R v LBF[2024] QCA 129

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  On 13 February 2024, the appellant pleaded not guilty to one count of maintaining a sexual relationship with a child, four counts of rape, one count of choking in a domestic setting and one count of indecent treatment of a child under 16.  All counts were domestic violence offences.
3. [3]
   On 16 February 2024, a jury found the appellant guilty of the count of maintaining a sexual relationship with a child and of the count of indecent treatment of a child under 16.  The jury found the appellant not guilty of the four counts of rape and the one count of choking in a domestic setting.
4. [4]
   The appellant appeals his convictions on the grounds that the verdicts of guilty are inconsistent with the verdicts of not guilty for the remaining counts.

Indictment

5. [5]
   All of the counts concerned the same 15 year old female complainant.  At the time of the offences, the appellant was 18 years of age and in a relationship with the complainant’s older sister.
6. [6]
   The maintaining count (count 1) was particularised as the appellant having maintained a sexual relationship with the complainant between 4 September 2020 and 25 October 2020, by committing more than one sexual act against her, namely:

   1. one or more of the acts constituting the rape counts (counts 2 to 5) and the indecent treatment of a child count (count 7);
   2. and/or an act or acts of penetration of her vagina with his finger;
   3. and/or an act or acts of penetration of her vagina with his penis;
   4. and/or an act or acts of kissing her and/or touching her legs and/or buttocks and/or breasts and/or anal area and/or vaginal area.
7. [7]
   Two of the rape counts were particularised as involving penile penetration of the complainant’s vagina.  The other two rape counts were particularised as involving penetration with a thing or body part other than with a penis.
8. [8]
   The choking count (count 6) was particularised as placing his hand/hands around the complainant’s neck in a way that hindered her breathing.  The indecent treatment of a child under 16 count was particularised as having occurred whilst the appellant was choking the complainant, the appellant touched the complainant’s vaginal area over her clothing.

Trial

9. [9]
   Three witnesses were called at trial: the complainant, her sister and her sister’s friend, CA.  Other evidence called included a walk through of the relevant residence, other photographic evidence, admissions as to relevant dates and evidence as to the appellant’s treatment at a hospital.
10. [10]
    The complainant’s evidence was contained in a recorded discussion with police on 24 October 2020 and two recorded interviews with police on 26 and 27 October 2020.  Each was tendered in evidence, pursuant to s 93A of the Evidence Act (the Act).  The second interview occurred after the complainant had sent an email to the arresting officer, providing further information after the interview on 26 October 2020.
11. [11]
    The complainant gave evidence on 20 June 2023.  That evidence was pre-recorded and played to the jury, pursuant to s 21AK of the Act.
12. [12]
    CA was interviewed by police on 27 October 2020.  That interview was recorded and played to the jury, pursuant to s 93A of the Act.  CA also gave evidence at trial.
13. [13]
    The complainant’s sister spoke to police on 26 October 2020.  Her interview was recorded and played to the jury, pursuant to s 93A of the Act.  The complainant’s sister also gave evidence at trial.
14. [14]
    At issue at trial was whether there had been any sexual contact between the complainant and the appellant.

