SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2023 0159 
S EAPCR 2023 0169	

JAMES LITHGOW	Applicant	
		
v		
		
THE KING	Respondent	
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JUDGES:	TAYLOR, KAYE and T FORREST JJA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	31 March 2025	
DATE OF JUDGMENT:	8 April 2025	
MEDIUM NEUTRAL CITATION:	[2025] VSCA 64	
JUDGMENT APPEALED FROM:	[2023] VSC 1656 (Judge Dalziel)	

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of sexual assault (two charges) and rape (two charges) – Applicant acquitted of attempted rape (two charges) and false imprisonment (one charge) – Charges arising from incidents involving same complainant – Prosecution case based substantially on evidence of complainant – Complainant’s evidence not less credible with respect to acquittal charges than charges on which applicant was convicted – Applicant’s account in record of interview not less credible with respect to charges on which he was convicted than on acquittal charges – Whether jury verdicts inconsistent – Convictions on charges 1, 2, 4 and 5 irreconcilable from acquittals on charges 6 and 7 – Application for leave to appeal granted – Appeal allowed – Guilty verdicts set aside.

Crimes Act 1958, ss 38, 40, 321M, referred to.

Liberato v The Queen (1985) 159 CLR 507; MacKenzie v The Queen (1996) 190 CLR 348; MFA v The Queen (2002) 213 CLR 606; R v Kirkman (1987) 44 SASR 591, considered.
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Counsel	
Applicant:		Ms CA Boston SC with Ms F Fox	
Respondent:		Mr L McAuliffe	
	
Solicitors	
Applicant:		Doogue & George Pty Ltd	
Respondent:		Ms A Hogan, Solicitor for Public Prosecutions	

TAYLOR JA
KAYE JA
T FORREST JA:
1	The applicant was charged on indictment with two charges of rape (charges 4 and 5), two charges of attempted rape (charges 6 and 7), two charges of sexual assault (charges 1 and 2), and one charge of false imprisonment (charge 3). The jury, empanelled on his trial, convicted him by majority verdict of the two charges of rape and the two charges of sexual assault. The applicant was acquitted of the one charge of false imprisonment and the two charges of attempted rape.
2	Following a plea presented on his behalf, the applicant was sentenced to a total effective sentence of 6 years and 6 months’ imprisonment, with a non-parole period of 4 years. That sentence was constituted as follows:
Charge 	Offence 	Maximum 	Sentence 	Cumulation 	
1 	Sexual assault	10 years’ imprisonment	12 months’ imprisonment	3 months	
2	Sexual assault	10 years’ imprisonment	18 months’ imprisonment	3 months	
4	Rape	25 years’ imprisonment	5 years 6 months’ imprisonment	6 months	
5	Rape	25 years’ imprisonment	5 years 6 months’ imprisonment 	Base	
Total Effective Sentence:	6 years 6 months’ imprisonment	
Non-Parole Period:	4 years	
Section 6AAA Statement:	Not applicable	
Other relevant orders:	Sentenced as a serious sexual offender in respect of charges 4 and 5.	
3	The applicant seeks leave to appeal against conviction on two grounds, namely:
1.	The verdicts are unreasonable, in that no reasonable jury who had applied their minds properly to the facts of the case could have arrived at the conclusion they did. In particular, the verdicts of ‘guilty’ on Charges 1, 2, 4, and 5 are inconsistent with the verdicts of ‘not guilty’ on Charges 3, 6, and 7.
2.	The learned trial judge erred in directing the jury in relation to reasonable belief in consent in that, taken as a whole, the directions were apt to indicate to the jury that the applicant could not have a reasonable belief in consent unless he took steps to ascertain that the complainant was consenting.
4	The applicant seeks leave to appeal against sentence on the ground that the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.
5	For the reasons that follow, we have concluded that ground 1 of the application for leave to appeal against conviction must be allowed. Accordingly, it is not necessary to consider ground 2 of the application for leave to appeal against conviction, nor the application for leave to appeal against sentence.
Summary of alleged offending
6	The offences were alleged to have been committed by the applicant on the evening of 27 September 2018. At that time, the applicant owned a property outside Halls Gap. A large house on the property was advertised by the applicant on Air BnB. It was his principal place of business at the time. The house was located on a block of land that was largely scrub and bush. While it was on a main road, and next to a caravan park, most of the property was in a natural state. The applicant did not use a local cleaner for the premises. Rather he either employed a friend, or people who advertised seeking work on Gumtree.
7	On 3 September 2018, the complainant arrived in Australia with her boyfriend, Daichi Suzuki, from Japan for a working holiday. The complainant was then 19 years of age. She had limited English skills.
8	On 22 September 2018, the complainant advertised on Gumtree that she was looking for work. The applicant contacted her, and offered her work for $25 an hour and free food and accommodation. After exchanging messages, the complainant, on 27 September 2018, agreed to take the job and attend the property. It was arranged that she would travel to Ararat by train, and that the applicant would meet her at the railway station.
9	In accordance with that arrangement, the applicant met the complainant at Ararat Railway Station on the same day, 27 September 2018. They then drove to the supermarket in the applicant’s van, and the applicant purchased some steaks and wine. They then proceeded to the applicant’s property.
10	After the complainant carried out some cleaning work in the caravan on the property, she and the applicant had dinner together. In the process of doing so, they both consumed wine, and, as a consequence, the complainant felt intoxicated.
11	The applicant and the complainant then went outside to view some kangaroos. While they were doing so, the applicant hugged the complainant from behind and massaged her breasts and touched her buttocks (charge 1 — sexual assault). The applicant and the complainant then walked back to the property. When they arrived there, the applicant pulled her hand, and pushed her shoulders down so that she sat on a chair. The applicant then sat in front of the complainant, pulled up her jumper, removed her bra, and licked her breast (charge 2 — sexual assault).
12	It was then alleged that the applicant pulled the complainant by the hand to the caravan, where he held her down by the arms on the bed and removed her clothing (charge 3 — false imprisonment). The applicant kissed the complainant on the vagina with his lips and tongue, and he penetrated the complainant’s vagina with his tongue (charge 4). While the complainant’s arms and legs were being held down, the applicant pushed his fingers in and out of her vagina (charge 5 — rape). The applicant then tried, for about ten minutes, to insert his penis into her vagina, but the complainant covered her vagina with her hands (charge 6 — attempted rape). Next, the applicant made the complainant position herself on all fours on the bed. As he was behind her, he attempted to insert his penis into her vagina, but, while he was doing so, the complainant moved around and continued to resist (charge 7 — attempted rape). The applicant then released the complainant’s arms and legs. He initially refused to return her clothing to her, but he subsequently did so.
13	The complainant put her clothes back on. She went outside the premises and contacted Mr Suzuki. After a further exchange of messages, Mr Suzuki arrived at the caravan park on the following morning. The complainant and Mr Suzuki spoke to a woman at the caravan park. As a consequence, the police were contacted.
