R v CCX[2022] QCA 260

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Kelly J.
2. [2]
   BODDICE J:  I agree with Kelly J.
3. [3]
   KELLY J:  The appellant was tried in the District Court on an indictment which contained seven counts.  Count 1 involved the offence of maintaining a sexual relationship with a child.  Counts 2 and 3 involved the offences of indecent treatment of a child, under 16 and under care.  Counts 4 to 7 involved rape offences.  The appellant was convicted on counts 1 to 4 and 6 but found not guilty on counts 5 and 7.  He appeals on the ground that the guilty verdicts are unreasonable or cannot be supported having regard to the evidence.^[1]  The ground was advanced as an inconsistent verdicts ground^[2] on the basis that the likely explanation for the acquittals was inherent concern about the complainant’s credibility which should logically have extended to each count on the indictment.

Background matters

4. [4]
   Between 13 January 2012 and 25 June 2018, other than for brief periods, the complainant and her sister lived as foster daughters with the appellant, his wife and their three biological children.  The family home was in one suburb.  The appellant was a personal trainer and massage therapist who operated a gym in a neighbouring suburb.  The gym was a 280 square metre room, which included an area for gym equipment, a lecture room, an office and a massage room.  The massage room was situated behind the office, had four walls and a door and contained a massage table, a table and a filing cabinet.  The appellant worked long hours during the week and on Saturdays.  The gym was closed on Sundays and the appellant would spend parts of his Sundays at the gym doing his own training, catching up on work and cleaning.  Muay Thai training was offered at the gym and the complainant undertook that training from around 2014.  The training was offered by the appellant and another male.  The complainant enjoyed the training and started to spend most weeknights at the gym and would stay until closing when the appellant would drive her home.  She would also spend time at the gym with the appellant on Sundays.
5. [5]
   In or about July 2018, when the complainant was halfway through grade 10, she and her sister left the care of the appellant and his wife and began to live with a new foster mother (“X”).  For a period whilst they lived with X, a male aged 18 years (“Y”) lived with them  Around this time, the complainant dated a boy from her school (“Z”).
6. [6]
   On 22 September 2019, the police recorded the complainant’s s 93A statement.
7. [7]
   On 4 February 2020, the police interviewed the appellant.
8. [8]
   The particulars of each count on the indictment may be outlined as follows:

   1. (a)
      Count 1 (Maintaining an unlawful sexual relationship on a date unknown between 31 December 2013 and 26 June 2018): the appellant was alleged to have regularly committed unlawful sexual acts upon the complainant including inserting his finger into her vagina, having her masturbate him and having her perform oral sex upon him.
   2. (b)
      Count 2 (indecent treatment on a date unknown between 31 December 2013 and 1 January 2016): the appellant was alleged to have wilfully exposed the complainant to pornography on his mobile phone;
   3. (c)
      Count 3 (indecent treatment on a date unknown between 31 December 2013 and 1 January 2016): the appellant was alleged to have rubbed the complainant’s body whilst she was naked including her breasts;
   4. (d)
      Count 4: (rape on a date unknown between 31 December 2013 and 1 January 2016): the appellant was alleged to have inserted his finger or fingers into the complainant’s vagina;
   5. (e)
      Count 5 (rape on a date unknown between 31 December 2016 and 1 January 2018): the appellant was alleged to have inserted his finger or fingers into the complainant’s vagina;
   6. (f)
      Count 6 (rape on a date unknown between 31 December 2016 and 1 January 2018): the appellant was alleged to have penetrated the complainant’s mouth with his penis;
   7. (g)
      Count 7 (rape on a date unknown between 31 December 2014 and 1 January 2017): the appellant was alleged to have inserted his penis into the complainant’s vagina.
9. [9]
   Some preliminary observations can be made about the counts as particularised.  Counts 3 to 7 were relied upon as particulars of count 1.  Counts 1 to 6 involved alleged offending at the gym. Count 7 involved alleged offending at the family home.  The alleged offending described by count 7 had not been described by the complainant during her s 93A interview.  She had first remembered this episode of alleged offending in or around October to December of 2019^[3] and had raised it with the prosecutor when the commencement of the trial was imminent.^[4]  This meant that there was no complaint about the alleged offending the subject of count 7 at the time when the police interviewed the appellant.  In respect of counts 2 to 7, the periods of time particularised for the specific offending were reflective of the complainant’s progression through her schooling.  Counts 2 to 4 referenced a time when she had been in year 6, counts 5 and 6 referenced a time when she had been in year 9 and count 7 referenced a time when she had been in years 7 or 8.
10. [10]
    The trial occurred between 14 and 17 September 2021.  The Crown called four witnesses, the complainant, her sister,^[5] X and Y.
11. [11]
    The complainant’s evidence comprised her s 93A statement and evidence she gave in person on the first day of the trial and then, due to COVID safety protocols, by video link on the third day of the trial.
12. [12]
    The appellant did not give or call evidence.  The prosecution tendered the appellant’s police interview in the Crown case.

