesting she have lunch with him the following day. She replied that she was having lunch with a friend and suggested meeting earlier. They arranged to meet for breakfast on the following morning, a Sunday. (ii) conduct subject of count 1 1. On the Sunday morning, the accused collected the complainant from her home and took her to a café for breakfast. Thereafter he took her to see a property in Janice Street, Seven Hills which he was renovating. He described it to her as "our house". In the course of walking around the house the accused said, "Do you want the girls to share a room or have a room each?" to which the complainant replied, "They have bunk beds". 2. The complainant gave evidence that they entered a back room with a single plastic chair on which Mr Palmer sat. She said that he pulled her onto his lap and, when she stood up, he touched her thighs and bottom and moved his hand up underneath her shirt on her back. He then said, "No bra", to which she replied, "I don't need one." Her evidence continued: [4] "After he touched my back he moved his hands from my back around to the front of my body to my chest … he touched my breasts. … touched both of my breasts and my nipples." 1. Her evidence continued: [5] "A. I said, 'Stop, I can't do this, I'm with someone else'. … So as soon as George had touched my chest I was trying to walk away from him and walk back towards the front door. Q. How were you attempting to do that? A. Well when I said, 'Stop, I can't do this, I'm with someone else' I started turning and walked towards the door." 1. It was that incident which constituted the first charge of indecent assault. The cross-examination with respect to count 1 established that the complainant was standing close to the accused when he pulled her onto his lap and she agreed that she sat down without resistance and without conveying any degree of hesitation towards the accused. [6] She agreed further that when he was rubbing her back and commenting on the fact that she had no bra she did not tell him to stop. [7] 2. The basis for the acquittal on count 1 was tolerably clear. In short, there was an absence of evidence of non-consent prior to the incident. 3. While the acquittal on that count was not relied upon by the appellant as carrying any particular implication with respect to the conviction on count 2, the evidence had incidental significance in relation to a later telephone call, described as a "pretext call", recorded by police and referred to below. (iii) conduct subject of count 2 1. The complainant's evidence in chief in relation to count 2 was as follows. She said that she had taken a few footsteps away from him after he had fondled her breasts, when he came and stood in front of her. [8] He put his hands on her arms firmly, but not roughly. Her evidence continued: [9] "A. He was still trying to be affectionate towards me and I was saying, 'Stop go away'. … He said, 'If you want me to stop, say "stop it go away".' … I said, 'Stop it go away'. … Then I tried again to walk away, to walk around him and towards the front door. … I had turned away from him when I said 'Stop it go away', and tried to walk around him, so at the point where I stepped back from him and broke contact he was not touching me then. … I kept trying to walk towards the front door. Q. Did he respond at all to you saying, 'Stop it go away'? A. He did, he said that didn't sound very convincing. … A. I recall definitely that after I said, 'Stop it, go away', I went to move away and then he came up behind me and I felt pressure around my throat and he said that didn't sound very convincing. … [He said that] just once. … A. So when – when he put his arm around my throat like that he had kind of bent me over his stomach. I think first he had – he had touched my breasts again outside of my shirt and then his hand moved down and he touched my vagina outside of my pants and then he moved his hand in between my pants and my underpants and did it again, he was touching my vagina through my underpants and then he removed his hand from between my underpants and my pants and then put it back in, under my underpants so that he was directly touching me. … First he spread the outside lips of my vagina and then he used his middle finger to spread the inner lips, labia minora, and then he was rubbing my clitoris with one of his fingers. Q. What were you doing at that time? A. At first I was just kind of shocked and just stood there with my arms out and didn't know what to do and then I remember[ed] that I was still holding my things from when I got out of the car and I knew that he didn't like it when I smoked so I took out a cigarette and put it in my mouth and started looking for my lighter. … He let go at some point when he realised that I was putting a cigarette into my mouth. Q. Do you recall how long it was that he had his finger inside your vagina? A. I would say about 10 or 15 seconds." 1. The complainant also gave evidence as to the aftermath of that incident. [10] "Q. I will now jump forward again to the time when you're on the steps outside the front after the accused had touched your clitoris inside and your vagina so you have indicated that you're on the steps and you were smoking a cigarette? A. Yeah. Q. And the accused came out? A. Yes. Q. What happened after he came out? A. After he came out he said 'if it's all too much' – first he said 'I didn't mean to scare you off' or words to that effect and after he said that he said 'If it's all too much just tell me it's all too much' and I said 'It's all too much'. Q. Do you recall how you said that 'It's all too much'? A. I had already started crying then." 1. The cross-examination directed specifically to the events forming the basis of count 2 was limited and to the following effect: [11] "Q. I suggest to you ma'am that at the point at which the both of you got up and moved elsewhere in the house towards the front door that at no point did Mr Palmer touch you on the vagina? Do you agree or disagree? A. I disagree. Q. That the closest he got to touching you in that region was to touch you around the top of your underwear and your waistline? A. I disagree. Q. I suggest to you ma'am that at no point did Mr Palmer put his arm [around] your throat? A. I disagree. Q. I suggest to you ma'am that at no point did Mr Palmer use any kind of physical force whatsoever to restrain you? A. I disagree." 