14	On 2 October 2021, the applicant attended at the Halls Gap Police Station, where he participated in a record of interview. He broadly admitted the conduct alleged by the complainant relevant to charges 1, 2, 4 and 5, but said that it was consensual. He denied any forcible restraint of the complainant and further denied any attempt at penile penetration. The applicant said that after he had given the complainant oral sex and rubbed her vagina, she said she did not want to have sex because she had a boyfriend. He said that sexual activity ceased at that point and, thereafter, they remained in bed together, cuddling.
Summary of evidence
15	In her evidence, the complainant said that she had lived in Japan for all her life. She could understand English, but she had very little capability in speaking it. Her boyfriend, Daichi Suzuki, and she arrived in Australia on 3 September 2018 on a working holiday. Initially, she worked on a farm, as a babysitter, and in a restaurant. She advertised on Gumtree for employment, as a result of which the applicant contacted her, and offered her $25 an hour and free food and accommodation. After further messages between them, the applicant agreed to take the job.
16	The complainant then explained how she made arrangements to travel to Ararat by train. When she arrived there, she was met by the applicant. The applicant then drove the complainant to the Air BnB, having stopped en route to do some shopping. During that time, they did not talk much. The complainant told the applicant that she had come to Australia with her boyfriend.
17	After the complainant and the applicant arrived at the Air BnB, the complainant cleaned the kitchen for about 30 minutes. The applicant suggested that they have dinner, and he proceeded to cook  kangaroo steaks. The applicant and the complainant then had dinner together. In doing so, the complainant consumed about half a bottle of wine. She said that she was not an alcohol drinker, and, as a consequence, she felt drunk. She said that she had to ‘drag’ herself to walk.
18	After the complainant and the applicant had dinner, the applicant suggested that they look for kangaroos. They walked to the next door property. As they were looking for kangaroos, the applicant hugged the complainant from behind, massaged her breasts, and touched her buttocks. That conduct was the subject of charge 1 (sexual assault).
19	The complainant then gave evidence that, as they were returning from the next door property, the applicant pulled her hand towards a chair. He forced the complainant to sit down, by pressing on her shoulders. Having done so, the applicant pulled up her knitted jumper, moved her bra up, and started to lick her breast, while he was kneeling in front of her. The complainant felt sick as a result, but she could not say anything because of her limitations in the English language. Before the applicant licked her nipples, he did not ask if he could do so.
20	The complainant said that the applicant then took her by the hand and led her inside the small caravan at the site. He took her to the bed, held her down by her arms, and removed her clothes. The applicant then held the complainant by her arms and legs, got on top of her, and kissed her all over her body. At that time, the applicant had also removed his clothes. The complainant told the applicant to ‘stop it’, and the applicant kept responding, ‘Relax’. That conduct was the subject of charge 3 (false imprisonment), on which the applicant was acquitted.
21	The complainant said that, at that time, the applicant kissed her on the vagina. She thought that his tongue penetrated her vagina. While he was doing so, the complainant was ‘fighting against it badly’, and she told the applicant to stop. The complainant said that, as a result of the applicant’s conduct, she was ‘feeling sick or yucky’ (charge 4 — rape). The applicant then pushed his fingers (the complainant thought it was two fingers) in and out of her vagina. She thought that that part of the incident occurred over about three minutes. That conduct was the subject of charge 5 (rape). The applicant did not ask the complainant whether he could put his fingers into her vagina.
22	While the complainant was still on the bed, the applicant was trying to insert his penis into her vagina. As he did so, she covered her vagina with her hands. The applicant was on top of her, and his penis touched her hands. The applicant tried to insert his penis into her vagina for about ten minutes, during which she kept her hands on her vagina to prevent him from doing so. That conduct was the subject of charge 6 (attempted rape, on which the applicant was acquitted).
23	The complainant then related that the applicant made her assume a position on the bed on her hands and knees, and the applicant again tried to insert his penis into her vagina from behind. However, he was unable to do so, because the complainant moved around all the time. The complainant could feel the applicant’s penis touch the edge of her vagina several times. She told the applicant to stop, and she told him, ‘I want to go to sleep. I’m very tired’. The applicant then gave up, and released her arms and legs. The complainant moved away from the applicant, and tried to put her clothes back on, but the applicant would not return them to her. She said that he kept calling her names. Eventually, the applicant returned the complainant’s clothes to her, and she put them back on.
24	The complainant then went outside on the pretext of going to the toilet. When she did so, she contacted Daichi Suzuki, using the LINE app, with a message, ‘I want to go home quickly’. Subsequently, she telephoned Suzuki. She told him what the applicant had done to her, and asked him for help. Suzuki responded that he would immediately try to catch the earliest possible train, in order to reach Halls Gap. Further messages passed between the complainant and Suzuki, and they were tendered in evidence.
25	After breakfast, the complainant, at the request of the applicant, carried out some housekeeping work in the Air BnB. While she was doing so, Suzuki arrived at the premises. The complainant retrieved her luggage, and she and Suzuki attended at the Tourist Information Centre. Suzuki had already told the person at the Centre that there had been some trouble. After they attended at the Centre, the person there contacted the police.
26	The complainant was then taken to the police station, and from there to the hospital, where she was examined. The only injury that she sustained as a result of the conduct of the applicant was a lump on her head. The complainant said in evidence that the injury was caused by her hitting her head against the wall. She told the medical examiner that she had fallen and hit her head on the floor.
27	The cross-examination of the complainant was directed almost solely to the issue of consent. Counsel did not put in issue any of the evidence of the complainant as to the particular acts performed by the applicant that were the subject of charges 1 to 5. The cross-examination on those charges, and the specific matters put in the course of cross-examination, in accordance with the principles in Browne v Dunn, were confined strictly to the issue of consent. Counsel did put in issue the conduct that was the subject of charges 6 and 7 (the attempted rape charges).
28	In cross-examination, the complainant agreed that she was very excited about going to the Grampians. After the applicant met her at Ararat railway station, and while he was driving her to the caravan park, they got on well together. The complainant told the applicant about her life in Japan, and he told her about his life, including that he came from Tasmania. In response, the complainant asked the applicant a lot of questions about Tasmania, because her boyfriend, Mr Suzuki, was keen to visit that State.
29	The complainant agreed that the caravan, in which she was to stay during her visit, was a short distance behind a campsite, and she could hear people sitting on their camp chairs at that site. She agreed that, after she had done some cleaning in the kitchen following her arrival, she sat by the fire with the applicant and drank wine, and she was talking about where she was from in Japan, and showing the applicant photographs.
30	The complainant denied that, after they had attended at the campsite to view kangaroos, and returned to the caravan, she was holding hands with the applicant. She said that the applicant was pulling her arm. She denied that she hugged the applicant, and said that he hugged her. She denied that they were kissing each other, and said that he was kissing her. The complainant agreed that the applicant unzipped her jacket, outside the caravan. However, she denied that, at that point, she was ‘cuddling and kissing’ with the applicant. She denied that she was happy to then go inside the caravan; rather (she said), the applicant took her inside the caravan. She denied that, after the applicant removed her clothes, and was kissing her, she enjoyed what he was doing. She specifically denied that she indicated that she was enjoying the two acts (licking the vagina and penetrating the vagina with his finger), which constituted the two rape charges. The complainant agreed that, while that was happening, she told the applicant she did not want to have sex, because she had a boyfriend. However, she denied that, at that point, the applicant stopped trying to have sexual activity with her.