Counts 2 to 4

13. [13]
    In her s 93A interview, the complainant was asked to tell the police about “the first time that something happened with [the appellant].”^[6]  She recalled an incident that had occurred when she was in grade six on a weekend during school term.  She could not be more precise with the timing but recalled that it was when she was very close to high school.^[7]  Her evidence about that incident was as follows.  She was at the gym on a Sunday doing cleaning work when the appellant called her into his office to massage his shoulders.^[8]  He was watching pornography on his phone.^[9]  The phone was a very large Samsung or Optus phone, with a black case.^[10]  The pornography involved a man and a woman having sex^[11] and played for approximately five to seven minutes.^[12]  The appellant “got [her] to stay there and watch it with him”.^[13]  She stood behind him massaging his shoulders.^[14]
14. [14]
    The next thing she recalled was being in the massage room with the appellant.  She could not recall how events progressed to the massage room.^[15]  The appellant told her to take her clothes off so that she was naked.^[16]  He put a new towel over the massage table, took off his watch and got her to lie on the table.  He stroked her, up and down, all over her body including her breasts.  He then put his fingers in her vagina.^[17]
15. [15]
    The complainant described the digital rape in detail.  The appellant had put spit on his fingers and then slowly put one finger into her vagina.  He progressed to using a second finger.  He had moved his fingers around up and down.^[18]  She felt very uncomfortable and the area around her vagina “felt really sore”.^[19]  The appellant used his right hand to penetrate her vagina and his left hand to push her down on the table.^[20]  She tried to get him to stop by grabbing his wrist and trying to pull it away.  He pushed her back down and kept his hand on her chest.^[21]  She tried to close her legs but he used his arms to keep her legs apart.^[22]  She eventually gave up because he was too strong.  She tried not to cry^[23] and lay there “wishing it to stop”.^[24]  He told her to relax as he continued to insert his fingers into her vagina.^[25]  The episode lasted for approximately one hour and ended with the appellant wiping his hands on some toilet paper and telling her to wipe herself with the toilet paper.^[26]
16. [16]
    Afterwards, the appellant had driven her home and she recalled him telling her not to say anything to anybody about what had happened.^[27]  Once home, the appellant had “[j]ust started acting normal”.^[28]  She said she would be at the gym most Sundays and that the appellant would “just keep doing the same thing… over and over again.”^[29]

Counts 5 and 6

17. [17]
    In her s 93A interview, the police asked the complainant whether she could recall another incident.  She replied that there had been “way too many to count,”^[30] “just, same sort of thing, over and over again”^[31] and “on most Sundays”.^[32]
18. [18]
    When pressed about whether there was any incident that was different to the first incident, the complainant provided this answer:^[33]

“Then after a while um, he told me that, to show that you love another person, and I only loved him as a father figure - - …  he said you know, usually you return the favour.  So he end[s] up getting me to do like hand jobs and [blow jobs] for him”.

19. [19]
    The complainant was asked to recall “one time” when this type of conduct had occurred.^[34]  She replied “I remember one time… after he had done his little fun, bit, ah, he was standing up and he ah pulled down his pants and underwear, and I just sorta’ knew just what to do so I just got down on my knees and, yeah, gave him a [blow job].”^[35]  This was the first and only time that the complainant used the language “his little fun, bit”.  The following exchange then occurred:^[36]

“[Police officer]: So when you say after he had his fun - -

[Complainant]: Yeah, my yeah.

[Police officer]: Yeah so fingers inside your - -

[Complainant]: Yeah.

[Police officer]: Vagina.

[Complainant]: Again, yeah.

[Police officer]: Um, where did this one happen?

[Complainant]: Same place in the massage room”.

20. [20]
    The complainant recalled that this incident had occurred when she was in grade 9^[37] but she could not recall whether this was the first time that oral sex had been involved.  As to the offending involving oral sex, her evidence was as follows.  The incident commenced with the appellant showing her pornography.^[38]  He took his pants and underpants down to about his ankles and the complainant knelt on the floor.^[39]  She knew what the appellant was expecting “from all the porn he’s shown me”.^[40]  She added “It’s usually how he would start things off by showing me porn”.^[41]  She described performing oral sex on the appellant.  Her hands were on the appellant’s thighs and one of his hands was gripping her hair at the back of her head.^[42]  Whenever she would try and take a breath “he’d give me a couple of seconds” and then use his hand to push her head back towards his penis.^[43]  He told her to “pull off,”^[44] after which he “just started going and going with his hand and then he sort of just came in his hand”.^[45]  The complainant described the appellant’s semen as “like weird stuff … just like this thick white substance”.^[46]  The appellant wiped his hand on toilet paper.  She said they stayed at the gym for another two hours before they went home together.
21. [21]
    The complainant recalled having performed oral sex on the appellant about 10 times.^[47]  She did not like having to perform oral sex and she “started to use my hand … nearly every time”^[48] and “too frequently,”^[49] with the incidents not involving oral sex finishing “[w]henever the white substance came out”.^[50]  On occasions, the appellant would try and ejaculate on her chest or stomach.^[51]

Count 7

22. [22]
    She prefaced her evidence about this incident by saying “I’m still having trouble remembering specific details at this point in time”.^[52]  Her evidence about count 7 was as follows.  She was at the home on a weekend when she was in year seven or eight and alone with the appellant.^[53]  His wife and biological children were away on a holiday and her sister was at a friend’s place.^[54]  She was watching TV with the appellant with her head on his lap.^[55]  He began to stroke her thighs^[56] and told her to get undressed and lie down on the ottoman on her back.^[57]  The appellant left the room to obtain a condom.^[58]  He then returned got undressed and put on the condom.^[59]  She lay on the ottoman with the appellant on top of her and he penetrated her vagina with his penis.^[60]  The intercourse lasted for 10 or 20 minutes.^[61]  The appellant orgasmed and became concerned that there was a hole in the condom.^[62]  The appellant pulled off the condom but was unable to ascertain whether it contained a hole.^[63]  They were both panicking and^[64] he told her to drink lots of water and then left the home to obtain a pregnancy test.^[65]  He returned about 20 minutes later with a pregnancy test.^[66]  Meanwhile, the complainant had drunk water, tried to urinate and taken a shower.^[67]  The pregnancy test was negative.^[68]

