R v SBX[2013] QCA 45

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The appellant pleaded not guilty to two counts of maintaining a sexual relationship with a child (counts 1 and 14); seven counts of indecent treatment of children under 16 (counts 2, 3, 8, 15, 16, 19 and 20); one count of attempted rape (count 5); and 13 counts of rape (counts 4, 6, 7, 9-13, 17, 18 and 21-23).  On the 12th day of the trial, the judge directed a verdict of not guilty on count 13.  On the 14th day of the trial, the jury convicted him of counts 1-7, 10, 12, 14, 15-17, 21 and 22.  They found him not guilty on counts 8, 9, 11, 18, 20 and 23.  They were unable to reach a verdict on count 19 and the prosecutor endorsed the indictment that the Crown would not proceed further with that count.  On 22 June 2012, he was sentenced to 13 years imprisonment on counts 1 and 14 and to lesser concurrent terms of imprisonment for the remaining offences.

The grounds of appeal and orders sought

2. He has appealed against his convictions on grounds which evolved during the course of oral argument to:

"1.The verdicts of the jury were unreasonable [in that]:

1. …the jury convicted on Count 3 when there was no evidence and as a result it can be said that their verdicts were reached only by ignoring the directions of the Trial Judge.

2. The jury convicted on Count 6 in circumstances [where] their verdict could only mean that they did not follow directions or that they convicted of an offence [with] which the appellant was not charged.

3. The conviction on Counts 21 and 22 were not rationally capable of being reconciled with the acquittal on Count 23.

4. The acquittal on Count 8 is not rationally capable of being reconciled with any assessment of the complainant [M] as an honest and reliable witness.

5. The acquittal on Count 18 is not rationally capable of being reconciled with the conviction on Count 17.

6. The cumulative effect of the matters raised in (b)-(e) above reinforce the conclusion independently drawn, as a result of the conviction on Count 3, that the jury's performance of its duty was compromised and that any verdict from the[m] was unreasonable in that it was not the result of reasonable decision making."

"2.A miscarriage of justice occurred by reasons of:

(a)the manner in which the jury discharged its function and

(b)the deficiencies in the summing up which:

(i)did not identify the evidence which was said to prove the charges.

(ii)did not fairly put the defence case.

(iii)contained inadequate directions on the topic of consent.

(iv)did not warn the jury about the difficulties which confronted the appellant in maintaining a defence to the charges."

3. The appellant does not contend that there was insufficient evidence to support the guilty verdicts other than on count 3. But he submits the appeal should be allowed, an acquittal directed on count 3, and a retrial ordered on all remaining counts on which he was convicted.

4. He has also applied for leave to appeal against his sentence, contending that:

"1.The sentences imposed were manifestly excessive.

2. In sentencing the applicant in respect of the two maintaining counts, the learned trial judge erred in finding proved to the requisite standard the uncharged acts alleged against the applicant.

3. In sentencing the applicant, the learned trial judge erred in finding proved to the requisite standard under section 132C of the Evidence Act that the applicant had infected the complainant [M] with herpes."

"4.The exercise of the sentencing discretion was tainted by error, in that the learned sentencing judge:

1. imposed a sentence for an offence which had not been proven.

2. took the view, in circumstances where the applicant was acquitted on some counts and the Crown had discontinued proceedings on others, that the cross examination of the complainants was relevant to the degree of leniency which might have otherwise been appropriate."

5. He contends the application for leave to appeal should be granted, the appeal allowed and the sentence set aside. He seeks leave then to adduce further evidence about the appellant's back condition and related difficulties with his imprisonment. He submits that an appropriate sentence to reflect the totality of his offending was one of between nine and 11 years imprisonment.

The appeal against conviction

6. Before discussing the grounds of appeal against conviction, I will summarise the relevant aspects of the evidence, counsel's addresses and the judge's summing-up.

The relevant aspects of the evidence and counsel's addresses

7. The appellant was the de facto husband of T and stepfather figure to her daughters, M, born in May 1990, and H, born in November 1993. T, M and H moved into the appellant's house in March 2005. The prosecution brought 23 charges against the appellant arising out of both complainants' evidence. The prosecutor provided the jury with a list of the 23 counts and gave oral particulars of those counts during his opening address. At the request of the judge these were repeated in the absence of the jury on day 11 of the trial. At least by this time, the judge had a copy of the particulars of the charges.^[1]  It seems that defence counsel had a copy of these particulars before trial.^[2]  The jury was never given a written copy of the particulars.  As it is not submitted that there is insufficient evidence to establish the counts (other than count 3), I will refer in detail to the particulars and the evidence of only those counts on which the parties have placed reliance in the appeal against conviction.

8. M, who was 21 at trial, gave evidence that the appellant began sexually abusing her in 2005 and that this continued after her 16th birthday until 2008. The offence of maintaining (count 1) spanned from March 2005 until her 16th birthday in May 2006. She gave evidence supporting counts 1, 2, and 4 to 12.

9. H, who was 18 at trial, gave a statement to police on 8 October 2008 which became her evidence under s 93A Evidence Act 1977 (Qld).  She said the appellant had sexually abused her throughout 2008 when she was 14 and that this continued until she complained to police.  She gave evidence that the appellant committed counts 14 to 23.  The offence of maintaining (count 14) spanned from January 2008 until she complained to police that October.

10. She also gave pre-recorded evidence under Pt 2 Div 4A Evidence Act.  The following exchange occurred during her cross-examination:

"It's correct, isn't it, [H], that every time you did something sexual with [the appellant], you had agreed to it? You agree with me?—I agreed to one time but like the rest it was, like, forced.

You say - by 'forced', do you mean that you might say to [the appellant] that you didn't want to do it but he would persuade you to do it?-- Yeah.

So by 'force', you mean that he talked to you until such time as you agreed to do it?-- Yeah."^[3]

11. This issue was not further directly explored in H's cross-examination or re-examination.

Count 3

12. The prosecution particularised counts 3, 4 and 5 as occurring on the one occasion. The appellant was alleged to have placed M's hand on his penis (count 3, indecent treatment); inserted his finger into her vagina (count 4, rape) and attempted to insert his penis into her vagina (count 5, attempted rape).

13. M gave evidence that the appellant called her into his bedroom where she found him lying naked on a turquoise towel. He inserted his fingers into her vagina and moved over the top of her (count 4). He tried to penetrate her with his penis (count 5) and she screamed out in pain. She did not give any evidence of count 3.

14. On the 11th day of the trial, the prosecutor repeated the particulars of count 3 as being the occasion when counts 4 and 5 were committed; it involved the appellant placing M's hand on his penis.^[4]

15. For some inexplicable reason, neither the prosecutor, defence counsel nor the trial judge appreciated that M gave no evidence to support count 3. The count was wrongly left to the jury and the jury wrongly convicted. The respondent concedes that the appeal against conviction in respect of count 3 must be allowed and a verdict of acquittal entered on that count.