Evidence

15. [15]
    The complainant first spoke to police on 24 October 2020.  She told them the last time the appellant had tried something was the previous night, but that nothing actually happened; the appellant had been trying for a long time, but she had woken up to him and told him to go away; she said she was a deep sleeper and the appellant had been coming in and kissing her a lot; it first started to happen months ago, but he had been weird with her for a long time; he had been coming on to her and her sister had noticed it.  The complainant said that when he had tried the previous night, she stopped him.  The appellant said if she made a scene it was going to hurt her sister.  The appellant had also told her sister that the complainant came on to him.^[1]
16. [16]
    In her interviews with police, the complainant said her first recollection of sexual penetration by the appellant was around Father’s Day in 2020 and after the wedding of her eldest sister.  Prior to that, the appellant had been “very touchy”, but in a non-sexual way.  The complainant said she had been sitting on a couch with the appellant.  They had a blanket over them.  The appellant put his hand inside the complainant’s pants and forcefully stuck his fingers inside her vagina.  It hurt and she asked him to stop, but he kept going until her sister started to approach from elsewhere in the house.
17. [17]
    The complainant said her sister asked the appellant what was happening and the appellant said he was tickling the complainant.  Her sister told the appellant to keep his distance.  A few minutes later, the appellant told the complainant to say he was tickling her because she would hurt her sister if she found out and “ruin everything”.^[2]
18. [18]
    The complainant said on the following day, whilst the appellant was driving her to collect some food, the appellant roughly forced his fingers into her vagina.  The complainant said digital penetration occurred every time she drove with the appellant.  Overall, it happened approximately 12 times.  The appellant also regularly touched and kissed her.^[3]  The complainant said on another occasion at the house, the appellant came up from behind her, grabbed her bottom, pushed her against the wall and tried to force his finger into her bottom.  She told him to stop, but every time thereafter when she walked past him, he would aggressively grab her bottom.
19. [19]
    The complainant said the first occasion of penile rape occurred when she was asleep in her bedroom.  It was nighttime.  The complainant awoke to the appellant on top of her.  The appellant put his penis into her vagina and pushed it in and out approximately three times.  When she told him to stop and get off, the appellant left the room.  The complainant said she felt really sore the next day and she saw a little bit of blood.  She felt pain for approximately a week or two thereafter.
20. [20]
    The complainant said the second occasion of penile rape occurred when the complainant and the appellant were in the kitchen, cooking dinner.  The appellant grabbed the complainant and placed her on the bench, before ripping her pants down and inserting his penis into her vagina.  The appellant was rough and forceful.  The act of penetration went for between five and 15 minutes.  The appellant desisted when the complainant’s sister walked down the stairs.  The complainant said she pulled up her clothes and left the kitchen.  She did not call out to her sister as she was scared.
21. [21]
    The complainant said the third occasion of penile rape occurred on the same night, but in her bedroom.  Her sister was outside feeding the dogs.  The appellant came into the complainant’s bedroom, put his hand over her mouth, pulled her pants down and put the tip of his penis into her vagina.  He desisted when he heard the complainant’s sister come back into the house.
22. [22]
    The complainant said the final occasion of penile rape occurred in her father’s old bedroom.  The complainant had awoken “really early”.  The appellant was already getting ready for work.  The appellant hugged her and started grabbing at her vagina.  He then pulled her into her father’s old room, pushed her to the floor and put his penis inside her vagina.  The appellant was much more “full on, forceful”.  The complainant had ejaculate on her arm and legs afterwards.
23. [23]
    The complainant said on another occasion, when her sister was having a shower, the appellant had started pushing her towards a bedroom.  He grabbed her throat with his hand while whispering and pushed her up against the wall.  The complainant said the appellant pushed her by the throat against the wall “until [she] literally couldn’t breathe”.  She did not black out.  The appellant tried to kiss her and with his other hand, touched her vagina over her pants.  The complainant was twisting and trying to push him away.  Eventually he gave up.
24. [24]
    The complainant said around 2.30 am on 24 October 2020, whilst her sister and CA were talking on the balcony, the appellant cupped her bottom, on the outside of her clothes.  The complainant said she pushed the appellant, raising her voice a little saying, “Stop, stop, stop, I’m sick of this.”  The appellant replied that he was a horrible person.  The complainant said she agreed.  The appellant then started crying.
25. [25]
    Later, in the early hours of 24 October 2020, the complainant told CA what had taken place with the appellant.  Whilst they were talking, the appellant suddenly appeared at the bedroom door.  He stood there for a brief time before saying he was going to get a drink.  After he left, the complainant told CA what the appellant had been doing to her for a while.  CA became really angry.  She entered the appellant’s bedroom, where he was sleeping with the complainant’s sister.  Using a bat, CA then attacked the appellant, causing him to flee the house.  He later attended hospital for treatment.
26. [26]
    The complainant said the police arrived at the house, apparently after a complaint from a neighbour.  At that point a complaint was made to police.
27. [27]
    The email sent by the complainant to police on the afternoon of 27 October 2020, was read to the jury in the following terms:

“I guess it all started from [the appellant] being really weirdly close to me, e.g. rubbing, touching (non-sexual but still very uncomfortable), and that went on for probably a month or two.  I can’t really remember.  But later on around Father’s Day I went to stay with my sister (and [the appellant], but only to see my sister, as he already made me feel uncomfortable), and he was being really touchy in the car, on the couch, downstairs, pretty much anywhere that he could get his hands on me he would.