1. There was no challenge to her evidence that she had told Mr Palmer to stop when he touched her breasts. There was no challenge to the evidence that she extracted herself from that situation and walked away. Further, the limited challenge with respect to the events constituting count 2 was to suggest that the defence accepted that Mr Palmer touched her again around the waistline. 2. There was a challenge to the consistency of the complainant's accounts of how long the accused's fingers had been on her vagina and clitoris in relation to count 2. The cross-examination turned on a passage in each of her police statements. In the first statement, after describing how the accused had put his hand inside her underpants, she said "George put his fingers on my vagina and rubbed my clitoris. This lasted only a few seconds." The cross-examiner obtained her agreement that a few seconds meant "three or four seconds". [12] He then took her to her second statement where she described in some detail that she could feel his middle finger on her clitoris moving in a slow circular motion which "lasted between 10 and 15 seconds." She sought to explain the discrepancy by saying, "In my first statement I was giving an estimate of how long Mr Palmer was specifically touching my clitoris and in my second statement it was the length of time that he had his hand on and around my vagina." [13] 3. The explanation may not have been entirely convincing, but the discrepancy may well have been treated by the jury as minor, as the prosecutor suggested in her final address. (iv) conduct subject of count 3 1. Both the accused and the complainant then got into the accused's car so that he could drive her home. The evidence as to his conduct in the car became the subject of the second indecent assault charge, being count 3. The complainant gave evidence that there was general conversation in the car but she did not recall the specifics. She continued: [14] "A. I might have been nodding my head, but I was physically turned away from him in the car and I had my legs crossed. … A. It was around the time that we turned into Newton Road that he started getting more physical more amorous again, started touching me again. … Q. How long had it taken for you to get there from the Janice Street address? A. Approximately five to ten minutes. Q. You mention that he started to become more amorous again, can you explain what happened at that point? A. He began by touching my thigh again. Q. Do you recall which thigh? A. It was my right thigh, I had my right leg crossed over my left leg." 1. She said that she was wearing tights and he touched her above the tights and then "started moving his hand towards my vagina again." He started "rubbing one finger on the outside of my vagina." She continued: "A. It was a firm slow circular motion, the same as it had been before. Q. What happened next? A. I was still turning away, he was saying, 'You're such a naughty girl'. I was jerking away every now and again and saying, 'Stop'. He said, 'You need to say it with more authority than that'. Q. What was his tone when he said that? A. It was a general conversational kind of tone but a bit dismissive. … Q. How did you respond? A. 'Stop it'. … Q. What happened when you said, 'Stop it'? A. He said, 'That's more like it' and then he kept touching me. Q. And when you say he kept touching you, where did he keep touching you? A. The vagina." 1. With respect to count 3, the cross-examination was as follows: [15] Q. I suggest to you ma'am that in terms of the car ride home Mr Palmer never touched you on the vagina? A. I disagree. Q. That the only physical contact that occurred in the car was that he placed his left hand on your leg, your right leg momentarily? A. I disagree. Q. Do you agree that he placed his hand on your leg? A. Yes. Q. You disagree that that was the only physical contact in the car? A. Yes. … Q. And that when in the car he placed his hand on your leg that was also in circumstances where you consented? A. Disagree." (v) cross-examination – general 1. In the course of cross-examination, counsel for the accused established that there had been incidents of physical contact between them prior to 20 September 2015. [16] That evidence may have been considered important by the jury in acquitting the accused on the first count, as the first express indication of non-consent came at the end of the conduct comprising count 1. 2. The evidence of the telephone call was admitted and played without objection. In the course of cross-examining the complainant, counsel relied on the accused's remarks in the course of the conversation with respect to the car and the giving of notice as not demonstrating "any intention to exercise inappropriate control". The complainant agreed. [17] He suggested it showed a caring relationship, inconsistent with any element of physical violence. (vi) defence case 1. The defence case was limited to evidence by an associate of the accused, Mounzer Trad, who spoke of affectionate conduct between the complainant and the accused, including one occasion when she had been sitting in the accused's lap while the witness was describing what he had bought for his partner for Christmas. The complainant had said, "You can buy me all of that, George. I'll pay you back with my furry chequebook." [18] In cross-examination the complainant accepted the possibility that she had used such words and further agreed that there were other conversations involving sexual innuendo between her and the accused. [19] It was suggested to her that she was "selective" in how she had described her relationship with the accused to the police. 