Count 6

16. The prosecutor in his opening particularised counts 2, 3, 4, 5 and 6 as occurring in a two week period after November 2005 during which the appellant purported to be giving M sex education.^[5]  Count 6 (rape) seems to have been described as the occasion when he inserted his fingers into her vagina and then pushed his penis part of the way into her vagina.  This was the day before he had full penile-vaginal intercourse and ejaculated inside her for the first time (count 7, rape).^[6]

17. The complainant's evidence on counts 6 and 7 was not easy to follow. She said that on the last day of this two week period the appellant fully penetrated her, that is, he put his penis all the way into her vagina (count 7). This was the first time he had used a condom and ejaculated inside her. On the previous day he tried to penetrate her but could not get his penis all the way into her vagina (count 6). These two instances of penetration occurred towards the end of the two week period during which he had used lubricant on her vagina three days in a row.  He put lubricant on his penis on the second and third of these occasions (counts 6 and 7).  On the occasion constituting count 6, he put one finger into her vagina.^[7]

18. Perhaps for tactical reasons, defence counsel did not cross-examine M about the fact that she now said a finger had been used whilst the prosecutor had said she would give evidence, apparently on the basis of her statement, to the effect that the appellant had inserted his fingers into her vagina.

19. At the close of the evidence and prior to counsels' closing addresses, in response to the judge’s enquiry as to the particulars the prosecutor stated, "Count 6 was inserting [the appellant’s] fingers into [M’s] vagina and pushing – and pushed his penis inside her. Count 7 was the penile vaginal intercourse, where he ejaculated."^[8]

20. Senior defence counsel in her closing address referred to count 6 as "when [the appellant] got the penis all the way in".^[9]

21. The prosecutor in his closing address stated that M gave evidence that:

"count 6 and count 7 [were] on about the last two days of this two week period, and he used lubricant and on the last occasion, count 7, he gets all the way in to her vagina.  That's how she remembers it.  So there was penile and vaginal intercourse on that occasion and she recalls him ejaculating inside of her.

She recalls also the day before where he had been using lubricant and he had inserted his fingers into her vagina and had also inserted his penis into her vagina and almost penetrated all the way, and that's the act of penetration or penile penetration in relation to count 6."^[10]

22. The jury convicted on both counts 6 and 7.

Counts 8 and 20

23. The prosecutor particularised count 8 in his opening as an occasion when the appellant showed M pornography on the computer. She saw images depicting two teenage girls with a middle-aged man. An adult woman asked them to suck their father's penis.

24. M gave evidence that in about November 2005 the appellant called her into the office. He had a video on the screen which he told her to watch. It depicted two teenage girls and their father who was sitting in a chair. A woman was holding a camera and said to her daughters, "Go on girls, suck your dad's dick."  The girls complied.  The appellant said, "See, other people do it.  Other parents do it.  It's okay.  It's natural."^[11]

25. The prosecutor particularised count 20 in his opening as the only occasion H can recall when she was shown pornography on the computer and that she thought it occurred in the June-July holidays of 2008. Her mother was also present and told her that she did not have to watch it, but it was educational:

"she was then told to watch videos which were girls on girls, girls using vibrators and dildoes and she also saw one … that had a gym theme, and while she was watching these videos, the [appellant] would give her explanations in relation to what was occurring".^[12] (errors in original)

26. H's evidence in her s 93A statement was broadly consistent with those particulars.  When cross-examined she said the incident occurred around the time of the September school holidays.

27. Defence counsel in her closing address emphasised that was no forensic evidence that there was or had been any pornography on the appellant's computer.

28. The jury acquitted on both counts 8 and 20.

Counts 17 and 18

29. The prosecutor in his opening particularised count 17 as an occasion when H performed oral sex on the appellant and count 18 as an incident of penile-vaginal intercourse which immediately followed. The counts occurred in the June-July holidays after the appellant had had back surgery and M was away on the Sunshine Coast.  H, her mother and the appellant were all naked.  The appellant told her it was important to strengthen his stomach muscles.  Her mother poured honey and chocolate on the appellant's penis and H was required to suck it.  She did not like doing this (count 17).  She then had sexual intercourse with him as he lay on a towel on the lounge room floor (count 18).

30. H gave evidence consistent with these particulars in her s 93A statement.^[13]

31. The jury convicted on count 17 but acquitted on count 18.

Counts 21-23

32. The prosecutor in his opening particularised count 21 (rape) as being an occasion when the appellant had H play with and suck on his penis. She recalled how her mother and the appellant had told her to do it. She played with and sucked his penis the way she had been taught. He then told her to lie down and that he wanted to make her have an orgasm. The appellant sucked on her clitoris while she lay on her back. He inserted his penis into her vagina (count 22, rape). He then required her to perform oral sex on him again (count 23, rape). Afterwards he told her to have a quick shower.^[14]

33. H gave the following evidence on these counts. On an occasion in the family home when her mother and M were at Mt Ommaney, after she had a shower, she followed the appellant into her mother's bedroom. He was naked and so was M. He rubbed his finger against her clitoris and vagina and told her to suck on his penis and play with it (count 21). He then told her to lie down. He said he was going to try and make her have an orgasm. He sucked on her clitoris but could not get her to orgasm. H recalled that her mother had told her on previous occasions to pretend that the appellant was a teenage boy. He put his penis in her vagina for a while (count 22). He was not wearing a condom. He had not ejaculated and told her to suck on his penis (count 23). After she did so, he ejaculated and he told her to have a quick shower but not to wet her hair.^[15]

34. In cross-examination, she said these incidents, the last in time, occurred just a few nights before she made her complaint to police. She recounted the occasion particularised as counts 21 to 23 and said that all she could remember of that occasion was that she had sexual intercourse with the appellant, that is, he put his penis in her vagina and that this went on for about half an hour. She made no reference to sucking the appellant's penis either before (count 21) or afterwards (count 22).

35. The jury convicted on counts 21 and 22 but acquitted on count 23.

Other prosecution evidence

36. The appellant told police that he did not commit the alleged offences. He and the complainants' mother had spoken to both M and H about sex education. He had showed M how to shave her legs properly and inspected her vagina but this was in the context of shaving her pubic hair, making sure she was not injured and investigating her complaints about soreness in the vaginal area. He never touched her in a sexual way.

37. H and M were medically examined. Their hymens were in a state consistent with evidence of sexual contact of the kind they each described, although there could be other explanations. M had genital herpes, the same virus which causes cold sores, at the time of her complaint and gave evidence that she had no sexual contact with anyone other than the appellant. Medical evidence established that genital herpes was usually but not always transmitted by sexual contact. There was no evidence as to whether or not the appellant had genital herpes or cold sores.