It got worse and worse the longer it went on, to the point where one night [the appellant] and I were sitting on the couch upstairs, my sister had gone to – I’m pretty it was the bathroom, but it might have been her bedroom.  I’m not quite sure, as they are close together.  We were sitting on the couch watching TV casual, just chilling.  [The appellant] then started to touch my hand, then he moved my hand, started grabbing my right thigh.  At this point my heart sunk to my stomach.  I felt disgusting.  I almost knew what was about to happen, but I was hoping for it not, so I just pushed his hand away, trying to avoid the situation.

A couple of minutes go by of him doing that, and me trying to stop it.  He then forces his hand into my tights by grabbing the waistline.  I tried extremely –

And it’s obscured, and then the letter D:

... to pull his hand away, but he was just too strong.  I was shaking and didn’t know what to do.  [The appellant] then shoved his right hand into my underwear.  I then said, ‘Stop.  You’re disgusting.  This is wrong’, and kept trying to stop him.  He then proceeded to hold me back by my chest and jab his, what I believe to be, middle finger into my vagina forcefully.  It hurt so bad.  I was leaning back from him trying to stop it, and I just wanted it to end.

He jabbed inside of my vagina for a little while until he heard my sister come out, and he immediately pulled his hand out, and I was so glad it was over.  I felt so disgusting and sore, as I had never had anything like that happen to me or stuck anything inside of me.  I felt my innocence just leave me.  How could he do this?  I just wished it was all a horrible nightmare.

Afterwards, when my sister was out with us I got up and she sat down.  I went to the toilet and just tried to clean what had just happened.  A little bit later I heard my sister had taken him aside, asking about what was happening, because she poked her head out and it looked weird, and [the appellant] replied with, ‘Oh, I was just ticking her’, and [my sister] said, ‘Well, don’t. That’s weird. Keep distance from her.’

Probably a few minutes later, [the appellant] came into where I was sitting in my dad’s old room and told me, ‘Say I was ticking you when she asks, otherwise you’re just going to hurt her and ruin everything.’  Oh felt even core horrible.  I hadn’t even processed what had just occurred.  I would have to lie to the one person I tell everything to.  I was already feeling so broken inside.  Something inside of me just wanted to let it out, but I was afraid of hurting her.  Him doing something.  Actually, I was afraid in general. I couldn’t even really comprehend my feelings at that moment, and that was when the nightmare just began.

And then a word is obscured, and there’s a letter D, and ‘finger incident’:

I was told by my sister to go with [the appellant] to pick some food up for dinner.  I was scared and had a gut feeling to not go, but I went anyways because I didn’t want to be rude.  Once I got in the car, well, his ute, I was sitting there still shaken up.  [The appellant] started talking to me saying things like, ‘You better not tell your sister.  It would just ruin everything’, and just ranting on.  I cannot remember everything he was saying, and if I’m being honest, I wasn’t listening.  My mind was in another place.  Just wanted to get out of that car as soon as possible, but this is when things only got worse.

I was sitting in the car, we picked up the food.  [The appellant] began again touching my thighs, grabbing them harshly.  I kept moving his hand away until he wouldn’t let go and stuck his hand in my pants through the waistline, inside of my underwear.  He then began to stick his dirty work fingers inside of my vagina, roughly forcing them inside.  I was trying not to cry.  I said, ‘Please, just no. I don’t like it’, and he had a filthy smile on his face, saying, ‘It’s fine. Just let me do it.’  He also said something that made me feel gross and taken advantage of a lot.  He said, ‘You have a very nice pussy.’  He then took his hand out, and I was glad for it to be over, and I couldn’t talk.

