Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wheeler v R [2019] NSWCCA 255 Hearing dates: 7 August 2019 Date of orders: 25 October 2019 Decision date: 25 October 2019 Before: Bathurst CJ at [1] Garling J at [9] Wright J at [108] Decision: (1) Grant leave to extend the time within which to bring this application for leave to appeal to 20 March 2019; (2) Leave to appeal be granted; (3) Appeal allowed; (4) Convictions of the applicant on Counts 2, 3, 7 and 8 on the Indictment dated 25 November 2014 be quashed, and in lieu thereof order that acquittals be entered on those counts. Catchwords: CRIME – Appeals – appeal against conviction – where applicant convicted of four counts of indecent and sexual assault with a person under 16 years – where applicant is acquitted of four counts of assault and indecency – whether the verdicts were unreasonable – whether the whether the differential verdicts are irreconcilable – whether there was inconsistency in the jury's verdict – where the complainant's evidence at trial was uncorroborated – credibility of the witness Legislation Cited: Crimes Act 1900 Cases Cited: AH v R [2019] NSWCCA 152 Bell v Regina [2017] NSWCCA 207 MC v R [2017] NSWCCA 274 McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 M v The Queen (1994) 181 CLR 487; [1994] HCA 63; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v TK [2009] NSWCCA 151; (2009) 74 NSWLR 299 SKA v R (2011) 243 CLR 400; [2011] HCA 13 Texts Cited: Nil Category: Principal judgment Parties: Eric Wheeler (Applicant) The Crown Representation: Counsel: S Hall (Applicant) J Roy (Crown) Solicitors: K Pearce (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/123264 Publication restriction: Publication of the name and any other matters which may tend to identify the complainant is prohibited Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 4 December 2014 Before: North DCJ File Number(s): 2013/123264 Judgment 1. BATHURST CJ: I have had the advantage of reading the judgment of Garling J in draft. I agree with the orders proposed by his Honour and with his reasons. I only would add the following. 2. In considering the issue, regard must be had to the position of the jury as the constitutional trier of fact and the advantage they had in seeing and hearing the complainant give her evidence: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. This is particularly the case where the outcome depends to a significant extent on the credibility of the complainant. 3. Further as Garling J has pointed out at [24]-[25] below citing Gleeson CJ, Hayne and Callinan JJ in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34], "the jury will ordinarily be directed to give separate consideration to each count", and it was open to them to accept the complainant's evidence in whole or in part. A verdict of acquittal on one or more counts does not necessarily mean that the jury had doubts about the complainant's credibility, as distinct from not reaching the requisite degree of satisfaction that a particular count had been proved beyond reasonable doubt. 4. Notwithstanding, I do not think it was open to the jury in the present case to be satisfied beyond reasonable doubt that the applicant had committed the offences for which he was convicted. First, as Garling J has pointed out, the charges on which the applicant was convicted were entirely dependent on the assessment of the evidence of the complainant. It is difficult to see how the jury could have been satisfied in respect of the charges on which the applicant was convicted, whilst not being satisfied beyond reasonable doubt of the complainant's account of events in respect of the counts on which he was acquitted. 5. Second, the complainant's evidence concerning what was described as the "Marine Rescue Party" incidents to which Garling J has referred was implausible to say the least. It is hardly surprising that the jury acquitted the applicant on these counts. 6. Third, the complainant's statement in her third police interview which Garling J has set out at [71] below casts further doubt on her credibility. 7. If these matters were considered in isolation it may have been open to the jury to convict the applicant on the counts on which they found him guilty, however, taken cumulatively, the jury ought to have had a reasonable doubt as to whether the offences in respect of which convictions were entered occurred: M v The Queen (1994) 181 CLR 487 at 492-494; [1994] HCA 63; SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [11]-[14]. 8. In these circumstances, the orders proposed by Garling J should be made. 9. GARLING J: In late November and into early December 2014, Eric Wheeler, the applicant, stood trial for eight offences against a single complainant whom I will refer to using the pseudonym, "Bianca". On 2 December 2014, after a six-day trial, the jury convicted the applicant of four offences. These were: Count Offence Count 2 Committing an act of indecency on Bianca whilst she was under the age of 16 and under the authority of the applicant: s 61O(1) of the Crimes Act 1900 Count 3 Having sexual intercourse with Bianca whilst she was under the age of 16 in circumstances of aggravation namely that she was under the applicant's authority: s 66C(4) of the Crimes Act Count 7 Assaulting Bianca, whilst she was under the age of 16, and