The defence evidence

38. The appellant formally admitted that he had taken photographs of M’s vagina and saved them on his computer. He gave evidence denying the commission of all the offences. He gave sex education advice to M but not H. His bad back which required surgery in mid-2008 rendered him incapable of committing the alleged offences. He explained that he took a photograph of M’s vagina with her permission to better identify on the internet the problem she was having with her genital area.

39. He also called evidence contradicting aspects of the complainants' testimony. For present purposes, the relevant aspects are that the appellant's physiotherapist, James Eustace, said that the appellant’s back condition around the time counts 17 and 18 and 21 to 23 were alleged to have occurred, made it "very highly, highly unlikely"^[16] that the appellant could have participated in sexual intercourse in the way H alleged.  The appellant's orthopaedic surgeon, Dr Albietz, also gave evidence that the appellant would have probably been in extreme pain three weeks prior to his major back surgery on 30 July 2008.  The activities alleged against him would be very unlikely for six weeks post-operatively and only a little less unlikely, seven and a half weeks post-operatively.

The judge's directions to the jury

40. It should be remembered that each juror had a copy of the 23 charges and that count 13 was no longer before them, as they had been directed to return a not guilty verdict on it. His Honour's summing-up, which took a full day, included the following standard directions. The jury was to determine the facts based on the evidence. His Honour explained what constituted evidence and emphasised that the jury must have regard solely to the testimony, the exhibits and admissions in the case in their deliberations. They could convict the appellant only if the prosecution established his guilt of each particular offence beyond a reasonable doubt. That required them to be satisfied beyond reasonable doubt of every element of each particular offence. If left with a reasonable doubt about guilt in relation to any particular offence, their duty was to acquit the appellant. His Honour repeated that direction on a number of occasions. He instructed the jury that the prosecution case depended on the jury's acceptance of the evidence of the prosecution's principal witnesses (M and H) as true and accurate beyond reasonable doubt, despite the sworn evidence of the appellant and his witnesses. 

41. The judge directed the jury that if they found the appellant not guilty on one count they should consider whether the reason for the not guilty verdict would cause them to have a reasonable doubt on other counts.

42. His Honour told the jury that the elements of the various offences were the building blocks of the charges, each of which the prosecution must prove beyond a reasonable doubt.  If one or more of those elements have not been proved beyond a reasonable doubt, the appellant should be acquitted.  His Honour uncontentiously explained the elements of all the offences.

43. The judge did not give the jury any specific directions as to the facts constituting count 3.

44. His Honour's directions to the jury on count 6 were as follows:

"She then spoke of the last couple of days of that two-week period, I think count 6 and 7 refer to this period of time, and these alleged events. She said that he got his penis into her vagina. She again described similar behaviour, and similar responses from herself, and she said that on the last of those occasions he was going up and down really fast and breathing really heavily, and he 'I guess cried out or moaned, and then said, 'Now you know what it's like to have sex, and what it feels like to have a man come inside of you'.

She said after that he told her to get dressed, to do whatever she wanted. She went to the bathroom and noticed that she had white stuff coming out of her vagina. She also said [that he] had gotten some lubricant out of his drawer on that occasion and put it on the top of his penis. And that was the last day of the two-week period. I think that's an event that's categorised in count 7.

Count 6 is the day before. She said again he used a lubricant; she again spoke of her saying 'No' and him saying that she had agreed to this. He put the lubricant on top of his penis. She said on this occasion he started to move up and down; he positioned his penis to enter her vagina and started going up and down and he also used his fingers on her on that occasion.

She said on the second day that he used the lubricant he only used one finger and she said that on that occasion, the second-last occasion in that fortnight period, that he ejaculated, that his penis entered her vagina. She said on that occasion he was wearing a condom and that it was full of white stuff and he hadn't used a condom before and that she and he were the only ones home at the time."^[17]

45. In respect of the counts of rape and attempted rape, his Honour explained that the element of consent meant:

"consent freely and voluntarily given by a person with the cognitive capacity to give consent and a person[']s consent to an act is not freely and voluntarily given if it is obtained by exercise of authority.  Now, in relation to cognitive capacity, the Crown has to show that the complainant did not have sufficient knowledge or understanding to comprehend:

(A)That what was proposed to be done is the physical act of penetration of her body by the male; or

(B)[That] the act of penetration proposed is one of sexual connection as distinct from an act of a totally different character."^[18]

46. The judge explained that if the jury found the appellant not guilty on the counts of rape (counts 4, 6, 7, 9-13, 17, 18, 21-23) they would be asked for an alternative verdict of guilty or not guilty of unlawful carnal knowledge. If they found the appellant not guilty of attempted rape (count 5), they would be asked for an alternative verdict of guilty or not guilty of attempted unlawful carnal knowledge.

47. The judge summarised H's evidence but did not explain which parts specifically related to counts 17 and 18 or 21 to 23.

48. His Honour comprehensively and fairly summarised the appellant's evidence, the evidence of his witnesses and the competing contentions of counsel.

49. The jury retired to consider their verdict at 4.06 pm on day thirteen of the trial. Shortly after 5 pm his Honour allowed the jurors to return home for the evening. They resumed their deliberations at 9.30 am the following day. They requested redirections in respect of count 9 (rape, M) on which they later acquitted. They indicated they had verdicts on some counts but were having difficulty reaching verdicts on others. The judge asked them to recommence their deliberations and if they continued to have difficulty to inform him through the bailiff. At 4.51 pm the Court reconvened as the jury had sent a note asking, "Can we replay [H's] first evidence regarding Mount Ommaney incident relating to count 23 only?"^[19]  The judge read the portions of H's s 93A statement and her later cross-examination relating to counts 21, 22 and 23 which were all part of a single episode. 

50. The jury retired at 5.34 pm. The court reconvened at 5.49 pm to consider a note from the jury indicating that they had reached verdicts on all counts other than count 19. The judge had the jury brought into court and took verdicts on all counts on which they were agreed.

The appeal against conviction

Ground 1

51. The appellant's primary contention is that the fact that the jury convicted on count 3 when there was no evidence to support that verdict is a strong indication that they did not conscientiously attend to their task. They ignored the judge's many clear directions, summarised at [40] to [42] of these reasons, that they could only convict if satisfied on the evidence that the appellant had committed the offence.  They could not have been satisfied of his guilt on count 3, yet they convicted.  This therefore tainted their deliberations and all their guilty verdicts.  That is especially so when grounds 1(b) to (f) are also considered. 