At this point [the appellant] felt he had every right to touch me and grab me whenever he pleased.  I would be just walking, and he would grab my butt. I would give me a horrible look and say, ‘Don’t freaking do that. I don’t like it’, and he would say, ‘Okay. Okay’, or one more time –

Sorry:

... one time I was walking in the hallway leading to my dad’s old bedroom.  [The appellant] came up behind me, grabbed my butt, and then pushed me to a wall.  I tried to turn around and stop him, and he held me to the wall with one of his hands and proceeded to force his hands inside of my pants.  He tried to put his fingers inside of my butt.  That is so gross.  I said, ‘No. No. Stop, please’, and kept trying to turn around.  Finally he did stop, thank goodness.  He said, ‘You know you like it’, and, ‘Come on. Just let me’, while I was still held against the wall.  Oh, felt so helpless, and I just wanted it all to stop.  After this, every time I would past him, he would aggressively grab my butt and just be horrible.”^[4]

28. [28]
    CA said that on the evening of 23 October 2020, she was upstairs with the complainant’s sister when she heard the complainant downstairs laughing and say to the appellant “get off me”.  It sounded like two people joking around.  Later, in the early hours of 24 October 2020, CA spoke with the complainant.  During this conversation, the complainant asked whether the appellant made her feel uncomfortable.  When CA asked what was wrong, the complainant said when her sister was not around, the appellant would choke her, throw her on the bench and “feel her up”.^[5]  The complainant was crying as they spoke.
29. [29]
    CA said whilst she was speaking to the complainant in the bedroom, the appellant came to the door.  He stood watching her for about two minutes before leaving again.  After he left, the complainant started telling CA about waking up and seeing him standing over her bed and telling her about what the appellant had done in the kitchen.  The complainant told her that when the complainant had gone downstairs the afternoon before, the appellant was “chasing her around the house an’, um, she was freaking out an’ laughing an’ stuff, and, um, was it that he, I don’t know, pinned her against the wall?  I’m pretty sure that’s what she told me, that, while we were there”.^[6]
30. [30]
    CA said she had heard the complainant say “get off me” once, but it sounded like they were just laughing, joking around.  This occurred when CA was upstairs speaking to the complainant’s sister.  It was around 4.00 pm or 5.00 pm.  The complainant and the appellant were downstairs for approximately 20 minutes.  When the appellant came back upstairs, it was like nothing had happened.
31. [31]
    CA said the complainant also told her that while she was asleep, the appellant had “touched her or raped her, I’m not sure which, but that he had done something to her in her sleep and would watch her in her sleep an’ it wasn’t long after that, that I got up”.^[7]  On one occasion, whilst the complainant’s sister was upstairs asleep and the complainant was in the kitchen, the appellant had put her on the kitchen bench and “continued to molest her, choke her, all this stuff an’ sayin’ nasty things to her”.^[8]  The complainant did not go into detail, but did use the word “rape”.
32. [32]
    CA said she became angry and emotional.  She picked up a baseball bat and went to the appellant’s bedroom.  She got the door open by putting a hole in it.  She then started hitting the appellant.  Whilst she was hitting the appellant, he said something like, “She came onto me”.^[9]  At that point, CA dropped the baseball bat and punched him across the face.  The appellant then left the house.
33. [33]
    CA said after police had taken the complainant to hospital, the complainant told her she had been raped four times and had been sexually assaulted “too many times to count”.^[10]  The last time she had been raped had been a week or more previously.
34. [34]
    The complainant’s sister told police she did not know anything about her “ex-boyfriend sexually assaulting”^[11]her sister until the morning of 24 October 2020.  She had seen them, at least once, on the couch when the appellant “was kind of closer”.  She had told him to stay away from the complainant; that she did not like him to be so close.  The sister told police she had not seen or heard anything herself.  What she had been told was that he had touched and raped her sister.
35. [35]
    The complainant’s sister said that she had been woken up at around 5.00 am with a ruckus going on.  The appellant was being hit and her first instinct was to protect him. CA, her best friend, was using a baseball bat to hit the appellant.  He was just blocking it.  She finally got the appellant downstairs and outside.  After he left, there was a lot of screaming and crying.  Her sister was saying the appellant was disgusting.
36. [36]
    The complainant’s sister said she had gone to sleep that night with the appellant.  The bedroom door was closed, but when she woke up, there was a massive hole in the door.  The complainant told her that the appellant had raped her.  She was not sure whether she also said he touched her.  The complainant said it had been happening for a while.  She did not go into details.  It happened while the complainant’s sister was asleep, early in the morning or late at night.  There would be touching when the complainant’s sister was in the bathroom.
37. [37]
    The complainant’s sister said her conversation with the appellant about not being comfortable with him being so close to her sister, happened a couple of months ago.  When she spoke to the appellant, he did not say anything that linked up to what the girls were saying.  Since 24 October 2020, she had spoken to the appellant on the phone through a messaging app.  The appellant told her “it was like her idea or something like that”,^[12] being the complainant’s idea.  The complainant’s sister also said the complainant had once asked her to tell the appellant to stop touching her, to get away from her.  It was around the same time she had spoken to the appellant about not sitting too close.
38. [38]
    The complainant’s sister accepted that the complainant was drunk on the night of 23 October 2020.  She said she could walk, but not very straight.  In the period from September through to October 2020, the complainant would come and stay with her on some weekends, on a random basis.  During the week she was living on the Sunshine Coast with their mother.
39. [39]
    The complainant’s sister described the appellant as flirtatious, but there was nothing that he did that alarmed her, although she did not like it when anyone else was close to him.  She spoke to him about the incident on the couch because he was sitting close to the complainant and had his fingers on the end of her thigh.  The complainant was leaning away.  She told him she was not comfortable with that and could he not do that again.  He said, “no worries”.^[13]