Consent

23. [23]
    The complainant was asked whether, in relation to all the complaints she had made of inappropriate dealings with her by the appellant, she had agreed or consented to any of those dealings.^[69]  She replied “[i]n a way, yes.  Like, physically, I agreed, but mentally, I wasn’t prepared for it or willing to do it at all.”^[70]  She was asked what she had meant by the expression “physically, I agreed”.  She replied “… [b]y just doing what [the appellant] asked and instructed me to do, and just following the hint that he would give me”.^[71]  She was adamant that mentally in her own mind she had never consented to any of the dealings.^[72]

Subsequent complaints and the complainant’s general behaviour

24. [24]
    The complainant recalled an occasion when Z and her had been at X’s home.  She recalled that Z “laid me down on my bed, blindfolded me and started fingering me.  And then [X] walked in”.^[73]  The complainant described having had a conversation with X in which she “basically used that situation” as a way to describe what had happened to her whilst in the appellant’s care.^[74]  She had told X about what had occurred some months after the incident, at a time when Y had moved in with them and she “felt comfortable enough with them”.^[75]  She recalled saying to X that the appellant did things to her that she “wasn’t proud of, and that was definitely not fun either”.^[76]  Her recollection was that she didn’t really go into detail but had basically said that the appellant had sexually abused her.^[77]  She said she used what X had seen Z doing to her as an example of the sex abuse because she found it easier to use that as an example rather than having to explain all of the detail to X.^[78]  She recalled saying words to the effect “[the appellant] used to do to me what … you caught [Z] doing to me”.^[79]  She had spoken to Y before she had spoken to X.  She had been sitting on the balcony vaping with Y when she “told him what happened and he encouraged me to tell [X].”^[80]  She had said to Y that the appellant had used her body inappropriately when she was a child.^[81]
25. [25]
    X was a teacher by occupation.  Her evidence was as follows.  The complainant and her sister had come into her full-time care around the June to July school holidays of 2018.  She had a conversation with the complainant at the end of August 2019.^[82]  Prior to that conversation, she had discovered the complainant and Z in the complainant’s bedroom.  The complainant had been on the bed and Z’s head was between her legs, near her vagina.^[83]  That incident happened about a month before her conversation with the complainant.  During the conversation the complainant had said to X that the appellant “had done the same act as what [Z] had done,”^[84] whilst they had been at the gym”.^[85]
26. [26]
    X had looked after the complainant during respite weekends in the first six months of 2018 whilst the complainant was still living under the care of the appellant and his wife.  The use of respite care for the complainant had increased over that period.  The complainant’s behaviour when she had come into her fulltime care had been “fairly sexualised”.^[86]  It had been difficult to control the complainant’s use of pornographic literature.^[87]
27. [27]
    The complainant lived with X for approximately 16 months.  X recalled one occasion when the complainant went and helped the appellant move equipment from his gym to a shed.  The complainant had been happy to do that.  There was also an occasion in April 2019, on Easter Sunday, when at the complainant’s request, X had taken the complainant to the home of the appellant and his wife.  The complainant had wanted to apologise to the appellant and his wife about her teenage behaviour whilst under their care.  One of the appellant’s biological children had that day been baptised.  X recalled that it was a very pleasant occasion.
28. [28]
    Y recalled that he had lived with X and the complainant for around one month^[88] when he had a conversation with the complainant on the balcony at X’s place.  His evidence was as follows.  He had bought some McDonalds and was sitting with the complainant “trying to just get to know each other a bit better”.^[89]  They were talking about personal things and sharing with each other things about their past.  The complainant had “gestured towards her that [the appellant] had done sexual acts towards her”.^[90]  What he meant by “gestured towards” meant gestured towards her vagina.^[91]  The complainant got very emotional and upset.  Y said “I didn’t want to try and make her relive … everything that had been happening, so I tried diverting the conversation”.^[92]  The complainant said that she had been sexually assaulted and that it had happened at a gym and in a bedroom.
29. [29]
    The complainant’s sister recalled that, whilst she had lived with the appellant and his wife, the complainant had been in trouble a lot for lying.^[93]