52. It is common ground that there was no evidence to support a conviction on count 3; the appeal against conviction must be allowed and a verdict of acquittal entered on count 3. Were this the only difficulty, I would not be persuaded that this error so tainted the jury's remaining verdicts that they too must be set aside. The transcript suggests the jury went about their task conscientiously. This mistake also slipped by all counsel and the judge. As the appellant's ground 1(f) recognises, ground 1(a) must be considered together with ground 1(b) to (e) if it is to infect the remaining guilty verdicts.

53. As to ground 1(b), it is unfortunate that counsel and the judge were not more astute to ensure that the evidence given by M and H matched the prosecution particulars. Had they done so, counsels' addresses and the judge's directions would have been more accurate and focused. This would have provided greater assistance to the jury in their challenging task. It surely would have identified at the close of the prosecution case that there was no evidence to support count 3 and that M's evidence was not exactly as particularised in count 6.^[20]  She gave evidence that he put his finger into her vagina before effecting penile penetration.^[21]  In summarising M's evidence on count 6 for the jury on the first occasion when he discussed the digital penetration aspect, his Honour referred to fingers instead of finger.  This was consistent with the prosecution particulars and addresses but not with M's evidence.  The judge then went on to state that M said the appellant used only one finger in count 6 but it was not clear that this was a correction of the earlier statement.^[22]

54. The confusion in the judge's summing up as to M's evidence concerning digital penetration in count 6 may not be especially material on its own. But the judge went on to conflate M's evidence on count 6 with her evidence on count 7, wrongly stating that count 6 involved ejaculation and the use of a condom. It is true that defence counsel did not ask for any redirection following this misstatement of the evidence. I note that senior defence counsel was not present for the summing up,^[23] but junior counsel was present in her absence.  Although there was no application for a redirection, defendants are entitled to have the judge direct the jury as to the relevant law and evidence on each count brought against them.  The judge's incorrect and significant misstatement of M's evidence on count 6 means that the appellant has been deprived of that fundamental right.  This clearly amounts to a miscarriage of justice under s 668E(1) Criminal Code Act 1899 (Qld).  The verdict of guilty on count 6 must be set aside and a retrial ordered on that count.  On its own, this discrete error does not taint the remaining guilty verdicts.

55. As to ground 1(c), counts 21, 22 and 23 were all part of the one episode. The complainant's evidence is summarised in [33] and [34] of these reasons.  I can see no rational basis for the jury distinguishing between count 23 on which they acquitted, and counts 21 and 22 on which they convicted.  Indeed, in cross-examination, H gave evidence of count 23 but made no reference to counts 21 and 22.  For that reason, a guilty verdict on count 23 and acquittals on counts 21 and 22 would have been rationally explicable, but not the converse.  The verdicts on counts 21, 22, and 23 cannot reasonably and logically stand together; the guilty verdicts on counts 21 and 22 are unable to be logically reconciled with the verdict of acquittal on count 23.  I cannot accept the respondent's contention that the interests of justice do not require the setting aside of the guilty verdicts on counts 21 and 22 and the entering of verdicts of acquittal.  See MacKenzie v The Queen.^[24]  In isolation, the fact that the jury were confused on these counts which relate to a discrete episode does not taint the correctness of the jury's other guilty verdicts where no such illogicality, unreasonableness or other error can be demonstrated.

56. As to ground 1(d), there is in my view a rational explanation for the verdicts of acquittal on counts 8 and 20 which concerned the appellant showing M (count 8) and H (count 20) pornography on his computer. The jury may well have accepted the defence contentions and determined to give the appellant the benefit of the doubt on these counts because no supporting evidence was found on his computer. This approach did not require the jury to have a similar doubt about the offences on which they convicted.

57. I turn now to ground 1(e). Counts 17 and 18, like counts 21-23, occurred on the same occasion. In those circumstances it is not always possible to logically reconcile a verdict of guilty on one count and not guilty on the other. H gave evidence that she did not like sucking the appellant's penis (count 17 on which the jury convicted). She did not give that evidence in respect of the subsequent sexual intercourse (count 18 on which the jury acquitted). H gave evidence in cross-examination that on one occasion she agreed to the sexual contact with the appellant without specifying when.^[25]  But if the jury considered that the prosecution had not proved beyond reasonable doubt that H did not consent to count 18, as she was only 14 years old at the time if they accepted her evidence otherwise on counts 17 and 18, they should have convicted the appellant of unlawful carnal knowledge.^[26]  They did not.  After carefully reviewing H's evidence on these counts, I am unable to logically reconcile the verdict of not guilty on count 18 with the verdict of guilty on count 17.  It follows that, consistent with MacKenzie, the verdict of guilty on count 17 should be set aside and a verdict of acquittal entered.  On its own, the fact that the jury gave inconsistent verdicts on these counts does not infect the correctness of the other guilty verdicts where error has not been demonstrated.

58. As to ground 1(f), the guilty verdicts on counts 3, 6, 17, 21 and 22 are the result of judicial or jury error. The judge wrongly left count 3 for the jury's consideration; misdirected them as to the facts on count 6; and the jury verdicts on counts 17 and 18 on the one hand, and counts 21, 22 and 23 on the other, were logically inconsistent. No error has been shown in respect of the remaining 14 guilty verdicts. The jury had to consider 22 counts involving a complex factual matrix and two complainants. The case was not put to them with optimal clarity. It is not surprising they were confused on some counts. The errors made by the jury and the judge can be rectified by the orders I propose.

59. The appellant concedes that there is evidence to support the remaining guilty verdicts and that they are not subject to any specific error. The guilty verdicts which are affected by error relate to counts concerning discrete episodes of alleged offending quite separate from the counts to which the remaining guilty verdicts relate. I also note that the guilty verdicts on counts 2, 4-5, 7 and 10 are sufficient to support the count of maintaining a sexual relationship with M (count 1) and that the guilty verdicts on counts 15 and 16 are sufficient to support the count of maintaining a sexual relationship with H (count 14). I am unpersuaded that the cumulative effect of the matters raised in grounds 1(a) to (e) is that the jury's performance of its onerous duty was so compromised that the remaining 14 guilty verdicts were unreasonable in that they were not the result of reasonable decision-making. This ground of appeal is not made out.

60. As to ground 2(a) and (b)(i) and (ii), much of it repeats ground 1(f). Although the judge and counsel could have better assisted the jury, in respect of the remaining 14 guilty verdicts, the judge sufficiently identified the evidence establishing these counts and fairly put the defence case to the jury.  These contentions are not made out.

61. In ground 2(b)(iii) the appellant criticises the judge's direction to the jury as to consent. In light of M and H's young age when the appellant allegedly commenced sexually abusing them and the context of that alleged abuse in terms of parental sex education, the judge's directions to the jury as to consent^[27] adequately complied with s 348 Criminal Code.  The judge was not required to explain what was meant by the straight forward term "exercise of authority".  Nor was his Honour bound to direct that there must be a causal link between the exercise of authority and the giving of consent.  So much was self-evident from the judge's direction.  I note that the direction now contended for was not requested by experienced senior defence counsel at trial.  I am not persuaded that the directions as to consent have caused a miscarriage of justice.