Consideration

40. [40]
    The determination of a ground of appeal asserting inconsistency in a jury’s verdict upon different counts, requires a consideration of logic and reasonableness.  If an appellate court can properly reconcile the verdicts, a ground of appeal on the basis of inconsistency will be unsuccessful.^[14]
41. [41]
    The relevant principles were summarised in R v CX:^[15]

3. “1.
   Where inconsistency is alleged as to verdicts of acquittal and conviction on different counts, the onus is on the party alleging that inconsistency to persuade an appellate court that the different verdicts are an affront to logic and commonsense which is unacceptable, and which strongly suggests a compromise in the performance of the jury’s duty, or confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law. Where that inconsistency rises to the point that the appellate court considers that intervention is necessary to prevent possible injustice, the relevant conviction will be set aside.

3. 2.
   Whether the verdicts are inconsistent as so described is a test of logic and reasonableness; has the party alleging inconsistency satisfied the court that no reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts?

3. 3.
   Respect for the function of the jury requires appellate courts to be reluctant to accept submissions that verdicts are inconsistent in the sense described, and if there is a proper way by which an appellate court can reconcile the verdicts, allowing the court to conclude that the jury performed their functions as required, that conclusion will generally be accepted. It is not the role of an appellate court to substitute its opinion of the facts for one which was open to the jury, if there is some evidence to support the verdict alleged to be inconsistent.

3. 4.
   The view may properly be taken in a criminal trial that different verdicts, claimed to be inconsistent, reveal 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. Alternatively, an appellate court can conclude that a jury took a merciful view of the facts on one or more counts, a function which is open to a jury.

3. 5.
   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.”

42. [42]
    The appellant submits that the convictions for counts 1 and 7 are not explained by logic and reasonableness, as the issue for the jury at trial was whether they accepted the complainant’s evidence of non-consensual sexual activity between her and the appellant and, in particular, non-consensual penile penetration of her vagina on four separate occasions.  The appellant submits that an acquittal on each count of rape was, in such circumstances, logically inconsistent with being satisfied beyond reasonable doubt of the maintaining count, as central to its particulars was the allegation of penetrative sex without consent.  Further, the conviction on count 7 was logically inconsistent with an acquittal on count 6, as both events occurred at the same time.  Further, the acquittal on count 6 could not be explained by the jury not being satisfied that the choking occurred without consent, as on no version of the evidence was it suggested that the complainant consented to that act.
43. [43]
    Whilst at first blush, convictions on counts 1 and 7 appear to be inconsistent with the acquittals on the remaining counts, because the complainant’s clear and unequivocal evidence was that each of the acts had occurred without her consent, the jury was properly directed that whether they were satisfied that the acts had occurred as alleged, was ultimately a matter for them.
44. [44]
    Relevantly, the trial judge directed the jury:

“Now, representation can usually be made by words or actions.  In some circumstances, a representation might also be made by remaining silent and doing nothing.  Now, you would recall the evidence of the complainant in respect of these four matters that she gave evidence that she did not, at any stage, consent to that which the defendant allegedly did, and that she voiced her lack of consent and, at times, indicated through physical action.  Of course, the issue for your determination in this matter is whether you are satisfied beyond reasonable doubt that the events, the subject of each of these allegations, occurred as alleged.  That is the real contest here.  It is – the contest is, from the defendant’s side, none of [these] things occurred.