2. The complainant was also cross-examined in relation to a message she had sent on Facebook in the course of an exchange with a female friend to whom she had earlier described the events of 20 September 2015, on that afternoon and evening. She agreed that she had written, "George doesn't know that anything is wrong other than he upset me". The cross-examiner continued: [20] "Q. And when you wrote that message you were referring to the events that occurred inside the house at Janice Street? A. I was referring to George not knowing that I had spoken to police and made a report. Q. The words you used 'George doesn't know that anything is wrong' I suggest to you ma'am that the 'anything is wrong'" is a reference to what occurred at Janice Street inside the house, do you agree or disagree? A. I disagree." The complainant had been to the police station between 3.30pm and 5.30pm that afternoon, before the exchange which was the subject of cross-examination. Ground 2: challenge to directions – recorded telephone call 1. On 8 October 2015 a telephone conversation between the accused and the complainant (the "pretext call") was recorded by police. It was played to the jury in the course of the complainant's evidence in chief. The conversation commenced with the following exchange: "PALMER: You've been avoiding me … hating me. COMPLAINANT: Maybe. PALMER: Oh I hope not. COMPLAINANT: Umm I wanted to talk to you about the car." Following a discussion about putting the car in her name and a health concern raised by him, the conversation turned to her wanting to give notice to terminate the lease. The conversation continued: "PALMER: … Um where are you going to? COMPLAINANT: Not far … I just don't really feel safe there anymore. PALMER: Why? Not because of me? COMPLAINANT: Well it is to do with you you're supposed to be somebody that I can trust. PALMER: Well I'm sorry darling I feel terrible tell me to bugger off and I will …. COMPLAINANT: But I did. PALMER: … I'd like to stay your friend …. Well you didn't really. COMPLAINANT: I DID … I mean even if you were not clear on stop go away … I would have thought that my continued steps towards to the door would have been a bit of a signal. PALMER: No nah …(audio unable to translate) I apologise unreservedly … um … it won't happen again … ah but anyway if you've already moved you've already moved. … PALMER: Really I mean I'm horrified that I am the cause of that … Ah shit … all right there's not much more I can say I'll get out of your face I suppose … anyway. … PALMER: I'll keep right out of your way if that's what you prefer. I'm devastated … I'm devastated but anyway … COMPLAINANT: Well I was pretty devastated too because you always said that if I said no you would stop. PALMER: Well COMPLAINANT: Didn't you, just tell me to go away and I'll go away and then I did and you didn't go away. PALMER: I'm not going to argue about how it went down because there's no point …. Well I've got the message loud and clear now …." 1. There was consideration in the course of the trial as to the appropriate direction to be given to the jury in relation to this telephone conversation. On 3 October 2017, after the completion of the evidence, but before either counsel had addressed the jury, counsel agreed on a largely anodyne direction referring briefly to the submissions of both parties. The following morning, before the trial judge had reached the issue in his summing up, counsel for the accused sought a variation of the direction which was accepted by the trial judge and formed the first two sentences of the direction. After identifying the topic as being what the jury were to make of the telephone call, the judge continued: [21] "You cannot use apologies of the Accused as evidence supporting the Crown case unless you are satisfied that those apologies relate to the specific acts alleged by the Crown and charged on the indictment. If you are not so satisfied, you should not speculate as to what the Accused might have been apologising for. The Crown has submitted to you that the call is consistent with the Complainant's allegations, including the Accused's apology. The Defence has submitted that the apologies do not relate to the alleged acts and are not evidence of his guilt. It is a matter for you what you make of that evidence and what weight you attach to it in your deliberations. The parties have both addressed you extensively in relation to it." 1. No further direction was sought by counsel for the accused. As the direction included, verbatim, the formulation proposed by the accused, it is unsurprising that there was no objection taken to it and no redirection sought. It would appear that leave of the Court is required to pursue the ground of appeal, pursuant to the Criminal Appeal Rules, r 4. 