62. In ground 2(b)(iv), the appellant contends the judge should have given a direction of the kind discussed in Longman v The Queen.^[28]  The appellant's counsel conceded at the appeal hearing that this ground of appeal had difficulties and could not succeed on its own.  But counsel did not abandon this ground.  It is true that, prior to the summing-up, counsel for the appellant asked for such a direction because of the age of some charges.  The prosecutor opposed this course and pointed out that the appellant's alleged offending was committed right up to the time of his arrest in October 2008.  In those circumstances, his Honour declined to give that direction.  The judge was entitled to take that approach.  This was not a case where a Longman direction was obligatory.  His Honour's summing-up made crystal clear that the jury could convict the appellant on any charge only if satisfied of his guilt of all elements beyond reasonable doubt on the basis of the evidence of the relevant complainant.  In any case, a Longman direction would have puzzled the jury as the defence case, which included comprehensive receipts, bundles of documents relating to work shifts and employment details, and telephone records, was not one where delay seemed to have disadvantaged the appellant in the conduct of his case.  The absence of a Longman direction has not caused a miscarriage of justice.

63. For all these reasons, the appellant has not established that any of the matters listed in ground 2, either alone or in combination, caused a miscarriage of justice.

Conclusion

64. I would grant the appeal against conviction, allow the appeal and set aside the convictions on counts 3, 6, 17, 21 and 22 and direct verdicts of acquittal on those counts. I would order a retrial on count 6. It will be a matter for the prosecuting authorities to determine whether the best interests of M and the wider community would be served by a retrial. I would otherwise dismiss the appeal.

65. I turn now to the application for leave to appeal against sentence.

Application for leave to appeal against sentence

66. The appellant was sentenced to 13 years imprisonment on counts 1 (maintaining a sexual relationship with a child, M) and 14 (maintaining a sexual relationship with a child, H); 12 months imprisonment on count 2 (indecent treatment of a child under 16, M); two years imprisonment on counts 3 (indecent treatment of a child under 16, M) and 15 (indecent treatment of a child under 16, H); three years imprisonment on count 16 (indecent treatment of a child under 16, H); five years imprisonment on counts 4 (indecent treatment of a child under 16, M), 5 (attempted rape, M) and 21 (rape, H); six years imprisonment on count 17 (rape, H); and eight years imprisonment on counts 6, 7, 10, 12 and 22 (rape, M).  As I would direct verdicts of not guilty on counts 3, 17, 21 and 22 and order a retrial on count 6, the application for leave to appeal against sentence must be granted and the appeal allowed.  The appellant must be resentenced on the basis of his reduced offending.  It is therefore unnecessary to deal with the grounds of appeal relating to sentence.

67. The parties at the appeal hearing raised the possibility of remitting any resentencing to the District Court. I consider, however, it is appropriate for this Court to resentence the appellant on the basis of the counts on which he remains convicted: two counts of maintaining a sexual relationship with a child (counts 1, M; and 14, H); one count of indecent treatment of a child under 16 concerning M (count 2); two counts of indecent treatment of a child under 16 concerning H (counts 15 and 16); one count of attempted rape of M (count 5); and four counts of rape of M (counts 4, 7, 10 and 12).

68. The prosecutor at sentence made submissions including the following. The maintaining offences and the rape offences were punishable by life imprisonment. The maintaining offence concerning M (count 1) encompassed the appellant's protracted and calculated grooming of her, commencing with shaving her pubic area and progressing to regular penetrative sexual intercourse. The relationship continued for almost three years from 2005 until September 2008, although count 1 encompassed a 14 month period from March 2005 until her 16th birthday in May 2006. Sometimes the complainant's mother was involved in the offending.

69. The maintaining offence concerning H (count 14) also involved a calculated grooming process, sometimes in the presence of H's mother. The offending took place over a period of about nine months. Count 15 (indecent treatment) occurred during 2008; it involved him requiring her to touch his and he then sucked on her clitoris. Count 16 (indecent treatment) involved the appellant sucking H's mother's clitoris and showing H how her mother's vagina reacted; he then had H placed her fingers into her mother's vagina.

70. Victim impact statements tendered by M and H and their natural father documented the predictably traumatic impact of the appellant's offending on the young women and their extended family.

71. The appellant was 51 years old at sentence and had no prior convictions. He had an exemplary work history, most recently as a train driver with Queensland Rail. He was at the time of his offending and at sentence suffering from a severe back injury which had required a laminectomy discectomy in 2002 and a posterior instrumented fusion, revision decompression and interbody fusions in respect of L4 and L5 through to S1 in 2008.

72. As this Court is resentencing the appellant, the respondent has no objection to the receipt of the appellant's affidavit in which he deposes to the great difficulty he has in managing his back condition whilst in custody compared to his management of it whilst living in his home. He considers his back condition has deteriorated in prison. He experiences severe back pain and muscle spasms. His requests for medical attention do not always receive an immediate response. On three occasions, he has been sent from prison to Princess Alexandra Hospital for the investigation of chest pain following back spasms.  The pain management options he used whilst living in the community, including heat packs, massage balls and physiotherapy, are not available in prison.  His only option is medication.

73. At sentence, the appellant's counsel asked the judge to make a finding of fact that M's genital herpes was not contracted from the appellant. The herpes was the common cold sore-type virus. Although the medical evidence was that it was probably transmitted sexually or through very intimate contact, it could be transmitted through auto-inoculation, that is, transferred from one part of M's body to another part of her body. There was no evidence that the appellant had the virus. As the prosecution relied on this as an exacerbating sentencing feature, the court would need to be satisfied of it to a very high degree before acting on it.

74. In sentencing, the judge noted that the complainant M was "a credible witness who gave rather compelling evidence".^[29]  As the appellant was acquitted on count 13, his Honour did not take into account that the offending against her involved her mother.  His Honour noted that in respect of the maintaining count concerning H, she was "a particularly impressive witness".^[30]  The acquittals on charges concerning H were explicable for reasons other than the jury having doubts about her veracity or accuracy.  The appellant groomed both complainants.  His behaviour constituted a gross breach of trust.  He had shown no remorse, subjecting M and H to lengthy cross-examination, sometimes on the most minute of details.  Whilst the appellant was not to be sentenced more harshly because of this, the court could not show the leniency possible had a different course been taken.  The appellant had made admissions which shortened the trial but otherwise there was no cooperation with the administration of justice.