The complainant’s cross examination and re-examination

30. [30]
    There was no substantive cross examination directed to the specific details of the complainant’s account of the actual offending at the gym.
31. [31]
    It was put to the complainant, and she rejected, that the appellant had never touched her inappropriately or penetrated her body.^[94]
32. [32]
    The complainant was cross examined about her use of pornography.  It was put to her, and she accepted, that she had viewed, and written about, pornography from a young age and prior to the alleged offending by the appellant.^[95]  It was put to her, and she rejected, that the appellant had never shown her pornography.^[96]  It was suggested to her that the appellant “used to lecture you about your use of pornography.”^[97]  In that context, reference was made to a time in 2017, when the appellant had taken the complainant to the police “to speak about this very thing”.^[98]  She accepted that she had been spoken to by the appellant and his wife about her use of pornography on a number of occasions and had been taken to speak to an officer of the Queensland Police Service and a counsellor.
33. [33]
    The complainant was cross examined at some length about matters she had failed to mention during her s 93A interview.  The complainant had said in cross examination that the appellant touched her inappropriately sometimes during the week.^[99]  It was twice put to the complainant that she had told the police that the offending had only occurred on Sundays.^[100]  Those questions were not fair or accurate as the complainant had not said to the police that the offending had only occurred on Sundays.  The police had also not asked her whether the offending had only occurred on Sundays.  The s 93A interview was structured in a way whereby the complainant had been asked to provide her first memory of offending and then later to describe “any time that was different to what you’ve just described”.^[101]  The complainant certainly said in her s 93A interview that the initial episode of offending had occurred on a Sunday.  When asked “…how many times do you think that it happened?”, she had also replied “…way too many to count.  It happened on most Sundays”.^[102]  However, that evidence did not disclaim or deny offending during the week.  The complainant rightly disagreed with the suggestion that she had said in her s 93A interview that the offending had only happened on Sundays.^[103]
34. [34]
    The complainant said that she had forgotten to mention during the s 93A interview that the offending had sometimes occurred during the week.^[104]  She explained that the s 93A interview had been “a lot”^[105] and that, as a person who had been through trauma, she had found it quite hard to remember traumatic events.^[106]  She further explained that during the s 93A interview she had remembered “memories of only events that stood strong… [o]nly events that stood out most to me”.^[107]  Sundays stood out in her memory because “[t]he Sundays were more repetitive.  So it was like a routine”.^[108]  By contrast she described the weekday offending as “…really depending on the day or whenever he felt like doing something, really”.^[109]
35. [35]
    In her s 93A interview, the complainant had said that no incidents had occurred away from the massage room.^[110]  She had said “[I]t was always there.  He didn’t really take any chances at home or anything like that, ‘cause [the appellant’s wife] was always around.”^[111]  Yet the events the subject of count 7 were said to have occurred at the home.  In cross examination, the complainant accepted that she had forgotten to tell the police about this incident.  She said that she had first recalled the incident when having a shower a couple of years before the trial.^[112]  She initially said in cross examination that this episode of penile/vaginal rape had been a onetime occurrence^[113] but then later explained that it was “the only time I can remember”.^[114]  It was suggested to her that in the week before the trial she had said to the prosecutor that she had experienced penile/vaginal intercourse with the appellant “a number of times”.^[115]  She replied “[d]id I? I think I did”.^[116]  The complainant ultimately accepted that what she had meant by her further account given to the prosecutor was that penile/vaginal rape had occurred on more than one occasion, but she could not recall the other occasions.^[117]
36. [36]
    The complainant acknowledged that she tended to “have quite a lot of disassociations and flashpoints”.^[118]  The following exchange occurred in her cross examination:^[119]

“You talked about disassociation just before the break?---Yes.

What do you mean by that?--- It’s kind of hard to explain, but its like where I – I’m not present in the – in what’s happening around me at that point.  My mind has been completely disconnected from reality and has – will either go back somewhere that’s traumatic for me or I won’t see anything.  It really just depends sometimes.  But most of the time, it’s usually – I usually go back to a time that was pretty traumatic.

So you’re saying that, sometimes, when things happen, your mind, effectively, goes to another place?---Yes.

And then, how do you get the memory back? Does it just come back of its own accord?---Yes.  Sometimes, there can also be triggers.  I haven’t been able to pinpoint at this time as I have no access to therapy or anything like that.”

37. [37]
    She was cross examined about the occasion when X had walked in on her with Z in her bed.  She agreed that when X walked in, Z was performing oral sex on the complainant and had his hands on her thighs but insisted that Z had his fingers in her vagina at one point.^[120]
38. [38]
    The complainant accepted that although she had been on eight respite weekends with X during the first half of 2018, she had never mentioned to X anything about having been sexually abused by the appellant.  It was put to her that she had remained prepared to go to the gym on a Sunday with the appellant without complaint over a four-and-a-half-year period.  She accepted that whilst living permanently with X, she had once been prepared to help the appellant in closing down his gym and moving his equipment to a shed, knowing that she would then be alone with him at the gym.  It was put to her that she willingly went and helped the appellant.  She replied “[y]es. I was getting paid to help.”^[121]  She accepted that he had not touched her on that occasion despite the work having involved seven or eight trips between the gym and the shed and there being no one else at the gym.  She accepted that she had spoken to X about the appellant in a favourable way and said “[h]e did some things right… [b]ut the rest of it wasn’t”.^[122]  She accepted that the appellant and his wife had been actively looking to move her to another foster carer from about midway through 2018 because her relationships with the family had deteriorated.
39. [39]
    She accepted that in late January 2019, she had seen the appellant at her school, ran up to him and hugged him.  She accepted that on Easter Sunday 2019 she had asked X to take her to the appellant’s house where she hugged the appellant.  She accepted that she had apologised to the appellant and his wife for her behaviour whilst she had lived there.^[123]  She accepted that in May 2019, the appellant’s wife had seen her walking home late from a youth group and had picked her up and driven her home.  She accepted that, on that occasion, she had told the appellant’s wife to give her love to the appellant and their children.
40. [40]
    In her re-examination, the following exchange occurred:^[124]

“[Prosecutor] …if you’re so repulsed by him, why would you keep going back in circumstances where you would be alone, or why would you hug him, why would you tell him that you – to send your love his way?  Can you just explain that to me?

[Complainant] I guess because he was also the only father figure I had growing up in foster care.  I don’t have much contact with my real father, and so I guess I was just desperate for a father figure, like all the other kids did.”