2. The appellant contended that r 4 was not engaged because an issue had been raised by counsel for the accused with respect to the appropriate direction. [22] Further, it was submitted, the agreed direction had been prepared before the prosecutor addressed the jury. That address was said to be "inappropriate and problematic" because it included the following words: [23] "You might wonder why he would apologise at all if the events had been consensual. He also says, 'I was very worried later apart from me being very sick and I still left you alone.' Now, members of the jury none of the accused's responses are consistent with someone who was part of a consensual touching. Why would he immediately assume he was the reason that [the complainant] felt unsafe if the events had been consensual[?]" 1. Objection was taken to the expressions, "You might wonder why …", and "why would he …", as they invited speculation. In one sense that is so, although the language, "you might think that he would not apologise if the events had been consensual" would not have been objectionable. In any event, the issue was raised by counsel for the accused immediately the prosecutor had completed her address. Counsel said: [24] "I'm just concerned about the risk of speculation because the next thing that my friend said was following on from that ... was that it was evidence that things transpired exactly as [the complainant] told you. … And the accused could be apologising for anything." 1. That was the exchange relied on as raising the issue of a varied direction and thus taking ground 2 outside the requirements of r 4. However, that exchange ended with the judge suggesting that the matter could be considered further after counsel for the accused had addressed. The judge foreshadowed reminding the jury that "they shouldn't speculate", as opposed to drawing "legitimate inferences". [25] Counsel accepted that course and proceeded with his address, which he completed that afternoon. That evening he formulated the additional direction; the direction, given by the trial judge the following day, namely 4 October, incorporated the additional words formulated by counsel on the previous evening. 2. In short, the problem (to the extent that it was a problem) had been expressly identified and canvassed by counsel for the accused; a fresh direction had been formulated by him, and accepted by the judge. The direction addressed the danger of "speculation". No objection being taken to the direction, leave is required to challenge it as inadequate. 3. The substance of the challenge sought to be raised by ground 2 was encapsulated in the following propositions: [26] "This direction did not deal with the fundamental problem of the impossibility of identifying which, if any, of the charged acts the appellant was apologising for. This could only have been a matter of speculation and the jury should have been directed that they could not conclude that the apologies could not be taken as an admission of guilt by the appellant." [27] 1. There are three difficulties with this submission. First, in so far as it is premised on the proposition that the complainant did not identify a specific act as charged, the complaint is only partly correct. The following exchange could well be taken as referring to the conduct constituted by count 2, namely: "PALMER: Well I'm sorry darling I feel terrible tell me to bugger off and I will …. COMPLAINANT: But I did. PALMER: … Well you didn't really. COMPLAINANT: I DID … I mean even if you were not clear on stop go away … I would have thought that my continued steps towards the door would have been a bit of a signal. PALMER: No nah …(audio unable to translate) I apologise unreservedly … it won't happen again." This description is consistent with the complainant's evidence following the touching of her breasts, her saying "Stop it go away", and then "trying to walk towards the front door." [28] It is true that the conduct which followed was not raised in the telephone conversation, but it was open to the jury to accept that the apology related to what followed. 1. Secondly, the ground of appeal accepts that the evidence was admissible as part of the prosecution case, although not as an admission of guilt. Post-offending conduct of the accused may be admissible where it does not constitute a clear admission as to specific conduct, or even as to an element of a particular offence. 2. Counsel for the Director sought in this Court to support the relevance of the material, despite its generality, on the basis that it was properly before the jury and could be relied upon to support the complainant's evidence, on the basis of the reasoning in Rolfe v The Queen. [29] However, at least on one view, the issue in Rolfe was not the uncertainty as to whether the statements could be taken as admissions at all, but as to whether they could be related to the charged events, in circumstances where there were numerous instances of both charged and uncharged sexual misconduct with a child. It was clearly open to a jury to accept that the evidence as to conversations and letters constituted admissions of sexual conduct with the complainant. Thus in a key passage relied upon by the Director, Giles JA stated: "[67] Where the evidence is by way of admission by the accused of sexual activities with the complainant, and is not attributed to particular occasions being occasions other than those of the charged sexual conduct, in my view an additional relevance can arise. Such an admission that the accused engaged in sexual conduct with the complainant, whilst non-specific as to the charged sexual conduct and not of itself sufficient to prove that conduct, is relevant not on the bases of context and background and of 'guilty passion' earlier mentioned, but because when taken with other evidence the jury could regard it as relating to or at least encompassing the charged sexual conduct and supporting that the charged sexual conduct occurred. If accepted, it could rationally affect the assessment of the probability of the conduct charged against the accused (see Evidence Act, s 55). It will, of course, require an assessment of the admission, understood in its own context; for example, marked generality may mean that the admission can not properly be taken to encompass the charged conduct." 