committing an act of indecency upon her: s 61M(2) of the Crimes Act Count 8 Having sexual intercourse with Bianca whilst she was under the age of 14 in circumstances of aggravation, namely that she was under the authority of the applicant: s 66(2) of the Crimes Act 1. At the same time, the jury returned not guilty verdicts on four other counts: Count Offence Count 5 Committing an act of indecency on Bianca whilst she was under the age of 16 and under the authority of the applicant: s 61O(1) of the Crimes Act 1900 Count 6, 9 and 10 Three offences of assault accompanied by the commission of an act of indecency upon Bianca who was under the age of 16: s 61M(2) of the Crimes Act 1. On 9 October 2015, the applicant was sentenced in respect of the four counts upon which he was found guilty. Individual sentences were imposed. The total effective head sentence, after allowing for accumulation, was 5 years and 3 months, with an effective non-parole period of 2 years and 9 months. The applicant was taken into custody on 9 October 2015. His non-parole period expired on 8 July 2018. He was released on parole at that time. The applicant's parole period expires on 8 January 2021. Accordingly, at the time the appeal was heard the applicant was in the community on parole. Extension of Time 1. The applicant filed a Notice of Application for Extension of Time on 20 March 2019. In support of this application, the applicant relied upon the affidavit of his solicitor, Kasey Pearce. The affidavit comprehensively recorded the background of the applicant's attempts to appeal his convictions and what had occurred since the guilty verdicts were returned. 2. The Crown accepted that there had been an adequate explanation for the delay in bringing the application before the Court. The Crown's only opposition to an extension of time rested on its submissions on the merits of the appeal. 3. Accordingly, it is convenient to defer the determination of whether an extension of time ought to be granted until after a consideration of the merits of the appeal. 4. The applicant's appeal was only against his conviction. There was no appeal against sentence. Ground of Appeal 1. The applicant relied upon a single ground of appeal expressed in this way: "The verdicts of the jury are unreasonable or cannot be supported having regard to: (a) the evidence in the trial; and (b) the jury's acquittal of the appellants on counts 5,6,9 and 10." 1. The applicant's ground of appeal raises two areas of legal principle. The first is whether the verdicts are unreasonable. The second is whether there is inconsistency between the convictions on four counts and the acquittals on four counts. 2. It is convenient to refer to the legal principles relevant to the Court's consideration of these grounds of appeal. Legal Principles 1. In circumstances where a jury returns differential verdicts for multiple counts charged against one applicant on the basis of evidence from one complainant, this Court must consider whether the differential verdicts are irreconcilable or not. This is a test of "logic and reasonableness": McKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348 at 366. 2. As was said in McKenzie by Gaudron, Gummow and Kirby JJ at [86]: "Nevertheless, cases do arise where different verdicts returned by the jury represent 'an affront to logic and common sense' and suggest a compromise of the performance of the jury's duty. Such a conclusion 'depends upon the facts of the case'. There can be no 'hard and fast rules' except that the obligation to demonstrate inconsistency in jury verdicts rests upon the person making the submission." (footnotes omitted) 1. Here, the applicant bears the obligation of establishing the inconsistency of the verdicts: McKenzie at 368 ([31]). 2. In R v TK [2009] NSW CCA 151; (2009) 74 NSWLR 299, Simpson J said (with the agreement of McClellan CJ at CL and Latham J) at [128]: "The foundation for the test stated in MFA is not confined to 'the whole of the evidence' but incorporates 'all of the facts and circumstances of the particular case'. That is wide enough to include matters outside the evidence, such as the impact on the reasonableness of the verdict of guilty of what may be discerned to be the explanations for the acquittals. In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found without resort to doubts about the claimant's credibility, the verdict of guilty may not be unreasonable. …" 1. The test was put succinctly by Hoeben CJ at CL (with whom Davies and Bellew JJ agreed) in MC v R [2017] NSWCCA 274 at [91] in these terms: "Ultimately, the test is one of logic and reasonableness. The applicant must establish that the different verdicts cannot stand together in the sense that no reasonable jury that applied their minds properly to the facts could arrive at that conclusion. If there is a proper way by which the verdicts can be reconciled, assuming a conclusion that the jury performed their functions as required, that conclusion will generally be accepted (MG v R [2017] NSWCCA 14 at [88])". 1. In undertaking a consideration of the ground of appeal as argued, it is necessary to keep in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to separately consider each count. As well, the jury will be directed that the evidence of each witness may be accepted in whole or in part: MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [34]. 