The appellant’s police interview

41. [41]
    The appellant was interviewed by police in the presence of his solicitor.  The solicitor intervened in the interview at an early stage and asked the appellant “why did [the complainant] stop being a part of foster care with you?”^[125]  The appellant replied that the relationship had deteriorated and the complainant had been lying and  manipulative.^[126]  He then said “…it got to the stage where my wife and I decided that it was too dangerous for our children to be part of all of that as well in our house… she was doing everything in her ability to look up pornographic … images and literature and write pornographic literature … share pornographic literature online with people as well.”^[127]  At a later stage, the appellant’s solicitor again intervened to raise the complainant’s very high interest in pornographic material.^[128]  It may be observed that, consistently with the tenor of the complainant’s cross examination, the appellant in his police interview was implicitly suggesting that the complainant’s viewing of pornography from a young age was a significant matter to be held against her credibility and reliability.
42. [42]
    The appellant’s record of interview included the following.  From the point when the complainant commenced Muay Thai training, in about 2014, she had been at the gym most weeknights.^[129]  The complainant would also attend the gym on weekends and, in that respect, would come “whenever she wanted”.^[130]  On the weekends the complainant would do extra workouts with him and they were able to get “a whole heap of lifting of weights done”.^[131]  There would be no written records of her attendance at the gym because she was not a paying customer but rather his foster daughter.^[132]
43. [43]
    The appellant had given massages to the complainant a number of times in the massage room.^[133]  When he was in the massage room, he would have the door closed.^[134]  During the massages, the complainant would wear “what she felt most comfortable in”^[135] and sometimes that would involve her getting down to her underwear.^[136]  He described the complainant as his “client”^[137] and his practice as being to leave the room at the point when a client was undressing, to make sure they had privacy.^[138]  He would knock on the door before re-entering, again to protect the client’s privacy.  The police asked him twice more during the interview whether he had left the room every time that the complainant had got changed and he confirmed that he had.
44. [44]
    In 2014 or 2015, the appellant had a black Samsung phone.  The police officer related the complainant’s account about being called into his office to watch pornography which the appellant rejected.  At times, the complainant would come into his office and massage his shoulders whilst he was working.  The police asked, “How did it come about that she would just come in and start massaging your shoulders while you were sitting there working?”^[139]  The appellant responded that the complainant was probably bored and would just come in and do that.  The appellant said, “I would never watch porn in front of a kid”.^[140]  The appellant was adamant that there was not a point in time when he had been in the office watching pornography on his phone when the complainant had entered the office.^[141]
45. [45]
    He did not tell the complainant to get undressed or tell her to lie down on her back on the massage table on a new towel.  The towel would have been over her and he would have left the room when she was getting undressed.  He never touched her breasts or inserted his fingers into her vagina.  He said, “I abhor violence against anybody in that context”.^[142]  He firmly denied the complainant’s account, again made reference to her interest in pornographic literature and said that “the stuff that my wife and I had witnessed that she’s written was extremely graphic”.^[143]
46. [46]
    In the latter part of his interview the appellant gave the following account.  In previous years, using his Samsung phone, he would look up pornography on most days.^[144]  He accessed pornography on his phone when he was in the toilet, whether it be at home or at work and would masturbate at the same time.^[145]  He looked at pornography to cope with the stress of work.^[146]  This had occurred over a period of years,^[147] when he was “somewhat addicted” to pornography.^[148]  It was possible that the complainant may have walked into his office when he was looking at pornography on his phone.^[149]  In the event that had occurred, he would have placed the phone down on his desk and excused himself to go to the toilet.^[150]

The addresses and summing up

47. [47]
    Defence counsel addressed the jury on the basis that the charges they were determining relied “almost entirely on the allegations made by the complainant and the evidence that she gave”.^[151]  That was, presumably, careful language because the defence accepted that the appellant’s police interview contained admissions about his being at the gym alone with the complainant and, whilst there, having variously massaged the complainant and viewed pornography.^[152]
48. [48]
    The primary submission of defence counsel was that the complainant lacked credibility and reliability.^[153]  Defence counsel submitted to the jury that the complainant’s evidence about count 7 “reeks of invention”^[154] and that her evidence “on that point”^[155] was “all over the place”.^[156]  He suggested that the jury might have a real suspicion that the complainant’s account in respect of count 7  was “made up”.^[157]  He then said  “I would suggest to you if you had difficulty with that account you would have difficulty with her credibility, with her honesty and her reliability.  And that would flow through to the entirety of her evidence”.^[158]  Defence counsel was critical of the complainant because she had “confined” her complaints about the appellant in the s 93A interview to conduct that he had engaged in at the gym on Sundays.^[159]
49. [49]
    As to the appellant, defence counsel described him as having been “extraordinarily open”^[160] with the police.  He asked rhetorically “why would a man who is a rapist go to a police station and tell them what he did?”^[161]  Defence counsel urged the jury to accept the appellant’s account in his police interview that, whilst at the gym, he had variously massaged the complainant and viewed pornography on his phone but had not committed the offending.  In this context, the appellant was described as someone who was not “trying to cover up for their faults, their peccadillos, their imperfections”.^[162]
50. [50]
    The prosecutor suggested to the jury that some inconsistencies could be expected from a person giving evidence in the complainant’s position.  The prosecutor submitted that if the complainant’s evidence were a complete fabrication, the jury might have expected her story to have been more consistent.  The prosecutor’s address called in aid the complainant’s appearance and demeanour at various points in her evidence as indicative of a witness who was telling the truth.
51. [51]
    The trial judge gave the usual directions that the jury could accept the whole of a witness’ evidence, part of it or none of it.^[163]  Her Honour directed the jury to consider each count separately and to evaluate the evidence relating to each count.^[164]  A Markuleski^[165] direction was given.^[166]  The jury was directed to scrutinise the complainant’s evidence with great care because of the evidence which the complainant had given about her changing memory and her recent complaint about the alleged conduct the subject of count 7.^[167]  The trial judge gave lengthy directions to the jury about consent.  Her Honour noted that the appellant’s case was that he did not perform any of the alleged acts so there was no issue about mistake.^[168]
52. [52]
    The jury retired at 1.03 pm.  At 3.11 pm a note was received from the jury which read “We are split on 4, 5 and 6 do you have any advice on how to proceed?”.  At 3.13 pm the trial judge gave the jury a Black direction.^[169]  Verdicts were returned at 4.26 pm.