1. A similar approach was adopted in ARS v R. [30] The offender in that case had been charged with one count of persistent sexual abuse of a child and, in the alternative, thirteen counts of various sexual offences against a child. A tape recorded conversation between the complainant and the accused appears to have involved clear admissions that his conduct was criminal and involved child abuse. [31] The jury was directed in the following terms: [32] "If you find that the recording amounts to a general admission by the accused of sexual conduct towards the complainant, whilst that may not refer to any particular episode, that evidence of admission could properly support the occurrence of the conduct charged and described in the indictment." 1. It was open to the jury to accept in the present case that the accused was acknowledging by his apology that in proceeding after the complainant had said "Stop it, go away" he had been acting without consent. It was also open to the jury to conclude that the subject of the discussion at that point was the events of 20 September 2015 at Janice Street. These events took place within a short period. Accordingly, the admissions were not "general" as in Rolfe and ARS, where the lack of specificity was relevant because of the multiple offences over a significant period of time in each case. 2. However, the uncertainty relied upon on by the appellant was that, unless properly instructed that they must find there was an "admission", the jury could not rely upon the critical parts of the conversation because of the uncertainty as to what was being admitted. While there may have been acknowledgment that the complainant had said words to the effect of "Stop it, go away" the real issue in dispute, so it was submitted, was whether the appellant in fact did the acts alleged. The challenge raised by the cross-examination of the complainant was to the conduct in question, not in relation to the accused's knowledge of her lack of consent. 3. There is a degree of artificiality in this submission. It was open to the jury to infer that, had the words "Stop it go away" not been followed by unwanted conduct, there would have been no reason for the complainant to say she could not trust him anymore and no reason for him to have apologised unreservedly. In the face of the challenge, he did not say, for example, "Stop what? I did nothing". The response in fact given could be relied upon by the jury as an acknowledgment of the conduct alleged by the complainant. 4. The third reason why ground 2 should not be upheld relates to the terms of the direction sought, namely that "to the extent to which the appellant expressed an apology in the pretext phone call, the apology cannot be used as an admission of guilt by the appellant in relation to any of the counts charged in the indictment." On the one hand, this language is confusing. No doubt the proper use of the "apology" will depend upon what the jury might have thought the appellant was apologising for. As explained above, it was open to the jury to find the apology was relevant to at least count 2 in the indictment and therefore could be used in relation to that count. If it were true that the apology was not relevant in relation to any of the counts, then it was inadmissible. However, there was no challenge to its admission (without objection), and it was open to the jury to find that it had relevance. 5. Further, the proposed direction explicitly identified the apology as constituting a possible "admission of guilt". The direction proposed by counsel for the accused at trial (and adopted by the trial judge) eschewed such language. It is at least understandable why counsel would have taken that course. It might be heard as permitting the jury to accord the apology greater force than the accused would have wished to concede. That further illustrates the inappropriateness, in circumstances where r 4 is engaged, of inviting this Court to second guess the judgment of trial counsel as to what direction should be given. 6. Leave to rely upon this ground, pursuant to r 4, should be refused. Ground 1: unreasonable verdict (i) inconsistency – counts 2 and 3 1. The proposition that the conviction on count 2 was unreasonable depended upon an alleged inconsistency between that verdict and the verdict of not guilty with respect to count 3. Although at one point in the appellant's submissions it was said that the guilty verdict on count 2 was inconsistent with the not guilty verdicts on both the other counts, that was not pursued. Rather, for reasons already given, it was clear that the jury would have been unlikely to convict on count 1 on the basis of an indication by the complainant that she did not consent to the touching of her breasts; it followed that the prosecution case depended upon the appellant realising that there was a possibility that the complainant was not consenting but went ahead anyway, or that he did not even think about whether she was consenting or not. 2. Count 2 fell within a different framework. Once it was accepted that a clear indication of lack of consent had been provided by the complainant's response, both verbal and in terms of moving away, to the touching of her breasts and nipples, it was well open to the jury to find that the accused knew she was not consenting to the more intrusive conduct which followed. 