2. Recently in AH v R [2019] NSWCCA 152, Simpson AJA, said at [62] that: "… differential verdicts, far from providing an indication that a jury has fallen down on its task, may very often provide the basis for confidence that the jury has done precisely what it has been instructed to do: consider each count separately and reach a verdict on that count, on the evidence relevant to that count." 1. Here, it should be noted that the ground of appeal also includes the assertion that the verdicts of conviction are unreasonable and cannot be supported by the evidence. An appellate Court considering such a ground is obliged to review the whole of the record of the trial and to make an independent assessment of the evidence both as to its sufficiency and its quality. If, after undertaking such a review, the appellate Court is left in a reasonable doubt as to a verdict then it can only conclude there was no miscarriage of justice where the advantage of a jury in seeing and hearing the evidence is capable of resolving that doubt: Bell v Regina [2017] NSWCCA 207 at [22]: Bathurst CJ, McCallum and N Adams JJ. Summing up by the Trial Judge 1. No complaint is made on this application about the summing up delivered by the trial Judge. 2. It is appropriate to note that in the course of his summing up the trial Judge gave a number of specific directions to the jury. The first required the jury to separately consider each of the charges. That direction was: "Remember I told you at the start of the trial, the eight charges against the accused are being heard together as a matter of convenience. You'll need to separately consider each of the charges before you, and you will be required to return separate verdicts in respect of each of the eight charges. There is an obvious reason for that - some of the evidence you have heard relates to only one of the charges and is therefore not available to you in relation to the other charges." 1. Immediately before giving that direction, the trial Judge had given this instruction to the jury: "I have made clear a number of times that you must consider the evidence in respect of each of the eight charges separately. It follows from that, that if you have a reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of the complainant in respect of one count, you can use that reasonable doubt to determine whether you have a reasonable doubt in respect of any of the other counts or charges that you are considering." 1. At one point, there was a discussion about whether a particular matter was in issue, namely whether at the time of any of the assaults Bianca was under the authority of the applicant. The following exchange then took place between counsel for the applicant and the trial Judge: "Counsel: I don't think there would be any issue with that given the way that we've run the trial and don't think that it would be an issue. His Honour: It's whether they accept the complainant beyond a reasonable doubt." 1. This exchange highlighted the clear understanding of the trial Judge and counsel for the applicant that the central issue was the credibility of Bianca. 2. A little later, the trial Judge made this comment with respect to the Crown case which reflects the remark just made: "The Crown case in respect of each of the eight charges in the indictment depends almost entirely upon the evidence of the complainant. There is no other evidence, either from Crown witnesses or any other source that is capable of confirming the evidence of the complainant in respect of each of the eight charges alleged against the accused. The accused denies that any acts of a sexual nature occurred between himself and the complainant. Accordingly you must approach the complainant's evidence with considerable caution and you should scrutinise her evidence with the greatest of care." 1. Later in his summing up the trial Judge, again without objection, referred to the competing cases for the Crown and the applicant in these terms: "The Crown submits that after considering all the evidence you would be satisfied beyond a reasonable doubt that the complainant is both a truthful and reliable witness, and that you would accept beyond a reasonable doubt her evidence that in respect of each of the eight offences in the indictment, the accused committed the sexual acts she claims … The accused, on the other hand, submits that you could not accept that the complainant's evidence was truthful and reliable, or at the very least, you would have a reasonable doubt that her evidence was truthful and reliable due to a number of matters that include the completely contradictory evidence contained in her three Records of Interview and from cross examination, along with the lack of any witness to any of the alleged sexual misconduct and a complete absence of any other forensic or physical evidence." 1. When coming to describe the Crown case in some detail, including the evidence given by various witnesses, the trial Judge noted the following with respect to the Crown's address: "The complainant's evidence is the most important evidence in the case and the Crown quite rightly said to you that if you could not accept her evidence to the high standard of beyond reasonable doubt, then the accused should be acquitted." 