31	Counsel specifically put to the complainant, and the complainant denied, that she was happy to be naked with the applicant, and that she was happy for him to put his finger into her vagina. When counsel put to the complainant that at no time did the applicant try to put his penis into her vagina, she responded, ‘He was trying many times’. Finally, she rejected the proposition, put to her by counsel, that she had made up the allegations about the applicant, because she felt guilty about being with him when she had a boyfriend.
32	Daichi Suzuki, in his evidence, described the circumstances in which the complainant and he visited Australia, and in which the complainant obtained the employment with the applicant. Mr Suzuki then gave evidence that on the evening of the day on which the complainant travelled to the Grampians, she sent him the message stating ‘I want to go home quickly’. After he received that message, the complainant called him on the telephone. The complainant was crying and she told him ‘James [the applicant] is not a good person, and he was trying to rape me’. Mr Suzuki and the complainant then exchanged further messages, and Mr Suzuki travelled to Ararat by train, where he arrived at 10.50 am on that morning.
33	After his arrival at the caravan park, Mr Suzuki told a lady there about what had occurred, and she suggested that he call the police. Mr Suzuki decided not to do so, because he was concerned that he might endanger the complainant. Instead, he made his way to the caravan in which the complainant was staying. When the complainant opened the door to him, she looked very anxious. She packed her bags and Mr Suzuki told the applicant that she was unwell and that he was taking her home. Mr Suzuki and the complainant then went back to the caravan park office and spoke to the lady to whom he had spoken earlier, and the lady contacted the police.
34	In 2018, Jennifer Logan and her husband managed the Halls Gap Gardens Caravan Park in Halls Gap. Ms Logan gave evidence that on 27 September 2018 when she was working in reception at the park, a male person of Asian appearance came into the reception area. The man told Ms Logan that his girlfriend was working at the house known as ‘Wisteria’ and that bad things were happening to her. Ms Logan said that they should ring the police, but the man then departed. Shortly after that, the man reappeared with a young Asian girl carrying a large suitcase. The girl was quite subdued, but when they got up to leave, she burst into tears. Ms Logan comforted the girl and asked her if she wanted her to call the police. After assuring the young man and girl that they would be safe if she did so, Ms Logan contacted the police and gave the telephone to the young man to talk to them.
35	In September 2018, Dr Sophie Ping, a medical practitioner, was attached to the Victorian Institute of Forensic Medicine. On 28 September 2018, at the request of police, Dr Ping attended the Ballarat Base Hospital Emergency Department in order to perform an examination on the complainant. In her evidence, Dr Ping recounted, from her notes, the narrative that was given to her by the complainant, which was as follows:
	… the alleged perpetrator had suggested that they drink alcohol together and watch kangaroos. … He put his arms around her, he kissed her face, he touched her chest through her clothes and then  took her clothes off. He licked her left breast. She tried to leave. He suggested going into his caravan. She felt ill or tipsy. He took her to his bed and grabbed her arms. He climbed on top of her, he forced her to take her clothes off, he took his own clothes off, he put his fingers in her vagina, he performed oral sex on her. He touched her anus with his fingers. He attempted to put his penis in her vagina but was not able to. He hit her bottom with his hand and he asked her to masturbate him.
36	Dr Ping performed an examination on the complainant. On examination, Dr Ping found an abrasion on the complainant’s forehead, and also an area of swelling and redness on the left rear of her head. There were no other physical injuries. Dr Ping observed no injuries to the complainant’s genitals, but she said that such injuries only occur very infrequently after an alleged sexual assault.
37	In September 2018, Sergeant Alissa Birtles was stationed at the Ararat Sexual Offences and Child Abuse Investigation Team of Victoria Police. On 28 September 2018, Sergeant Birtles attended the Halls Gap Gardens Caravan Park after receiving information about an alleged sexual offence. Sergeant Birtles and the complainant then went to the Halls Gap police station. Sergeant Birtles gave the complainant an early evidentiary kit and made arrangements for her to go to the Ballarat Base Hospital in order to undergo a forensic examination. Sergeant Birtles obtained a warrant and attended the applicant’s premises and took photographs.
38	Sergeant Birtles also gave evidence that she undertook some investigations concerning the applicant. She confirmed that he had no previous criminal convictions and that there had been no complaints made about him in relation to any sexual offending or the like. On 2 October 2018, Sergeant Birtles again attended the applicant’s property and spoke with him. They then proceeded to the police station, where the applicant underwent an interview with Sergeant Birtles that was videorecorded, and tendered in evidence.
39	In cross-examination, Sergeant Birtles confirmed that before taking a statement from the complainant, another police member was tasked with engaging with the complainant to ascertain what had occurred. Sergeant Birtles confirmed that in that conversation, the complainant said that she had hit her head when she tried to run and the applicant had grabbed her arm. When the complainant was asked how much alcohol she consumed, she responded, ‘Wine, one, two glass’.
40	Sergeant Birtles also confirmed that the caravan, in which the events which the complainant described occurred, was about 20 metres from an area in which people were camped. She agreed that the people who were camping there could have provided important information about what they might or might not have observed on the evening in question. In particular, potentially they might have observed the applicant and the complainant cuddling, kissing and walking to the toilets together. Also, they might have heard a girl crying in the middle of the night. Sergeant Birtles confirmed the police had not made enquiries of the caravan park in order to ascertain the names of people who had stayed at the park on the evening in question. Sergeant Birtles further confirmed that the police did not speak with other people who stayed at Wisteria House on the night. She accepted that people who stayed in those premises might have been able to provide relevant information. She said that they were not spoken to because of ‘time pressures with other jobs’.
41	Sergeant Birtles accepted that the fact, that she did not speak with other campers, was potentially a shortcoming in the investigation. Sergeant Birtles accepted that tenants who were staying in Wisteria House on the night in question might have had important information and that was potentially also a shortcoming of the investigation that enquiries were not made of those persons.
42	In his interview with police, the applicant explained that his normal place of residence was in Melbourne. He said that, in order to clean the Air BnB, he would either use a couple of girls who lived in the area, or otherwise advertise on Gumtree. He would pay $20 or $25 per hour for cleaning, which would take about four hours. He liked to show the cleaners around the Grampians. He said that he liked to do the cooking for those persons who worked with him. Those persons could either share the caravan in which he was living, or camp on the premises.
43	The applicant explained the circumstances in which the complainant came to work at the premises. After meeting her at the train station, they drove to the hardware shop, and then to Woolworths to purchase some food. After they arrived at the premises, the complainant did some cleaning work for about half an hour. They then sat around a campfire. At that time, the complainant was showing the applicant pictures of the island on which she lived in Japan. He said that they were drinking, and were both getting a bit drunk.