75. The judge noted that the appellant's penile-vaginal penetration of M occurred on a very frequent basis over the period of his offending. He also committed offences against H. He had effectively robbed them both of their childhood and sexually corrupted them. This had inevitably caused psychological and emotional harm. The judge accepted that the appellant had infected M with genital herpes. She contracted the virus during the period of her unlawful sexual relationship with him. She had no other sexual contact at this time. The medical evidence was that the majority of these infections were caused by sexual contact. An additional exacerbating feature was that the appellant involved H's mother in some of the offending against her. This made H especially vulnerable as she could not turn to her mother for protection from the appellant.

76. The judge noted the appellant's lack of prior convictions, good work history and that no violence or threats. His Honour also noted that the appellant was receiving appropriate medical attention in custody for his back complaint. The prison system was capable of adequately managing his condition. It was likely however, to make his incarceration more difficult than that of a healthy male prisoner.

77. The complainants' mother had been convicted of two offences regarding H and sentenced to 15 months imprisonment fully suspended with two years probation. Issues of parity had no bearing on the sentence to be imposed on the appellant whose offending was much more serious. His Honour considered that general deterrence was an important feature. Were it not for the appellant's back complaint, the judge would have imposed a sentence of 14 instead of 13 years imprisonment in relation to counts 1 and 14.

Conclusion

78. The appellant's offending constituted a gross breach of the relationship of trust which should exist between a step-father figure and his partner's teenage daughters. The offending against M took place over a 21 month period. The offending against H took place over a nine month period. Both episodes commenced when each complainant was about 14 years old. An exacerbating feature in the offending against H was that the appellant involved her mother so that H could not turn to her for help and was doubly betrayed. An exacerbating feature of the offending against M was that, as the primary judge was well entitled to find on the evidence, she contracted genital herpes through it. Another exacerbating feature of the appellant's overall offending was that it was against not one but two complainants. The significant detrimental psychological and emotional impact on them may well be life-long. He did not have the mitigating benefit of a timely plea of guilty, remorse or extensive cooperation with the authorities. The appellant is now to be sentenced for a lesser number of offences than originally but, even so, general deterrence remains an important factor. The grave nature of the offending means that a heavy penalty must be imposed. The maximum penalties for counts 1 and 14 (maintaining) and counts 7 to 12 (rape) was life imprisonment.

79. The few mitigating features were that the appellant had no prior convictions and an impressive work history, but these features are not unusual in cases of this kind. His conduct of the trial demonstrated modest cooperation with the authorities in that he made admissions to non-contentious issues that shortened the proceedings. He did not use actual physical violence or threats in committing the offences. He has a serious and painful back condition which will make the serving his sentence in prison more difficult for him than a healthy man of his age.

80. A consideration of the principles discussed by this Court in R v SAG,^[31] and a review of the sentences imposed in R v M,^[32] and R v Herford^[33] and R v D,^[34] support an effective global sentence to recognise the totality of the appellant's grave offending against both M and H as one in the vicinity of 12 years imprisonment.  That sentence should be imposed on count 1.  In reaching that conclusion, I am taking into account his absence of remorse, insight, a timely plea and extensive cooperation with the authorities.  Like the primary judge, I would reduce the otherwise appropriate sentence by 12 months to reflect the appellant's debilitating back condition which will make his time in prison especially uncomfortable.  It follows that I would impose a sentence on count 1 of 11 years imprisonment to reflect the whole of the appellant's offending.  I would impose a sentence on count 14 of six years imprisonment to reflect the more limited offences concerning H of which the appellant is now convicted.  I would otherwise confirm the sentence imposed by the primary judge.

ORDERS:

1. Appeal against conviction allowed.

2. The verdicts of guilty on counts 3, 6, 17, 21 and 22 are set aside.

3. Verdicts of acquittal are entered on counts 3, 17, 21 and 22.

4. A retrial is ordered on count 6.

5. The appeal against conviction is otherwise dismissed.

6. The application for leave to appeal against sentence is granted and the appeal allowed.

7. The sentence imposed on count 1 is set aside and instead a sentence of 11 years imprisonment is substituted.

8. The sentence imposed on count 14 is set aside and instead a sentence of six years imprisonment is substituted.

9. The sentence imposed at first instance is otherwise confirmed.

81. GOTTERSON JA:  I agree with the orders proposed by McMurdo P and with the reasons given by her Honour.

82. McMEEKIN J:  I have had the great advantage of reading the reasons of the President. Subject to what I have to say about the verdicts on counts 17, 21 and 22 I agree with all that the President has written.  However I am not persuaded that the verdicts on these three counts are necessarily so illogical that they cannot stand or that this Court ought to enter an acquittal where the jury has convicted.

83. As the President has said the approach of this Court to the overturning of each verdict is governed by the principles explained in Mackenzie v The Queen (1996) 190 CLR 348.  Of significance here are the third, fourth and fifth of the six propositions set out in the joint reasons of Gaudron, Gummow and Kirby JJ (with my emphasis)^[35]

"3. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone is often cited as expressing the test: 'He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.'

4. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one count: a function which has always been open to, and often exercised by, juries.

…. Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman, in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed: '[J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.' We agree with these practical and sensible remarks.

5. Nevertheless, a residue of cases will remainwhere the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. 'It all depends upon the facts of the case'."

84. What seems to me to be of paramount importance is that the jury could not have convicted on counts 17, 21 and 22, or for that matter on counts 14, 15 and 16 unless convinced of the essential honesty of H. In relation to these two series of events, that is the events involved in counts 17 and 18 on the one hand and counts 21, 22 and 23 on the other, the jury were satisfied beyond reasonable doubt that criminal sexual conduct took place.

85. Thus, as the appellant conceded, there was evidence to support the convictions – the complainant's direct testimony and, in a general sense, a great deal of corroborative evidence as outlined in the respondent's submissions.

86. As I understand the principles explained in MacKenzie where there is adequate evidence to support the convictions then the appellant faces a significant hurdle in having this Court substitute its views for those of the jury on the ground of logic and commonsense.  As Jerrard JA said in R v CX (with my emphasis):

"Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant…".^[36]

87. In my view neither of those tests is satisfied here.

Count 17

88. The President has outlined the evidence relating to counts 17 and 18 at [29]-[31]. The counts involved the one episode and they involved an act of fellatio followed by intercourse. The jury convicted in relation to the act of fellatio and acquitted on the act of intercourse.