1. The trial Judge further referred to the address by counsel for the applicant: "He reminded you finally that there are eight charges covering five incidents and if you have any doubt about the evidence of the complainant it is your duty to find the accused not guilty and to help you with this, he said, look at the discrepancies, look at the lack of physical evidence, look at the lack of witnesses to any of the sexual assaults and to remember that this is not a popularity contest, you do not have to like, you can even strongly dislike, the accused, but you cannot ignore the problems in the complainant's evidence and in looking at that, the evidence of the mother and all of the other matters, you would have little difficulty in finding the accused not guilty." Factual Background 1. The applicant was the boyfriend (or perhaps the fiancé) of Bianca's mother. Bianca complained that between 2008 and 2011 she was sexually and indecently assaulted in New South Wales and Queensland by the applicant. At the time of the assaults, Bianca was aged between 11 and 14 years. The two Queensland incidents were the first in time to occur. They were not the subject of any charges, but evidence about what happened in Queensland was admitted in the trial as evidence of the applicant's tendency to have a sexual interest in Bianca. 2. Bianca has three siblings. Her siblings were living with her and her mother at the time of the assaults. None of them witnessed the applicant sexually assault Bianca and she did not tell them about the assaults. However, each of the siblings did describe acts of violence by the applicant. Bianca did make complaints to friends to varying degrees about the sexual assaults. 3. Bianca's evidence-in-chief, which related to all of the counts on the Indictment, was mainly contained in three interviews she did with police on 17 January 2013 (the "first interview"), 7 February 2013 (the "second interview") and 29 May 2014 (the "third interview"). Each of these interviews was video recorded at the time. Those video recordings were played to the jury. Bianca was cross-examined during the trial. 4. The applicant participated in a formal Record of Interview with investigating police which was recorded and played to the jury. He did not give evidence. It was the applicant's case at trial that the conduct underlying the offences with which he was charged had not taken place. Bianca was said to be motivated to make a complaint against the applicant because he had been caught cheating on her mother with the mother of Bianca's best friend. Facts Counts 2 and 3 – the "Lounge Room" Incidents 1. In her first police interview, Bianca recounted that the applicant sexually assaulted her at two locations in Queensland and one location in NSW. The NSW incident described by Bianca in the first police interview comprised Counts 2 and 3 on the Indictment. These counts were referred to during the trial as the "Lounge Room" incident. 2. In that interview, Bianca told police that in either 2009 or 2010, when she was asleep on the lounge at night time, the applicant woke her up and made her "suck his private parts". 3. In her second police interview, Bianca gave further details regarding Counts 2 and 3. She said the applicant woke her up by "poking" her in the shoulder or arm. The applicant told her to sit up. She did as directed because she "started to like him", that is, she had a crush on him. She said the applicant then moved his penis out through his boxers. Bianca said that she gave the applicant a "hand-job" for about five minutes by moving her hand up and down on his penis. The applicant then told Bianca, in an "angrily voice", to suck his penis, which she did. Bianca's account was that she did so because she did not want him to punch her. 4. Bianca said that she stopped after about ten minutes because she did not like it and felt like she was "gonna throw up". The applicant allegedly told her "don't tell your mother". Bianca said that she knew it was the applicant, even though the lights and TV were off, because of the "tone of his voice". 5. Bianca was not cross-examined directly on her evidence in relation to these incidents. The applicant was convicted of the offences relating to this incident. Count 5 – The "Murder in the Dark" Incident 1. During the trial, Count 5 was referred to as the "Murder in the Dark" incident. This incident was said to have occurred the night after the incidents the subject of Counts 2 and 3. Bianca said that she was playing a game, "Murder in the Dark", with her siblings whilst her mother was showering. 2. In her first police interview, Bianca said that the applicant "grabbed my leg and my little brothers couldn't see nothing and then he kept making me touch his penis. And then after they all went out he said, let me see if it fits and I kept saying no 'cause I was scared". 3. In her second interview, Bianca said it was "pitch black". The applicant grabbed her arm and pulled her pants down. When everybody went out, the applicant made her "give him a hand job". He pulled her pants down and she kept pulling them up and the applicant said "Let me see if it fits". The complainant got "really scared". Bianca did not suggest that any vaginal penetration had occurred. 