44	The applicant said that the complainant was getting close to him, and they were holding hands ‘a little bit’. They then went to ‘check out’ the kangaroos at night time, and, at that time, they were hugging a bit and holding hands. He said that they kissed a bit, which was ‘normal sort of drunken behaviour’. The applicant showed the complainant where the toilets were, and they then walked back to the caravan. He said that they were kissing and hugging, and, ‘everything like this’. They then went inside the caravan, lay down, and hugged and kissed. The applicant said that they were getting ‘a bit intimate’, but the complainant got a bit upset and said she did not want to have sex. She said that she had a boyfriend, and therefore she did not want to have sex. The applicant responded, ‘That’s fine, no worries you know, … don’t worry about it’. They then had a cuddle for about half an hour and got up. The applicant cooked some kangaroo and mushrooms, which the complainant liked. They were drinking red wine, and both of them became a bit drunk. They then went to bed. The applicant said to the complainant that she could sleep with him, and she said, ‘Okay no worries’. They lay down, were cuddling, and went to sleep. The applicant and the complainant woke up the next morning, and the complainant seemed a bit hungover.
45	The applicant explained that, in the morning, he cooked some breakfast, which she ate. He gave her a washing basket full of sheets, which she cleaned. It was at that time that her boyfriend turned up. He stormed over to the applicant and said that the complainant was not fit to work. The applicant assumed that the complainant had telephoned the boyfriend, and told him that she felt sick.
46	The applicant said that when the boyfriend said that the complainant was not fit for work, he (the applicant) responded, ‘Let’s just grab her luggage’. He offered to give them some payment, but did not have sufficient cash on him to do so. He also offered to give the complainant and the boyfriend a ride, but they declined. After they departed, the applicant continued cleaning the house.
47	After the applicant gave that account, police asked him further questions. The applicant explained that, after they had entered the caravan, and were ‘messing around’, the complainant said that she did not want to have sex. At that stage, they were both ‘a bit naked’, the applicant was kissing her, and there was a bit of oral sex before the complainant said that she did not want to have sex. He said that, before that occurred, he touched the complainant’s breasts. While they were having oral sex, the complainant was enjoying it. He said that he would not have done anything that the complainant did not want to do.
48	Police put to the applicant the complainant’s version of what occurred. He agreed that, while they were outside the caravan, he unzipped the complainant’s jacket and licked her on the breast. He denied that, after they entered the caravan, he pinned the complainant on the bed by her shoulders. He also denied that she was trying to get away from him. He agreed that he gave the applicant oral sex, and that he also rubbed her vagina. He said that the complainant agreed to it. He said it was all consensual, and he did not try to force her to have sex with him.
49	Dr Anna Lithgow, the applicant’s sister, gave character evidence on his behalf. She said that she had visited the accommodation premises, conducted by the applicant over the years, and she had observed him to be gentle, laid back and very considerate in respect of young female travellers, who stayed at his premises. When asked to describe his character, she said that he was gentle, considerate and laid back. She considered that the allegations, by the complainant against the applicant, were absolutely not consistent with the character of the applicant, who she had known for 43 years.
Jury questions during deliberation
50	After the judge had delivered her charge to the jury, and the jury had retired to consider its verdict, it asked two sets of questions, which the parties, in this application, have referred to in the course of their submissions.
51	The judge completed her charge on 6 June 2023. On the following day ( 7 June), the jury asked the first set of relevant questions, namely:
1.	We need direction/clarification on what “not reasonably believed” about consent means;
2.	We need another definition of what constitutes “beyond reasonable doubt”.
52	In response to the first question, the judge reminded the jury that, as an element of the charges, the prosecution must prove that the applicant did not reasonably believe that the complainant was consenting. The judge reiterated that the prosecution could prove that element by proving, beyond reasonable doubt, that the applicant believed that the complainant was not consenting; by proving that the applicant gave no thought as to whether the complainant was consenting; or by establishing that, even if the complainant did believe that the complainant was consenting, his belief to that effect was not reasonable. In that latter respect, the judge then gave the following further direction to the jury:
	Belief will be reasonable if there are reasonable grounds for a person in the position of Mr Lithgow to hold that belief. You must consider all the circumstances when deciding whether a belief in consent was held by Mr Lithgow at the time was reasonable. You should look at as to whether Mr Lithgow took any steps to find out whether she was consenting or might not be consenting, and if so, what are the steps that he took to determine whether she was consenting.
53	On the following day, 8 June 2023, the jury asked six questions:
1.	Could you please confirm whether or not these steps for giving/not giving consent are the current law?
a.	Verbal affirmation (yes/no)
b.	Non-verbal affirmation (nod/shake of the head/hand signal)
c.	Reciprocating actions.
2.	How many or to what extent do these actions need to be done?
3.	Is inaction considered consent or non-consent?
4.	Can you comment on this question or not? He stopped when she said “no I don’t want to have sex. I feel guilty, I have a boyfriend.” Is it reasonable to infer or logically conclude that he would have stopped if she had said this from the first incident and the other incidents leading up to the sex?
5.	Is it fair to say that the informant for the prosecutor didn’t actually ask Mr Lithgow if he asked Ms K for consent and is this important information missing in the evidence.
6.	What happens if we can’t reach a unanimous decision?
54	In relation to the first jury question, the judge directed the jury in following way:
	Now, as I read your question, it relates to both consent and reasonable belief in consent. The short answer is that the law in the State of Victoria about consent and reasonable belief on consent is different today than it was back in 2018. You are probably aware or some of you are aware from the media that the laws have been changed to a more affirmative model. The directions that I’ve given you in writing and verbally are the law that applies in this case because it was the law that applied in 2018 and we apply the law that was in force at the time of the alleged offence. So, in 2018 at the time of the alleged offences, there was not a positive obligation on a person to explicitly seek consent. [N]ow, you’ll recall that [the complainant] was asked questions by the prosecutor as to whether Mr Lithgow did ask her these questions, whether she was consenting and she said that he didn’t. Whether he asked her whether she was consenting is a factor you can take into account but it is not determinative as to whether he reasonabl[y] believed that she was consenting.
55	The judge directed the jury on the fourth jury question as follows:
	I can’t comment on that. It’s really a factual question and that is completely in your area so I won’t be able to comment on that.
Ground 1 — submissions
56	In support of ground 1, senior counsel for the applicant noted that the judge gave the jury a Liberato direction, which did not distinguish between the individual charges. Further, counsel noted that neither counsel at trial had drawn any distinction between the quality of the complainant’s evidence, or of the applicant’s denials, in respect of the individual charges.
57	Counsel further noted that the complainant was the only witness to the alleged offending. The jury’s acceptance of her credibility and reliability was a prerequisite to conviction on each charge. In the circumstances of the case, it was submitted, no reasonable jury could have drawn a distinction between the complainant’s reliability and credibility regarding charges 1, 2, 4 and 5 on the one hand, and charges 3, 6 and 7 on the other hand.
58	Counsel noted that the charges arose from the complainant’s description of a single evening, that the quality of her evidence was the same in respect of all of the charges, and there was no supporting evidence in respect of any of the charges. In respect of each of charges 1, 2, 4, 5, 6 and 7, the complainant stated that she was not consenting. In particular, on the basis of the account, given by the complainant in her evidence, she did not say or do anything, which could have signified to the applicant that she was consenting to the conduct that was the subject of charges 1 and 2. In respect of charges 4 and 5, she said that she was fighting badly and saying, ‘Stop’, to the applicant. Similarly, in respect of charges 6 and 7, she was covering her vagina and moving so that the applicant could not penetrate her. In essence, the complainant’s evidence was that she actively resisted each aspect of the conduct of the applicant that was the subject of charges 3 to 7. Further, the cross-examination of the complainant, and defence counsel’s final address, focused solely on discrediting the version of events, given to the jury by the complainant, that she did not consent to the conduct that was the subject of charges 1 to 5.