But you might take the view, ladies and gentlemen, that if you are satisfied beyond reasonable doubt that the acts as alleged by the complainant occurred that there would be little hesitation in concluding that they occurred without the complainant’s consent because that is the only evidence before you.  There is no other evidence in that regard, but, ultimately, that is a matter for your determination.  So those are the elements in the relation to the four counts of rape.”^[16]

45. [45]
    That direction squarely directed the jury as to their task, noting that the real issue, on the appellant’s case, was that none of the events occurred at all.  However, notwithstanding that direction, a lack of consent in respect of each count of rape and the choking count, was an element about which the jury had to be satisfied, beyond reasonable doubt.
46. [46]
    The jury was obviously alive to that requirement, as prior to the commencement of addresses, a note was provided by the jury in the following terms:

“Your Honour, I have a question.  If the acts between [the appellant] and [the complainant] are consensual, is this still an offence of rape on account of her age?”

47. [47]
    Notwithstanding the complainant’s clear and unequivocal evidence of there being no consent to any of the charged acts, there were a number of features of the evidence which may well have caused the jury, acting in accordance with the judge’s directions, to have been satisfied of the appellant’s guilt of both the maintaining count and the indecent treatment of a child under 16 count, beyond reasonable doubt, whilst not being satisfied of the appellant’s guilt of the remaining counts, beyond reasonable doubt, because those counts required the jury to be satisfied, beyond reasonable doubt, of the complainant’s absence of consent.
48. [48]
    First, there was the relatively small differential in the ages of the appellant and the complainant.  Second, there was the evidence of the complainant’s sister, of having observed the appellant and the complainant sitting closely together, in circumstances where the sister was concerned as to what had taken place such that she raised it with the appellant.  Third, there was evidence from CA, that on the afternoon before the appellant was confronted, she had heard the appellant and the complainant together downstairs.  Whilst she gave evidence that the complainant said “stop”, her evidence was that she did so in a laughing or joking way.
49. [49]
    That last matter was of particular significance, as that evidence coincided with the complainant’s evidence of the appellant having sought to touch her bottom on the outside of her clothes, with the result that she had become angry and had said “stop” in a forceful way.  It was open to the jury to conclude that the complainant’s evidence of this event was inconsistent with CA’s evidence of what she heard on that occasion.  Accepting CA’s version, it would be open to the jury to conclude that any such incident had not occurred in circumstances which had resulted in the complainant becoming “forceful” with the appellant.
50. [50]
    Finally, there were aspects of the complainant’s evidence which may have caused a jury to question the reliability of her evidence that the acts were without her consent.  They included seeking clarification from police “So the first time we did it?”^[17] and her explanation that she did not want to “break” her sister or “mess up” her family.^[18]  Whilst of small moments individually, it was open to the jury to see them as raising a reasonable doubt as to a lack of consent, particularly when there was also evidence the appellant had claimed the complainant had initiated the sexual interactions.
51. [51]
    It is also relevant that alternative verdicts for offences which did not contain an element of consent, were not left to the jury in respect of the counts of rape.

Conclusion

52. [52]
    The verdicts of guilty of counts 1 and 7 are consistent with an acceptance of the complainant’s evidence that the appellant maintained a sexual relationship with her, a 15 year old girl.  The verdicts of not guilty of the remaining counts are consistent with the jury affording the appellant the benefit of the doubt as to whether his sexual interactions with the complainant were without her consent.
53. [53]
    The verdicts of guilty are not an unacceptable affront to logic and common sense.  They are consistent with the jury having carefully considered the evidence in accordance with the judge’s directions and reaching verdicts consistent with their obligation to only find the appellant guilty of an offence, if satisfied of all elements, beyond reasonable doubt.
54. [54]
    Further, there were sufficient uncharged acts particularised in the maintaining count to support the verdict of guilty, notwithstanding verdicts of not guilty of the rape counts.

Order

55. [55]
    I would order:

1. The appeal be dismissed.

56. [56]
    CROWLEY J:  I agree with Boddice JA.