89. Counsel for the respondent submitted that the verdicts were perfectly explicable. He pointed out:

1. The complainant's account of the act of oral sex involved detail that was quite striking and different to any other account given by the complainants of the appellant's behaviour - it involved the application of honey and chocolate to the penis of the appellant. I interpose that, as well, her evidence contained details that the jury may have thought added verisimilitude to the account – a description of the chocolate, a Woolworths brand "choc mint". The jury might well have accepted that this level of detail was unlikely to be forgotten and unlikely to be made up;

2. This could be contrasted with the act of intercourse which was one of many such acts and the jury might well wonder whether her recollections of time and place were accurate;

3. That last point is strengthened by some uncertainty in the manner of her giving the account of the act of intercourse in her interview with the police^[37] that was played to the jury and differences in detail when cross examined;^[38]

4. In any case the appellant's denials of any act of intercourse were significantly strengthened on this occasion by evidence independent of him in relation to this period in his life – the appellant had a nerve block procedure that the expert evidence suggested would have had no impact on claimed significant back pain shortly before the time the complainant said these events occurred. An orthopaedic surgeon and physiotherapist each gave evidence of the difficulties that he would experience having sexual intercourse in the manner that the complainant described. Dr Albeitz, the surgeon, had seen the appellant on 26 June 2008. The nerve block procedure occurred on 30 June and spinal surgery on 30 July. The relevant events, on the complainant's account, occurred towards the end of the school holiday period between 30 June and 13 July – probably around 9 July and so two weeks after the surgeon had seen the appellant and perhaps nine days after the nerve block procedure.

90. In my view there is much force in these submissions. They provide some logic for the jury's approach.

91. If what concerned the jury was not honesty but reliability of recollection then I can well understand them having some hesitation given the original account to the police officers. After relating the application of choc mint and honey the questioning proceeded (according to the transcript with H being the complainant and SG being the police officer)^[39]:

"SG: Then what happened after that?

H: He um he had to play with his penis

SG: Yup

H: And keep sucking it

SG: Yup

H: Until it orgasmed and the I don't know…(u/i)

SG: Alright, you said you sat on him and had sex with him at one stage, when did that happen?

H:  Um, I think that was like when he was about to orgasm he just wanted a little bit closer but I don't know.

SG: What do you mean he wanted a bit closer

H: Like more urge

….

H: Mmm, but he's like if I’m gunna orgasm I'll tell you and I always like get off like that. Ten to twenty minutes before he does.

SG: Ten to twenty minutes before he orgasms?

H: Yeah

SG: You get off him? Ten to twenty minutes is a long time

H: I don't know like a few minutes before".

92. I note the failure to mention the act of intercourse without being prompted, the uncertainty of the timing of the act of sitting on top of the appellant and the ready leap from ten to twenty minutes back to a few minutes. These details might well combine to make the jury concerned that the certainty they required in the evidence was not there.

93. These difficulties are compounded when one considers the account in cross examination, particularly when in the sequence sexual intercourse occurred. H's account here was that after the choc mint incident she was required to get on top of the appellant and had sexual intercourse for five minutes but it started hurting her a lot, she got off then the appellant started "whanking himself and then at random times he would stop and he would expect me to go down and suck on him".^[40]  These activities continued for about 20 to 30 minute after she had got off him.^[41]  This is in considerable contrast to the account in the s 93A interview.

94. I can understand a jury having concerns about the accuracy of H's recollections given these differences in detail. But those concerns do not require the necessary rejection of the account of oral sex. There is a significant difference between the "choc mint and honey" account and the account of sexual intercourse. The latter occurred on too many occasions for H to recall how many.^[42]  The former occurred once.  The difference in detail might cause the jury to be concerned, reasonably, that H had a confused recollection of events in relation to the oft repeated activity.

95. The opinion of the surgeon added to the force of the argument in respect of the time period relevant here. The surgeon's opinions did not conclude the matter – he was by no means adamant in his opinion when asked about the ability to do the acts involved on the complainant's account (assuming they occurred on 9 July as on her account seemed likely). Indeed he said they were "possible"^[43] but combined with the other matters I can understand the jury having some hesitation.

96. It is worth pointing out that a verdict of acquittal does not mean that the jury were satisfied that the claimed act did not occur. It means that the jury were not satisfied, beyond reasonable doubt, that the claimed act did occur. There is a considerable difference. As defence counsel are fond of reminding juries it is not sufficient that they think it probable that the defendant did the crime alleged, the level of certainty required is greater than that.

97. Given the force in the points made by the respondent I cannot see any illogicality, at least not to the level of being an "affront to logic and commonsense", in the jury accepting to the requisite standard the complainant's account in relation to count 17 but have some doubt sufficient to acquit on count 18.

98. The President points out that if the problem for the jury was the question of consent and the jury were in doubt on that issue they were required to return a verdict of guilty of unlawful carnal knowledge given the complainant's age. Given my approach this point is not of relevance. But I make two observations: we do not know if consent was the issue; and I am far from convinced that the complainant did accept that there was ever an occasion when she gave consent that was not forced.

99. The President has recounted the relevant evidence but it is necessary that I repeat it. H gave pre-recorded evidence under Pt 2 Div 4A Evidence Act.  The following exchange occurred during her cross-examination:

"It's correct, isn't it, [H], that every time you did something sexual with [the appellant], you had agreed to it? You agree with me?-- I agreed to one time but like the rest it was, like, forced.

You say - by 'forced', do you mean that you might say to [the appellant] that you didn't want to do it but he would persuade you to do it?-- Yeah.

So by 'force', you mean that he talked to you until such time as you agreed to do it?-- Yeah."^[44]

100. I have highlighted the crucial piece of evidence. To have the construction assumed depends on how one reads the word "like" where it appears for the first time. If the complainant meant "having the same characteristics or qualities as; similar to", as the dictionary would have its primary meaning, then she was asserting that the one "agreement" was "like the rest", that is "forced". If the word was used in the sense young people often use "like" as where it is used for the second time – a word without any particular signification - then the answer has the connotation of admitting to consent once. I do not know what the complainant meant. The point is that that was a matter for the jury and the ambiguity does not demonstrate that the jury misunderstood their function.

Counts 21 and 22

101. It will be recalled that counts 21, 22 and 23 concerned the one episode. H alleged that she was required to engage in oral sex with the appellant (count 21), then required to engage in intercourse with him (count 22) and then again to engage in oral sex (count 23). The jury acquitted on count 23, the last claimed act of oral sex but convicted on counts 21 and 22. These three counts related to the last occasion on which H alleged the appellant had had sexual relations with her. The activity occurred, she thought, a few days before she saw the police for the first time with her complaints.^[45]

102. Again the significant point is that there was evidence supporting the conviction. The same principles apply. The appellant bears the onus and it is a heavy one of demonstrating a degree of illogicality amounting to an affront to commonsense. Our approach is one of caution. That there are difficulties in reconciling the two verdicts is not enough.

103. As the President has pointed out it was not necessary for the jury to return the same verdict on each count – that is guilty of all or guilty of none. As the President observes given the evidence in cross examination, or rather the lack of it concerning the two episodes of oral sex, it would have been entirely explicable if the verdicts had been guilty of count 22 but not guilty of the others. I respectfully agree with those remarks.