59	Counsel further noted that, by contrast, the account, given by the respondent in his record of interview, was that at all times the complainant was a consenting participant in the actions that constituted charges 1, 2, 4 and 5. His description of the lead-up to the events, in which he and the complainant commenced kissing and hugging each other, and acting in an affectionate way towards each other, was in stark contrast to the account given by the complainant in her evidence. In those circumstances, it was submitted, the jury could only convict the applicant on those charges if it was satisfied, beyond reasonable doubt, of the truthfulness and reliability of the evidence given by the complainant. Accordingly, the trial judge directed the jury that, in order to conclude, beyond reasonable doubt, that the prosecution has proven the charges, the jury would have to accept the evidence of the complainant, beyond reasonable doubt, concerning those charges.
60	Counsel submitted that, in determining that issue, the jury could not logically or reasonably distinguish between the reliability and credibility of the evidence, given by the complainant, on different charges. Her consistent evidence was that, throughout each of the actions of the applicant, that constituted the offences that are the subject of charges 1, 2 and 4 to 7, she did not do anything to convey to the applicant that she was consenting to his conduct, and, throughout the incident, she resisted the applicant’s actions.
61	Counsel for the applicant submitted that the acquittal by the jury of the applicant on charge 3 meant that the jury could not have been satisfied, beyond reasonable doubt, of the evidence of the complainant, that the applicant held her down. Counsel noted that charge 3 was confined to the actions of the applicant in holding the complainant down before he engaged in the conduct that was the subject of charges 4 and 5. It followed that the acquittal of the applicant on charge 3 could not be attributed to the jury considering that the applicant’s conduct was thus, in some way, subsumed in its verdicts on charges 4 and 5. Counsel further submitted that there is no rational explanation for the acquittal of the applicant on charges 6 and 7, and the jury’s conviction on charges 1, 2, 4 and 5.
62	Thus, it was submitted,  the verdict of not guilty on charge 3 is only explicable on the basis that the jury was not satisfied that the complainant had been held down against her will. Further,  the acquittals of the applicant on charges 6 and 7 are only explicable on the basis that the jury was not satisfied that the applicant had, on each occasion, tried for ten minutes to penetrate her vagina as she actively resisted. Thus, in combination, the acquittals on charges 3, 6 and 7 demonstrate that the jury must not have accepted the complainant’s account that she resisted the applicant’s conduct.
63	Counsel submitted that the relevance of the applicant’s version of events has increased significance in view of the questions, asked by the jury, during its deliberations.
64	In particular, counsel submitted that the judge’s response to the first question, asked by the jury, on 7 June 2023, concerning the applicant not reasonably having a belief about consent, suggested that the applicant could not have an honest and reasonable belief in consent unless he took steps to determine whether the complainant was consenting. However, pursuant to s 36A of the Crimes Act 1958, as that applied, any steps taken by the applicant would only have been relevant to the issue of whether he had an honest and reasonable belief in consent, and that question was not determinative of that issue.
65	Counsel further submitted that the fourth question, asked by the jury on 8 June (in the second set of questions) indicated that the jury, in fact, accepted the applicant’s version of events, at least in respect of charges 6 and 7. Counsel noted that, in response to that question, the judge did not direct the jury that the question, whether the applicant took steps to find out if the complainant was consenting, was only relevant, and not determinative, to its conclusion as to whether the jury had established, beyond reasonable doubt, that the applicant did not have a reasonable belief in consent.
66	Accordingly, it was submitted that the jury’s questions give some insight, in that the jury might have convicted the applicant, not on the basis of the complainant’s account, but on the basis of the account, given by the applicant in his record of interview, grounded on a misapprehension that the applicant needed to take positive steps to ascertain that the complainant was consenting. Alternatively, it was submitted that the verdicts in the trial represent a compromise. In either case, it was submitted, the verdicts in the trial are inconsistent. In support of that submission, counsel also relied on the position, taken by the judge in sentencing the applicant, on the basis that, in effect, the applicant was not actively resisting, or actively participating, but instead ‘freezing’ in circumstances in which the applicant had an honest, but not reasonable, belief in her consent. It was submitted that the necessity for the judge to adopt that artificial version of the facts demonstrated that the verdicts were inconsistent.
67	In response, counsel for the respondent submitted that the acquittals of the applicant, on charges 6 and 7, do not necessarily indicate that the jury positively disbelieved the complainant’s account. Counsel submitted that the verdicts may mean no more than that the jury was prepared to entertain a reasonable doubt, as to the guilt on those charges, for four possible reasons.
68	First, counsel noted that the specific factual allegations, under pending charges 6 and 7, were not disclosed by the complainant to Dr Ping. Although the complainant did tell Dr Ping that the applicant attempted to insert his penis into her vagina, she did not mention that he was lying on top of her, that she was using her hands to prevent penetration occurring, and that moving away from him when she was on all fours. In addition, the complainant, in describing the assault to Dr Ping, did not distinguish between the conduct that was the subject of charge 6 and the conduct that was the subject of charge 7.
69	As a second possible explanation for the acquittals of the applicant on charges 6 and 7, counsel submitted that the jury might have accepted that the applicant’s actions did take place, but that they did not constitute an attempt to intentionally sexually penetrate the complainant, as opposed to the applicant committing some other type of sexual assault. In that respect, counsel noted that there was evidence that the applicant had available to him condoms, but there was no evidence that he had sought to use one of them at the time at which he engaged in the actions that were the subject of charges 6 and 7.
70	A third possible explanation, relied on by the respondent, was that the jury could not be satisfied, beyond reasonable doubt, that the applicant did not reasonably believe that the complainant was consenting to the conduct that underpinned charge 6 and charge 7.
71	Finally, counsel submitted that, in the context of the case, the applicant’s admissions that he performed the conduct that was the subject of charges 4 and 5, but he denied engaging in the conduct that was the subject of charges 6 and 7, was significant. At the trial, the applicant had relied on good character evidence. In circumstances in which the applicant denied engaging in the conduct that was the subject of charges 6 and 7, that denial, together with the character evidence, might have been sufficient to raise reasonable doubt in the minds of the jury that he did commit the offences that were the subject of those charges. By contrast, the applicant admitted that he performed the actions that were the subject of charges 1, 2, 4 and 5, and those admissions were a logical point of differentiation between the jury’s verdicts on those charges and its acquittal of the applicant on charges 6 and 7.
72	In respect of charge 3, counsel submitted that the jury might have accepted the complainant’s account, that she was held down against her will, but it was not satisfied, beyond reasonable doubt, that the applicant, in doing so, intended thereby to deprive her of liberty.