3. The appellant's contention on the appeal was that if the touching of the vagina, being conduct which was the subject of both counts 2 and 3, was known by him to be non-consensual, if the acts occurred, he must have been guilty of both counts. The only evidence that such conduct occurred was that of the complainant. However, as the evidence of the complainant in relation to count 3 (the conduct in the car) was not accepted, it was inconsistent to accept her evidence in relation to count 2, absent some reasonable basis for distinguishing the two allegations; none could be perceived. 4. A strong version of this submission treated the acquittal on count 3 as a rejection of the complainant's credibility, a rejection which must logically have included her evidence concerning count 2. 5. These submissions lacked substance on a number of bases. At the most general level, a suggestion that a witness must be credible in relation to all aspects of her evidence, or none, defies common sense. First, it elides questions of unreliability and untruthfulness. Once those elements are separated, it will generally be accepted that even witnesses who lie do not lie about everything, and witnesses who are unreliable in one respect may be perfectly reliable in another. Indeed, much of the complainant's account of the events of 20 September was unchallenged. 6. Secondly, the question whether the verdict was unreasonableness depends, in this case, not on whether on the evidence the jury was entitled to convict (a test clearly satisfied), but on whether conviction on one count and acquittal on another defies a rational explanation. Even that test should be applied with caution: where the evidence is overwhelming with respect to both counts, which are closely related, the refusal to convict on more than one may indicate that the jury believes there has been overcharging, and has therefore been generous to the accused. [33] Rather, the principle relied on in the present case derives from one of two different propositions. One proposition is that if the jury were not persuaded of guilt on one charge, then it must have misapprehended the evidence or the law in order to convict on the other. The second proposition is that the jury could not agree on either charge, but compromised by agreeing to convict of one, but acquit of the other. Neither of these propositions (which may both be in play in the present case) should be accepted where there is a rational basis upon which the jury could have distinguished between the counts. It must always be remembered that the jury is conventionally directed to consider each count on an indictment separately, having regard to the evidence relevant to that count and only convict on any count if satisfied beyond reasonable doubt as to each of its elements. [34] (ii) available explanations for different verdicts 1. There were several reasons why the jury may have convicted on count 2 but not on count 3. First, there were the physical features of the conduct. The position of the accused and the complainant, and the manner in which the accused held the complainant readily permitted the conduct described in count 2, namely putting his hand inside the complainant's tights and underwear from behind. The circumstances relevant to count 3 were significantly different. The accused was driving a car at the time he was alleged to have assaulted the complainant. There was no doubt that he could (as it was conceded he did) place his left hand on the complainant's right thigh, she being in the passenger seat beside him. However, to place his hand on her vagina, she being seated with her legs crossed and facing away from him, and to move his hand in a circular motion, was not so readily achievable. Further, it would have been open to the jury to consider that his ability to overcome any resistance whilst driving the car was limited. Those circumstances alone could have raised a reasonable doubt with respect to count 3. 2. Secondly, the Facebook exchanges with her female friend on the afternoon of the incidents gave explicit descriptions of the conduct the subject of count 2 but said little about the conduct in the car. The sole reference to the conduct alleged as count 3 was in the following passage: "He talked at me for ages before he unlocked the car and drove me home, still reaching over to feel me up." By way of contrast, in describing count 2 she had said: "He put his hand up my shirt again and groped me. Then he put his arm around my throat and put his hand down my pants. Over the underwear at first and then under the underwear." 1. Thirdly, there was the evidence of apology and implied acknowledgment of misconduct in the recorded telephone conversation. As already noted, that apology could reasonably be considered referable to the conduct comprised in count 2, but had no obvious reference to the conduct the subject of count 3. (iii) reliance on length of time of jury consideration 1. In support of the contention that the verdicts were inconsistent, the appellant relied upon two additional factors, namely, (a) the disproportion between the time taken for the trial and the time the jury was reserved and (b) the willingness of the trial judge to grant bail pending an appeal. 