4. Bianca was not cross-examined directly on her evidence in relation to this incident. The applicant was acquitted of this offence. Count 6 – Caravan Park Incident 1. During the trial, Count 6 was referred to as the "Caravan Park" incident. The incident was described in Bianca's second interview. This incident was said to have occurred when Bianca went with her mother to visit the applicant at a caravan park. Bianca had visited the applicant at the caravan park on more than one occasion and she said that on each occasion the applicant did something to her. 2. On the occasion the subject of this count, while Bianca's mother was in the toilet, the applicant pulled up Bianca's soccer shirt, pulled down her bra and sucked on her nipple. Bianca said it hurt because he "sucked on it really hard". Bianca pushed the applicant away before her mother returned. 3. The complainant was not cross-examined directly on her evidence in relation to this incident. The applicant was acquitted of this offence. Counts 7 and 8 – the Bedroom Incidents 1. Counts 7 and 8 were referred to as the "Bedroom" incidents. They were described in Bianca's second interview. She said that she was in her bedroom, lying on her bed, watching a DVD. Her younger siblings were sitting on the bedroom floor. The applicant came in and sat on the bed. When the movie finished, her siblings left the room and the door closed. 2. Bianca said that she got under the blankets and then the applicant did so as well. The applicant took her hand and put it on his penis. He made her give him a "hand job" and "suck his penis". Bianca did this because she was scared the applicant might hit her or hurt her siblings. 3. Bianca heard her mother's car pull up. The applicant quickly pulled up his pants and told Bianca not to tell her mother. He then walked out through the bathroom. 4. Bianca was not cross-examined directly on her evidence in relation to this matter. The applicant was convicted of the offences in these two counts. Counts 9 and 10 – The "Marine Rescue Party" Incidents 1. Counts 9 and 10 were referred to as the "Marine Rescue Party" incidents. They were described in Bianca's second interview. 2. Count 9 occurred while Bianca, her mother and the applicant were driving in her mother's car to what was described as the Marine Rescue Party. Bianca's mother was driving, the applicant was sitting in the front passenger seat and Bianca was sitting behind the driver's seat. On the drive, they stopped at a bottle shop and purchased alcohol. Afterwards, still in the car, Bianca said the applicant was drinking Bundaberg rum and putting the empty bottles in the back seat in the foot‑well in front of where Bianca was sitting. 3. Bianca said the applicant "unzipped my fly and then he like then he tried to undo like the button and then he tried to put his hand down there and then I pushed him away and then he sat back up". He put his hand in her underwear but she did not know what part it touched. 4. In cross-examination, Bianca said the applicant was pretending to put his beer bottles over her side. She said the applicant tried to get under her pants through her fly and she said "stop", and he also tried to get in through the top of her pants and she said "leave me alone". 5. Count 10 occurred when Bianca and her mother were in her mother's car about to leave the Marine Rescue party. Bianca said that she was sitting in the front passenger seat and the door was open. The applicant leant through the door and kissed her mother. While he was kissing her mother, the applicant was touching her thigh and squeezing her breast. 6. In cross-examination, Bianca said that the applicant was holding her mother's face with his two hands before taking them away and putting them on her legs. Bianca agreed that her mother must have been facing towards her. 7. The applicant was acquitted on these counts. The Queensland Incidents 1. These incidents were relied on at the trial as tendency evidence. The first incident allegedly occurred in 2008 at the house of the applicant's brother when Bianca's mother left the house to get food. 2. Bianca said that the applicant pushed her on to the bed, pulled his pants down and pulled his penis out. The applicant was giving himself a "hand job" and then he told Bianca to do it. He put her arm behind her back and made her grab his penis and move it up and down. He then tried to put his penis in her vagina. She was not sure how he did it but she felt pain in her vagina. She said he made her give him a "hand job" afterwards too. This went on for about five minutes before her mother returned. 3. Upon hearing her mother's return, Bianca pulled up her pants. The applicant pushed her off the bed, slapped her "arse" and then put on a DVD and "made it look like nothing had happened". The applicant said "don't tell your mum". Bianca said "O.K. And I kept it secret for a very long time". 4. Contrary to what Bianca had said to the applicant, Bianca's mother gave evidence that Bianca almost immediately disclosed the incident to her on her return to the house. However, there were differences between what Bianca said she told her mother and what her mother recalled of the complaint. 