73	Counsel for the respondent further submitted that the judge’s answer to the first set of questions, asked by the jury, was appropriate. In answering those questions, and further directing the jury, the judge carefully outlined the law, and emphasised that it was not for the applicant to persuade the jury, or prove anything. In particular, the judge had acceded to the request, by defence counsel, to give a further Liberato direction to the jury. Counsel further noted that counsel for the applicant did not take any exception to the directions, given by the judge, in response to the questions asked by the jury. It was submitted that, taken as a whole, the judge did not suggest that unless the applicant took steps to determine that the complainant was consenting, he could not have an honest and reasonable belief in her consent.
74	Counsel further submitted that the judge’s answer to questions 1 and 4 of the second set of questions asked by the jury (on 8 June 2023) was correct. In particular, in answer to the first question, the judge correctly directed the jury that there was no positive obligation on the applicant to explicitly seek consent. Further, the judge directed the jury that any evidence, about whether the complainant was consenting, was a factor to take into account, but it was not determinative as to whether the applicant reasonably believed that the complainant was consenting. Counsel further noted that, in answer to the jury’s related questions 2 and 3, the judge also directed the jury that there is no definitive list of what does or does not constitute an indication of consent. Further, the judge again emphasised that the applicant did not bear the burden to prove that the complainant consented, nor to prove that he reasonably believed that she consented.
75	Counsel further submitted that, contrary to the submission made on behalf of the applicant, the fourth question asked by the jury did not evince that the jury approached its task incorrectly, and convicted the applicant based on his answers in the record of interview. Rather, it submitted, the question demonstrated no more than that the jury was striving to engage and consider both the prosecution and the defence cases, including the contents of the closing address by counsel for the applicant.
76	In her reply, counsel for the applicant submitted that none of the explanations, proffered by counsel for the respondent, constitute a rational explanation for the acquittal of the applicant on charges 3, 6 and 7, and his conviction on charges 1, 2, 4 and 5.
77	In particular, counsel submitted that the principal explanation, proffered by the respondent — for the difference between the evidence given by the complainant and the account that she gave to Dr Ping — was not relied on by counsel for the applicant at trial. In that respect, counsel noted that the complainant’s partner, Mr Suzuki, assisted with the interpretation of the account, given by the complainant, which Dr Ping recorded in his notes.
78	Counsel further noted that, at no time in the trial, did counsel for the applicant contend that the actions that the applicant was alleged to have performed, that was the subject of charges 6 and 7, were insufficient to constitute an attempt. As the judge instructed the jury, the defence to those charges was not that the applicant’s alleged conduct was not an attempt; rather, the defence was that the applicant did not perform the acts alleged by the complainant. Counsel further submitted that the third possible explanation, relied on by the respondent — that the jury could not be satisfied that the applicant did not reasonably believe that the complainant was consenting — was not relied on by the applicant at the trial, and it was not open on the evidence.
Ground 1 — analysis and conclusion
79	The principles, that apply to the issue of inconsistency of verdicts, have been considered in a number of authorities, including the decisions of the High Court in MacKenzie v The Queen and MFA v The Queen.
80	Where the inconsistency is said to be based on jury verdicts on different counts, the test is, essentially, one of logic and reasonableness. The applicant must demonstrate that no reasonable jury, which had applied its mind properly to the facts of the case, could have arrived at the conclusion reflected in the verdicts. If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed its functions as required, that conclusion would generally be accepted. In determining that question, it is important to keep in mind that, as in the present case, the jury is ordinarily directed that it must give separate consideration to each charge. In this State, that direction is regularly accompanied by a specific direction, that the jury may accept or reject the evidence of a witness in whole or in part, and that the acceptance, rejection, or non-acceptance, of a particular aspect of that witness’s evidence, does not necessarily mean that the jury must accept or reject the whole of the witness’s evidence. In the present case, the judge gave such directions to the jury.
81	Further, in considering whether a jury’s verdicts are inconsistent, it is necessary to keep in mind that, in a criminal trial, particular emphasis is placed on the onus of proof, borne by the prosecution, so that an acquittal on a charge on the indictment does not necessitate the conclusion that the jury found that the relevant witness’s evidence, on that charge, was unsatisfactory, unreliable or untruthful.
82	In addition, it is recognised that a jury may consider that, although a number of offences have been charged against an accused, justice is met by convicting an accused on only some of the charges. In MFA, and in MacKenzie, the High Court approved the following observations by King CJ in R v Kirkman:
	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 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.
83	It follows, from the foregoing propositions, that an appellant, who relies on an inconsistency of verdicts, as a ground of appeal, or as an aspect of a ground of appeal, bears a high onus of persuasion. In essence, the appellant must demonstrate that the different verdicts, returned by the jury, constitute an ‘affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty’.
84	In the present case, the prosecution case at trial was based, almost solely, on the evidence of the complainant. In order to convict the applicant on any of the charges, the jury was required to be satisfied, beyond reasonable doubt, of the credibility and reliability of the evidence, given by the complainant, on that charge. The jury was given an appropriate direction to that effect by the judge.
85	The respective accounts, given by the complainant and the applicant, in respect of each of the charges, could not be reconciled, for example, on the basis that the complainant had made some error in her memory of what had occurred, or on the basis that the applicant might have misunderstood that the complainant was consenting to the conduct that constituted the subject of each of the charges.
86	On the account given by the complainant, she plainly did not consent to any of the actions of the applicant that was the basis of each of the charges. Nor, based on the evidence of the complainant, could the applicant have believed, nor could he have reasonably believed, that the complainant was consenting to those actions.
87	The complainant’s account of the conduct of the applicant, that formed the basis of charge 1, was that there was no relevant prelude to that conduct. Rather, she described how, while she and the applicant were looking out for kangaroos, the applicant, without any warning, touched her breasts and buttocks. In respect of the conduct that was the subject of charge 2, the complainant described how the applicant pushed her onto the chair before sexually assaulting her. In cross-examination, she denied that they were holding hands, and she described how the applicant had one hand around her wrist. The complainant’s description of the false imprisonment, that was the subject of charge 3, was to the effect that the applicant took her to the bed, held her arms down, and took her clothes off. In describing the applicant’s conduct, that was the subject of charges 4 and 5, the complainant said that she specifically told the applicant to ‘stop it’. She said, ‘I was fighting against it badly and I told him to stop’.
88	Similarly, in describing the conduct, that was the subject of charges 6 and 7, the complainant gave unequivocal evidence as to the nature of the conduct engaged in by the applicant, and the steps she took to convey to him that she was not consenting to that conduct. In respect of the conduct that was the subject of charge 6, she said that she used her hand to cover her vagina so that the applicant could not penetrate her, and that that conduct occurred for ten minutes. In respect of the conduct that was the basis of charge 7, the complainant said that she told the applicant to stop, and that she wanted to go to sleep. She said that she kept moving around for a further significant period to prevent the applicant penetrating her.
89	Quite plainly, if the jury was satisfied, beyond reasonable doubt, as to the credibility and reliability of the complainant on the evidence she gave in respect of each of the charges, it was required to convict the applicant of those offences.
90	By contrast, the applicant, in his interview with the police, described, in some detail, how each of the actions that were the basis of charges 1 to 5 inclusive were consensual. He specifically denied that the conduct, that was the basis of charges 6 and 7, occurred. He told police that, in effect, he respected the complainant’s request not to proceed, because she had a boyfriend.