2. With respect to the first additional factor, reliance was placed upon observations by this Court in Drysdale v The Queen. [35] Without any separate justification for that approach, Drysdale cited two passages in McCann v R [36] as supporting reliance on the temporal disparity. In McCann, inferences about the jury's process of deliberation were drawn based upon notes as to their progress provided to the trial judge. In particular, after the jury had deliberated for two days, the judge received a note stating that they were unable to reach a unanimous decision and that they did not believe that would be possible even if given more time. The judge then gave a direction in accordance with Black v The Queen, [37] following which the jury continued deliberating. That afternoon the judge was advised that there was a possibility they could reach a unanimous verdict, a view communicated again the following afternoon. The following day, after three full days of deliberation and two part days, the verdict of not guilty on two counts, but guilty on one count was returned. The appellate court was able to infer that this history "strongly suggests a compromise of the performance of the jury's duty". [38] (Although there was reference in McCann to MacKenzie v The Queen, [39] it was the test of "compromise", rather than the process of reasoning adopted in McCann itself, which is supported by MacKenzie.) (iv) reliance on grant of appeal bail 1. With respect to the second additional factor, reliance was placed upon a further passage in McCann referring to the reaction of the judge and counsel, as "those best placed to assess the quality of the verdict", when the verdict was delivered. The judge's concerns were said to be reflected in the judgment on sentence and the grant of bail pending appeal. [40] The "reaction" of the prosecutor was inferred from the absence of opposition to bail between the verdict and sentence. [41] (There was no indication in the judgment as to whether bail was opposed following sentence.) No authority was cited for the proposition that the views of the prosecutor and the trial judge, so far as they could be inferred from post-verdict statements, were appropriate matters to be taken into account in determining whether the verdict was unreasonable or not supported by the evidence. Significantly, the Director opposed the conviction appeal in that case and the trial judge had no power to set aside a conviction on the basis that it was unreasonable or not supported by the evidence (a point the trial judge himself acknowledged). 2. It is true that in the present case the trial judge granted bail following sentence and pending the hearing of the appeal. However, it would seem anomalous for the strength or weakness of an appeal against conviction to depend upon such circumstances. There are procedures and principles at stake, departure from which requires justification. 3. Section 11 of the Criminal Appeal Act provides (and for some reason r 20 of the Criminal Appeal Rules repeats) that a trial judge may furnish to the Registrar a copy of his or her notes of the trial and also a "report, giving the judge's opinion upon the case, or upon any point arising in the case". The scope of this provision was explained in R v Sloane: [42] "[10] An important function of a Report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded. [11] Another permissible and relevant function of such a Report is its use, by a trial Judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record. [12] A third permissible reason for such a Report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it. [13] Otherwise, in times where there is in existence an adequate system for Court reporting, occasion for the provision of a s 11 Report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance." 1. That approach was adopted by Crennan J (with the agreement of Heydon J), albeit in dissent as to the outcome of the appeal, in SKA v The Queen. [43] However, the majority in SKA (French CJ, Gummow and Kiefel JJ) expressly agreed with Crennan J that the Court of Criminal Appeal was not obliged "to have regard to the trial judge's opinion that a jury acting reasonably could not have been satisfied beyond reasonable doubt". [44] Unsurprisingly, this approach has been adopted in this Court: see Cottrell v R; [45] Mansaray v R; [46] Shamoun v R. [47] 2. In SKA Crennan J noted that, in this Court, Simpson J had observed that "the trial judge's remarks reflected his view of the complainant's veracity, which differed from the view taken by the jury." Crennan J further observed that Simpson J "also rightly deprecated the trial judge's expression of the view that the jury verdicts were unsafe, for the reason that this raised false hope and complicated the task of the Court of Criminal Appeal in relation to resentencing." [48] 3. There was, in any event, no such report in the present case; had such a report been provided, there would have been a lively question as to what use this Court could make of it. In the present circumstances, it is not appropriate to infer, either from the grant of bail pending appeal or from the period during which the jury deliberated, that the conviction was unreasonable, because of inconsistency with an acquittal on another count. That is a matter which can readily be determined by this Court on the material before it. There was no submission that such an assessment would turn on the manner in which the complainant gave her evidence, or other matters not readily discernible from the record and the transcript. (v) conclusion – ground 1 1. For the reasons set out above, there is a satisfactory basis on which to conclude that the jury could rationally distinguish counts 2 and 3. Accordingly, it would not be proper to conclude that the jury could not rationally acquit of count 3, but convict of count 2. It follows that ground 1 should be dismissed. Conclusions 1. Ground 1 did not give rise to a question of law alone and therefore required leave pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). The ground was reasonably arguable and therefore an appropriate matter upon which to grant leave. Nevertheless, the appeal on this ground must be dismissed. 2. Regarding ground 2, this was a case in which rule 4 was engaged, but it was not a case in which there should be a grant of leave. 