5. The second Queensland incident allegedly occurred in 2008 or 2009. Bianca, her mother, her siblings, and the applicant were staying in a motel. While Bianca's mother was out, Bianca said that the applicant showed her and her siblings pornography. He then sent Bianca's siblings outside and made Bianca watch the pornography and suck his penis. Trial 1. The credibility of Bianca was challenged throughout the trial. The applicant questioned the reasons for Bianca's failure to mention relatively minor details about the events. She said that the detectives said "if I felt uncomfortable about anything I didn't have to speak about it". 2. The applicant referred to two further matters that were said to undermine Bianca's credibility, both of which were described in her third police interview. These matters were referred to in the closing submissions of the Crown and counsel for the applicant as the "two elephants [in the room]". First, Bianca told detectives that the applicant went through a period of scrubbing the walls in order to "… to get rid of the evidence" of what he had done. Secondly, she said that the applicant had punched her in the stomach because he was afraid that she had become pregnant as a result of his acts. However, Bianca conceded that she had not given evidence of any acts of penile-vaginal penetration which resulted in ejaculation. This concession was inconsistent with her account of being punched in the stomach because of a feared pregnancy. 3. In cross-examination, counsel for the applicant put to Bianca that the sexual assaults never happened and that she was jealous of the relationship the applicant had with her mother. 4. Counsel also noted that Bianca had discovered that the applicant was cheating on her mother, with the mother of her (Bianca's) best friend, in the second half of 2012. Counsel put to Bianca that the allegations of her sexual abuse by the applicant were made up to seek revenge on him for that behaviour. 5. In closing submissions, counsel for the applicant submitted that the concurrence in timing between the discovery of the affair and the complaint to the police was not a coincidence, but that the former caused the latter. 6. Counsel for the applicant submitted that the reason Bianca had not mentioned the applicant scrubbing the walls or ejaculating at any time prior to the third interview, which was about 15 months after the previous two interviews, was because those incidents had never happened, but rather Bianca was simply developing a story over time. Applicant's Submissions 1. The applicant submitted that the two parts of his single ground of appeal, (that the verdicts of guilty were unreasonable or cannot be supported having regard to, firstly, the evidence in the trial; and secondly, the jury's acquittal of the appellants on Counts 5, 6, 9 and 10), were interrelated. The interaction between the two parts was said to arise from the fact that the guilty verdicts were dependent on the jury accepting Bianca's evidence beyond a reasonable doubt. Yet, the acquittal by the jury of the applicant on the other four counts suggests that Bianca's evidence was not accepted beyond a reasonable doubt on those other counts. 2. The applicant submitted that at the trial there was a general attack on the credibility of Bianca and the reliability of her evidence. There was no cross‑examination directly on any of the facts except for the "Marine Rescue party" incidents. Rather, it was submitted that the attack was directed to Bianca's overall credibility. 3. In oral submissions, the applicant submitted that this case was somewhat unique in that the counts on which there might have been corroboration through witnesses (but there was not) were those for which the jury returned verdicts of not guilty. It was only the counts in respect of which there was no corroboration (due to a lack of witnesses to the incident) that the jury returned guilty verdicts. It was put that this alone was a sufficient basis for a finding of inconsistency such as to set aside the convictions. 4. The applicant acknowledged that one obvious distinguishing feature of Counts 9 and 10 was the presence, as a witness, of Bianca's mother. It was pointed out that this might have given rise to a reasonable doubt which was not based solely on Bianca's credit, but also on the evidence of a witness who did not see anything untoward where that may have been expected. 5. The applicant submitted, however, that the doubt which the jury entertained on Counts 9 and 10, in relation to the Marine Rescue party incidents, must have reflected upon the whole of the credibility, and therefore the reliability, of Bianca's evidence. In the absence of corroboration from Bianca's mother, who was in the car at the time the incidents, the only witness was Bianca. That the applicant was acquitted on these counts demonstrated, the applicant submitted, that Bianca's evidence was quite unreliable. 6. In relation to Count 5, the Murder in the Dark incident, the applicant submitted that the not guilty verdict showed the sheer implausibility of this event occurring given the surrounding circumstances, as all the siblings were living in the house, and none corroborated Bianca's evidence. The applicant pointed out that Bianca's siblings did not like the applicant and that the prospect of them being engaged in a game with him, as Bianca described, was highly unlikely. Adding to the unlikelihood of this event occurring was the applicant's account that he was a heavy drinker at the time and spent most of his time in his room. It was submitted by the applicant that the not guilty verdict on this count indicated that the jury did not accept, or else entertained significant doubts about, Bianca's credibility as a witness. 