91	In view of the stark differences in the accounts given by the complainant and the applicant, the judge gave the jury a comprehensive Liberato direction in clear terms.
92	Specifically, the judge directed the jury that if it accepted the applicant’s account, then its verdicts would be not guilty. However, if the jury did not accept the applicant’s account, that did not necessarily mean that the jury would automatically find him guilty, because the prosecution bore the onus of proving its case. The judge further explained to the jury that, even if it preferred the complainant’s evidence to the applicant’s account, that was not a sufficient basis to find the applicant guilty beyond reasonable doubt. As the judge explained, merely preferring the complainant’s evidence to the applicant’s evidence did not amount to being satisfied, beyond reasonable doubt, that the complainant’s evidence was truthful and reliable. The judge further directed the jury that, even if it thought that the applicant was not telling the truth, but it was not sure where the truth was, then the prosecution would not have proven its case beyond reasonable doubt. Further, the judge directed the jury that, if it came to the conclusion that the applicant may well be telling the truth, or was probably telling the truth, then the verdict would be not guilty. Finally, the judge directed the jury that if it did not accept what the applicant said, then the jury should put that to one side, and look at the evidence as a whole.
93	The judge also, correctly, directed the jury that it must consider each charge separately by reference to the evidence that was admissible in respect of each of those charges. However, in the present case, the respondent has not pointed to any aspect of the evidence, given by the complainant, in respect of charges, 1, 2, 4 and 5 on the one hand, and the evidence, given by her, in respect of charges 3, 6 and 7 on the other hand, which could rationally account for the jury’s satisfaction, beyond reasonable doubt, of the applicant’s guilt on the former set of charges, but not so satisfied in respect of the latter charges.
94	In particular, the respondent has not relied on any aspect of the cross-examination of the complainant to explain why the applicant was acquitted on charges 3, 6 and 7, and convicted on charges 1, 2, 4 and 5. Nor has the respondent relied on any aspect of the account, given by the complainant, to demonstrate that the circumstances that were the subject of charges 1, 2, 4 and 5 were more probable, or more plausible, than the circumstances that were the basis of charges 3, 6 and 7. Further, there was no aspect of the evidence of the complainant on which the jury could have reasonably concluded that the applicant might have believed that the complainant might have been consenting to the conduct that was the subject of charges 3, 6 and 7 and, in contrast, did not believe that the complainant was consenting to the conduct that was the subject of charges 1, 2, 4 and 5.
95	In short, there is no aspect of the account, given by the complainant, which had the effect that her account of the events that were the subject of charges 1, 2, 4 and 5, was more plausible or credible than her account of the circumstances that were the subject of charges 3, 6 and 7. Put shortly, on the complainant’s evidence, the applicant performed each of the actions that were the subject of charges 1 to 7, at no time did the complainant consent to those actions, and at no time could the applicant have believed that she was consenting.
96	Further, there is no identifiable aspect of the account given by the applicant to the police, which was more credible, cogent or persuasive in respect of the charges on which he was acquitted — charges 3, 6 and 7 — than his account of the events that were the subject of charges 1, 2, 4 and 5 on which he was convicted.
97	In essence, then, the critical issue was whether the jury was satisfied, beyond reasonable doubt, of the reliability and the credibility of the evidence given by the complainant. As discussed, neither party at the trial, nor on this application, have relied on any aspect of the evidence, which would render the complainant’s account more cogent, reliable or credible on the charges on which the applicant was convicted, than on the charges on which he was acquitted.
98	In final address, the prosecutor commenced by submitting to the jury that the applicant’s conduct came ‘completely out of the blue’. He submitted:
	[The complainant] says it’s completely and totally without consent and it developed into a situation of physical restraint and verbal and physical abuse and the withholding of her clothes. According to the accused, there was a connection, a chemistry, the activities were completely consensual … She says no, never consented to any of this. They’re the battle lines.
99	Similarly, in final address, defence counsel commenced by putting to the jury that the central issue in the case was the reliability and credibility of the complainant. Counsel told the jury, ‘… your assessment of her evidence will be pivotal to this case’. Defence counsel then identified ten ‘amber lights’ on the basis of which she contended the jury should have a reasonable doubt on each charge. Each of those ‘amber lights’ were directed to the reliability and the credibility of the complainant in her evidence. They included: internal inconsistencies in the complainant’s account; external inconsistencies concerning her account; implausible aspects of her account; a lack of injuries that would have supported her version of events; the complainant’s motive to lie; key aspects of the evidence that supported the applicant’s case; the deficiencies in the police investigation; and the unfair nature of the interview of the accused. Finally, defence counsel relied on the applicant’s good character. She concluded her address by submitting to the jury that it should not accept ‘the complainant’s account of what occurred’. She submitted, ‘You should have plenty of doubts about convicting this man’.
100	The question, therefore, arises as to whether, in those circumstances, there is a proper basis on which the verdicts of the jury could be reconciled, so as to permit a conclusion that the jury did perform its function as required.
101	In addressing that question, it may be concluded that if the acquittal of the applicant on charge 3 were considered alone, it could be concluded that the jury adopted a ‘merciful’ view of the facts, as the conduct, that was the basis of charge 3, was a necessary prelude to, and thus was part of, the offences that were the subject of charges 4 and 5, on which the applicant was convicted. Indeed we would observe that the practice of drafting the indictment to include a separate charge of false imprisonment wholly referrable to conduct alleged to be part of the circumstances in which an alleged rape occurs is to be discouraged.
102	The more difficult question is whether there is some rational explanation for the acquittal of the applicant on charges 6 and 7, in circumstances in which the jury was satisfied, beyond reasonable doubt, of his guilt of charges 1, 2, 4 and 5.
103	In order to address that question, it is necessary to consider each of the four possible explanations, proffered by counsel for the respondent on this application, for the differential between those verdicts.
104	The first, and principal, explanation relied on by counsel for the respondent was based on the account, given by the complainant to Dr Ping. Counsel for the respondent noted that the complainant did not mention to Dr Ping that the applicant was lying on top of her, that she was using her hands to prevent penetration occurring, and that she was moving away from him when she was on all fours. Further, in her account to Dr Ping, the complainant did not describe the two different positions, in which she was placed, in which the events that were the subject of charges 6 and 7 occurred.
105	There are three difficulties with that explanation relied on by the respondent. First, counsel for the applicant at trial did not seek to rely on any difference between the account, given by the complainant, concerning the conduct that was the subject of charges 6 and 7, and the account that she gave to Dr Ping. Secondly, that approach by defence counsel at trial was quite understandable. Dr Ping gave evidence that the history that she took from the complainant was based on notes that she took with the assistance of the complainant’s boyfriend, who was acting, at times, as an interpreter. Dr Ping’s notes, of the account given by the complainant, were, quite evidently, a short summary, and did not purport to set out in detail the complainant’s version of events. Thirdly,  the judge gave to the jury the mandatory direction, prescribed by s 54D of the Jury Directions Act, and, in particular, referring to the matters prescribed by s 54D(2)(c), which include, in effect, that it is common for there to be differences in accounts given by a complainant relating to sexual offences committed against that complainant.