The ground of appeal: alleged inconsistency in the verdicts

53. [53]
    Where alleged inconsistency is said to arise with jury verdicts on different counts, the court must apply a test based upon logic and reasonableness, which respects the function of the jury.^[170]  It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury.^[171]
54. [54]
    In MacKenzie v The Queen, the joint judgment said: ^[172]

“…[I]f 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.”

55. [55]
    The respect which an appellate court must afford the function of the jury is emphasised in the following passage in M v The Queen:^[173]

“…the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

56. [56]
    The appellant bore the onus of establishing that the verdicts of acquittal and conviction were an unacceptable affront to logic and common sense and strongly suggestive of, relevantly, the jury having compromised its duty, having been confused or misunderstanding its function.^[174]
57. [57]
    The appellant submitted that the acquittal on count 7 “can only have represented a profoundly unfavourable view of the complainant’s credibility.”^[175]  There was said to be no other explanation for that acquittal.^[176]  It was variously submitted that “the logical explanation for”^[177] and “the only possible basis for”^[178] the acquittal was the unfavourable impugning of the complainant’s credibility.  Ultimately, it was suggested that the complainant’s evidence about count 7 was fanciful.^[179]  The appellant submitted that the acquittal on count 5, and the conviction on count 6, were an afront to logic and common sense which was strongly suggestive of the jury having compromised the performance of their duty.^[180]  It was submitted that there was no meaningful distinction between counts 5 and 6 and that they were “intermeshed counts”^[181] of a single incident which occurred on the same day and in the same sequence.  The acquittal on count 5 was described as a “quintessentially irrational verdict”.^[182]
58. [58]
    The appellant placed particular reliance upon the reasoning of the joint judgment^[183] in Jones v The Queen.^[184]  In that case, the joint judgment concluded that the appellant’s convictions were required to be set aside as being unsafe and satisfactory.  That conclusion was reached after their Honours determined that, given the jury’s finding on the second count, it was not open to them on the whole of the evidence, to have been satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts.  The joint judgment reasoned:^[185]

“The jury’s finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment.  Implicit in the appellant’s acquittal on the second count was a rejection of the complainant’s account of the events which were said to give rise to that count. … the jury’s rejection of the complainant’s account on the second count diminished her overall credibility.  The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count…. It is difficult then to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts.  There is nothing in the complainant’s evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.  Moreover, two other factors made it necessary for a reasonable jury to scrutinise the complainant’s evidence with considerable care – (1) her delay in making the complaint; and (2) the lack of any corroborative evidence, in particular, the absence of any medical evidence.”

59. [59]
    In R v KET,^[186] Winneke P observed:

“…it would be wrong to draw from the decision of Jones’ case the general proposition that, in cases where multiple sexual offences are alleged involving the one complainant, the jury’s acquittal on some of those counts should compel an appellate court to conclude that the jury must necessarily have regarded the complainant generally as an untruthful witness or that her credibility was impacted upon in respect of the counts upon which they had convicted.”

60. [60]
    The appellant identified the starting question as being whether there existed any rational explanation for the acquittals, not the convictions.  The appellant submitted that this initial inquiry, in the circumstances of this case, directed the Court to consider whether there was any rational explanation for the acquittals other than doubts about the complainant’s credibility.^[187]  The appellant accepted that, if such explanations could be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty were not unreasonable.^[188]
61. [61]
    Before turning to consider the merits of these arguments, it is convenient to outline some relevant legal principles.  The starting point is that a jury may appropriately accept a complainant’s evidence in one respect whilst retaining a reasonable doubt about the commission of other acts about which the complainant was the only witness.^[189]  By acquitting on one count, a jury is not to be taken as having found that the events alleged and recounted by the complainant in respect of that count did not occur.^[190]  The acquittal simply means that the jury was not satisfied to the requisite standard that the events occurred.^[191]
62. [62]
    It is important to observe that there is no limit to the bases on which verdicts may legitimately differ.^[192]  Whether there is a relevant explanation for the differing verdicts is a question to be answered by reference to the facts and circumstances of the case.^[193]  In R v Markuleski, Wood CJ at CL said:^[194]

“There may well be cases where the fact of acquittal on one or more counts will support an argument that the jury looked with real disfavour upon the credibility of the complainant or central witness... In many cases, conversely, it will be possible to identify a possible basis for a differentiation between verdicts...”.