7. A further inconsistency highlighted by the applicant's submissions in relation to the Murder in the Dark incident was Bianca's evidence that it was her siblings who were next to her at the time the incident occurred at the landing area on top of the stairs. Yet, her sister gave evidence that she was in the bathroom next to Bianca at the time of the incident. 8. In relation to Count 6, the "Caravan Park" incident, the applicant submitted that the differences in the evidence – including that Bianca and her mother gave different accounts about the frequency with which Bianca would go into the applicant's caravan – meant that, applying the test of logic and reasonableness, it was difficult to understand how the jury came to acquit on this charge and convict on the others. Crown's Submissions 1. The Crown submitted that the jury's verdicts are explicable on the basis that, while the jury accepted Bianca generally as a witness of truth, there was evidence capable of giving rise to a reasonable doubt in relation to Counts 5, 6, 9 and 10. 2. The Crown submitted that Bianca's evidence was far more detailed in relation to Counts 2, 3, 7 and 8 than it was in relation to Counts 5 and 6. Further, the complainant was cross-examined as to inconsistencies and uncertainties in her evidence on Counts 9 and 10, but not on Counts 2, 3, 7 and 8, and there was no potentially contradictory evidence on those counts. 3. The Crown submitted that rejection of Counts 5, 6, 9 and 10 does not indicate, much less necessarily compel, a finding that the jury rejected Bianca as a credible witness of truth. Rather, the Crown submitted, the jury did what was required of it, namely to consider the evidence on each count individually. 4. In relation to Count 5, and the unlikelihood of the applicant playing with Bianca and her siblings (given they did not like him), the Crown made oral submissions that there was no suggestion that the applicant was playing with the children. The description provided by Bianca was that the children were playing the game, and the applicant was merely at the house. Similarly, in relation to the different accounts of Bianca and her sister, counsel for the Crown made the oral submission that it is not clear that both sisters were referring to the same incident. In those circumstances, there would be no inconsistency on the part of Bianca. 5. In relation to the matters that were said to undermine Bianca's credibility generally, namely the "two elephants", the Crown submitted that these matters could be explained by reference to Bianca's age, her relative unsophistication and some form of developmental disability suffered by her. However, this submission did not seem to be based on any specific evidence, but rather was advanced by counsel as a matter of some speculation. 6. The Crown submitted that an unsophisticated teenage girl who observed her abuser scrubbing the walls could infer that he was trying to eliminate evidence. The Crown submitted that it does not follow that Bianca was an untruthful witness because she inferred that from his actions. The Crown further submitted that Bianca did not tell the police that the applicant said directly that it was him who had made her pregnant, she merely inferred from what the applicant said (or perhaps did) to her that it was he who had made her pregnant. 7. Again, these submissions were not anchored in any particular evidence which was before the jury. Discernment 1. It is quite clear from the way in which the Crown presented its case to the jury, and the way in which counsel for the applicant conducted the defence, that there was a general challenge to the credibility, veracity and reliability of Bianca at trial. 2. It was the applicant's case that he had not done any of the things which Bianca said that he had done. He made it plain in his Record of Interview to police, and through his counsel's conduct of the trial, that his case was that he was not engaged in any of the conduct at all. His counsel put to Bianca that she had lied to the police and the Court, and that the various sexual assaults had never happened. A motive was put by counsel for the applicant to Bianca, as described in [70] to [72] above. 3. As well, counsel for the applicant pointed to a significant number of inconsistencies in Bianca's evidence and the fact that she received no corroboration from her mother or her siblings as to what had occurred. 4. There was no cross-examination specifically by counsel for the applicant with respect to each of the incidents other than the Marine Rescue incidents. Cross-examination was also directed specifically to the two contextual incidents which were said to have occurred in Queensland but which were not part of the charged acts. 5. The Crown's case was that the jury should accept the evidence of the complainant and, on that basis, there was adequate evidence to convict the applicant on each count. 6. The reliance placed by the Crown on the truthfulness, accuracy and reliability of Bianca's evidence was presented to the jury through the trial Judge's summing up, to which earlier reference has been made at [31]-[35]. 