106	The second explanation for the different verdicts, proffered by the respondent, was to the effect that the jury might not have been satisfied, beyond reasonable doubt, that the conduct of the applicant, that was the subject of charges 6 and 7, was sufficient to constitute an attempt.
107	We do not accept that that explanation could reasonably account for the differential in the verdicts. The judge correctly explained to the jury that, for a person to be guilty of an attempt to commit an offence, that person’s actions must be more than preparation, and must be closely connected to the intended offence. The judge correctly added to that direction that, in the present case, the defence was not that his conduct did not constitute an attempt; rather, the defence was ‘it just didn’t happen’.
108	Quite plainly, on the evidence given by the complainant, the conduct of the applicant could only have constituted an attempt; it could not rationally be characterised as ‘mere preparation’. On the complainant’s account, the applicant, for ten minutes, tried to penetrate her while she was lying on her back, and she resisted by placing her hand over her vagina. When the applicant attempted to penetrate her in the manner that was the subject of charge 7, the complainant stated that, for some time, she resisted by moving around and preventing him from achieving penetration. That evidence, if accepted by the jury, was more than sufficient to constitute an attempt in respect of each of the two charges in question. It could not, on any view, be reasonably described as ‘mere preparation’.
109	The third explanation, relied on by the respondent, is that the jury was not satisfied, beyond reasonable doubt, on charges 6 and 7, that the applicant did not reasonably believe that the complainant was consenting to his conduct.
110	For the reasons just stated, that explanation is entirely implausible. The complainant’s description of the manner in which she resisted the applicant’s conduct that was the subject of charge 6 and 7, was such that, if the jury accepted that evidence, it could only have been satisfied, beyond reasonable doubt, that the respondent did not have any belief — reasonable or otherwise — that the complainant was consenting.
111	The fourth explanation, proffered by counsel for the respondent on this application, was based on the circumstance that the applicant, in his interview with police, admitted that he performed the conduct that was the subject of charges 1, 2, 4 and 5, but he denied engaging in the conduct that was the subject of charges 6 and 7. Counsel submitted that that consideration, in the circumstances in which the applicant also relied on good character evidence, provided a rational explanation for the differential in the verdicts of the jury on the charges in question.
112	On analysis, we do not consider that that explanation could properly, or rationally, account for the difference in the verdicts.
113	In his interview with police, the applicant did describe actions performed by him, which generically constituted conduct that was the subject of charges 1, 2, 4 and 5. That is, he described touching the complainant’s breasts and buttocks (charge 1), removing her bra and licking her breast (charge 2), and penetrating her vagina with his tongue and fingers (charges 4 and 5). However, the account given by him of those actions was entirely different to, and distinct from, the account of the actions given by the complainant.
114	As we have described, the complainant’s evidence was that, in respect of each of those actions, she did not consent, and the applicant performed those actions in circumstances in which she manifested to him her lack of consent. On the account given by the complainant, the applicant’s conduct, that was the subject of charge 1, occurred entirely unexpectedly. His conduct, that was the subject of charge 2, was forceful. On her account, the complainant physically resisted the conduct, that was the subject of charges 4 and 5. She said, ‘I was fighting against it badly and I told him to stop’.
115	By contrast, the applicant’s account was that each of those actions was performed in circumstances in which he and the complainant were affectionately interacting, and in which events evolved, so that the conduct that he performed was fully consensual, and the complainant, indeed, willingly participated in it. The applicant, in his police interview, described how he and the complainant were ‘kissing and hugging and everything’, and they lay down and were ‘just getting intimate’. He said that when the complainant got a bit upset, and said she did not want to go further because she had a boyfriend, he responded, ‘That’s fine, no worries, … don’t worry about it’, and desisted.
116	In order to convict the applicant on charges 1, 2, 4 and 5, the jury was thus required to be satisfied, beyond reasonable doubt, that the complainant’s account of those circumstances was truthful and reliable and the jury was  required to be satisfied, beyond reasonable doubt, that the account, given by the applicant concerning those matters, was not truthful or reliable. Certainly, the applicant denied the conduct that was the subject of charges 6 and 7. However, that denial was given in the context of his description of the events that were the subject of charges 1 to 5, which was diametrically distinct from the account given by the complainant.
117	In those circumstances, the fact that the applicant denied the conduct that was the subject of charges 6 and 7 (but admitted the conduct that was the subject of charges 1 to 5), could not rationally explain why the jury convicted the applicant of charges 1, 2, 4 and 5, when it acquitted him of charges 6 and 7. Further, it is not apparent how the good character evidence, given on behalf of the applicant, might have ‘tipped the balance’ in respect of charges 6 and 7, when it did not have the same effect in respect of charges 1, 2, 4 and 5.
118	Thus, for the foregoing reasons, we do not consider that it could be properly concluded that there is a reasonable explanation, or basis, for the conviction of the applicant on charges 1, 2, 4 and 5 in circumstances which the jury was not satisfied, beyond reasonable doubt, of his guilt of charges 6 and 7. It must be concluded that no reasonable jury, which had applied its mind properly to the facts and issues of the case, could have arrived at the conclusion reflected by those verdicts. For those reasons, we are persuaded that the verdicts of the jury are inconsistent.
119	It follows that the verdicts of guilty on charges 1, 2, 4 and 5 must be set aside. In lieu, there should be judgment and verdicts of acquittal on each of those charges.
120	In reaching that conclusion, we have not referred to, or placed any weight on, the two sets of questions, which the jury asked the judge during its deliberations. We observe that, ordinarily, it is necessary to exercise caution in giving consideration to such questions, as experience teaches that they are not necessarily a guide to, or reflection of, the considerations on the basis of which a jury reaches its verdicts.
121	In the present case, that caveat is appropriate. Indeed, if the jury questions are at all relevant on this application, they would seem to reflect a degree of confusion by the jury which reinforces the conclusion we have otherwise reached. As we have discussed, on the account given by the complainant, she unequivocally did not consent to any of the actions that were the subject of each of the charges. Nor could a jury entertain any doubt, in such circumstances, that the applicant had a reasonable belief that she was consenting. Conversely, on the account given by the applicant, the jury could not be satisfied, beyond reasonable doubt, that the complainant did not consent to the actions of sexual intimacy admitted by the respondent in his interview with police. Nor could the jury rationally be satisfied, beyond reasonable doubt, that the applicant did not reasonably believe the complainant was consenting to that conduct. In those circumstances, if the questions, asked by the jury during deliberations, and, in particular, the detailed questions it asked on 8 June, are relevant, they would indicate a significant degree of confusion in the minds of the jury, and thus reinforce the conclusion that there is no rational explanation for the verdicts of guilt on charges 1, 2, 4 and 5, in circumstances in which the jury was not satisfied, beyond reasonable doubt, of the guilt of the applicant on charges 6 and 7.
Summary of conclusions
122	For the foregoing reasons, ground 1 of the application for leave to appeal against conviction must be upheld, and the appeal, by the applicant, against his conviction on charges 1, 2, 4 and 5 allowed. Accordingly, the verdicts of guilty on charges 1, 2, 4 and 5 must be quashed, and, in lieu, it is directed that there be judgment and verdicts of acquittal on each of those charges.