63. [63]
    His Honour posited examples of the different cases in contemplation.  Those examples were not intended to be exhaustive.  As to the former type of case, the examples include where there was positive evidence in the defence case that the complainant had fabricated evidence in relation to the counts upon which the accused was acquitted, where the complainant had given fanciful or inherently improbable evidence in relation to the counts on which the accused was acquitted and where the complainant had given a significantly inconsistent version in relation to the counts on which the accused was acquitted.  As to the latter type of case, the examples include where there was corroboration in relation to the count on which the accused was convicted but not in relation to others, where it was fair to assume that in relation to the count in respect of which the accused was acquitted the complainant had resorted to a degree of exaggeration and where the complainant has conceded the possibility of faulty recollection in relation to the details of the event the subject of the count on which the accused was acquitted.
64. [64]
    In R v Markuleski,^[195] Spigelman CJ marshalled a number of authorities where the presence or absence of corroboration had been accepted as a relevant point of differentiation between verdicts.  In those cases, the jury had convicted where there was corroboration but not otherwise.
65. [65]
    The quality of the evidence is another well recognised factor that might legitimately explain differing verdicts.^[196]  The “quality of the evidence” extends to numerous considerations including the consistency, accuracy and the detail of a witness’ recollection.  In R v Smillie, Holmes J (as her Honour then was) said:^[197]

“The jury may have found the quality of the crucial witness’s evidence variable while accepting it as generally truthful.  For example, the witness may have exhibited faulty recollection on some points or been able to provide more particularity about the details of some events than others.  A complainant may have failed to mention some offences in his or her original complaint, giving rise to a question about the accuracy of later recollection.  The witness may have been given to exaggeration in some instances, or there may have been an inherent unlikelihood to some aspect of the evidence, which cast doubt on its accuracy in those respects, but not of the witness’s general honesty.  Or the circumstances in which the offence is alleged to have occurred may raise the real possibility of mistake by the complainant as to the nature of what has occurred.”

66. [66]
    A failure to mention some offending in an original complaint has also been recognised as a matter which a jury is entitled to regard as important, not necessarily to the complainant’s credibility, but to the proof of the accused’s guilt.  In R v JJT,^[198] the second count on an indictment alleged that the appellant had pulled down the complainant’s underpants and placed his hand on her vagina.  The third count alleged that the appellant had pulled down the complainant’s t-shirt and bit her on the breast.  On the day following the alleged events, the complainant had made a complaint to the police which made no reference to the alleged biting on the breast but fairly and squarely raised the allegation the subject of second count.  The jury convicted in respect of count 2 but acquitted in respect of count 3.  The ground of appeal was that the verdict in respect of count 2 was inconsistent with the verdict in respect of count 3.  The Court of Criminal Appeal of the Supreme Court of New South Wales found that the differing verdicts were able to be explained on a rational basis.  Gleeson CJ observed:

“… the question of consistency was one which the jury were entitled to regard as important and they were entitled to regard the complaint that was made on the day following the events as inconsistent with the evidence in relation to count 3, but as consistent with the evidence in relation to count 2.  These matters … might well have led the jury to the conclusion that … they should have had a doubt about the guilt of the appellant in relation to count 3, whilst at the same time entertaining no doubt about his guilt in relation to count 2.”

67. [67]
    In R v ACK,^[199] the appellant argued that a verdict of not guilty on count one of an indictment was inconsistent with guilty verdicts on counts two and three.  In rejecting that submission, James J (with whom Spigelman CJ and Ireland J agreed) reasoned as follows:

“… the different verdicts on count 1 and counts 2 and 3 are capable of being explained on the basis of the evidence of complaint.  The complainant complained to Miss H that the appellant had rubbed his penis over her, being conduct of the kind alleged in the second and third counts on which the appellant was convicted, but did not complain to Miss H that she had been anally penetrated, which was conduct of the kind alleged in the first count. … I have concluded that I do not consider that the jury ought to have entertained a reasonable doubt or that there is a significant possibility that an innocent person has been convicted.  The medical evidence did not add to the Crown case.  However, it did not really detract from the Crown case, except insofar as it threw doubt on the complainant’s assertion that she had been subjected to anal intercourse many times from being a young child.  In my opinion, the jury were entitled to consider that the complainant’s evidence should be accepted as being generally truthful, even if she might have been exaggerating in this part of her evidence.”

68. [68]
    Another example can be seen in Williams v The Queen^[200] where an appellant was charged with six offences committed within one three-and-a-half-hour period in the complainant’s home.  Unanimous guilty verdicts were returned on the first count (indecent assault) and the sixth count (vaginal rape).  Acquittals were returned on the remaining counts (digital penetration, oral rape and two counts of vaginal rape).  The acquittal on the count involving oral rape was unanimous and the other three acquittals were by majority.  The appellant had admitted the alleged indecent assault but denied an absence of consent.  He had otherwise denied all other events.  The case was described by Cox CJ as “a case of the complainant’s word against that of the appellant”.^[201]  The Chief Justice then reasoned as follows in relation to the differing verdicts:^[202]

“The … likely explanation for the differentiation is absence of satisfaction as to the occurrence of all the acts themselves. Disbelief of the complainant's claims on some of these matters did not logically require them to disbelieve her on all her claims. The doing of the acts comprising count 1 was common ground, consent being the only issue. There was no evidence of recent complaint in respect of digital penetration or the penetration of her mouth, and her complaint that she had been raped did not extend to a complaint of having been raped on several occasions. The verdict is consistent with the jury having been satisfied beyond reasonable doubt that without her consent the complainant had been sexually assaulted and raped at least once. The presence of semen, confirmed by the medical evidence, was capable of corroborating her claim that the appellant had ejaculated inside her on the last occasion she said vaginal penetration had occurred. In my view, there is nothing inconsistent in the jury, satisfied that counts 1 and 6 had occurred in the absence of any evidence other than her own, failing to be satisfied that all the other incidents had occurred, as she had described and giving to the appellant the benefit of such doubt as they had on the matter. There is no affront to logic and common sense in their verdicts.”