7. The other matter which is relevant to this analysis concerns the correct sequence for the particular events to have occurred. By the time the Crown came to present its case at trial, it had identified what it said was a logical sequence of events but a careful reading of the transcript of the interviews given by Bianca to the police demonstrates that her accounts of what occurred did not have the same sequence or logic to them. 8. The key significant issue for the jury in terms of assessing Bianca's credibility was the contents of her third interview. It was referred to by both the Crown and counsel for the applicant in their final addresses. It seems from the way the Crown addressed the jury that there were some real difficulties with the third interview. 9. The Crown made submissions to the jury about that interview. The Crown said to the jury that the Crown case rested on Bianca's evidence and that they had to be prepared "to accept Bianca beyond reasonable doubt or you have to find the accused not guilty". The Crown dealt with the "two elephants" that arose in the third interview separately. Firstly, the Crown said, simply, this: 'You will recall that she told the detective in the third interview that she had this year, that the accused bashed up, bashed on the tummy because he thought she got her pregnant. She's never ever said he put his penis in her vagina and you may wonder 'what was that about?' That's a matter for you, but the Crown has no answer for it'. " (emphasis added) 1. As for the second "elephant" (namely, the applicant wiping down walls to remove DNA and fingerprint evidence), the Crown attempted to explain to the jury in its submission that perhaps Bianca had been "a part of a whole CSI generation". Ultimately, the Crown accepted in address that the evidence, which was untrue, provided a "significant impost" on the credibility of the complainant. 2. What is of significance is that whilst the jury were given the appropriate directions as outlined above, the case was put to them on the basis that they either accepted Bianca's evidence or not, and that they had to be satisfied of it before convicting the applicant. Neither the Crown nor counsel for the applicant put to the jury that some counts on the Indictment (when compared with the others), carried any different or particular weight. 3. This was a case quintessentially conducted in front of the jury by the Crown and the applicant on the basis that, depending upon their assessment of the credibility of the Bianca, they either convicted the applicant on all counts or they acquitted the applicant on all counts. 4. Once the jury concluded that they were not persuaded to accept Bianca's evidence on Counts 5, 6, 9 and 10, they were obliged, as the trial Judge directed them, to use that reasonable doubt as a factor to be considered when assessing the Crown's case on the remaining counts. 5. An examination of the counts on which the applicant was convicted shows that the Crown's case did not include any possibility of corroborating witnesses. The Lounge Room Incident occurred late at night and in a room where Bianca and the applicant were the only people present. The applicant's conviction depends upon accepting Bianca's evidence beyond reasonable doubt. 6. The Bedroom Incident, whilst not taking place late at night, again depends entirely on accepting Bianca's evidence beyond reasonable doubt. 7. Having considered all of the evidence in the trial, I am persuaded that I cannot accept Bianca's evidence as credible or believable. The events described in her third interview, which I am satisfied could not have happened as she described, are a very significant factor in that conclusion. Another factor is the absence of corroborative evidence, particularly in respect of the Marine Rescue Incident where it is impossible to believe that if the applicant had behaved as Bianca said, and Bianca had said the words of which she gave evidence, that her mother would not have heard what was said and reacted promptly. The doubt about the credibility of Bianca in these two respects is not capable of being explained by the jury's advantage in seeing Bianca give evidence. Nor is the doubt about Bianca's credibility isolated to any particular events. In light of these doubts, I am well satisfied that the verdicts of the jury were unreasonable and are not supported by the evidence. 8. It follows that for the jury to have convicted on four of the counts and acquitted on the other four counts, when they were obliged to take into account on the convictions, the doubts which they had on counts upon which they returned verdicts of not guilty, was neither logical nor reasonable for the jury. 9. In the context of this case, I am persuaded that the verdicts were inconsistent and, as a consequence, the convictions are unsafe. 10. I would propose the following orders: 1. Grant leave to extend the time within which to bring this application for leave to appeal to 20 March 2019; 2. Leave to appeal be granted; 3. Appeal allowed; 4. Convictions of the applicant on Counts 2, 3, 7 and 8 on the Indictment dated 25 November 2014 be quashed, and in lieu thereof order that acquittals be entered on those counts. 1. WRIGHT J: I agree with the orders proposed by Garling J for the reasons given by his Honour and by the Chief Justice. ********** 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: 29 October 2019