3. As noted at the outset, the appellant was sentenced on 13 February 2018, but was immediately granted bail pending the outcome of his appeal. It follows from the dismissal of his appeal that he must now serve the sentence imposed on him by the District Court. 4. However, somewhat anomalously, given the grant of bail, the orders in the District Court imposed a sentence "to date from today's date, expiring on 12 February 2021"; further, the non-parole period was said to "commence from today, expiring on 12 August 2019." The earliest release date was specified as 12 August 2019. The dates should be varied. 5. The records in this Court show that a notice of intention to appeal was filed on 2 November 2017. (Curiously, the notice identified an intention to appeal against "sentence only", although he had not then been sentenced.) The notice of appeal (which required leave for the reasons explained above) was not filed until 21 June 2018. 6. Following the completion of the sentencing proceeding there was no proceeding pending in the District Court; accordingly the judge had no power to grant bail pursuant to s 61 of the Bail Act 2013 (NSW). However, pursuant to s 62, the Court may hear a bail application if the Court has convicted the person where "proceedings on an appeal against sentence or conviction are pending in another court", but the person has not yet made a first appearance before that court. There was no appeal on foot at the time of the bail order made on 13 February, but it appears to have been assumed that the notice filed in the registry of this Court following the jury verdict satisfied s 62. The bail judgment is not before this Court, but the appellant's submissions stated that the judge found "special or exceptional circumstances", pursuant to s 22 of the Bail Act. However, s 22 constrained a power which must be found elsewhere; it did not confer power. There was, however, no question raised before this Court as to the validity of the grant of bail. 7. It follows that, pursuant to s 18(2) of the Criminal Appeal Act, "[t]he time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant's sentence." The term "appellant" is defined to include a person who has been convicted "and desires to appeal under this Act": s 2(1). It includes a person who has indicated, by filing a notice, an intention to appeal. The appellant was convicted at the time of sentencing. 8. It follows that the appellant must be resentenced to allow for the change in the commencement dates of his sentence. Orders 1. The Court should make the following orders: 1. With respect to ground 2, refuse the appellant leave to appeal pursuant to the Criminal Appeal Rules, r 4. 2. With respect to ground 1, grant the appellant leave to appeal. 3. Dismiss the appeal. 4. Vary the sentence imposed in the District Court so that it provides: 1. With respect to count 2 on the indictment, sentence the offender to a term of imprisonment for 3 years, comprising a non-parole period of 18 months to commence from the date of these orders or such later date on which the appellant is first taken into custody, together with a balance of term of 18 months. 2. Note that, either pursuant to the direction given by the trial judge pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), the offender is entitled to be released at the expiration of the non-parole period to serve the remainder of his sentence on parole. 3. Note further that the earliest release date pursuant to this sentence is 20 March 2020 or the date 18 months from the date the offender is taken into custody, if that be not the date of the orders. 1. McCALLUM J: I agree with Basten JA. 2. BELLEW J: I agree with Basten JA. ********** Endnotes 1. R v Palmer [2018] NSWDC 50. 2. Tcpt, 28/09/17, p 119. 3. Prosecution opening, Tcpt 26/09/17, p 1(42). 4. Tcpt, 27/09/17, pp 52-53. 5. Tcpt, p 54. 6. Tcpt, 28/09/17, p 161. 7. Tcpt, p 162. 8. Tcpt, 27/09/17, p 54(50). 9. Tcpt, p 55-59. 10. Tcpt, p 64. 11. Tcpt, 28/09/17, p 163. 12. Tcpt, p158. 13. Tcpt, p 158(37). 14. Tcpt, 27/09/17, p 66(50). 15. Tcpt, 28/09/17, pp 163-164. 16. Tcpt, 27/09/17, p 107. 17. Tcpt, 28/09/17, pp 124-130. 18. Tcpt, 29/09/17, pp 241-242. 19. Tcpt, 28/09/17, pp 134(10)-(20), 135(20). 20. Tcpt, pp 164-165 21. Summing up, 04/10/17, p 71. 22. Tcpt, 03/10/17, pp 271-272. 23. Tcpt, p 261(45). 24. Tcpt, p 271. 25. Tcpt, p 272(45). 26. Appellant's written submissions, 21 June 2018, par 79. 27. The second "not" was an error and has been disregarded. 28. Tcpt, p 56(30). 29. [2007] NSWCCA 155; 173 A Crim R 168 (Giles JA, James and Harrison JJ agreeing). 30. [2011] NSWCCA 266 (Bathurst CJ, James and Johnson JJ agreeing). 31. ARS at [39]. 32. ARS at [82]. 33. MacKenzie v The Queen (1996) 190 CLR 348 at 367 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35; R v Kirkman (1987) 44 SASR 591 at 593 (King CJ, Olsson and O'Loughlin JJ agreeing). 34. MacKenzie at 369. 35. [2015] NSWCCA 135; 251 A Crim R 557 at [63] (Davies J; Ward JA and Simpson J agreeing). 36. [2014] NSWCCA 79 (Leeming JA, Fullerton and R A Hulme JJ). 37. (1993) 179 CLR 44; [1993] HCA 71. 38. McCann at [24]. 39. 190 CLR at 368. 40. McCann at [25]. 41. McCann at [5]. 42. [2001] NSWCCA 421; 126 A Crim R 188 (Wood CJ at CL; Studdert and Bell JJ agreeing), applied by this Court in Zhang v R [2015] NSWCCA 82 at [37] (Hoeben CJ at CL, Fullerton and Davies JJ agreeing). 43. (2011) 243 CLR 400; [2011] HCA 13 at [112]. 44. SKA at [26]. 45. [2012] NSWCCA 117 at [70] (Hislop J, McClellan CJ at CL and Blanch J agreeing). 46. [2015] NSWCCA 40 at [62], [66] (Hoeben CJ at CL, Harrison and R A Hulme JJ agreeing). 47. [2015] NSWCCA 246 at [68] (Hoeben CJ at CL); cf McCallum J at [246]. 48. SKA at [114]. 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: 21 September 2018