69. [69]
    Turning then to the acquittal on count 7, there are rational explanations for that acquittal which do not involve a rejection of the complainant’s credibility.  First, unlike with the other counts, there was no corroboration or admissions in respect of count 7.  Corroborative evidence may be found in admissions of an accused or in inferences properly drawn from an accused’s statements.^[203]  It does not need to prove an offence or even its specific elements.^[204]  There is no rule requiring corroborative evidence to be inconsistent with an innocent explanation.^[205]  The substance of the other counts had been put to the appellant during his police interview.  His police interview provided corroboration of the following aspects of the complainant’s account of the offending at the gym:

    1. (a)
       there was opportunity to commit the offending, as there were numerous occasions when the appellant was there alone with the complainant;
    2. (b)
       the appellant would sit in his office looking at pornography on his phone;
    3. (c)
       the appellant had massaged the complainant; and
    4. (d)
       the complainant had massaged the appellant’s shoulders whilst he sat in his office.
70. [70]
    It was also open to the jury to have inferred from the appellant’s police interview that he accepted that he had viewed pornography on his phone in his office at the gym whilst the complainant was in the general vicinity, such that she had walked into the office when he was viewing the pornography.
71. [71]
    Secondly, the jury was entitled to regard it as important to the question of the accused’s guilt that during her s 93A interview, the complainant had not mentioned the count 7 offending and had denied that any offending had occurred outside the gym.  The jury may well have relied upon this lack of consistency in her recollection as a reason to afford the appellant the benefit of the doubt in respect of count 7, without necessarily forming an adverse view of the complainant’s general credibility.
72. [72]
    Thirdly, in a similar vein, the respondent had given frank evidence which effectively admitted to problems with her recollection in respect of the count 7 offending.  Again, the jury may well have relied upon this admitted problem with recollection as a reason to afford the appellant the benefit of the doubt in respect of count 7, without necessarily forming an adverse view of the complainant’s general credibility.
73. [73]
    I do not accept that the jury were obliged to regard the complainant’s evidence concerning count 7 as fanciful.  The appellant’s evidence in relation to count 7 related a plausible account of the actual offending which was not in any respect remarkable.  The unusual aspects of the account concerned the appellant’s alleged behaviour in the immediate aftermath of the offending.  Whilst that part of the account attributed strange behaviour to the appellant, it was behaviour that was said to have occurred when the appellant was in a state of panic and, viewed as such, was not beyond credulity.  There was also no evidence to the effect the account had been concocted or was a fabrication.
74. [74]
    Even if the jury thought that parts of the complainant’s account in respect of count 7 were exaggerated or may have been inherently unlikely, such as to cast doubt on the accuracy of her evidence in those respects, it was still open for the jury to be satisfied about the complainant’s general honesty.  Honest witnesses are frequently in error about the details of events.^[206]  In this case, there was no substantive cross examination directed to the specific details of the complainant’s account of the actual offending at the gym.  The complainant was a witness who, throughout her cross examination, had readily accepted points against her interest.  She gave a plausible explanation as to why she continued to display affection towards the appellant after having left his care.
75. [75]
    Her credit was also supported by the preliminary compliant evidence.  Y verified that the complaint had made a generalised complaint about the appellant.  X verified that the complainant had said that the appellant had done “the same act as what Z had done”.  There was some dispute as to precisely what Z had been doing when X had discovered the complainant and Z in the bedroom.  The complainant maintained that Z had digitally penetrated her.  The jury was not obliged to assume that X had given a scrupulously accurate account of what she had observed or that the complainant’s account of what Z had been doing was in error simply because of X’s account.^[207]  This Court has observed that complainants of sexual assaults can be expected to approach the task of confiding their stories in different ways depending upon the nature of their relationship with the person to whom they are speaking, the circumstances surrounding the conversations and many other possible factors.^[208]  The complainant gave credible evidence as to the timing and method of her preliminary complaints to X and Y.
76. [76]
    The complainant gave cogent evidence under cross examination as to why she had regarded the offending on Sundays as distinguishable from the offending that had occurred during the week.  She had described the offending on Sundays as being part of the appellant’s “routine”.  The jury would have been acutely aware that the “routine” was said to have occurred on Sundays, when the gym was closed and there was no prospect of the appellant being disturbed.  Any offending that had occurred during the week was likely to have been less predictable and dependent upon what was happening at any given time at the gym.  Finally, the appellant’s police interview was generally unconvincing and did not provide any cogent basis for impugning the complainant’s version of the offending at the gym.
77. [77]
    In relation to the acquittal on count 5, the logical explanation for that acquittal is that in respect of count 6, and indeed count 4, the complainant had provided detailed and particularised accounts of the offending.  The evidence in relation to count 5 was extraordinarily limited, lacking in any specific detail and was not the subject of any cross examination.  The evidence about count 5 comprised the complainant’s reference to the appellant as having “done his little fun, bit”, an expression she had not used to that point of the s 93A interview and did not use again, and her responses of “yeah” to the police officer’s leading suggestions that her expression was a reference to the appellant having had his fingers inside her vagina.  In short, the quality of the evidence in respect of counts 4 and 6 was markedly superior to the quality of the evidence about count 5.  The jury provided a note which indicated they were split on counts 4, 5 and 6.  That note is logically consistent with the jury having been concerned about the preponderance of detailed evidence in respect of counts 4 and 6 and the distinct lack of any such evidence in respect of count 5.
78. [78]
    The appellant has failed to establish that there is any relevant inconsistency in the verdicts.  The order of this Court should be that the appeal is dismissed.