104. I make two observations. First, the failure to recount the acts of oral sex before and after intercourse two years after the events therefore can be seen as explicable and does not mean that the jury were acting illogically in being satisfied that the act of sexual intercourse alleged by H took place. To paraphrase Jerrard JA in R v CX a verdict of acquittal on count 23 did not necessarily demonstrate that the jury did not accept H's evidence, which they had to accept, before they could bring in the verdict of guilty on count 22 which they did.  The question that arises is why does the conviction on count 21 have that effect? 

105. Second, that failure to repeat the evidence given in the original interview – which would have explained the acquittal on count 23 and, if there was nothing else, justified an acquittal on count 21 - is not the only possible reason why the jury may have acquitted on count 23. Indeed we cannot know if that failure had anything to do with the acquittal.

106. What was significant about the events involved in count 23 was the act of fellatio after intercourse. Acts of fellatio before intercourse were common place on the account of the complainants. But not so an act of fellatio after intercourse. The jury may have considered that there was corroboration in much of the evidence because of the coincidence in the accounts of each of the complainants. Here there was not that cross corroboration.

107. But assume that the failure to repeat the evidence in cross examination was of significance. Given that the jury had this evidence read back to them very shortly before returning with their verdict it is not an unreasonable assumption, simply not a necessary one. The claimed illogicality depends on the proposition that if the jury were not prepared to accept one account of oral sex to the necessary standard they must reject not only both acts of oral sex but also the act of intercourse alleged to have occurred between the two, because the events occurred at around the same point in time and so one would expect the witness' recollections to be as accurate for the one event as for the others. I cannot accept that proposition here.

108. That assumes an equivalence of memorability between the two events of oral sex. In my view there is no such equivalence here, or at least I can well understand the jury taking that view.

109. The claimed act of post intercourse fellatio is of a different quality in two ways to the act of pre intercourse fellatio. One is that the jury might well have considered that requiring a woman to fellate a penis covered in her vaginal secretions is a very different and more significant event than the pre intercourse act. The second is that there was a very different level of frequency of the two events on the accounts the complainants gave - if this was not unique it was certainly rare in the accounts of these complainants.^[46]  To fail to recall an event that had become almost common place two years after the events is explicable.  The more unusual the event the more one would expect the event to stick in H's mind and the more one would expect it to be recounted.  These two differences justified the jury in giving more significance to the complainant's failure to repeat this post-intercourse event than her failure to repeat the pre-intercourse event.

110. But there is more than that here. My impression of the cross examination is that the failure to mention the post-intercourse fellatio is a more striking omission than the pre-intercourse event.

111. In the s 93A interview the officers went to some lengths with repeated lines of questions clarifying detail and the like to obtain the evidence. The transcript relevant to this episode occupies some six pages of foolscap.^[47]  The impression is that the complainant was not forthcoming with details.  But in cross examination things moved much more briskly.  The entire cross examination on this episode, after the identification of time and place had been established, is covered in a few paragraphs.  And while it cannot be said that the complainant was deprived of a chance to proffer both accounts of the acts of oral sex before and after intercourse, her chances were limited and the failure to do so in relation to the post-intercourse event is quite striking.

112. The opportunity to proffer the pre-intercourse activity is covered in the opening two questions. After stating she had taken her clothes off the questioning went as follows^[48]:

"[H], can you actually remember what happened after that or is your recollection gone?--- I can kind of remember what happened. I can remember we had intercourse and that was about it.

So all you remember of that occasion is that you had sexual intercourse with [D]?--- Yep

And by 'sexual intercourse' you mean him putting his penis in your vagina?---  Yes

And on that occasion is all you can – sorry. I'm sorry. On that occasion when you had intercourse with him were you on the top or on the bottom? --- I was on the bottom."

113. This may be contrasted with the opportunity to recall the post–intercourse fellatio. The cross examination went on:

"And how long did that go for? --- It went for about half an hour

So you were on the bottom of him when he was having sex with you and that went on for half an hour?--- Yep

Okay, but apart from that, you can't remember anything else that occurred in that room that day; is that right?--- Yep

And how did it end that day? --- He orgasmed

And how do you know that? --- Because I was in the room when he did it

Right? --- Like I was still on the bed when he did it. But he wasn't in me

Okay so at the point in time he orgasmed he had withdrawn his penis from your vagina? --- Yeah"

114. There are three points. First, if the witness was thinking of the sequence as the cross examiner took her through the event then while there was some opportunity to recall and proffer the pre-intercourse act there was greater opportunity to recall and recount post intercourse oral sex - on any view what should have been a significant event. Secondly, counsel provided the obvious prompt for the account to be introduced - in the s 93A interview the complainant had alleged the post intercourse fellatio had immediately preceded the appellant having an orgasm^[49] - an event specifically mentioned in the cross examination.  Thirdly, and most significantly, twice the complainant said "he did it" meaning the appellant bringing himself to orgasm.  Her failure to mention her role is quite striking.^[50]

115. In these circumstances I can well understand a jury giving much more weight to the omission to mention the post-intercourse act than the pre-intercourse act.

116. This process of reasoning would justify an acquittal on count 23 but not reflect necessarily on the view one might take of counts 21 and 22. With respect to count 23 the jury may have been concerned that the complainant had confused when in the course of these events over a nine month period the act occurred. That does not necessarily mean that they were obliged to have the same doubt in relation to the other two acts.

Conclusion

117. To my mind the verdicts on counts 17, 21 and 22 are not an affront to logic and common sense.

118. What we do know is that the jury put a great deal of thought into the matter. They deliberated for a long time. They sought re-directions. Their repugnance at the appellant's actions, which one suspects they could not help but feel given their obvious acceptance of much of what the complainants told them, has not led them to simply convict as charged. Their acquittals were rational. I could not find this jury to be "an unreasonable jury" in the sense meant by Devlin J in R v Stone.^[51]  That the jury gave these different verdicts, claimed to be inconsistent, to my mind "reveal[s] only that the jury followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count, and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt."^[52]

119. Nor do the circumstances here show "a compromise of the performance of the jury's duty" nor do they "suggest confusion in the minds of the jury or a misunderstanding of their function, [or] uncertainty about the legal differentiation between the offences".^[53]  The tests suggested by Jerrard JA in R v CX^[54] are not met.

120. In my view the convictions on counts 17, 21 and 22 should stand.

121. I would allow the application for leave to appeal against sentence and allow that appeal but not in respect of counts 17, 21 and 22. In the result I agree with the orders proposed by the President save for those in orders 2, 3 and 8 where I would amend the orders to read:

(2)the verdicts of guilty on counts 3 and 6 are set aside;

(3)a verdict of acquittal is entered on count 3;

(8)the sentence imposed on count 14 is set aside and instead a sentence of eleven years imprisonment is substituted.